GM contamination case hinges on duty of care as judges hear appeal

By RJ Whitehead

- Last updated on GMT

Farmer Steve Marsh is hoping the supreme court judges will overturn the high court's decision
Farmer Steve Marsh is hoping the supreme court judges will overturn the high court's decision

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"The heart of this clash between two neighbours is a question of how two systems of agriculture can co-exist," a court Western Australia’s supreme appeals court heard as an organic farmer who lost his certification allegedly due to the harvesting methods used by his neighbour, a grower of genetically modified canola, began an appeal.

What is unusual about this case is how it concerns GM agriculture, though its focus is not on the safety of modified crops but on how a neighbour’s actions might impact on a farm’s certification.

Steve Marsh, an organic oats grower, is seeking to change a landmark ruling from last year in which the high court ruled in favour of a conventional farmer who Marsh accused of contaminating his property with his GM canola. 

The court awarded costs of A$800,000 (US$628,000) to Michael Baxter, the GM grower. Marsh had sought A$85,000 (US$66,700) in damages from Baxter, a childhood friend, and a permanent injunction that would stop him from growing GM canola in the future.

Justice Kenneth Martin, hearing the appeal, ruled that Marsh's economic loss was not caused by Baxter's negligence.

Three judges began two-day hearing in Perth this week. A second hearing is also set this week to appeal the costs.

Greater duty of care to neighbour

What this case hinges on is whether Baxter had a greater duty of care to protect his neighbour’s organic certification. The outcome will either reinforce the right of a farmer to be able to grow whatever he wants on his property without interference, or it will remove the right for a farmer to have legal support in the event that it gets contaminated.

We found GM canola growing on organically certified land. The court found that there was no risk of GM contamination​," said Ben Copeman, general manager of the National Association for Sustainable Agriculture (Nasaa), whose certification body had ended Marsh’s organic credentials from 2010 to 2013, after the high court case. 

While tolerance thresholds for GM contamination are governed by the federal government under their own standard, it is not a legislated standard and so isn’t recognised by the courts.

Without any legally recognised form of protection, Australian organic farmland and produce is left vulnerable to contamination from conventional farming methods including GM crops. This could seriously threaten the [organic] sector’s access to domestic and international organic markets​,” warned Copeman.

The issue of how organic and non-organic farmers can co-exist while respecting each other’s right to farm in the way they choose will not go away and needs to be resolved​.”

Since May, when the decision was handed down, Nasaa has significantly adjusted its standards and contracts. At the time, Justice Martin was critical of the certification body for being unscientific and unreasonable.

"We took his comments very seriously​," said Copeman on ABC. "There were quite a few things that he said that we didn't necessarily agree with.

"We went right through our standards to have a complete review. We've made certain changes within those standards, which I'm not at liberty at this point to make public​.”

One change he was able to reveal was an updated definition of the term “contaminated​”, using “what is an internationally accepted term to keep consistency​”.

State allows GM canola

Australia first permitted the farming of GM canola since the Office of the Gene Technology Regulator approved Monsanto's Roundup Ready in 2003, though this was short-lived when the Western Australian state government introduced legislation prohibiting the practice. Once again, the 2008 coalition government ended the moratorium by promising to trial the crop. Commercial production soon followed.

In 2010, Baxter changed the way he harvested his crop. In the past he had direct headed it, but this time he swathed it for the first time—raking it into windrows after cutting to dry and then process it to recover the seed—making it vulnerable to being scattered widely by gusts of wind. 

This appeared to have happened that year, after 245 Roundup Ready canola swathes blown by the wind from windrows on the Baxter’s property were found in Marsh’s paddocks.

Now in the Perth supreme court, Marsh’s counsel must now prove an error in fact for the appeal to succeed with his appeal and stated that the three judges may need to review all of the evidence presented in relation to an alleged breach of a duty of reasonable care, not just selected pieces.

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