The three Federal Court of Appeal judges hearing the barley marketing appeal will hear a new argument not presented at the original hearing.
A Federal Court judge ruled in July that the federal government could change the CWB’s marketing authority only by legislation, not regulation.
The government appealed that ruling and the case is scheduled to be heard in Winnipeg Feb. 26.
At that hearing, the Western Barley Growers Association will argue that the section of the Canadian Wheat Board Act setting the rules for changing the barley marketing system is unconstitutional.
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Section 47.1 of the act requires the government to consult with the CWB and hold a producer plebiscite before introducing a bill to change the marketing rules.
The association says that improperly restricts the ability of the government to introduce legislation into Parliament.
“Parliament is sovereign in its power to initiate legislation without having to first consult any other entity,” said the pretrial brief submitted by the association’s lawyers.
It concludes that section 47.1 undermines the sovereignty of Parliament and is therefore unconstitutional.
Association president Jeff Nielsen said he’s encouraged that the court agreed to let the association present its case.
“We feel quite confident or we wouldn’t have put the argument forward,” he said.
The barley growers’ argument was rejected by officials with the CWB and the farm group Friends of the CWB, whose legal challenge derailed the government’s plans.
The groups said that if section 47.1 is thrown out, it would open the door for the government to unilaterally remove wheat and durum from the CWB with no consultation.
“It’s beyond comprehension that an organization claiming to represent prairie farmers would argue in court that farmers’ right to determine how their crop should be marketed should be taken away,” said FCWB member Butch Harder of Lowe Farm, Man.
Somewhat surprisingly, the barley growers argument was also rejected by the federal government, which filed a brief saying the court should not venture into constitutional issues and should instead simply find that the previous judgment was wrong in law.
“Courts should refrain from making constitutional determinations where they are not necessary to the determination of an appeal,” it said, adding the requirement to consult with the board or hold a plebiscite does not prevent the government from introducing legislation into Parliament.
In her original ruling, justice Dolores Hansen relied on section 47.1, which states that the minister shall not introduce into Parliament a bill to exclude barley (or wheat) from the board’s authority or extend that authority to other grain, unless the minister has first consulted with the board and producers have voted in favour of the change.
The federal government’s unsuccessful argument was based on section 47 of the act, which empowers the government to extend the act to include barley and/or oats through a regulation passed by order-in-council.
The federal government also argued that the power to enact a regulation carries with it the implied power to amend or repeal that same regulation, without having to go through Parliament.
However, Hansen stated unequivocally: “One of the powers expressly reserved to Parliament is the exclusion of barley from the application of the act.”
The appeal court will make its ruling based solely on points of law. Neither the facts of the case nor the political issues surrounding the board will be up for discussion.
As of last week neither the CWB nor Friends of the CWB had filed their pretrial briefs. CWB minister Gerry Ritz said the government would not comment on the details of the case.
