Lawyers for the Canadian Wheat Board have told a federal court that Agriculture Minister Gerry Ritz broke the law when he decided to allow western wheat and barley farmers to bypass the marketing agency.

"This is all about fairness. The minister's conduct, in my submission, was unfair and contrary to law," John McDougall told the court in Winnipeg on Tuesday.

"That decision ... was to be the decision of farmers."

'Farmers were promised a vote. The minister himself made that promise.'—Matthew Fleming, wheat board lawyer

The wheat board, along with supporters that include the Council of Canadians, is asking the court to rule that the federal government is wrong in its decision to strip the board of its monopoly over western grain sales without first holding a plebiscite of producers.

McDougall pointed to section 47.1 of the Canadian Wheat Board Act, which states that changes to the marketer's handling of wheat and barley cannot be made unless "the producers of the grain have voted in favour of the exclusion or extension."

Ritz has said that section only governs which commodities are sold by the board, not the existence of the board's monopoly.

He argues that grain sales can be opened to competition and the board can continue to handle wheat and barley on a voluntary basis — without any laws being broken.

The wheat board also has a secondary argument. It suggests that even if the court finds that the government did not break the law, it should rule that the government has a duty to hold a plebiscite because it promised one.

Matthew Fleming, another board lawyer, pointed to several public statements from Ritz and previous agriculture ministers that indicated farmers would get to vote on any changes.

"Farmers were promised a vote. The minister himself made that promise," Fleming said.

"In my submission, the minister should be held to his promise."

If the court rules in the wheat board's favour, the federal government could be forced to hold a plebiscite before the monopoly is scheduled to end next Aug.1.

Issue has divided farmers

The outcome of such a plebiscite would be uncertain. The wheat board held its own vote this year, in which more than half of the producers who participated voted to retain the monopoly.

But wheat board critics say many producers did not participate.

The issue has divided farmers.

The board was set up following the Great Depression in an effort to have farmers band together and seek higher prices.

Supporters say the single desk prevents producers from competing against each other for sales. Detractors say they want the freedom to seek better deals on the open market.

They point out that producers of other grains, as well as wheat farmers in other parts of Canada, already have that freedom.

Government lawyers are scheduled to make their arguments Tuesday afternoon.