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The elephant in the court ruling on wheat board

Judge's decision based on zoo case

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This week's Federal Court ruling the Harper government broke the law when it introduced legislation to change the Canadian Wheat Board without consulting farmers adds a surreal twist to an already bizarre saga.

In this case, the elephant in the room is real -- Lucy, the lonely, long-suffering single elephant at the Edmonton City Zoo.

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It was Lucy's plight, and the efforts of animal-welfare advocates to hold the City of Edmonton accountable to the province's animal-welfare legislation, that prompted Catherine Fraser, chief justice of the Alberta Court of Appeal, to write the arguments forming the basis of Manitoba Justice Douglas Campbell's ruling.

Fraser wrote the rule of law is fundamental to democracy and that citizens have the right to expect their governments abide by the law.

"The greatest achievement through the centuries of evolution in democratic governance has been constitutionalism and the rule of law. The rule of law is not the rule of bylaws, where citizens are bound to comply with the laws and the government is not," she wrote.

"When government does not comply with the law, this is not merely non-compliance with a particular law, it is an affront to the rule of law itself."

As it turns out, Lucy the elephant is still in limbo. So, it seems, is the board.

Campbell ruled the federal government is bound by existing statutes to consult farmers and hold a plebiscite before making changes to the board's single desk. He went further to say farmers had a legitimate right to expect they would be consulted before such a fundamental change.

The judge agreed with arguments the opportunity to vote in a federal election wasn't the kind of consultation intended by the existing legislation.

The applicants didn't ask the court to quash the federal agenda. They only wanted a declaration the federal minister is bound by existing law.

Nor did the court rule government can't change the law, only that it must abide by the law while doing so. It's a peculiar nuance, but the government's response to it underscores its significance.

A defiant Agriculture Minister Gerry Ritz -- and later Prime Minister Stephen Harper -- declared the government is appealing the decision in a bid to get the law on their side. But if that fails, they are going to plow ahead with the legislation fundamentally changing the CWB's mandate and scope anyway. It's all being done on the guise of "marketing freedom."

This response adds a new layer of buffoonery to the whole affair, as evidenced by the national headlines that followed and the legal issues raised. The debate over wheat marketing is somewhat of an enigma to Canadians outside of the western farming community, but this affront to proper process is something anyone can understand.

The proposed changes to the Canadian Wheat Board are arguably the most significant policy change in the history of western Canadian agriculture.

They are being carried out with haste and a shocking lack of strategic planning. The changes are irreversible under international trade law and the repercussions are long lasting.

Justice Campbell offered some advice to Ritz, saying the existing statute calls on the government to "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," he said.

This government had time within its mandate to consult farmers and come up with a plan. The Aug. 1, 2012, date for transition to an open market was an arbitrary deadline it imposed on itself, based on a concocted need for urgency.

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

Despite the posturing, it's unlikely the new legislation can become law until the courts are finished with this issue.

As we've seen, court cases beget more court cases -- which inevitably leads to more acrimony.

But a civil society doesn't function very well if individuals or governments are only bound by the laws with which they agree. Welcome to the zoo.

 

Laura Rance is editor of the Manitoba Co-operator. She can be reached at 792-4382 or by email:

laura@fbcpublishing.com

Republished from the Winnipeg Free Press print edition December 10, 2011 B10

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