The Canadian Wheat Board’s long-shot lawsuit to keep its monopoly

The suit argues the agriculture minister doesn’t have the authority to shut it down

Against the grain

Sean Kilpatrick/CP

“Pierre Trudeau said there was no place for the state in the bedrooms of the nation,” recalls Henry Vos, a grain farmer from Fairview, Alta. “So I ask, should the government be in the grain fields and the grain bins of the nation?” The private sex lives of Canadians and cultivating wheat might make for an unlikely comparison, but Vos, a former director of the Canadian Wheat Board, believes the board should start preparing to lose its grip on the export trade in Prairie wheat and barley. In late October, he quit the board in protest.

Vos is angry over a last-ditch attempt by the board to maintain its monopoly by taking the radical legal step of suing Agriculture Minister Gerry Ritz. The suit, announced Oct. 26, would thwart Bill C-18, the Harper government’s legislation to end the “single desk” monopoly. (C-18 is at the committee stage in the House of Commons.) But critics say the CWB is fighting an uphill battle against constitutional principles.

As a minority government, the Conservatives were blocked by the courts when they tried to change the wheat board’s mandate by order-in-council and without a parliamentary vote. Now the Conservatives have a majority and can presumably make whatever direct changes they want to the Canadian Wheat Board Act. But the board says, “Not so fast.” Section 47.1 of the act, added by the Liberals in 1998, says that the agriculture minister cannot alter single-desk arrangements without first consulting the board and holding a vote of grain producers.

The clause has attracted attention ever since it was passed, and its solidity is at best uncertain. A core rule of Canadian democracy is the supremacy of Parliament as the ultimate law-making power in non-constitutional matters. One accepted consequence is that past Parliaments cannot tie the hands of present or future ones. The CWB lawsuit tries to wriggle around this by targeting Ritz, rather than Parliament as a whole, and by imposing procedural restraints on him before he introduces a bill, rather than dictating what Parliament will do about it.

But it seems illogical (as Ritz has pointed out) that the Liberal government of 1998 could give wheat growers an untouchable “extra-parliamentary veto” over the behaviour of either a minister or Parliament. “The word I would use for this lawsuit is ‘ambitious,’ ” says a dubious Carissima Mathen, law professor at the University of Ottawa. “Parliamentary sovereignty is about as strong a rule as you can get.” The Federal Court was called upon to rule on 47.1 by the anti-single-desk Western Barley Growers Association in 2008; the WBGA argued that 47.1 was “invalid because it fetters the sovereignty of Parliament.” The court demurred, but Justice Karen Sharlow commented in passing that 47.1 “does not stop Parliament from enacting any legislation it sees fit to enact.”

It’s unlikely, then, that the CWB can stop Parliament from liberalizing Canadian agriculture. Vos and another Alberta director who resigned said the board consulted external lawyers who declared the lawsuit an extreme long shot. After all, if the Federal Court did allow the Liberals of 1998 to get away with delegating Parliament’s authority to an outside group with vested interests, it would put in the hands of today’s Conservatives an all-new method for majority governments to make legislation practically irrevocable.




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The Canadian Wheat Board’s long-shot lawsuit to keep its monopoly

  1. so what would be a scenario that would make this a terrible precedent?

    I’m trying to think of one that would make this sound silly, but I can’t come up with one.

    • Would make what a terrible precedent? If the CWB wins?  Any legislation that includes “No member of parliament may table a bill that amends this statute …”

      If the CWB loses? It’s pretty much status quo, so there isn’t one.  It kind of sucks that any government on a majority can completely wipe out the work of a previous one, but presumably that’s what senators are supposed to keep a lid on.

      • I was more thinking if the wheat boad won this in court, what would be examples of laws that would follow. in short, What is an example of another law that could be written to discriminate against others. I fairly sure the charter would shutdown most of the racist, and truly discriminatory stuff.

        I thought about this for a couple of minutes and could not come up with an example that would be constitutional and overly oppressive.

        I was hoping that somebody could create a hypothetical example.

        • No member of parliament shall table a bill that causes the current percentage of seats in the House of Commons provided to Quebec to decrease.

          • I don’t think you’d ever get a majority of the house to vote for such a thing. You’d have 100 yes and 200 no’s.

            All i’m trying to figure out is, are there actually examples where this could happen to cause large scale harm?

          • So now the task is not only to come up with legislation that could be damaging, but also to come up with legislation that you personally believe would pass in a House that you personally believe might exist and no other.

            Let me know when you have a question that doesn’t require mind-reading.

          • Thats what i’m saying. Its very hard to do.

            Only fringe targeted voting demographics could hope for such a windfall.

            I suppose then that I would like the wheat board to fail as I am for a simplified tax code absent laws which target special interests.

          • how about putting in a law that no government shall table a bill concerning the oil and gas industry without getting industry stakeholder approval first 

        • Backness wrote: “I thought about this for a couple of minutes and could not come up with an example that would be constitutional and overly oppressive.”

          You’re setting the wrong standard. Allowing past Parliaments to bind future Parliaments without meeting a constitutional amendment standard need not be overly oppressive for it to be ridiculous, disruptive or otherwise toxic to democracy.  Suppose a government appointed 5,000 party members by law as permanent, lifetime members of the civil service with director-level salaries and pension rights, and then made any effort to amend the law to curtail their benefits subject to the unanimous consent of any future Parliament.

          That example might seem extreme, but it’s the plausible outcome of rescinding the doctrine of Parliamentary supremacy. And I might add, saying you can never alter the mandate of a govt-chartered corporation without first kissing its ass and then holding a plebiscite in which voting rights are restricted solely to the group with the greatest self-interest in preserving its legislated privileges to the exclusion of all other stakeholders… well, that seems pretty extreme to me, too.

          • Not too late for an official plebiscite

          • I think you might need to look up the definition of the word “plausible”.

      •  ”It kind of sucks that any government on a majority can completely wipe out the work of a previous one” Uh no, that’s actually the beauty of the system.

  2. Funny that they handcuff future gov’ts with trade agreements all the time, though…  e.g., the CWB was grandfathered in under NAFTA, so once it’s gone, nobody can bring it back because it would be disallowed under NAFTA.

  3. The CWB is from another era. They are a bunch of left wing monopoly supporters. After they lose their monopoly it does not stop wheat farmers from selling their wheat to them only makes for competition.I can not see them winning a court case based on free competition as opposed to them being the only game in town.To rule for them would make this country worse than socialist Cuba.This ruling may get rid of the egg and dairy boards and give the consumer a break.. 

    • For a moment rational back and forth prevailed here and then, as sure as god made little green apples out of the woodwork comes proof mankind is doomed…”left wing monopoly”!  Christ!  Try growing a new mantra.

    • You might want to read the comments under Geddes’ recent post: http://www2.macleans.ca/2011/11/15/a-novice-bureaucrat-and-future-pm-on-supply-management/  – esp. those of Le_o (and follow the links) and BWM007. Getting rid of supply management doesn’t necessarily bring lower prices – and when it does, it’s usually because of heavy government subsidies. So you can pay the farmers directly via the boards, or get lower retail prices by paying via your taxes. I prefer “user pay” where food is concerned.

  4. Interesting conundrum - I’ll side with ”parliamentary sovereignty”  
     
    In the mean time……….
     
    “Wheat Shippers Battle for Sales as Global Grain Glut Expands: Commodities
     
    World production of wheat, the most-planted grain by area, will gain 5.3 percent to 683.3 million tons, the second-biggest crop ever, the USDA forecasts. The FAO predicts a 6.1 percent increase to a record 691 million tons. Global stockpiles at the end of this season will advance 3.6 percent to 202.6 million tons, the highest in a decade, the USDA estimates.
     
    Prices that dropped 20 percent to $6.3675 a bushel (172 euros a ton) in Chicago this year will decline as low as $5.90 by the end of December, according to the median estimate of nine analysts and traders surveyed by Bloomberg earlier this month.”
     
    http://www.bloomberg.com/news/2011-11-14/wheat-shippers-battle-for-sales-as-global-grain-glut-expands-commodities.html  

    • well hope this thing gets shut down before we have to pay the difference on that :)

      the more i read the less I like seems like the worst kind of governement. special money for special interests.

    • Leo, you obviously did not grow up on a farm or in a farm community…there may be a glut of grain this year but last year Russia encountered one of its worst droughts ever and according to climate change specialists, these droughts are only going to increase in numbers.
      Farmers around the world rairly get bumper years at the same time …it’s either too much rain or not enough rain or a big hail that wipes out somebodies harvest.  This industry is always dependant on mother nature and therefore, there is no predicting next year…there is only right now.

  5. I strongly support the government prevent farmers from not having to market their wheat, barley and what ever else through the Canadian Wheat Board.  The CWB has too long been in control of this business and for far too long been unanswerable to the government and to the farmer. The CWB should have been forced to operate with an open business book for the public to see the financial books.  It is unacceptable in a democracy here in Canada that some farmers (in Ontario) can sell their wheat, etc to markets outside of Canada and it’s unlawful for  other farmers from the rest of the country to do the same.  Our world is changing quickly and today’s farmers needs every opportunity to be successful in business as they meet those changes.  Many countries, ex: Australia, Neww Zealand and some others have been allowing farmers freedom to market their own products. They have been successful at this, so this opportunity should be made available to Canadian Farmers.  I left the farm in 1964 when the price of wheat was about $4.00/bushel at the local elevator.  Today the famer gets less than that when he has to pay for the wheat to be delivered to the shipping ports in Vancouver and/or the east coast.  This is 50 years later in time and still the same $$$s net to the famer when the cost of operation has gone up over 12 times. 

  6. “ A core rule of Canadian democracy is the supremacy of Parliament as the ultimate law-making power in non-constitutional matters. One accepted consequence is that past Parliaments cannot tie the hands of present or future ones”

    Wonder what a court would make of Harper’s attempt to pull off pretty much the same fast one by destroying gun registry docs in order to prevent future govt’s from bringing the registry back? No doubt the would say parliament can do what ever it wants[ as it should] but the irony is striking.
    Harper’s tactic is definitely more effective, though no less repugnent. 

  7. i thought mcleans died long ago

  8. I’ve always wondered if we’d cancel the “single-desk” policies and allow those producers who are feeling oppressed by their compromised access to the free markets to have full access to them, that if the remainder of us could be free from any sort of bail-outs and aid if those same markets fail or fall to an unsustainable low. My feeling is that it’s unlikely.

    This has made for some interesting political and legal jostling, however.

  9. I would think that even if the CWB wins it would be a matter of going back to repeal the right law.  Didn’t properly consult farmers?  Get rid of the requirement to consult farmers, then do it again. 

    • Arranging to have the bill re-introduced by someone other than the minister might work too.

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