The future of Canada’s grain marketing system could be decided in a courtroom in a downtown Calgary office building this week by people who have never grown a bushel of barley or wheat.
There may be farmers in the room, but they’ll be there only as spectators.
All the talking will be done by lawyers, representing the federal government, the three prairie provincial governments, the Canadian Wheat Board and a farm organization called Friends of the Canadian Wheat Board. They’ll argue whether the federal government is acting within the law by using regulation, rather than legislation, to end the CWB’s single desk authority over barley.
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Federal Court justice Dolores Hansen’s ruling will affect the future of the CWB and single desk marketing, and carries broader implications regarding the powers of federal cabinet and Parliament.
Friends of the CWB, along with the wheat board, say according to section 47.1 of the CWB Act, any change to the board’s marketing powers must be approved by Parliament after certain conditions have been met by the minister responsible for the CWB.
“The fundamental issue here is the rule of law,” said Anders Bruun, lawyers for Friends of the CWB.
“In this case, the government of Canada has enacted regulations, through governor-in-council, that the governor-in-council is not empowered by Parliament to enact.”
Governor-in-council refers to the federal cabinet.
The federal government rejects that interpretation of the act, arguing it presents two options for changing the board’s marketing powers.
In an affidavit, Paul Martin, director general of policy for Agriculture Canada, said if the minister chooses to present a bill to Parliament, then 47.1 applies and the minister is required to first consult with the board and farmers.
However, he said, the act also gives the government authority to remove barley from the single desk mandate by cabinet order, adding that a 1998 amendment to the CWB Act that would impose the same requirements on an order-in-council has never come into force.
While the case will be decided on points of law, the judge could find herself listening to political arguments as well. Bruun said it’s impossible to discuss the case without reference to the debate over the future of single desk marketing.
“I do plan to point out a number of political factors involving the rush to get this done to satisfy an election promise, and the things that flowed from that,” he said.
“To my mind that explains why they passed this order-in-council in such a sloppy way.”
Conservative MP Gerry Ritz said the case has no merits.
“I don’t know exactly what rule of law they think the government is ignoring.”
He said he’s confident the government is on sound legal footing, but acknowledged that once a case goes before a judge, there’s no guarantee how it will turn out.
Liberal MP Ralph Goodale, who was CWB minister when the act was amended in 1999 to include section 47.1, said the idea was to ensure that any change to the marketing powers of the CWB would be done democratically through Parliament.
The hearing was scheduled to begin July 25 and wrap up July 27. The judge is not expected to issue a ruling until next week at the earliest.
The governments of Manitoba and Saskatchewan will support the CWB and the FCWB in arguing that the federal government is acting illegally, while the government of Alberta will support Ottawa’s position.
No witnesses will be called.
