Federal judge rips Ritz’s plans for CWB reform

Updated, Dec. 7 — Sweeping legislative changes to end the Canadian Wheat Board’s single marketing desk won’t be slowing down for a Federal Court ruling Wednesday that found those changes to be "an affront to the rule of law."

One of the two court declarations requested Tuesday by a farmer group, Friends of the CWB, and by the CWB itself, states that Agriculture Minister Gerry Ritz has "breached his statutory duty" by not holding a vote among eligible Prairie wheat and barley growers before introducing Bill C-18.

That bill, dubbed the Marketing Freedom for Grain Farmers Act, has already passed in the House of Commons and second reading in the Senate and is now the subject of standing Senate committee hearings.

Justice Douglas Campbell’s ruling, issued Wednesday afternoon in Winnipeg, awards costs to both the CWB and the FCWB, deeming each of them a "successful party."

Nevertheless, the federal government responded in a release Wednesday, Campbell’s "disappointing" ruling "does not impede the passing" of C-18; the bill "will proceed and be passed in the best interests of western Canadian farmers and the economy."

However, "we will appeal (Campbell’s) decision as we are convinced that Parliament has the right to end the (CWB’s) single desk monopoly," Ritz said in the government’s release.

"Not at issue"

Lawyers for Ritz argued before the judge Tuesday that the effect of granting such declarations would be "meaningless," but Campbell, in his declarations, disagreed.

First off, Campbell wrote, the CWB and FCWB applications were "directed at an examination of the minister’s conduct with respect the requirements of s. 47.1."

Section 47.1 is the piece of the Canadian Wheat Board Act requiring a producer vote and consultation with the CWB’s directors before changes can be made to the CWB’s marketing mandate. The CWB Act is up for amendment and, ultimately, for repeal in Bill C-18.

The validity of C-18, Campbell wrote, and the validity and effects of any legislation that C-18 might make into law, "are not at issue in the present applications."

"The first effect is that a lesson can be learned from what has just occurred," he wrote. "Had a meaningful consultative process been engaged to find a solution which meets the concerns of the majority, the present legal action might not have been necessary."

A judicial review such as this one "serves an important function; in the present applications the voices have been heard, which, in my opinion, is fundamentally importantly because it is the message that (47.1) conveys."

The second "and most important effect," Campbell wrote, "is that the minister will be held accountable for his disregard of the rule of law."

"Unique situation"

Campbell ruled that Section 47.1 contains conditions known in law as "manner and form" procedural requirements, which legally bind the development of any future legislation.

Where Ritz’s lawyers contended Section 47.1 is not a "manner and form" provision, Campbell wrote, "I dismiss this argument and find any debate on ‘manner and form’ is not properly before the court for determination."

Challenging 47.1’s constitutional validity, he wrote, "would require notice of a Constitutional Question which has not been given."

Campbell also defended 47.1 as a rule that "speaks to the unique situation in which… democratic values are already implemented in the structure of the CWB.

"Not adhering to these values is not only disrespectful, it is contrary to law," he wrote.

Lawyers for Ritz also argued Tuesday that 47.1 is meant to deal only with adding or subtracting of specific crops from the CWB’s marketing mandate, and "does not refer to limiting the future repeal of the (CWB) Act itself."

Campbell also rejected that argument. "(I)t is unreasonable to interpret the Act to conclude that while the minister must consult and gain consent when extracting or extending a grain, she or he is not required to consult or gain consent when dismantling the CWB," he wrote.

"We are pleased the court has agreed that the minister acted in violation of laws created in 1998 to empower farmers and give them a direct say in any changes contemplated to the CWB’s marketing mandate," CWB chairman Allen Oberg said in a release following the ruling.

Speaking before Ritz’s announcement of an appeal, Oberg said Ritz "now needs to do the right thing, obey the law and hold a (producer vote) — as he should have done from the beginning."

Related stories:

CWB deregulation moves to Senate, Nov. 29, 2011

CWB suing to block Tories’ grain marketing bill, Oct. 26, 2011

Pro-CWB farmers aim to test Ritz’s plans in court, June 29, 2011

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