Two neighbouring farmers, a field of canola and a gust of wind are at the centre of a landmark court case in Australia that could have consequences for the controversial growing of genetically modified crops in the country.
Steve Marsh is suing former childhood friend Michael Baxter after harvested seed heads from Baxter’s genetically modified canola crop blew onto Marsh’s farm in the state of Western Australia, court documents said, contaminating land used for his organic oat and wheat crops.
Marsh, stripped of his organic certification and export licence for his oats, is claiming unspecified damages for loss of income in the civil negligence case, which opens on Monday in the West Australian Supreme Court.
It is the first time in Australia one farmer has sued another for negligence over contamination of organic crops by genetically modified organisms (GMO) and will set a precedent for future cases, lawyers said.
“People around the world are going to be looking at this,” said Michael Blakeney, a law professor at the University of Western Australia who does advisory work for the United Nations Food and Agricultural Organization. “It is testing whether a GM crops farmer has a duty of care to a neighbour that is growing organic crops not to contaminate them.”
Baxter bought the seeds from Monsanto, the world’s largest seed company.
After getting legal advice, Marsh opted not to sue the US firm because of a non-liability contract Monsanto signs with all farmers who buy its seeds, said Scott Kinnear, director of the Safe Food Foundation, an organic farming advocacy group collecting donations to help fund Marsh’s suit.
The case is likely to lead to regulations outlining boundaries between farms producing genetically modified crops and organic farms, lawyers and agribusiness experts said, potentially reducing the land available for cultivation. It could also change Australia’s unique zero tolerance status for contamination of organic crops, they said.
Unlike the US, the European Union and Japan, which allow trace amounts of GMO in organic foods in acknowledgement of contamination by wind or pollen transfer, Australia maintains a zero threshold.
“If the organic people don’t win the case, there will be a lot of pressure brought to bear for a change to the organic standard and that might remove some of the difficulties of co-existence,” said Joe Lederman, managing principle at Food Legal, a Melbourne law firm specialising in food and agribusiness, which has represented both businesses and farmers in the past.
Ill wind
Kojonup, a wheat and sheep district some 250 km south of the West Australia state capital Perth, is a quiet, tight-knit community of farmers. But the case brought by Marsh, 49, is splitting loyalties in the pastoral area where many farmers have turned to cutting-edge GMO production.
GMO critics say the spread of genetically modified crops hurts the environment, most notably by fostering herbicide-resistant weeds, and that food made with the crops can harm humans. However, the proponents of GM crops say that the crops are proven safe and proper use of the chemicals associated with the crops by farmers can mitigate environmental problems.
Marsh’s decision to sue Baxter, 48, has garnered support from celebrity chefs and gardeners. Law firm Slater and Gordon is working pro bono, on the basis the case has broad public interest.
“We believe it’s his right to be able to farm GM-free and have a degree of protection,” said Kinnear, whose Melbourne-based group is collecting money for Marsh’s other expenses, such as payments to experts and travel costs.
Marsh’s lawsuit alleges that harvested seed heads from Monsanto’s laboratory-created Roundup Ready canola seed blew from Baxter’s property across a dirt lane and over a boundary fence in November 2010, re-germinating on Marsh’s land in January 2011.
Canola is grown for its seed, which is crushed for the oil used in margarine, cooking oils, salad oils and edible oil blends.
After an inspection by the National Association for Sustainable Agriculture Australia (NASAA), a certifying agency for the government-backed regulator Standards Australia, Marsh lost organic status for produce from 70% of his farm.
“This is nothing more than anti-GM publicity,” said PGA Western Grain growers chairman John Snooke, who is also acting as a spokesman for Baxter. “Michael and PGA of Western Australia both believe in the farmers right to choose what he grows.”
GMO scenario in the US
In the United States, where more biotech crops are grown than anywhere else in the world, rising cases of contamination by GMO crops led the Organic Seed Growers and Trade Association to last week issue new guidelines and protective practices for organic growers.
Those cases have centered around the issue of intellectual property and involved Monsanto directly, rather than the farmer v farmer negligence issue in the Australian case.
Monsanto has routinely sued US farmers who it says intentionally plant its biotech seeds without paying for the technology.
As those cases have increased in number, the US organic association sought pre-emptive protection for farmers whose fields were inadvertently contaminated with crops containing the company’s genetic modifications.
But legal action by the association to try to force Monsanto to issue a “blanket covenant” to promise not to sue for inadvertent contamination was rejected last month by the US Supreme Court, allowing the company to continue to bring lawsuits on a case-by-case basis.