(c) Government Involvement (Cont.)

4.64 Canada further refuted the US claim that the recent Panel Report in Japan - Photographic Film provided support for the proposition that the Canadian dairy export measures at issue were to be treated as governmental in character (paragraph 4.58). Canada argued that that panel report did not provide a rule with respect to determining whether or not a measure is governmental:

4.65 Canada argued that an examination of GATT cases showed, if anything, that the opposite conclusion than that argued by the United States could be drawn. The Japan - Semi-Conductors case, ¹⁰⁰ involved a situation where the Government of Japan had initiated a policy of its own volition and then sought to impose it on the industry. In the words of the panel in Japan - Photographic Film, this policy was "operated to exert maximum possible pressure on the private sector". ¹⁰¹ Thus, this was a clear case of top-down direction from government, through the private sector. By contrast, it was clear that in the present case there was no policy being imposed by governments. In particular, there was no government imposed policy whatsoever on export methods or levels. This was left to the producers and producer boards to determine. Involvement by government had been limited to oversight. The Complainants had referred to the EEC - Dessert Apples case (paragraphs 4.43 and 4.58) suggesting that the facts in that case were relevant to the current matter. As in the case of Japan - Semi-Conductors, Canada pointed out that the fact was that the measures in question in EEC - Dessert Apples represented top-down government direction in a mixed government/private sector environment. In particular, the Panel in EEC - Dessert Apples noted:

4.66 Canada argued that the distinction between the EEC - Dessert Apples situation, with direct action by government to implement the policy, and the present case where government provided enabling discretionary authority without policy direction was obvious. In sum, the theme through all these cases was one of governments participating in a top-down, policy-directing and initiating role. The Complainants had failed to show any evidence of governments in Canada setting and dictating policies with respect to the operation of the Canadian dairy system and, in particular, the Special Class export practices at issue. Accordingly, this was suggestive that, using the case-by-case approach, the current case fell outside of the type of situation that could be considered to be governmental.

4.67 Canada further refuted the significance attributed by both New Zealand and the United States to the Bari case. The Bari cases involved a group of non-licensed British Columbia producers and a processor who were custom processing milk for those producers for marketing in inter-provincial trade. The litigation arose well before the Special Milk Classes Scheme was introduced and, more importantly, had nothing whatsoever to do with export trade in milk or milk products. In response to constitutional gaps in the domestic milk marketing regime identified at an earlier stage in the litigation, regulations were established in 1994 pursuant to the CDC Act. The Bari III case referred to by New Zealand addressed the validity and applicability of the Regulations in a purely domestic context. The Bari litigation had little relevance to the export of products made from milk sold under Special Classes 5(d) and (e).

4.68 Canada also refuted the Complainant's assertion that milk would not be available to producers of dairy products for export at the indicated prices absent the structure of the dairy regime established by the Canadian federal and provincial governments (paragraphs 4.48 and 4.54). Canada argued that the reality was that export milk was sold to processors at prices negotiated in arms-length transactions directly responsive to world market conditions. Canada argued that even if the CDC were to cease to perform the negotiating activities on behalf of producers that it currently performed, the realities of the world market which drove those export prices would still be the same. Indeed, Canada argued that if the CDC were to exit the export pricing negotiations altogether and producers were to negotiate export sales through their producer boards, processors might easily succeed in negotiating a slightly lower price with nine producer boards having less experience than the CDC in world markets. In this context, to assert the existence of a "benefit" to Canadian processors flowing from the negotiating role performed by the CDC was not only counter-intuitive, it was nonsensical.

4.69 Canada cautioned the Panel in respect of New Zealand's arguments relating to the 1960 Working Party Report regarding the notification of export subsidies under Article XVI of GATT 1947 (paragraph 4.41). That Working Party Report occurred in a context in which there was no consensus among GATT Contracting Parties as to what constituted a subsidy. The entire focus of the report was to decide what measures were to be notified. Accordingly, the report advanced the Contracting Parties trade policy objectives by requiring notification of certain matters so that the Contracting Parties could assess the resulting trade impacts. Given that there now existed binding obligations with respect to subsidies, the Panel had to be careful in using that Report for the purpose of reading context into the definition of "subsidy".

4.70 The United States noted that Canada argued that the Bari case was irrelevant because it allegedly did not address the issue of exports. This was a remarkable statement by Canada in light of the fact that the principal issue was the authority of the provincial boards over export and inter-provincial trade. In addition, the Canadian court specifically addressed the question of the authority to impose a levy on production. That levy, of course, was used to fund exports and to allow exports of dairy products to be competitive on world markets. Those issues appeared to the United States to be relevant to exports despite Canada's protestations to the contrary.

4.71 In respect of the 1960 Panel Report, the United States noted that Canada's argument that the 1960 Panel Report regarding notification of subsidies should not be given weight because it was issued at a time when the current consensus on those subsidies under the current Agreements had not been concluded totally ignored the fact that the view of producer-financed subsidies had not changed in over 30 years since the Report was issued. In fact, relevant language to this dispute first appeared in that Report and now had been incorporated into the SCM Agreement. Those considerations argued for greater not less weight for the 1960 Report.

(d) Producers' Involvement

4.72 New Zealand noted that the Canadian arguments focused almost exclusively on the role of producers within the system in order to distract the Panel from the fact that it was exporters, and not producers, who were being subsidized. New Zealand recognized that producers operating individually and collectively were involved in the export regime for Canadian milk products. The fact that a body was composed of producer members did not alter the character it had been granted through its statutory mandate (paragraph 4.21). The power "to regulate the marketing of milk in inter-provincial and export trade" - a power possessed, for example, by the British Columbia Milk Marketing Board ¹⁰³ - did not cease to be the exercise of a governmental regulatory function in respect of export trade because the Board happens to be composed of producers. New Zealand argued that contrary to the impression conveyed by the Canadian arguments, provincial milk marketing boards were not producer clubs. They had regulatory functions, and their authority to regulate was derived from statute, not from the agreement of producers. Milk producers had to comply with the decisions of the provincial boards. They had no right to produce milk and market it except in accordance with the systems established through the combined actions of the CDC and the provincial marketing boards and agencies. Access to the system could only be gained through the purchase of existing quota.

4.73 New Zealand noted that Canada had also sought to portray the production of milk for export as the result of the individual decisions of producers relying on their own business sense (as argued by Canada in paragraph 4.109). Yet the power of individual producers was largely limited to deciding upon their level of milk production. The revenue they received for that milk did not depend on market forces. The revenue a producer received depended on whether the milk produced was classified as in-quota or over-quota, and whether it was exported or sold on the domestic market. And those decisions were not made by the individual producer. They were made through the interaction of the CDC and the provincial milk marketing boards and agencies, under the auspices of the CMSMC (further argued in paragraph 4.93 and following).

4.74 New Zealand argued that Canada's description of the operation of the Special Milk Classes Scheme as one that was "developed on a bottom-up basis by Canadian producers" where Governments simply implemented what they were directed to do by producers was an implausible explanation of how governments operated. In any event, it did not prevent the conclusion that there was an export subsidy.

4.75 The United States noted that Canada argued that the Special Milk Classes Scheme gave milk marketing in Canada a market-orientation that it had lacked under the producer levies that were eliminated during 1995. In particular, Canada contended that whereas the old system was dependent largely on supply management, the new Special Milk Classes Scheme allowed Canada's milk producers to price to the various markets available for their products. At the core of Canada's argument was its assertion that the over-quota levy that existed under the pre-1995 system served as a disincentive to production above quota limits. ¹⁰⁴ The United States argued that since the Special Class prices were set at approximations of the world market prices, there appeared to be comparatively little difference between the economic treatment of over-quota production under the levy system as contrasted with the present Special Class 5(e), which was applicable to over-quota production. Canada's assertion that the change to the Special Milk Classes Scheme heralded a new day of producer independence was, in the US view, unfounded.

4.76 The United States stressed that producers could not on their own achieve the national coordination of prices and production that was essential to the operation of the Special Milk Classes Scheme. Canada had, in their view, exaggerated the legal basis for the producers' role in the system and particularly their role in decision-making. The United States claimed that Canada ignored two important factors. The part played by producers was permitted by: (i) the delegation of government powers to producer marketing boards; and (ii) the provincial governments' designation of producers as representatives to the CMSMC. In both instances the producers' participation was at the discretion of the governments involved.

4.77 The United States argued that the omission of several critical facts distorted Canada's portrayal of the scope of the legal authority possessed by the milk marketing boards in their role as designated representatives for the Provinces on the CMSMC. While Canada contended that most of the voting representatives participating in the Canadian Milk Supply Management Committee were from producer marketing boards, Canada neglected to give any weight to the most critical fact. The voting representative from each province was selected by the provincial government, the provincial government commission overseeing the industry, and the provincial marketing board. ¹⁰⁵ Thus, any producer who was a representative of a province at the CMSMC did so by virtue of the decision of three separate entities, two of which were entirely governmental. Therefore, any producer representative designated to sit at the CMSMC table did so at the discretion of the provincial governments. Even were this not the case, the fact that producers sat on the CMSMC, a policy making committee, again did not alter the fact that the CMSMC itself was a creation of a federal-provincial government agreement. Canada, which contended that the CMSMC was run by milk producers and was the decision-maker for dairy policy, also failed to explain why Canada's Attorney-General in the Bari litigation described the CMSMC as "a federal body, a federal functionary ...

4.78 The United States argued that while Canada's portrayal of the provincial milk marketing boards admitted that federal and provincial delegation of powers were essential to their functioning, Canada failed to acknowledge the binding decision-making powers of the provincial government authorities respecting the boards' operations. The CDC's website description of the operation of dairy management in each of the provinces was enlightening for this purpose. ¹⁰⁷ In connection with the province of Nova Scotia, the CDC's internet site stated: "The Nova Scotia Dairy Commission is a government agency which controls the province's marketing." In Ontario, according to the same report, "[t]he Farm Products Marketing Commission, a branch of the Ontario Ministry of Agriculture and Food, acts as a supervisory board for the industry." With respect to Quebec, the website stated that: "In all cases of unresolved dispute, the Regie des marches agricoles et alimentaires - a government organization - has the authority to intervene, and will act as a tribunal and hand down a final and binding decision." In New Brunswick, the same report explained that while the milk marketing board possessed the main responsibility for milk marketing, the Farm Products Marketing Commission, a government agency, which administered the Farm Products Marketing Act, oversaw the activities of the milk marketing board. As Canada already admitted that the milk marketing boards in the provinces of Alberta and Saskatchewan were government operated, there was no need to examine them further. Thus, in at least six of the provinces, accounting for an overwhelming majority of milk production, the provincial governments retained ultimate authority respecting the operation of the milk marketing boards. Although the milk producers could choose who sat on the board, it was the provincial and federal governments that determined the respective board's authority, and it was the provincial government that had the final say on the operation of the boards.

4.79 Hence, the United States argued, regardless of the fact that producers had a role in the Special Milk Classes Scheme, which was not denied by United States, the fundamental authority, practices, and operations necessary for the national application of the Special Milk Classes Scheme were governmental. That the governments at both the federal and provincial levels had entrusted certain powers to the milk marketing boards, and thus indirectly to producers, did not alter the fact that the powers exercised by those boards were governmental in origin and that the boards as institutions were ultimately answerable to the overseeing government authorities.

4.80 The United States argued that the Special Milk Classes Scheme, as outlined in its own and New Zealand's arguments above, was created under the authority of the federal and provincial governments, and was administered, maintained, and enforced by them. Now that it existed, milk producers did not have a choice in its application. Milk producers could not market the milk that they produced without a government assigned quota and a CDC issued license. Milk producers also did not have any input into whether their milk was sold into one of the Special Classes or another. They could not opt not to participate in the Special Class pool.

4.81 In respect of price, the United States stressed that the dairy farmer had no input in the pricing of milk for over-quota production. Canada stated that all over-quota production received the 3 month rolling-average Special Class 5(e) price. The Special Class 5(e) price was approximately 50 per cent of the price obtained for the same milk components in the domestic market in Canada. The milk producer had absolutely no ability to sell over-quota milk at the domestic price levels. The Special Milk Classes Scheme closed this alternative to the milk producer. Although Canada asserted that the CDC, a Crown corporation, only negotiated the Special Class 5(e) price for the farmers and their boards, Canada had conceded that the price was rarely, if ever, rejected by either. Yet, for example, the British Columbia Consolidated Milk Marketing Order provided in Part VIII, paragraph 31, that "[t]he Board will determine the minimum Producer price for over quota production based upon the calculated world price published by the Commission." ¹⁰⁸ It was noteworthy that this regulation did not say that the Board could base the Producer price on the Commission published price, but that it will base the price on the CDC published price. Similarly, the Manitoba Milk Producers newsletter published monthly the CDC Special Class price for over-quota production and indicated that this was the price that would appear on producers' monthly pool statements. ¹⁰⁹ Again, this left little question but that as a practical matter, the CDC calculated price was the only price available for over-quota milk. ¹¹⁰ In this sense, the United States argued that it would be more accurate to state that the CDC was negotiating a milk price for the dairy exporter, rather than for the dairy farmers. This was because a dairy processor with an opportunity for an export sale approached the CDC with the price that it could obtain in the international market for the dairy product export, such as butter, or cheese. The CDC then negotiated with the processor/exporter an "assured margin" which incorporated an amount for profit as well as the processor's costs. ¹¹¹ This amount was then subtracted from the processor's selling price for butter, cheese, or some other dairy export in world markets. The international sales price for the dairy export, less the processor's "assured margin," was the amount paid to the dairy farmer for his or her milk.

4.82 Thus, the entire calculation procedure was aimed at assuring a price to the processor/exporter that allowed the export to take place at world market prices. While presumably the interests of the dairy producers were considered, the over-riding objective was to ensure that surplus dairy products were exported. The major benefit derived by the milk producers from such exports was that they assisted in administering the supply management of dairy products and producers got some return for this surplus production. Without such exports, the surplus would be destroyed with obvious political ramifications.

4.83 Hence, the United States submitted that Canadian exporters of dairy products were provided with milk priced at the lower Special Class 5(d) and (e) levels only as a result of the Special Milk Classes Scheme, that had been put into place by the joint action of the federal Government of Canada and the provincial governments. Without the government action that required the removal of surplus in-quota and over-quota production at prices negotiated or set by the CDC, those producers of dairy product exports would not receive the lower priced milk necessary for them to compete in international markets. It was not normal commercial practice for a government entity to customize the price of an input to match particular sales opportunities.

4.84 Canada maintained that the creation of the Special Milk Classes Scheme was a producer-initiated process and that contrary to the assertions of the Complainants, the Special Milk Classes Scheme was not imposed by governments. It was developed on a bottom-up basis by Canadian producers through their producer organizations and the producer-dominated CMSMC. Through their decisions in these bodies, the producers had reached agreement on the principles that would form the foundations of such a system. In those resolutions, they called on governments to take the necessary steps to provide the enabling authority that would allow such a system to come into being.

4.85 Canada noted that as early as 1993, proposals were being circulated for a revision of the Canadian supply management system to include new features such as possible pooling systems and an optional export programme. The purpose of these proposals had been to respond to perceived new market conditions and to introduce added flexibility and competitiveness so as to take advantage of the new export opportunities that would emerge from the conclusion of the Uruguay Round. In Quebec, for example, an early initiative in this direction was taken at the 14-15 April 1993 meeting of the General Assembly of Fédération des producteurs de lait du Québec to begin the process of renegotiating the terms of the NMMP. Further decisions in the General Assembly in 1994 and 1995 advanced this process, particularly with respect to regional pooling arrangements. These decisions fundamentally modified the basis of the Quebec dairy marketing plan and the conditions that applied to the marketing negotiations conducted between producers and processors in Quebec. Parallel developments were taking place within the industry in other provinces, developments that ultimately culminated in the decisions taken at the CMSMC to propose the Special Milk Classes Scheme. Thus, Canada argued that governments in Canada had not imposed arrangements on the dairy producers and processors. Governments had responded to the initiatives of the industry by providing the discretionary authority required to implement industry proposals, provided those proposals were in the public interest. On the other hand, had the processors and producers rejected the concept of a national Special Milk Classes Scheme, it was quite certain that such a system would never have been implemented.

4.86 Canada argued that the object of the supply-management system in Canada had been to provide the Canadian dairy industry with the means by which they could effectively govern their own affairs, so as to yield a fair return to producers while balancing the interests of processors and consumers. The purpose of the supply management system was to take the necessary steps to match, as closely as possible, the quantity of milk to be marketed for domestic use with Canadian domestic demand. This, coupled with border measures to control imports into the domestic market, allowed for the maintenance of price levels for milk in the domestic market higher than would otherwise be obtained in the absence of such measures. In order to provide Canadian dairy producers with the means to operate such a system, governments in Canada had put in place the legislative and regulatory framework to allow such a self-governing regime to function. Provincial governments had passed enabling legislation to provide for the establishment of producer-run marketing boards.

4.87 It followed that the Canadian dairy marketing system rested on the foundation of the producers themselves. Canada noted that the United States conceded that the producer-run boards were "private entities", "private parties" and "dairy producer organizations". ¹¹² They were organised throughout Canada, from the local level, including co-operatives, and then up to the provincial ¹¹³ and national ¹¹⁴ levels. Through these producer organisations, the individual producers maintained close links with each other and had an effective means for the development of policies and other marketing initiatives. At the provincial level, the key producer-controlled institutions were the milk marketing boards (the "producer boards"). In each province, these boards only came into being through an affirmative vote of the producers. In most provinces, ¹¹⁵ and in Ontario and Quebec in particular, the membership of the boards consisted exclusively of producers. Through on-going consultations at the district and provincial levels, the producers held these elected representatives responsible for their actions. In Quebec, many of the important decisions of the board were the subject of individual voting at general meetings of the producers. Thus, without question, the boards were controlled by, and act on behalf of, the producers. ¹¹⁶

4.88 Canada argued that the heart of the Canadian dairy system was to be found in the CMSMC (paragraph 2.27). The central actors in the CMSMC were the various provincial producer boards. Each province sent a delegation. These delegations were led by "designated representatives" who were senior executives with the respective producer boards. ¹¹⁷ Provincial government officials participate in an oversight role, without having voting rights. It was the producer board representatives who had the right to vote on and thus directly participate in the CMSMC decisions. As a result, for seven of the nine provinces, representing 92 per cent of Canada's dairy producers, the designated representative was a dairy producer elected to the producer board by fellow dairy producers. ¹¹⁸ Canada noted that even a cursory review of the signature pages of the Comprehensive Agreement on Special Class Pooling showed the signatures of producer boards in addition to the signature of government officials. Nevertheless, Canada did not argue that only the producers or the industry were involved. The Comprehensive Agreement on Special Class Pooling, like the NMMP and the CMSMC, represented a co-operative arrangement in which all interested parties, the producers, through the producer boards, and government representatives in their public interest capacity ¹¹⁹ participated.

4.89 Canada argued even a minimal knowledge of Canadian political life would confirm that no federal government institution could ever begin to dictate to provincial representatives where provincial jurisdiction and interests were at stake. Indeed, in this case, the chief provincial speakers were representatives of the industry, not government, this made the picture of unilateral federal government action painted by the Complainants even less credible. The true character of the CMSMC, based on co-operation and consensus, was representative of the character of the Canadian dairy system as a whole. Although the processors did not have voting status in the formal arrangements for the CMSMC, they had a prominent role at the CMSMC table. This was because, as a matter of practice, every effort was made to reach a consensus that could be supported by all provincial producer representatives as well as the other stakeholders in the industry.

4.90 Canada noted that the Complainants, rather than addressing the CMSMC, preferred to stress the CDC, a federal crown corporation, suggesting that it was the true controller of the Canadian dairy system. Their approach was understandable given the true character of the CMSMC, i.e., control in the hands of the producers in consultation with other concerned parties, and the difficulties that this presented for the Complainants' case. Canada argued that whereas the NMMP had provided that the CDC could take decisions for the CMSMC where no consensus was reached in the CMSMC, the provisions of the Comprehensive Agreement on Special Class Pooling took that override authority away with respect to all matters covered by that Agreement (paragraph 2.33). Since the matters covered by the Comprehensive Agreement on Special Class Pooling were very broad, this had left very little subject to the original override provision in the NMMP. This reality fundamentally undermined the attempt by the Complainants to allege that it was the CDC that controlled the Canadian dairy system, not the CMSMC.

4.91 Alternatively, Canada noted that the Complainants had argued that even to the extent that the CMSMC ran the system, it was a body composed of government officials. Canada recalled that for meetings of the CMSMC, for seven of the nine provinces, it was the representative of the producers who took the lead in discussions between provincial delegations. This producer representative, the "designated representative", was elected to the respective producer board by fellow dairy producers. As a result, it was producers who spoke most prominently with respect to the various aspects of the Canadian dairy system as they were brought before the CMSMC and this provided an important flavour to the nature of those proceedings. Nonetheless, representatives of provincial governments did attend and did speak at the meetings of the CMSMC when matters arose touching on their responsibility to oversee the public interest. Thus, through its consensus-based decision making structure, the CMSMC served to bring together the representatives of industry who took the lead on operational matters and representatives of government who ensured that the public interest was respected.

4.92 Canada noted that with respect to the processor margins (paragraph 4.81), transactions occurred at the highest milk price which the CDC believed it could achieve, subject to the potential exporter's willingness to participate. Canada argued that there were no standard mark-ups or margins, although the CDC used the return for milk producers that would be generated by making butter and SMP for export as the baseline in negotiating the milk price. The processor margin for CDC export sales was the subject of extensive negotiations between producers and processors following the completion of the Comprehensive Agreement on Special Class Pooling on how the surplus removal system would be implemented.

To continue with In- and Over-quota Milk and the Producers' Choice

⁹⁹ Panel Report on Japan -Photographic Film, op. cit., para. 10.56.

¹⁰⁰ Panel Report on Japan - Semi-Conductors, op. cit.

¹⁰¹ Panel Report on Japan - Photographic Film, op. cit., para. 10.54.

¹⁰² Panel Report on EEC -Dessert Apples, op. cit., p.126, para. 12.9.

¹⁰³ Section 3 of the British Columbia Milk Order, 1994, (SOR/94-511).

¹⁰⁴ The United States referred to Canada's First Submission, para. 42.

¹⁰⁵ Canada's Second Written Submission, Annex B, footnote 4.

¹⁰⁶ Outline of the Argument of the Attorney General of Canada, paras. 47-48 (United States, Exhibit 29)

¹⁰⁷ United States, Exhibit 54. (This United States Exhibit, in addition to including documents from the CDC's website, includes a chart excerpted from the Report identified in United States, Exhibit 25.)

¹⁰⁸ "Commission" was defined elsewhere in the Order to mean the Canadian Dairy Commission. Part I, paragraph 3 of the Order. (United States, Exhibit 43)

¹⁰⁹ The United States noted that in each month, Milkline, the Manitoba newsletter reports the over-quota prices in this manner: "The following is the price for over-quota production (world price) effective September 1, 1996, as calculated by the Canadian Dairy Commission." (Emphasis added.) The world price will be reported regularly in the Milkline and on the monthly pool statement. (United States, Exhibit 47)

¹¹⁰ The United States noted that it was worth considering what alternative the board had if it found the CDC negotiated price to be unacceptable. Given that milk was a highly perishable product, the board did not have long to consider its options. Furthermore, since the Class 5(e) permits were only issued, according to Canada, when the milk in question was surplus to domestic requirements and could not be sold in the domestic market at the prices set for that market, what real alternative did the board have except to accept the CDC determined price?

¹¹¹ The United States noted that Sub-paragraph (vii) of Annex B of the Comprehensive Agreement provided that a processor would receive an assured margin and that the level of the margin would be negotiated by the CDC with the processor. (United States, Exhibit 5)

¹¹² Canada referred to the United States' Second Written Submission, paras. 59 and 10.

¹¹³ At the provincial level, the key organizations were the producer run boards, e.g. the Dairy Farmers of Ontario, the Fédération des producteurs de lait du Québec, and the Manitoba Milk Producers.

¹¹⁴ At the national level, the producer organization was the Dairy Farmers of Canada.

¹¹⁵ Canada noted that this did not include Nova Scotia, Saskatchewan and Alberta. These three provinces represent less than 10 per cent of Canadian dairy producers.

¹¹⁶ Canada noted that the very names of the producer boards in Ontario and Quebec, in particular, gave testimony to the boards' own view of themselves: in Ontario, the Dairy Farmers of Ontario and, in Quebec, the Fédération des producteurs de lait du Québec.

¹¹⁷ Except in Nova Scotia, where the designated provincial representative was a member of the Board of the Nova Scotia Milk Producers Federation and the President of the Dairy Farmers of Canada.

¹¹⁸ Canada noted that Annex A (attached to its Second Submission) contained a full list and biographical background to the designated provincial representatives to the CMSMC. Canada also referred to comment #2 in Annex 13 with respect to the mischaracterization of provincial delegation representation in Exhibit 36 of the United States. The only non-dairy producer designated representatives were from Alberta and Saskatchewan, which accounted for less than 8 per cent of Canada's dairy farmers.

¹¹⁹ Canada noted that this public interest included ensuring that the interests of consumers and the processors were respected.