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Published February 17, 2014, 09:38 AM

Australian farmers in dispute over GMO drifting

Two neighboring farmers, a field of canola and a gust of wind are at the center of a landmark court case in Australia that could have consequences for the controversial growing of genetically modified crops in the country.

By: By Jane Wardell and Colin Packham, Reuters

Two neighboring farmers, a field of canola and a gust of wind are at the center 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 his 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 say, contaminating land used for his organic oat and wheat crops.

Marsh, stripped of his organic certification and export license for his oats, is claiming unspecified damages for loss of income in the civil negligence case, which opens on Feb. 17 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 say.

The case also illustrates the challenge Australia faces developing its agribusiness sector, as it looks to become a “food bowl” for Asia, amid rapidly growing demand for everything from grains to beef.

“People around the world are going to be looking at this,” says 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 GMO farmer has a duty of care to a neighbor that’s growing organic crops not to contaminate them.”

Baxter’s lawyer, Brian Bradley, declined to comment ahead of the trial, which is expected to last three weeks. Marsh and Baxter both declined to comment. The former friends have not spoken to each other since the row erupted, local media have reported.

Baxter bought the seeds from Monsanto Co., the world’s largest seed company.

After getting legal advice, Marsh opted not to sue the U.S. firm because of a nonliability contract Monsanto signs with all farmers who buy its seeds, says 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 say, potentially reducing the land available for cultivation. It could also change Australia’s unique zero-tolerance status for contamination of organic crops, they say.

Unlike the U.S., 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,” says Joe Lederman, managing principal at FoodLegal, a Melbourne law firm specializing in food and agribusiness, which has represented both businesses and farmers in the past.

Ill wind

Kojonup, a wheat and sheep district some 156 miles south of the Western 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. Proponents say the crops are proven safe and that the 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,” says 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, a certifying agency for the government-backed regulator, Standards Australia, Marsh lost organic status for produce from 70 percent of his farm.

In the other corner, the Pastoralists and Graziers Association of Western Australia is giving financial support to Baxter.

“This is nothing more than anti-GM publicity,” says PGA Western Graingrowers chairman John Snooke, who is also acting as a spokesman for Baxter. “Michael and PGA of Western Australia both believe in the farmer’s right to choose what he grows.”

Monsanto: regrettable

An interim ruling from the Supreme Court allowed Baxter to go ahead with his 2013 GMO canola crop, provided he would harvest by a more direct method than the swathing that led to the alleged contamination.

Monsanto declined to comment on whether it was giving financial assistance to Baxter for the legal action, an accusation leveled by Marsh’s supporters, saying it was not a party to the case.

Its nonliability contracts were made to “ensure that growers comply with the agreed use of our products, industry stewardship standards and regulatory requirements,” says Adam Blight, a Monsanto spokesman in Australia.

Monsanto is not making any preparations in light of the possible outcomes of the case, he says.

“This is a regrettable situation and it has been a difficult case for the farmers and communities involved,” Blight adds.

Organic farmers see the threat from the hearing on two fronts.

In the event Standards Australia does not change its zero tolerance policy, farmers risk losing organic certification because of contamination, particularly as GMO production increases.

Alternatively, an easing of the policy would result in Australia losing its position on world markets as a strict organic producer as demand for GMO-free food increases around the world, particularly in Asia.

Demand for safe and nutritious food is forecast to soar across Asia in the next five years, with consumer spending predicted by the Economist Intelligence Unit to rise to $3.7 trillion from $2.8 trillion in 2012.

Yet laws governing GMO production and contamination are opaque, varying from Australian state to state and crop to crop.

Confusing matters further, there are no regulations on buffer zones between GMO and organic crops, with Standards Australia recommending a minimum of 15 meters, compared with the 5 meter minimum recommended by Monsanto.

Lederman from FoodLegal says the case was likely to result in more formal and homogenous regulations on buffer zones.

In the U.S., 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 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-versus-farmer negligence issue in the Australian case.

Monsanto has routinely sued U.S. farmers who it says intentionally plant its biotech seeds without paying for the technology.

As the number of those cases have increased, the U.S. 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 in January by the U.S. Supreme Court, allowing the company to continue bringing lawsuits on a case-by-case basis.

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