CALGARY – Harvey Thomas had things he could have been doing back at his Alliance, Alta., farm last week.
Instead, he spent two days sitting in a courtroom in a downtown Calgary office tower, listening to lawyers debate the intricate details of law surrounding the federal government’s efforts to remove barley from the Canadian Wheat Board’s single desk.
“I’m here because it’s part of my business,” said Thomas, a strong supporter of the single desk.
“This is the first time I’ve been in a courtroom and you have to be here if you want to understand all this.”
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Thomas was one of a dozen farmers who attended the two day Federal Court hearing into whether the government was acting within the law by removing barley through regulation rather than legislation.
Most were single desk supporters, several of them directly involved in the case as members of Friends of the CWB, which, along with the board and the governments of Manitoba and Saskatchewan, were asking the judge to rule the federal plan illegal.
But there were also open marketers present to support the government’s position that it was acting properly, resulting in some lively hallway debates during breaks in the hearing.
Doug McBain, a barley grower and open market supporter from Cremona, Alta., agreed with Thomas on one thing: it was worth the time and effort to be there.
“I’m going to be directly affected by the outcome of this decision,” he said. “It’s going to have an impact on my farm business from here on and the prices I can get, and that’s why I’m here.”
McBain said he was unhappy at the prospect that the government’s plan to implement an open market could be derailed by a legal technicality.
“To have these opportunities vaporize because of a single court decision that’s essentially irrelevant to farmers would be extremely frustrating,” he said.
Thomas also expressed frustration, not because the issue was being decided by the courts, but rather with the fact that so many farmers seem to be ignoring the issue.
“I find it frustrating that people don’t take the interest they should in something like this.”
Thomas said he would try to explain to some his friends and neighbours back home what happened at the hearing, but he doesn’t expect there will be much interest.
“I can try, but they won’t understand because they don’t even try.”
Western Barley Growers Association president Jeff Nielsen of Olds, Alta., who attended the hearing, criticized the presentation from the Friends of the CWB for rehashing the political history of the issue over the last few month.
“That’s irrelevant to the issue before the judge,” he said. “They were wasting the court’s time.”
But FCWB spokesperson Bob Roehle said it was important to make sure the judge was aware of the government’s willingness to ignore the law and use “stealth, deception and sleight of hand” to impose its policy on farmers.
“They’re trying to bring in through the back door what they couldn’t bring through the front door,” he said.
The two arguments
This is a summary of the legal arguments presented in Federal Court in Calgary last week in the hearing to determine whether the federal government acted legally to remove barley from the Canadian Wheat Board’s single desk through regulation rather than legislation.
The government says:
The CWB Act presents two parallel processes under which barley can be removed from the board’s jurisdiction.
Option 1
- Under Section 47.1, the government can introduce a bill in Parliament to include or exclude a grain from the CWB, conditional on the minister consulting with the board and that producers vote in favour of the change. The government did not follow this option.
Option 2
- Section 47 of the CWB Act says the governor-in-council (federal cabinet) can by regulation extend the board’s marketing authority to barley and/or oats.
- Section 31.4 of the Interpretation Act says that in an instance in which government has the power to make a regulation, it also has the power to “repeal, amend or vary” that same regulation.
- Taking those two together, the government argued that since it has the power to extend the board’s authority to barley by regulation, it therefore also has the power to remove the board’s authority by regulation.
- Another section of the Interpretation Act says section 31.4 does not apply if it creates a situation contrary to the intent of the act under which the regulation exists. In this case, the government and the CWB disagreed over whether the use of 31.4 enabled the government to remove barley by regulation. The government said it did. The board said it didn’t, because that is contrary of the intent of the CWB Act, which is to give control to farmers and Parliament.
The CWB says:
- Section 47.1 of the CWB Act specifically addresses the question of excluding grains from the CWB, saying the minister shall not introduce in Parliament a bill to exclude any grain without first consulting with the board and receiving a favourable vote from producers.
- Section 47.1 expressly talks about exclusion, while the government’s approach requires one to infer the power of exclusion, so section 47.1 should take precedence.
- The board argues that fundamental principles of law require that a regulation not conflict with the legislation under which it exists. The CWB Act of 1998 was clearly designed to give authority over the board’s marketing powers to producers and Parliament, not cabinet through regulation, so the government’s approach should be rejected.
- The board also said the government’s option effectively renders section 47.1 meaningless, which is counter to the intentions of the act to put power over the board’s marketing mandate in the hands of producers and Parliament.
