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ViterraDon Layh (left) and daughter Avery, who also works for the firm, in the Langenburg law office. Working in Langenburg has kept Layh's practice in close contact with farmers and the changing realities in the ag sector.
John is born in 1920. He is the oldest of 11 children. He is 15 in 1935 when the Depression is ravaging Saskatchewan. His family lives on a small farm, his mother is the post mistress in the nearby small town. There is no work. He rides the rails to Ontario to work in the woods and sends home as much money as he possibly can. With the outbreak of war, he joins the Canadian Air Force. At the war’s end, he returns to Saskatchewan. No one knows about post-traumatic stress disorder so he cries under the table when the dog barks but he holds it together well enough to buy a section of land set aside for veteran’s allowance. He turns a section of bush into a successful hog operation and wins the Master Farmer award for Saskatchewan in the 1970s. By 1982 his two boys want to buy the farm and do so for about half of what the valuation of the times says it is worth—the boys avoid the massive over-inflation of land values common in the early 80s. But they have to keep up with 20-plus percent interest on their loans and they lose the land. John’s legacy is gone.
Don Layh narrates this biography rapidly and with more than a hint of irony. His career as a lawyer, and indeed his own roots, have made him intimately familiar with the high and low points known by every Saskatchewan farmer since World War I. Our province has enacted some of the most muscular legislation known in the world to protect farmers and Layh has logged a lot of time in the court wrestling judgements out of it for both farmers and for lending agencies. His engagement with the legislation led him to write a book. His conclusions go far beyond anything imagined by current acts of government.
The law in question is the Saskatchewan Farm Security Act enacted in 1988. Layh’s book, A Legacy of Protection, reveals the act to be a monumental achievement in securing a farmer’s right to keep his or her land despite economic disaster. The act has its roots in law dating back to the 1930s but it entered Saskatchewan’s legal inventory at a time when farming, and more specifically the profile of a farmer, had already taken a radical departure from the past.
“You see an evolution through this legislation,” says Layh. “You start in the 1930s where there were a lot of desperate economic circumstances. We put in some very important legislation in the 1930s. “The whole spirit of the 1930s was that the credit was all held in the East anyway so if Saskatchewan farmers are pitted against Eastern equipment vendors let’s not make it easy on the vendors. Let the shareholders of the Royal Bank get a few pennies less on their dividend payment and we won’t worry about it in Saskatchewan. Or, if you’re a vendor of farm machinery and you’ve sold on credit, you’ll get your machinery back but you’re not going to sell it for a shortfall and then go back to the farmer for the balance.”
Layh suggests that the 1930s was a time of discord between lenders and farmers. The antipathy between lenders and farm families was acute after 1925 when the wheat economy peaked and began to tailspin. Legal protection for farmers devastated by weather or market disasters came too late for many but it was a nice setup for the prosperity following WWII.
The laws themselves, however, were not argued in court during the period they were established. “Farmers were not of a culture to default on debt during that period so the law wasn’t tested for the first 50 years,” says Layh. “There was very little case law.”
So is it possible to say that an untested law preserved the family farm in Saskatchewan? Did the law, in fact, have anything to do with nourishing the farm culture on the prairie?
“I grew up in the 1950s and 1960s,” says Layh. “At the time, farm families milked ten cows and made a living. The farm family was a reality. During the 1970s, I remember going to a wedding near Humboldt. I drove into the country church yard and saw all these Chryslers. I was struck by how well the farmers were doing. In the 1970s I think farmers were doing really well.”
But the early 1980s brought a wave of bad markets, drought, and ridiculous interests rates (24 percent) and the farm community reeled. Farming, and the farm family, had changed radically since the 1930s. But that didn’t stop legislators from reacting by deepening protections for a model of farming that was almost extinct in Saskatchewan.
“There was always this notion that, you know, Donald isn’t very good in school so I guess he’ll just have to stay at home and farm. The older kid had to stay home from school to help and the younger kids became RCMP officers and teachers.
“There were, as a result, a lot of farmers in the 1980s who should have been put to a merciful end. They just didn’t have the skills and they were faced with a confluence of things going wrong. And we had to package a lot of them up.”
The Farm Security Act was both blessing and curse from Layh’s perspective. Many farmers who should not have been farming received protection that protracted their operation with new debt. The agony was merely extended. For others, the right of buy-back on defaulted land and other legal rights gave farmers a second chance and some are still farming today. The act is, in fact, very effective at keeping lenders from claiming mortgaged land. “The law is so full of time delays in taking land away from anybody, you just grew weary. Some would say that the intent of the legislation is to make it living hell for the mortgagee and eventually they’ll settle.”
As a legal counsel, Layh has watched the intent of the law, the thing it was established to protect, disappear. “Now, in Saskatchewan, unincorporated farmers are becoming quite rare,” says Layh. “If you’re so sophisticated and have the kind of tax problems that require incorporation, why should the shareholders at the Royal Bank take away a smaller dividend while the [farm] corporation hides behind protectionist legislation?”
Layh’s question does not simply reveal an ideological preference for market economies that determine winners and losers on the vague assumption of level playing fields. There is, rather, an urgency to argue that farm law today needs to be updated for the very different circumstances Saskatchewan is already facing.
“One of the big questions facing this province,” he says, “is where are we going to go with agriculture? We’re on the cusp of something very new. No one has spoken about what is important in agriculture—we’re floundering a bit. It’s all brand new.”
The Farm Security Act is all about credit. Layh sees the Act itself as largely irrelevant to current farming realities but the notion of writing new legislation focused on credit is interesting to him. “Should there be something securing agriculture so that credit and the environment are linked together—maybe you impose the responsibility on mortgagees for contamination or improper stewardship of the land? “If you’re going to finance the purchase of 120 quarter sections of land for a corporation and put a mortgage on it maybe you can’t turn a blind eye to improper farming.”
Layh’s vision is for agricultural legislation is that it should give the public influence over land stewardship to some degree. “I don’t think we need most of the current act. But does the Province just vacate the market or do we have some really important things that we want to see done? Foreign ownership of land is rather interesting. Are we worried about the internationalizing of farming? Do we want to use credit policy to make credit more available or be subsidized if farmers are doing the things that we feel are important? Should mortgagees be looking at environmental farm plans for farming operations?”
Behind these questions lies a very studied conclusion that farming as it was, and as it is enshrined in the Farm Security Act, is long gone. An unknown future, on every level including the legal one, is imminent. And, with a hint of disappointment, Layh is reserved about a renaissance. “There is this notion of more intensive, more local control, more organic eating within your region,” he says. “These are all really intriguing. I love the idea of food self-sufficiency on the farm. But is there going to be an economic reality for a new version of the family farm? I’d be an interested proponent of it, but I don’t see it.” If an act of the legislature is ever a part of that possibility, it will be because politicians, as they did 30 years ago, believe people want it.
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