WINNIPEG – After losing in court, open market supporters are pinning their hopes on Parliament in their bid to remove barley from the Canadian Wheat Board.
“I would have preferred to win, but the minister is committed, legislation is going to go ahead and barley will be out by Aug. 1,” said Jeff Nielsen, president of the Western Barley Growers Association (WBGA).
Nielsen made the comment shortly after the Federal Court of Appeal rejected the federal government’s bid to overturn a lower court ruling that stated the board’s marketing mandate can be changed only through legislation, not regulation.
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It took just 45 minutes for the three-judge panel to end a year of debate over how to legally change the Canadian Wheat Board’s single desk marketing system.
That’s how long they deliberated after hearing some five hours of arguments by lawyers representing the federal government, the CWB, the governments of Alberta and Manitoba, the WBGA and Friends of the CWB.
The appeal court upheld a lower court ruling in July 2007 that the government must pass legislation through Parliament to remove barley from the board’s jurisdiction.
Those attending last week’s hearing in Winnipeg were surprised when, after hearing several hours of complex legal arguments from six lawyers, the court announced it would issue a decision within minutes, rather than days or weeks.
Suddenly, the somnambulant atmosphere that had marked the day’s proceedings was replaced by an air of tense anticipation.
“I was holding my breath,” said a jubilant Butch Harder, a member of Friends of the CWB, after the decision was announced.
“Our lawyers got a lot of questions from the judges so I was a little nervous,” he said.
Nielsen put a positive spin on the outcome, saying it’s better to have a quick decision than have the issue continue to hang over the industry’s head for weeks.
“I’m not all that disappointed,” he said, expressing confidence the federal government will get legislation through Parliament in time to bring in an open market on Aug. 1, 2008.
CWB director Kyle Korneychuk said the court process was a waste of taxpayers’ and farmers’ money, precipitated by the government’s attempt to do an end run around the CWB Act.
“It shouldn’t be four or five people in a cabinet meeting room deciding what the future of grain marketing is going to be,” he said.
Instead, farmers should make the decision by voting in a clear, two-question plebiscite.
Blair Rutter, executive director of the Western Canadian Wheat Growers Association, said he was disappointed that “farmers are still stuck with the wheat board and denied access to higher prices.”
He expressed hope that the government can get legislation passed in time for an Aug. 1 change, but added he also hopes Ottawa appeals last week’s decision to the Supreme Court.
“I don’t want the government to give up on this case because they should leave no stone unturned in trying to give farmers the freedom they deserve,” he said.
In June 2007 the federal cabinet announced new regulations that would have resulted in an open market for barley being implemented on Aug. 1, 2007.
That decision was challenged in Federal Court by the CWB, a farm group called Friends of the CWB, and the governments of Manitoba and Saskatchewan.
On July 31, justice Dolores Hansen ruled in favour of the CWB, scuttling Ottawa’s open market plans.
The government filed its appeal in November, asking the court to find that Hansen had erred in her decision.
The court also rejected a separate argument put forward by lawyers for the WBGA that the section of the CWB Act requiring the government to consult with the CWB and hold a producer vote before introducing legislation is unconstitutional because it limits the sovereignty of Parliament.
That argument was rejected by lawyers for the federal government, which said the court should not venture into constitutional issues and should simply find the lower court judgment was wrong.
