The Supreme Court of Canada has reserved judgment on a constitutional challenge to the monopoly exercised by the Canadian Egg Marketing Agency over interprovincial and export sales.
And Alberta’s barley farmers who are challenging the Canadian Wheat Board’s export monopoly believe the case could be a major boost for them.
“If the case against the CEMA is upheld by the Supreme Court, that certainly would give some credibility to our case against being forced to deal with the Canadian Wheat Board,” said Buck Spencer, chair of the Western Barley Growers Association.
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Like two Northwest Territories egg producers challenging the CEMA, the barley challenge against the wheat board rests in part on the argument that the mandatory marketing rule violates the freedom of association guarantee in the Charter of Rights and Freedoms.
A Federal Court judge in Alberta rejected that argument in the barley case.
“We certainly will be keeping an eye on how the court rules on that (CEMA case),” said Spencer. “We are going to appeal anyway but a ruling at the Supreme Court level certainly would be helpful.”
The challenge against the constitutionality of the CEMA marketing rules is being driven by two large corporate farms in Hay River, NWT.
The territorial government and CEMA have been unable to agree on quota and other rules which would let NWT join the national marketing system, with quota and levy obligations.
Nonetheless, Northern Poultry and Pineview Poultry Products Ltd. have built large barns and have been shipping eggs south into western provinces for years.
The average flock size in Alberta is 7,000 layers, CEMA lawyer Francois Lemieux told the court.
Northern Poultry has 45,000 birds. Pineview, partially owned by local Dene, has 70,000 birds and plans to expand this summer to 130,000.
When CEMA tried to shut down the export of eggs from the north into the southern regulated provinces, the two producer companies challenged the regulations and won at two court levels.
In the last judgment by the Supreme Court of the Northwest Territories, the CEMA regulations were found to be a violation of the charter rights.
The two companies were given a “constitutional exemption,” giving them the freedom to continue producing and exporting without limits.
Last week in court, CEMA lawyers argued the ruling should be overturned because it would throw the supply management system into chaos and set a dangerous precedent on the meaning of charter rights.
CEMA lawyers Lemieux and David Wilson argued that the charter of rights was written for individuals, not corporations.
And “freedom of association” was not meant to protect the right to commerce.
They said what is needed is a political agreement between the northern government and CEMA that will allow the north into the scheme.
Lawyers for the northern producers and the NWT government argued that CEMA rules discriminate against northern producers, who must export if they are to have a viable commercial operation.
Without quota and CEMA approval, the rules make it impossible to be a commercial egg producer “north of 60,” said lawyer Graham McLennan.
In the end, the nine Supreme Court judges reserved judgment.
CEMA general manager Neil Currie said the stakes are high. If northern producers win and can continue to ship eggs south, “southern producers will see their market being destabilized and the political pressure will grow on the agency.”
