GM crop test case

GM crop test case

GM crop test case

7 March 2014

The following opinion piece has appeared across Fairfax rural publications from Friday, 7 March 2014 and was published in Queensland Country Life on Wednesday, 12 March 2014.

After a couple of years build up, the WA Supreme Court case of Marsh v Baxter is drawing to a conclusion this week after nine days of hearings. The case has attracted worldwide attention and widespread coverage in foreign media (including in India, the UK and China).

The case involves neighbouring WA farmers, Steve Marsh and Michael Baxter, who have been in dispute since Baxter planted a crop of genetically modified canola in 2010.  Marsh has alleged that due to Baxter failing to contain GM plant material on his property, Marsh’s organically certified farm was decertified by the National Association of Sustainable Agriculture, Australia (NASAA).

The ramifications of the case are enormous. If Marsh is successful in establishing that Baxter was negligent by planting and harvesting the GM crop on his property, and the WA Supreme Court grants the injunctive relief that he is seeking (preventing Baxter from planting GM canola within 1,100 metres of Marsh’s property), this could have a significant impact upon the entire broad-acre cropping community and those farmers that share boundaries with certified organic properties.

The major hurdle for Marsh’s case is that the conduct of Baxter has been hard to fault.  He planted a legal crop in accordance with all the relevant GM rules and regulations, including buffer zones around his crop. 

Further, I would question whether Marsh even gets to first base with his negligence case. To establish negligence, Marsh needs to prove that Baxter has breached a duty of care that was allegedly owed to Marsh. The standard of this duty is judged against what is commonly referred to as the ‘reasonable person’ test (or the ‘reasonable farmer’ test in this instance). 

Using this test, it is impossible to conceive of a situation where it would be expected that neighbouring farmers would not have some form of plant transfer from one side of a fence to the other.  This transfer could be obviated by the building of a substantial, impermeable fence dividing the neighbouring properties, but such a proposition would be prohibitively expensive and clearly absurd.  As a result, it is questionable, even on first principles, whether Marsh’s negligence case has any prospects of success. 

One of the issues in the case has been criticism of the zero tolerance regime that NASAA requires its organic farmers to achieve i.e. no form of GM material is to be present in any crop.  This standard, even in the strictest and most controlled environments, is almost impossible to achieve.  It is for this reason that similar organic certifiers in US and the EU allow tolerances up to 5% and 0.9% respectively for GM material content before decertification.

By way of example, if you leave a cultivated field bare and do not plant a crop in it, soon enough all manner of weeds and other plants will begin to grow in it.  That is why the herbicide industry exists. How and where these particular plants/weeds arrive in a paddock is open to debate, but they can arrive on the wind, animal activity, vehicle/human movements and the flow of water. 

It is for this reason that it is absolutely unrealistic, and near impossible, to expect that there will be no cross-contamination in a broad-acre production system where there will not be some form of seed/plant material drifting from one paddock (and vice versa) to another.

This brings me to another difficulty with Marsh’s case.  Judges are notoriously reluctant to make decisions that ‘open the floodgates to litigation’.  And, while Marsh v Baxter is portrayed as a fight between organic and GM, it’s really a case about the consequences of inadvertent cross-contamination, and who should bear responsibility for it.  Here, a decision that Baxter should compensate Marsh for the kind of inadvertent cross-contamination that happens on farms every day could certainly ‘open the floodgates’.

I make one more observation on the law: the law of negligence recognises a concept known as ‘voluntary assumption of risk’ – that is, if you engage in risky behaviour, and suffer some damage, you bear at least partial responsibility.  In a context where organic farmers have undertaken to comply with NASAA’s stringent standards, and crop contamination is a fact of life – the decision to undertake organic cropping next to non-organic farms is certainly risky.  Should they bear some responsibility for making this choice?

Ultimately the question needs to be asked why responsibility for building a fence (if that is indeed the only solution) ought not fall on the organic cropper, who has made a business decision to comply with the rigorous NASAA standards in the hope that he can sell produce at a premium because it is organic.

It is ironic that one of the outcomes of the case may ultimately be the re evaluation of the NASAA standards to align with the tolerance levels that are allowable in the US and the EU.  The case has certainly highlighted that, whilst the standards are ideologically attractive, they are practically impossible to achieve.

No-one can begrudge Marsh his choice of growing an organic crop.  It is his land and he is free to do whatever he chooses on it (subject to the laws of WA).  However, organic crops will only ever be available for sale to a niche part of the market that are prepared to pay a premium for these products.  There is little doubt that there is room for organic cropping within various market sectors, but these crops will never feed an ever-increasing world population. 

Unless and until organic crops become the predominate cropping method, farmers should not allow themselves to have industry-wide policy on cropping practices dictated to them by niche players. 

If news reports are to be believed, the legal costs of both parties in this proceeding will be in the millions of dollars.  Given my litigation experience, these estimates are entirely plausible. But serious questions need to be asked about how a proceeding - where the likely damages to flow to Marsh (in the event that he is successful) will amount to $85,000 - could be allowed to occupy three weeks of Supreme Court hearing time.

There is little doubt that there is a serious question to be tried in the case, but the methods and motives of those pushing Marsh’s case need to be questioned.  

Unfortunately, the case has never been about Marsh or Baxter.  It appears to me that the case was hijacked from the start by anti GM interest groups that have seen this action as a Trojan horse method of attacking Monsanto (the company responsible for developing the GM canola crop) and stopping the inevitable take-up by more farmers of GM crops.
 

About McCullough Robertson

McCullough Robertson is a leading Australian independent law firm with industry specialists combining legal expertise with deep industry knowledge and foresight.  The firm provides innovative, relevant and commercial legal solutions to major corporate, government and high net worth individuals across Australia and internationally.  Established in 1926 the firm’s major focus areas are the resources (mining and energy), food and agribusiness, technology, telecommunications, health and life sciences (pharmaceuticals), real estate and financial services sectors.

Trent Thorne is an agribusiness lawyer with McCullough Robertson.  He has previously worked as a jackeroo on a vast NT cattle property (Wave Hill Station) and has family members with deep ties to the cattle industry.

Further information

For more information contact Trent Thorne on +61 7 3233 8845 or tthorne@mccullough.com.au.  Twitter: @agintegrity 

This article covers legal and technical issues in a general way. It is not designed to express opinions on specific cases.  It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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