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New twist in wheat board legal battle

The battle over the future of the Canadian Wheat Board has moved off the farm, out of the parliamentary chambers and into the courts.

Two new court actions were launched early in the new year, including a class-action lawsuit claiming $15.4 billion is owed to farmers upon the dismantling of Canadian Wheat Board assets.

“The CWB’s assets include $100 million in cash, 3,402 hopper cars, lake freighters, an office building and intangible assets, which experts have valued,” Regina lawyer Tony Merchant says in a release. “Despite passage of Bill C-18, there is no plan proposed by the federal government regarding compensating farmers for divesting of the substantial assets held by the farmer-owned CWB.

“The value realized from CWB assets has to be returned to farmers. To do otherwise, would resemble a classic case of theft by conversion,” Merchant said.

Meanwhile, eight farmer-elected wheat board directors who were fired late last year want the Federal Court to quash Ottawa’s appeal of a Federal Court declaration that Agriculture Minister Gerry Ritz acted illegally by introducing Bill C-18, the Marketing Freedom for Farmers Act, into Parliament Oct. 18.

On Dec. 7, Justice Douglas Campbell ruled Ritz broke Section 47.1 of the Canadian Wheat Board Act by introducing the controversial legislation before first consulting with the wheat board’s board of directors and getting farmers’ approval to end single-desk selling through a plebiscite. Ritz’s failure to do so “is an affront to the rule of law,” Justice Campbell wrote.

The federal government says it will appeal the declaration, which some political scientists incorrectly predicted would prevent C-18 from becoming law. The bill received royal assent and was proclaimed into law Dec. 15.

The former directors argue Ottawa can’t ignore the Federal Court’s ruling and appeal it at the same time.

“They (Ottawa) are acknowledging the legitimacy of the court declaration by appealing it,” Kane farmer and former District 10 director Bill Toews said in an interview Jan. 5. “But they are also ignoring it at the same time by saying it’s not required.”

To appeal the ruling the federal government must first stop implementing the new law, former wheat board chair Allen Oberg said in an interview. That includes not killing the board’s monopoly over the sale of western Canadian wheat and barley destined for export or domestic human consumption. The government has said the monopoly will end Aug. 1, the first day of the new crop year.

Since Justice Campbell declared C-18 was introduced illegally, it follows the law is invalid, Oberg said. That’s what the former directors will argue in a separate action in Manitoba Court of Queens Bench, he added.

Jan. 17 and 18 the former directors will ask a Queens Bench judge for an interim and interlocutory injunction to prevent implementation of C-18. Even if their request is denied the former directors will ask the court to rule on the law’s validity.

Some say the former directors are beating a dead horse, but according to Toews there’s an important democratic principle at stake — due process.

“We feel that farmers, as the rest of the citizens in Canada, have a right to due process and expect the government to act within the law,” he said.

The former directors are appealing to farmers to help pay for the legal action.

“How successful we are on that will perhaps determine how far this does go,” Oberg said. “We’re up against a government that has unlimited resources.”

Twice before — in 1993 and 2007 — the courts prevented the federal government’s efforts to end the wheat board’s single desk for barley. In both cases the Federal Court ruled the change had to be approved by Parliament and not just by order-in-council (cabinet).

This time Parliament approved the change.

Not surprisingly, experts differ on whether Minister Ritz acted illegally.

University of Toronto professor emeritus of political science Peter Russell argues allowing the new law to stand compromises the integrity of Parliament. A former Parliament said farmers would be consulted before changes are made to the wheat board’s mandate, he said in an interview last month.

“Parliament can bind itself as to the ‘manner and form’ of future legislation, a view supported by many constitutional scholars in Canada and other Westminster parliamentary democracies,” he wrote in the Globe and Mail, adding that governments still have the authority to repeal legislation passed by previous Parliaments.

However, that didn’t occur in this case. C-18 was introduced while the wheat board and 47.1 were still the law.

Gerald Chipeur, a Calgary lawyer and a former chair of the Canadian Bar Associa-tion’s Constitutional and International Law Section, disagrees. Only the Speaker of the House of Commons or Senate has jurisdiction to make such a ruling and neither did, he wrote in the Globe and Mail.

Russell’s “manner and form” argument doesn’t stand up either, Chipeur wrote. Manner and form is restricted to the actions of ministers and Parliament. Effectively giving farmers a veto over Parliament is inconsistent with parliamentary and constitutional law, he says.

About the author

Reporter

Allan Dawson

Allan Dawson is a reporter with the Manitoba Co-operator based near Miami, Man. Covering agriculture since 1980, Dawson has spent most of his career with the Co-operator except for several years with Farmers’ Independent Weekly and before that a Morden-Winkler area radio station.

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