Chief Harper respect the Canadian Wheat Board Act!

Grand Chief Steve Harper Disneyland-over-the-Rideau First Nations

Good Day Readers:

As we delve more deeply into the Canadian Wheat Board debate the actions of The Harper Government are becoming increasingly troublesome. In June of this year a lawyer representing Friends of the Canadian Wheat Board filed an Application to have a Motion (reproduced below) heard before The Federal Court of Canada. Almost immediately the government registered an approximately 300 page Motion Brief arguing it be summarily dismissed - but even worse it be done through written submissions so there would be no public hearing.
Fortunately, Mr. Anders Bruun representing the FCWB move quickly. In a letter to The Federal Court (early August) he requested not only the Application be heard but it be done in open court. Within a few short days, which should tell you something, the FCC responded. As a result, there will be a special public sitting of the FCC in Winnipeg Friday, September 9, 2011 beginning at 9:30 a.m. 363 Broadway Avenue 4th floor.

It is nothing short of incredible The Harper Government would take the extraordinary step of not only trying to have an issue of such magnitude to grain producers, as well as, Canadians taxpayers summarily dismissed but to do it without a public hearing.

We have highlighted those portions of Mr. Bruun's Application which we believe are particularly salient.

Sincerely,
Clare L. Pieuk
__________________________________________________

FEDERAL COURT COURT FILE NO.T-1057-11

BETWEEN:

FRIENDS OF THE CANADIAN WHEAT BOARD, HAROLD BELL, DANIEL GAUTHIER, KEN ESHPETER, TERRY BOEHM, LYLE SIMONSON, LYNN JACOBSON, ROBERT HORNE, WILF HARDER, LAURENCE NICHOLSON, LARRY BOHDANOVICH, KEITH RYAN, ANDY BAKER, NORBERT VAN DEYNZE, WILLIAM ACHESON, LUC LABOSSIERE, WILLIAM NICHOLSON and RENE SAQUET

Applicants

-and-

ATTORNEY-GENERAL OF CANADA, THE MINISTER OF AGRICULTURE AND AGRIFOOD IN HIS CAPACITY AS MINISTER RESPONSIBLE FOR THE CANADIAN WHEAT BOARD

Respondents

APPLICATION UNDER section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended

NOTICE OF APPLICATION TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicants. The relief claimed by the applicants appears on the following pages.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Winnipeg, Manitoba.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in FORM 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

June , 2011 ISSUED BY____________

Registry of the Federal Courts
363 Broadway, 4th Floor
Winnipeg, Manitoba
R3C3N9

TO: ATTORNEY-GENERAL OF CANADA
Federal Office
310 Broadway, 3rd Floor
Winnipeg, Manitoba
R3C OS6

AND TO: MINISTER OF AGRICULTURE AND AGRIFOOD IN HIS CAPACITY AS MINISTERRESPONSIBLE FOR THE CANADIAN WHEAT BOARD

C/O Attorney-General of Canada
Federal Office
310 Broadway, 3rd Floor
Winnipeg, Manitoba
R3C 0S6

AND TO:

The Canadian Wheat Board
423 Main St.
Winnipeg, Manitoba
R3C 2P5

APPLICATION

This is an application for judicial review in respect of the decision of the Minister of Agriculture in his capacity as Minister Responsible for the Canadian Wheat Board (the "Minister") made on or about June 20, 2011 that he will not consult with the board of directors (the “Board”) of the Canadian Wheat Board (“CWB”) and conduct a vote of wheat and barley producers, in contravention of his statutory duty to do so under the Canadian Wheat Board Act, R.S.C. 1985, c. c-24 (the “Act”), including section 47.1 thereof.

The applicants make application for:

(a) a declaration that the Minister is required to consult with the Board and conduct a vote of wheat and barley producers as to whether they agree with the removal of wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate;

(b) an order in the nature of mandamus requiring the Minister to consult with the Board and conduct a vote of wheat and barley producers as to whether they agree with the removal of wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate;

(c) an order in the nature of prohibition restraining the Minister from causing to be introduced a bill in Parliament, the effect of which will remove wheat and barley from the application of Part IV of the Act, pending consultations by the Minister with the Board and the holding of a vote of western Canadian wheat and barley producers as to whether they agree with the removal of wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate;

(d) if necessary, an interlocutory order restraining the Minister from causing to be introduced a bill in Parliament, the effect of which will remove wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate, pending the hearing of this application;

(e) an order for an expedited hearing of this application and granting such further and other ancillary relief necessary to give effect to such an order;

(f) their costs of the application; and

(g) such further and other relief as this Honourable Court deems just.

2. The grounds for the application are:

Overview

(a) Created by the Act, the single desk (the "Single Desk") is the means by which western Canadian farmers market the wheat (including durum wheat) and barley they produce both in Canada and throughout the world. The core enabling component of the Single Desk is established in Part IV of the Act which, in essence, prohibits western Canadian wheat and barley producers from marketing their wheat and barley in interprovincial and export markets.

(b) Amendments to the Act in 1998 (the "1998 Amendments") transferred operational control over the CWB from a Board of Commissioners to western Canadian wheat and barley producers. Key among the 1998 Amendments was the addition of section 47.1 which established that wheat or barley may be removed from the application of Part IV of the Act only by way of valid legislation enacted by Parliament, preceded by consultations with the Board and a majority vote of producers in favour of the exclusion of the grain from Part IV of the Act and from the CWB’s exclusive statutory marketing mandate;

(c) In contravention of his statutory duty pursuant to section 47.1, the Minister has determined that he will not consult with the Board or conduct a vote of western Canadian wheat and barley producers prior to causing to be introduced in Parliament a bill, the effect of which is to remove wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate;

The CWB, its Statutory Object and the 1998 Amendments to the Act

(d) The CWB is a corporation continued pursuant to the provisions of the Act which expressly provides that, inter alia, the CWB is not an agent of Her Majesty or a Crown corporation. Section 5 of the Act establishes that the object of the CWB is the marketing in an orderly manner, in interprovincial and export trade, of grain grown in Canada.

(e) Part III of the Act provides for the pooling of all grain delivered to the CWB by producers, which is classified as being a particular type, grade, class and quality of wheat or barley. Price pooling ensures that each producer receives the same payment for the same grain delivered at the same location in the designated area regardless of when during the crop year that grain is delivered. Thus each producer receives a proportionate share of prices obtained in premium markets and from price upswings.

(f) Part IV of the Act prohibits any person other than the CWB from engaging in the sale of wheat, durum or barley that is destined for export or for human consumption within Canada, subject to certain limited exceptions.

(g) The 1998 Amendments transferred the authority to direct and manage the business and affairs of the CWB from federal government appointees to the new, fifteen member Board, ten members of which are elected directly by western Canadian wheat and barley producers. The statutory powers of the CWB were vested in the Board with the result that federal government has no involvement in the CWB's day-to-day operations. At present 8 of the 10 directors serving on the Board were elected on their platform position that the CWB's Single Desk is essential to the CWBs ability to function in the marketplace.

(h) The intent and effect of the 1998 Amendments was to transform the CWB from an entity accountable solely to the federal government to a farmer-controlled enterprise accountable to the western Canadian wheat and barley producers who elect the majority of the Board.

(i) The 1998 Amendments also included the addition of section 47.1 of the Act, which provides as follows:

47.1 The Minister shall not cause to be introduced in Parliament a bill that would exclude any kind, type, class or grade of wheat or barley, or wheat or barley produced in any area in Canada, from the provisions of Part IV, either in whole or in part, or generally, or for any period, or that would extend the application of Part III or Part IV or both Parts III and IV to any other grain, unless

(a) The Minister has consulted with the board about the exclusion or extension; and

(b) The producers of the grain have voted in favour of the exclusion or extension, the voting process having been determined by the Minister.

(j) Following the adoption by Parliament of the 1998 Amendments, section 47.1 and the Act as a whole obligate the Minister to consult with the Board and conduct a vote of wheat and barley producers in advance of causing to be introduced legislation, the effect of which is the removal of wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate;

Government Policy Regarding the CWB

(k) Following the federal election in 2006, the Conservative Party of Canada formed the Government. Thereafter, the Minister, among other members of the Government, embarked on a policy to implement what was variously described as a "dual market," "marketing choice" or a "voluntary" CWB for western Canadian barley producers. The implementation of such a policy by the Government would result in the elimination of the Single Desk.

(l) During this period the Government also conducted a vote to determine whether producers were in favour of removing barley from the Single Desk marketing mandate of the CWB. As the question used in the vote was ambiguous and misleading the results were inconclusive. In 2007 the Government attempted to remove barley from the application of Part IV of the Act by regulation. However, this Honourable Court declared the regulation to be ultra vires.

(m) The Conservative Party of Canada has now achieved majority status in the House of Commons. Subsequent to the recent federal election the Minister stated publicly that the Government would not conduct a vote among farmers as required by s.47.1 (b) before eliminating the CWB's Single Desk marketing mandate. On June 16, 2011 the applicants issued a press release demanding that the Minister conduct a vote of wheat and barley producers and forwarded a letter to the Ministers Ottawa and constituency offices by E-mail. On or about June 20, 2011, the Minister responded to the applicants’ demands by stating publicly that no such vote would be held.

The Minister's Statutory Duty to Consult and Hold a Producer Vote

(n) The scheme of the Act, and in particular section 47.1, obligates the Minister to consult with the Board and conduct a vote of wheat and barley producers prior to causing to be introduced in Parliament legislation which has the effect of removing wheat and barley from the application of Part IV of the Act and from the CWB’s exclusive statutory marketing mandate.

The duty to consult is owed to the CWB and the duty to conduct a vote is owed to wheat and barley producers, including the individual applicants. In addition: (i) there is a clear right to performance of the duty; (ii) no adequate alternative remedy is available to the applicants; (iii) the order sought will have practical value or effect; (iv) there is no equitable bar to granting the relief sought by the applicants; and (v) the balance of convenience favours the issuance of an order in the nature of mandamus.

(o) Accordingly, the Minister's refusal to consult with the Board and hold a vote represents a breach of his statutory duty pursuant to section 47.1 and an order in the nature of mandamus should issue.

The Legitimate Expectations of Wheat and Barley Producers

(p) A number of academic and professional studies have concluded that the CWB as a Single Desk seller can obtain premiums in the marketplace. These premiums are now distributed proportionately among producers. It is their understanding and expectation, and that of the applicants, that s. 47.1 was added to the Act as part of the 1998 Amendments so that: (i) no future government could precipitously and without rational analysis effectively reduce their incomes without first consulting with the Board and with producers through a vote; and (ii) the CWB’s marketing mandate could not be altered without the Minister first consulting with the Board and with producers through a vote;

(q) The Minister held a form of vote before it attempted to remove barley from the exclusive marketing mandate of the CWB in 2007, leading applicants and producers to expect that a vote would be held before any other proposed changes to the CWB’s mandate were made.

(r) The policy platform issued by the Conservative Party of Canada prior to the general election held on May 2, 2011 stated in respect of the CWB’s marketing mandate: “We will continue to work with Western Canadian grain farmers to ensure that the results of the barley plebiscite are respected and that they are given the freedom to chose whether to sell grain on the open market or through the Canadian Wheat Board." The policy platform made no reference to wheat or durum.

(s) Prior to the commencement of the election campaign the Minister stated publicly that the CWB’s market mandate would be determined democratically. The Minister’s statements were widely reported and were understood by producers, including the applicants, to mean that the vote required by s. 47.1 would be held in advance of any change to the CWB’s marketing mandate.

(t) At least one Conservative Party of Canada candidate stated during a public all-candidates forum in the campaign that a vote would be held before the CWB’s marketing mandate would be altered. This statement was also widely reported and was understood by producers, including the applicants, to mean that the vote required by s. 47.1 would be held in advance of any change to the CWB’s marketing mandate.

(u) At no point during the election campaign did any Conservative Party of Canada candidate state unequivocally that the CWB's mandate would be altered without a vote as required by s.47.1, all of which gave further weight and legitimacy to the expectations referred to above of the applicants and other producers.

(v) The inclusion of s. 47.1 in the Act, the conduct of the Minister, the Government and members of the Government leading up to and at the time of the 1998 Amendments and thereafter, gave rise to a legitimate expectation on the part of wheat and barley producers that the Minister will consult with the Board and will conduct a vote of wheat and barley producers prior to altering the CWB’s marketing mandate.

(w) The Minister’s refusal to consult with the Board and to conduct a vote of wheat and barley producers is contrary to the legitimate and reasonable expectations of wheat and barley producers, including the individual applicants and represents a breach of the duty of fairness. The applicants are therefore entitled to the relief sought in this application.

This application is also made in the public interest

(x) Each of the individual Applicants are western Canadian wheat and barley producers who rely substantially on the CWB for their livelihood and thereby have a direct interest in the outcome of this application.

(y) The Applicants make this application in their personal capacity and in support of the public interest. The issues raised herein are of substantial and direct interest to the significant majority of farmers who depend on the CWB for a significant portion of their livelihood. Very few of those producers are able to carry the cost of litigation of this magnitude alone and so are highly unlikely to do so. The individual Applicants and the unincorporated association, Friends of the Canadian Wheat Board, appear to be the only parties ready, willing and able to seek judicial relief in this matter.

Request Pursuant to s. 317 of the Federal Courts Rules

(z) Applicants hereby request that Respondents deliver to Applicants all material in their possession relevant to this application including, but not limiting the generality of the foregoing, all studies, surveys, correspondence, minutes, memoranda, letters sent or received relating to the single desk marketing mandate generated in the 6 years prior to the date of this application, whether it be in written or a computerized or other form.

Statutes and Regulations to be relied on:

(aa) The Canadian Wheat Board Act, R.S.C. 1985, c. C-24, as amended;

(bb) The Federal Courts Act, R.S.C. 1985, c. F-7, as amended;

(cc) The Interpretation Act, RSC 1985, c I-21, as amended;

(dd) The Federal Courts Rules, SOR/98-106, as amended;

(ee) Such further and other grounds as counsel may advise and this Honourable Court
may accept.

3. This application will be supported by the following material:

(ff) the affidavit of Dr. Derek Brewin to be filed and the exhibits thereto;

(gg) the affidavit of Duncan Geisler, filed;

(hh) the affidavit of Ian MacCreary to be filed and the Exhibits thereto;

(ii) the affidavit of Bill Spafford to be filed and the exhibits thereto;

(jj) the affidavit of William Nicholson, to be filed; and

(kk) the affidavit of Robert Roehle, to be filled and the exhibits thereto.

(kk) such further and other material as counsel may advise and this Honourable Court
may accept.
________________________
Anders Bruun
Barrister & Solicitor
3-37 Balmoral Street
Winnipeg, Manitoba
R3C 1X3