Wednesday, December 07, 2011

Judge says Ritz breached Wheat Board Act

Marking the moment here with a bit of the media coverage and some highlights from the judgment.

"Judge says Ritz breached wheat board act."

"Government broke the law when dismantling Wheat Board: Federal Court."

You can read the decision of the Federal Court judge here. The order states:
The Minister failed to comply with his statutory duty pursuant to section 47.1 of the Canadian Wheat Board Act, RSC 1985, c C-24, to consult with the Board and to hold a Producer vote, prior to the causing to be introduced in Parliament Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts
While the government has said it will appeal this decision, it's clear that their course of action has been rebuked and they should listen by taking that judgment into account. A court order declaring that a Minister of the Crown has breached his duty under the law is a serious matter. A halt to their legislative process should be undertaken until this court proceeding is finished.

In terms of the judgment's highlights, the court was clear with its characterizations of Ritz's actions:
[1] The present Applications concern the rule of law and the disregard for it by the Respondent Minister of Agriculture (the Minister).

[2] The law concerned is s. 47.1 of the Canadian Wheat Board Act, RSC 1985, c C-24 (the Act) which requires the Minister to engage in a consultative process with the Canadian Wheat Board (CWB) and to gain the consent of Western Canadian wheat and barley producers with respect to proposed changes to the currently well-established process of marketing the grains in Canada. At the present time, contrary to the requirements of s. 47.1, the Minister is unilaterally proceeding to revolutionize the process by securing the imminent passage of legislation.

[4] The Applicants each request a Declaration that the Minister’s conduct is an affront to the rule of law. For the reasons that follow, I have no hesitation in granting this request.
You don't get much bolder than that. Unilaterally revolutionizing the process.

See also paragraph [9] as one that goes to the core of the problem for the government here. Professor Hogg is cited for the principle that "manner and form" limitations that a Parliament places on a future Parliament's actions are perfectly legitimate in law. Parliaments can't bind future Parliaments on substantive legislative choices. But they can bind a future Parliament on "manner and form" aspects of future laws. The 1998 amendments to the Wheat Board regime were essentially changes of the "manner and form" variety. The court reviews the statements made on intent at the time those changes were made. The law was changed then to assure farmers certain participatory rights under section 47.1 of the Act.

In paragraph [30], the judge points out the lunacy of Ritz's argument in steamrolling those participatory rights:
By construing the liberal interpretation of the Act which best ensures the attainment of its objects, I find that the Act was intended to require the Minister to consult and gain consent where an addition or subtraction of particular grains or types of grain from the marketing regime is contemplated, and also in respect of a change to the democratic structure of the CWB. As the Applicants argue, it 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..."
In other words, you can't give farmers the right to say how they'll sell their grain, then just repeal the entire act and say you're not making a change to those consultative rights. It's absurd.

The judge's conclusions are also worth a look, not just for what they say about this case, but for what they say about the state of democratic governance under the Harper government:
[33] The Minister argues that the declarations should not be granted because their effect would be meaningless. In response, I say that there are two meaningful effects of granting the Breach Declarations.
[34] The first effect is that a lesson can be learned from what has just occurred. Section 47.1 speaks, it says: “engage in a consultative process and work together to find a solution.” The change process is threatening and should be approached with caution. Generally speaking, when advancing a significant change to an established management scheme, the failure to provide a meaningful opportunity for dissenting voices to be heard and accommodated forces resort to legal means to have them heard. In the present piece, simply pushing ahead without engaging such a process has resulted in the present Applications being launched. 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. Judicial review 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 s. 47.1 conveys.
[35] The second and most important effect is that the Minister will be held accountable for his disregard for the rule of law.
Lesson: Don't tell courts that their orders may be meaningless!

From the Wheat Board this afternoon:
"We argued strongly that farmers should have the final say over changes to their grain marketing agency," Oberg said. "As farmers, we pay for the CWB, we run it and we should decide what happens to it. 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. In light of this ruling, the government should stop steamrolling over farmers' democratic rights.

"The Minister now needs to do the right thing, obey the law and hold a vote - as he should have done from the beginning."

Oberg and CWB farmer-elected director Stewart Wells appear tomorrow morning before a Senate committee considering passage of Bill C-18. Oberg said the court ruling brings additional impetus for senators to reject the Bill.
Stay tuned!