The Conservative government likely will face a court challenge if it tries to remove barley from the Canadian Wheat Board by regulation rather than legislative change, says the political father of the 1998 CWB Act amendments.
Regina Liberal MP Ralph Goodale said last week the 1998 amendments clearly require legislative change if crops are to be added or subtracted from the monopoly.
“It is quite possible that farmers will feel sufficiently aggrieved, particularly by the process, that they would want to test this in court,” he said in Ottawa just hours after agriculture minister Chuck Strahl announced plans to remove barley from the monopoly by July 31.
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In Regina, Saskatchewan agriculture minister Mark Wartman said he also has referred the barley decision to the provincial justice department to consider if there are grounds for a court challenge. The Canadian Wheat Board says it too may challenge the move.
In 1993, then-Conservative agriculture minister Charlie Mayer removed barley from the board monopoly but lost a subsequent court challenge.
Goodale said amendments to the legislation in 1998 make the rules for changing the board mandate even more explicit than they were in 1993.
At the centre of any challenge will be legal opinions on a political exchange that played out last week on Parliament Hill.
Goodale insisted the government has not followed Section 47.1 of the act, which sets out the steps the minister must follow if he wants to add or exclude a product from CWB monopoly jurisdiction. One of those requirements, he said, is presentation of legislation to Parliament amending the CWB Act.
“The terms of this ballot do not satisfy the terms of 47.1. They know the majority of the House is against them so I suspect they will try some sort of regulatory approach,” said Goodale. “But very clearly if you are adding something to the marketing jurisdiction of the Canadian Wheat Board or taking something away, you can’t do it without legislation.”
Strahl said government lawyers tell him differently. He said the act refers to legislative and regulatory change.
“We’re quite sure we can take it out by regulation,” he said.
Strahl told a March 28 news conference that even after the board loses its barley monopoly, it will offer farmers who want to use it an advantage because government guarantees for barley handled by the board will continue.
“They have some advantages that your average grain company doesn’t have and I hope and expect that they’ll come up with a working business plan to address those concerns of farmers who want to still use them,” said the minister.
Critics quickly responded that “your average grain company” also has advantages the CWB does not have, including grain handling facilities.
Meanwhile, MPs will vote April 18 to approve an opposition-written report from the House of Commons agriculture committee that insists the government barley plebiscite questions were bogus and the result should be ignored. Instead, farmers should be offered a new vote with two questions only – maintain the CWB monopoly or move to a totally open market for barley. The last hour of debate on the report was held in the Commons March 28 and much of the dispute centred on the validity of the government’s second question, which offered both the open market option and continuation of the CWB.
Opposition speakers insisted it was not valid. They argued that the question offered an impossible choice more designed to confuse than to present an option.
