CALGARY – By the time you read this, there will be either an open market for barley, or controversy and chaos in the grain industry.
A Federal Court judge was to rule July 31 whether the federal government’s plan for ending the single desk for barley is within the law.
The ruling was to be issued after Western Producer deadlines for this issue.
The decision by justice Dolores Hansen would determine, among other things, whether “Barley Freedom Day” festivities planned for Aug. 1 by open market supporters would be a celebration or a wake.
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More seriously, it would determine whether the government would be able to fulfil its promise to end the Canadian Wheat Board’s monopoly over barley, or whether the single desk would remain the law of the land.
As lawyer Anders Bruun told the court, the case represented “a spectacular high-speed collision between an election promise and the law.”
A ruling against the government would send prime minister Stephen Harper, CWB minister Chuck Strahl and their Conservative colleagues and legal advisers back to the drawing board to devise a Plan B.
A ruling in favour of the government could bring to an end the CWB’s 58 years as a marketer of barley.
During two days of court hearings in Calgary last week, lawyers for the federal government, the Canadian Wheat Board, a farm group called Friends of the CWB and the governments of the three prairie provinces crossed swords over 11 hours of detailed technical legal arguments.
Non-lawyers in attendance were scratching their heads at the often complex arguments, along with references to things like the Interpretation Act, the principle of contrary intention and something called “Henry VIII clauses.”
Simply speaking, the arguments went like this:
- The CWB and its allies said the federal government is expressly required by the CWB Act to put a bill before Parliament to remove barley from the board’s authority.
- The federal government and its ally, the government of Alberta, say the act provides two options for ending the single desk for barley, one through Parliament, one through regulation. It argued that barley was originally put under the single desk through an order-in-council regulation, and therefore Ottawa has the legal power to repeal that regulation and end the board’s marketing authority.
There was also political discussion, as lawyers for the CWB and Friends of the CWB presented the judge with a crash course in the political events of the last year that led to the court case. These included the July 27, 2006 closed-door meeting between Strahl and open market supporters in Saskatoon, the federal task force, the CWB director elections, the gag order on the CWB, the firing of four appointed directors including chief executive officer Adrian Measner and the controversial plebiscite.
CWB lawyer John Lorn McDougall said all that taken together showed the government will stop at nothing to achieve its goals, including violating the law.
But government lawyer Stephen Vincent said none of that mattered in terms of the case before the court.
“Whether government policy on marketing is good or bad policy is entirely irrelevant to the issue before you,” he told the judge.
The only question for the court to consider, he said, was whether the government had the legal right to end the board’s single desk through regulation.
There was also much debate about what the Liberal government of the day intended when the CWB Act was amended in 1998.
According to the board and FCWB, the intention of Parliament was to ensure that any change to the board’s marketing mandate was initiated and approved by farmers and accomplished by an amendment to the CWB Act.
“There is no doubt there was a fundamental change to the nature of the CWB in 1998,” said McDougall, adding the “torch was passed” from government to farmers.
The government disagreed, saying if that was the intention, the former Liberal government could have made it clear by eliminating all references to regulatory authority over barley, but it didn’t.
“The entire history of barley in the CWB has been regulation, not legislation,” said Vincent.
The decision in this case could be appealed to the Federal Court of Appeal. Observers at the hearing said they doubted the CWB would appeal an unfavourable ruling, but thought there was a good chance the government would.
Meanwhile, CWB lawyer Jim McLandress said regardless of the outcome, it won’t be a precedent for removing wheat from the board’s jurisdiction.
“”I don’t think there is any doubt in anyone’s mind, including the government, that a change in wheat has to go through Parliament,” he said.
However, a victory by the government could be seen as a stamp of approval for the contentious three-part question used in the barley plebiscite.
