The Alberta government has been handed a setback in its attempt to use the courts in the battle against the Canadian Wheat Board.
Federal Court of Canada judge Frederick Gibson has dismissed an Alberta application that there be a judicial review of the wheat board’s grain gathering performance.
He ruled a review would be inappropriate.
The wheat board is both a business and an instrument of public policy, the judge wrote in a recently released decision. However, as a political creation, it is through politics that challenges should be lodged against its operating performance.
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“As a tool of public policy, the grain delivery program is, by nature, in my opinion, more amenable to review through pre-adoption public consultation and the political process,” he wrote.
Gibson also ruled the Alberta government should not have the right to bring such a request, since it is not directly affected.
Instead, it would have to be affected farmers applying to the courts if they are unhappy with the board’s performance. “Recent activity before the court demonstrates that they are not loathe to exercise that access.”
And the court ruled the board is under no legal obligation to buy all the grain produced by farmers forced to market through the CWB. The Alberta application had complained the CWB “failed to fulfil its duty” by not taking all the grain offered and making sure it is moved “in an orderly and unabated way.”
Gibson said that is not an obligation imposed on the wheat board by legislation.
The board system “is not a program that relieves producers of all uncertainty and results in the (CWB) taking unto itself all risks of downward turns in interprovincial and international markets for grain,” said the judgment.
For the Alberta government, it is a technical setback although its major court challenge remains.
The request for a judicial review was one of two launched by Alberta against the wheat board last year. It was the more technical case.
The greater challenge to the CWB comes in a case before the Alberta Court of Appeal. It centres on the province’s contention that an Alberta crown agency can export grain to the United States without involvement of the CWB simply by buying farmers’ grain on the north side of the 49th Parallel, taking it across the border and then reselling it to farmers who would be free to sell it to American customers.
A judgment on that has not yet been delivered.
Last week, deputy Alberta agriculture minister Doug Radke saw some good news in the ruling rejecting the idea of a judicial review.
He said because the court ruled the wheat board is a “federal board” that means it can be subject to judicial review. “There’s been some doubt about that over the years.”
However, he said the main Alberta point was lost. “The bottom line is the court dismissed our application,” said Radke.
He said the Alberta government will study the ruling “and decide if we want to appeal.”
