The two main combatants have laid their cards on the table for the upcoming Federal Court of Appeal hearing on barley marketing.
Lawyers for the Canadian Wheat Board and the federal government have submitted briefs setting out the arguments they’ll be presenting at the Feb. 26 hearing in Winnipeg.
Neither of the briefs lives up to its name.
The government’s submission is 30 pages long, while the CWB’s weighs in at 84 pages, including appendices.
Nor would they be recommended bedtime reading, except perhaps for those who suffer from insomnia.
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Legal briefs aren’t written to be read for pleasure, consisting of page after page of dense legalese. Nevertheless, those legalistic arguments will have a profound impact on farmers in Western Canada.
The issue before the court is what the government has to do in order to remove barley from the jurisdiction of the CWB and implement an open market.
Ottawa is appealing a July 2007 lower court ruling that said the government can only change the monopoly by passing legislation through Parliament, not by simply changing regulations.
That ruling derailed the government’s plan to implement an open market for barley Aug. 1, 2007, through regulation.
The appeal hearing will consist of lawyers from the CWB and the government arguing before a three-judge panel. Also present will be lawyers representing intervenors including the Western Barley Growers Association and government of Alberta on Ottawa’s side and Friends of the CWB and the government of Manitoba on the board’s side.
In her July 2007 ruling, Federal Court judge Dolores Hansen relied on Section 47.1 of the CWB Act, which lays out a process requiring the minister to consult with producers and hold a plebiscite before introducing legislation to add or exclude any grain from the CWB.
The government unsuccessfully argued that since Section 47 of the CWB gives Ottawa the power to extend the act to barley and oats by regulation, that implies the government can also remove those grains through regulation.
Hansen dismissed the idea that the act provides two options, stating: “One of the powers expressly reserved to Parliament is the exclusion of barley from the application of the act.”
In its brief to the appeal court, the government presents the same arguments as it did in July, arguing Hansen wrongly interpreted the law.
“The intention of Parliament (in passing Section 47 of the act) was to create two separate statutory and regulatory regimes: Parliament’s power to alter the mandate in any way it chooses and a regulatory power to repeal the extension (of the act) to barley only,” according to the brief.
The CWB will argue that Hansen’s ruling should be upheld.
In its brief, the board said the introduction of a new CWB Act in 1998 was designed to transfer authority over operations, management and marketing authority from Ottawa to producers.
It said section 47.1 is unambiguous that the power to exclude barley from the board rests with Parliament alone.
