Save Our Rivers Society,
113 – 3195 Granville Street,
Vancouver, B.C., V6H 3K2,
April 17, 2007

Canadian Judicial Council,
Ottawa, Ontario,
K1A 0W8

The Board of the Save Our Rivers Society in British Columbia make – with this letter – a formal complaint against Donald J. Brenner, Chief Justice of the British Columbia Supreme Court. Our complaint concerns only the conduct not the argument, the findings, or the judgement of Chief Justice Brenner in the matter of “District of Kitimat and Wozney v. Minister of Energy and Mines, the Attorney General of British Columbia and Alcan Inc.”, 2007 BCSC 49; Date 2007, 03, 28; Docket L0500918; Registry: Vancouver. If and when we refer to the judgement made by Chief Justice Brenner, we do so as it is instrumentally a part of his conduct against which we are making this complaint.

However deep our concern may be that the argument, the findings, and the judgement made by Chief Justice Brenner constitute an open assault upon judicial objectivity and suggest political partisanship of an ugly and dangerous kind, that concern is in no way whatever involved in our formal complaint. Let that be absolutely clear.

Our complaint deals wholly with the conduct of Chief Justice Brenner. We hold that Chief Justice Brenner chose to sit as presiding judge in the case already cited, called hereafter “the Kitimat case”, when he should not have done so. His conduct in choosing to preside brought him, prima facie, into direct relation with a recent long-time colleague, a major respondent in the case – the present Attorney General of British Columbia - who had strong, active political, partisan ends he wished the Chief Justice to serve.

In the playing out of the conduct chosen by Chief Justice Brenner it happens that everything his former, long-time colleague sought from the action in the Kitimat case was gained.

The history leading to the particular conflict of interest in question is not a common one. Mr. Justice Wally Oppal was for some years, demonstrably, a colleague of Chief Justice Brenner and recognized to be so by reasonable and prudent people. In fact, Wally Oppal was appointed to the Supreme Court of British Columbia in 1985, Donald Brennen in 1992. The two men were colleagues there for eleven years, first as Supreme Court judges and from the year 2000 as Supreme Court judge and Chief Justice, until 2003, when Wally Oppal moved to the B.C. Court of Appeal.

When he was appointed as Chief Justice in 2000, Donald Brennen (in an interview with Bar Talk ) spoke enthusiastically of Mr. Justice Wally Oppal and, ironically for the future, stated that his own “ability to do a good job” would rely on – among other things – “the Ministry of the Attorney General”.

Sought by a political party, Wally Oppal left the high court and, without even a discreet lapse of time, ran as a political candidate for the Gordon Campbell Liberals in the 2005 election, was elected, and was made Attorney General of British Columbia. In a matter of weeks Wally Oppal moved from being a long time practising colleague in the impartial judicial system of B.C. to a politician with a strong political, partisan agenda.

That political, partisan agenda brought the government of which he is Attorney General, linked with Alcan Inc., into a dispute with the District of Kitimat and the mayor of Kitimat, Richard Wozney. In that dispute, Wally Oppal, the Attorney General of British Columbia is named as a chief respondent.

We contend that no colleague of Wally Oppal in the higher courts of British Columbia – and especially not Donald Brenner – could preside over a dispute in which Wally Oppal was or is a major party, a major respondent, without entering a patently obvious conflict of interest.

If that is an unique situation resulting in glaring conflict of interest in the Kitimat case, it is so because Wally Oppal stepped from a long time position as a colleague in the higher courts of British Columbia into a leading political, partisan position in which one of his tasks was to act in a higher court – the Supreme Court of British Columbia – out of political, partisan motivation and to seek from a long time colleague, Chief Justice Brenner, support and judgement to serve his interest and the interests of those he serves and those with whom he was/is linked in the Kitimat case.

As we have noted the relation between the two men – Wally Oppal and Donald Brenner – is demonstrable. Conflict of interest in the conduct of Chief Justice Brenner exists prima facie. We can think of no way in which conflict of interest can be expunged from the situation of the Kitimat case.

Whether Chief Justice Donald Brenner should be removed from the bench because of what we allege is a demonstrable conflict of interest will be a question of the first magnitude to be resolved by the Canadian Judicial Council. That Chief Justice Donald Brenner’s conflict of interest wholly and completely invalidates his judgement in the Kitimat case we do not have the slightest doubt.

Respectfully,

Hamish Nichol
For the Board of Save Our Rivers Society

Another opinion from Robin Mathews:

The question of whether a political role on behalf of the Gordon Campbell Liberals is being played by Donald Brenner, Chief Justice of the B.C. Supreme Court, is one of the most important questions in Canada today. The question is focused by Brenner's decision in late March of 2007 on behalf of Alcan and the Gordon Campbell forces and against the Mayor and District of Kitimat in relation to the wealth-producing capacity of the Nechako River.

Alcan's presentation to the Campbell clique of a design for the disposal of the Nechako River in 2002 became, in fact, the rivers policy of the Province: a policy of total giveaway of public ownership of the wealth-producing capacity and environmentally sound use of all B.C. rivers to private, for-profit, frequently foreign corporations.

<>The questions are explosive surrounding Justice Brenner's role in the release of Alcan from all significant responsibilities to the people of British Columbia in the development of electrical power from the Nechako River owned by the people of the Province. For two reasons.

First, the Gordon Campbell clique - by secrecy, falsehood, stealth, and gag legislation - is selling all the river and other energy resource possessions of British Columbians.

The outcome will be a "hollowed out" province where wealth haemorrhages out and British Columbians become increasingly driven into poverty and desperation.

Secondly, the role of the high court judges is key in every democratic society moving to forms of totalitarian corporate government. In that regard the high courts are the canaries in the coal mines. When the high courts are corrupted, it is proof the air of government and corporate life is poisonous - and ready to explode. Put simply, to destroy democratic freedoms, a malign combination of government and private corporations must enlist the support of the high courts. If the courts maintain their integrity, they can frustrate the move to corporate totalitarianism and alert the population to the assaults on its society and its freedoms.

In the case of Chief Justice Donald Brenner's decision in favour of Alcan and the Gordon Campbell clique acting together as partners, the Board of the Save Our Rivers Society has already filed a Complaint with the Canadian Judicial Council about Justice Brenner's conduct. Save Our Rivers Society alleges Chief Justice Donald Brenner should have immediately invalidated himself from serving as judge on the case for reasons of conflict and bias. That is only one level upon which the relation of Brenner to the Kitimat decision must be examined, and may be called into question.

On that level Brenner presided over the Alcan/B.C. government against Kitimat case. A long time colleague whom Brenner had praised publicly and worked with was a major respondent for the B.C. government in the case. Even before Wally Oppal became Attorney General, Brenner declared his Court depended upon the Attorney General's ministry for its successful operation.

Wally Oppal - the colleague for many years - was judge with Brenner in the Supreme Court, then Appellate Court judge when Brenner was elevated to the position of Chief Justice. From that close connection Wally Oppal jumped to the political position of Attorney General, member of Gordon Campbell's cabinet, and advocate before Chief Justice Brenner on behalf of a highly political decision regarding the fate of the Nechako River and the Kitimat community - as well as the fate, in fact, of all the rivers of B.C.

The Board of Save Our Rivers Society claims (before the Canadian Judicial Council) "conflict of interest" (in layman's language) and "reasonable apprehension of bias" (in legalese) on the part of Donald Brenner. The Board argues Brenner so conducted himself as to assume a role that was wholly improper.

Any Canadian may - in addition - fairly challenge Chief Justice Brenner's legal decision and his argument leading to it. But the Board of Save Our Rivers Society accepted the terms of the Canadian Judicial Council and presented only what it considers Brenner's flagrant misconduct in assuming the role of judge under conditions in which a recent, close colleague was a principal and (by partnership with Alcan) representative of a principal actively seeking a decision unfavourable to the District of Kitimat , the people of both Kitimat and the rest of British Columbians.

The document containing Chief Justice Donald Brenner's reasons for decision is frustrating. It fails to address the key question of the interests of the Province and of British Columbians in the matter of Alcan's move to be free of almost any obligation to British Columbians in the sale of electrical energy from the Kemano operation. Does the document, written by the Chief Justice contain a tissue of expediencies, avoidances, and special pleadings undertaken in order to arrive at a decision favourable to a foreign corporation hungry to gain, by whatever means, British Columbia assets? And is it a document written in the service of a corrupt provincial government speedily stripping away the democratic freedoms and defenses of an unsuspecting population?

To begin, Donald Brenner, I allege, sets out the dispute falsely. It is, for him, based wholly upon a contractual matter between a government which "wanted to spur industrial development in the Province" and a corporation, Alcan, which "wanted to increase its aluminum production". [p.2 (1)] And so, in 1950 "B.C. provided economic access to public water resources and Alcan built hydroelectric capacity and an aluminum smelter at Kitimat". [p. 2 (1)]

Then Chief Justice Brenner, on the false assumption of a plainly economic contract between parties, sets up what he chooses to see as the nub of the argument. Kitimat claims that the B.C. government (in effect, to untangle Alcan from an agreement tying the use of water power to the production of aluminum) has abused, in principle, the 1950 agreement, passing Orders in Council to strike down the primary force of the agreement.

Alcan and the Gordon Campbell clique say, in effect, that nothing ever restricted the sale of Alcan-produced power at Kemano. That may well be a fabrication constructed upon a perverse reading of past permission to sell power in a limited, British Columbia, region.

The real nub of the argument, however, is the interest of British Columbians (owners of the rivers) and the interest of the Province (the people of British Columbia as expressed through their governing institutions). If Chief Justice Brenner admitted the centrality of those two interests, his decision would have to be totally different. It seems clear he did not want to admit fact, argument, or interpretation that might steer him away from a decision in favour of Gordon Campbell and Alcan.

A Supreme irony about this Supreme courtier is that the one thing to which he did not want to attach relevance - as far as can be determined by examining his judgement - was the real and predominating interest held by all British Columbians (and, locally, specifically the Kitimat community) in the dispute.

Already revealing his partisanship by page 3 of his "Reasons for Judgement", Brenner writes that if the IDA (the Industrial Development Act) and the 1950 Agreement "do not restrict Alcan's right to sell Kemano power, the petitioners' (Kitimat's and Mayor Wozney's) other submissions become academic." The interests of British Columbians - the owners of the river - are irrelevant to the Chief Justice. Brenner declares "the heart of the dispute is whether the impugned orders contravene the Industrial Development Act including, in the petitioners' words, the 'regulatory scheme' set up pursuant to the statute." Perhaps, but only if the intrinsic interests of British Columbians are factored in.

The Industrial Development Act (1949) gave the cabinet specific powers, in fact, to make an aluminum industry agreement "in the best interest of the Province" and "amend or extend any such agreement" as long as it "could lawfully have been incorporated into the original agreementŠ." [p. 5 (12c and e)]. The purpose of the Industrial Development Act, I allege, is wholly perverted by the Chief Justice. Setting out its reason for being, the Preamble is clear. "Šthe prosperity of the Province depends on the development of its water power sites," etc.; and, "the best interest of the Province " is related to industrial growth, and so the cabinet ("the Lieutenant Governor in Council") should be able to make agreements. [p. 5 (13)]

A deal was struck with Alcan in 1950. That deal permitted Alcan to sell power "subject to the jurisdiction of the Public Utilities Commission" - that and all other terms, by common assumption, in "the best interest of the Province". The agreement, as an earlier judge interpreted it (1994) was not a mere two party contract, since "Cabinet was empowered," he wrote, "to enter into the agreement on behalf of the people of British ColumbiaŠ." [p. 8 (19)]

Dropping briefly what I believe is his partisanship, Brenner declares the government of the day "was engaging in the 'nation-building' exercise of using natural resources and lands as incentives." [p.8,(21)] The District of Kitimat was incorporated in 1953.

Over years, exemptions from regulation through the Utilities Commission Act were made. Those exemptions opened a window for private power sales, most of which permitted BC Hydro to sell outside of Canada. The exemption passed by Gordon Campbell, however, (2002) set out to deregulate power sales to BC Hydro, an exemption which District of Kitimat claims is outside the powers of the cabinet because it destroys the primary intentions of the 1950 Agreement.

The District of Kitimat is correct for a key reason, which Chief Justice Donald Brenner seems to have chosen to pretend does not even exist.

The settlement of a dispute arising from government cancellation of expansion at Kemano (1997) allowed the sale of electrical power to Alcan to make up for power lost.

Kitimat argued that the agreement was also beyond the powers of the cabinet because the kind of sale of electricity engaged in was "contrary to the provisions of the IDA and the 1950 Agreement". While that may be so, it is not as compelling, for the agreement appears on its face to be in the interest of British Columbians - the owners of the river and of BC Hydro. Though the purchase of power by Alcan did liberate it from developing the additional energy capacity needed to make aluminum.

As Brenner makes clear, however, Alcan embarked as early as 2001 upon a program to sell "Kemano Power to the United States" and to cut production of aluminum accordingly [p. 16, (49)]

What happened in 2005 is of major importance in the perversion of the fundamental intentions and purposes of the founding of Alcan activities in Kitimat/Kemano.

Kitimat municipality claimed it had third party status in the agreement of Alcan to sell power into the U.S. through BC Hydro's Powerex. That claim, based on its "public interest in the name of Kitimat residents" was rejected by Justice Ehrcke and the B.C. Court of Appeal. The Gordon Campbell government was entrenched, and the reading of contracts as between two corporate entities - without consideration for "the best interest of the Province" - was in full flood. Did the high court judges, like docile

animals, swing in behind the corporations and the Gordon Campbell clique?

At this point in his judgment, Chief Justice Donald Brenner goes into a 'whirling Dervish' dance, I believe, to invalidate the argument of the District of Kitimat. Yes, he says, the limitations upon Alcan are apparently there, but...

But. But we now - in a world of growing corporate totalitarianism - have what Brenner calls a "modern approach to statutory interpretation". That approach rejects the mere wording of legislation and words must be seen "in their entire context" and with all the intentions of Parliament in mind. [p. 19, (61)]. That permits interpreters of dubious intention interpreting past documents to bring in incidental comments of the day and, in effect, to brush aside central intentions. Brenner, it might be argued, returns to this ruse on page 32 and following. There, again, one must ask if he uses modern "contextual evidence" to pervert the intention of the 1950 Agreement?

We might quote - as something to look at a little later - Lord Wilberforce's decision (1976): "No contracts are made in a vacuum; there is always a setting in which they have to be placed." [p. 32].Brenner, I believe, distorts the "setting" almost beyond recognition.

Then Brenner makes the propagandist assertion [p. 34, (112)] that with the fetters District of Kitimat wishes to enforce upon Alcan, it would never have gone ahead with an industry when it did - (an industry that has richly rewarded its owners over half a century and has proved a most fortunate investment). Such a statement by the Chief Justice is so obviously (partisan?) nonsense, as it appears to me, that it is hard to believe it can be found in his judgment.

On such foundations he argues that the sale of power by Alcan to BC Hydro from 1979 onwards was the same as selling it without any restriction as a private corporation to private corporate interests in the U.S. without any oversight or significant sharing of profit by the people of British Columbia. There is not any restriction, Brenner perversely claims, on "such a person" (Alcan) in respect to power sales. (p. 21) Except cabinet is given wide powers to enter into agreements and arrangements Š in the best interest of the Province. Selling out the power the people have over B.C. rivers and handing all wealth producing potential to private, unrestrained corporations which contribute almost nothing to the general revenues of the Province can hardly be said to be in "the best interest of the Province".

By an interpretation that would put a 'whirling Dervish' to shame, Brenner argues (pp. 23,24,25) that Alcan's right to sell its "works" gives it the right to sell energy – an almost laughable distortion of the word "works" on the part of the Chief Justice. That is perhaps an example - as Brenner sees it - of "the modern approach to statutory interpretation". But it is so ridiculous, so biased, so perverse a use of language that it leaps off the page.

And so goes his so-called judgement. Alcan is to be exempted from utilities regulation, says Brenner, by the Industrial Development Act because it exempts a "person who proposes to establish or expand an aluminum industry". But, as Brenner knows, Alcan has been reducing its production of aluminum for some years. Is that the reason Alcan (with Gordon Campbell's help) has trumpetted its very dubious claim to be about to expand facilities at Kitimat? Is expansion being spoken about in the hope of getting the right to unrestricted sale of Nechako power? Does Donald Brenner know that?

A little later (p. 29) where the 1950 Agreement is quoted as saying that Alcan will get electrical energy " to be employed according to its needs for the production of aluminum", Brenner - it may be argued - distorts that statement to mean that Alcan "would be given control over its Kemano power to use as it saw fit, and it could not be 'required or compelled' to do otherwise". Does not that interpretation demand such a brutal distortion of meaning that one has to ask how an intelligent person, not motivated by partisanship, could make it?

From there Chief Justice Donald Brenner's judgement becomes, it seems, more capricious, more expedient, more far-fetched. The Order in Council made by the Gordon Campbell government in 2002 is perfectly legitimate to Brenner, though its surround under "the modern approach to statutory interpretation" has to be that the Alcan plan was simply adopted by the Gordon Campbell clique as rivers policy - and that policy is to destroy almost all ownership, control, and supervision by, and almost all benefit to British Columbians from the electrical energy generation harvested from their rivers.

Is not the conduct of Chief Justice Donald Brenner in taking the position of judge in the Alcan/B.C government against Kitimat case, at the very least, unacceptable by reason of conflict of interest and bias? And does not the judgement he has written in favour of Alcan and the Gordon Campbell clique open other huge questions suggested at the beginning of this article? May a Supreme Court judge in a Province turn his back completely on the very real interest - and the fundamental importance of that interest - of the people of the Province? May he treat a relation between a large corporation and the ruling clique of government in power as separate and without relevance to the people of the Province? May he decide that contract and relation and on-going developments between government on behalf of the people and a private corporation or corporations is without relevance to the future comfort and security of that people? If he does so, is it fair to say that he is (a) failing in his duty (b) that he has become a partisan operating from political exigencies (c) and that he is unfit to fill a position as judge, as Chief Justice, or as any kind of Court Officer in a Supreme Court?

On the one hand, has the political partisan behaviour that appears to have been shown by Chief Justice Donald Brenner eventuated in what I believe is an unacceptable decision that robs the Kitimat and other British Columbia people of assets that are theirs and are not available to be conferred upon Alcan or any other private corporate entity? Perhaps more threatening even than that - we have to ask if the actions taken and the decision reached by Chief Justice Donald Brenner are part of an increasingly rapid transfer of power from the people of British Columbia to large, private, often foreign corporations without interest in the Province except as a place to loot. Are the actions of the Chief Justice ones that erode democracy in British Columbia and prepare the ground (however disguised) for corporate totalitarian rule?