Organic farmer versus GMO farmer in Western Australian Supreme Court landmark case

Posted by AFN Staff Writers on 10th February 2014

Two farmers are at the centre of a major court case to be heard today in the Western Australian Supreme Court. The case could have wider consequences for the future of genetically modified organisms (GMO) as well as organic-certification of foods in Australia.

The plaintiff is Steve Marsh and the defendant is his former childhood friend Michael Baxter. The court case is based on an incident when harvested seed heads from Baxter’s genetically modified canola crop blew onto Marsh’s farm.

Marsh was stripped of his organic certification and export licence for his oats, and is now claiming unspecified damages for loss of income in a civil negligence case.

It is the first time in Australia one farmer has sued another for negligence over contamination of organic crops by GMO and both sides are concerned that the case could set a precedent for future cases. Some of the important arguments will centre on the issue of whether a GMO farmer has a wider duty of care to avoid causing a loss of Organic status on the basis of mixing or contamination of the nearby crop of the non-GMO organic farmer. Evidence about the cross-contamination might also be disputed.

FoodLegal‘s managing principal Joe Lederman said the case could potentially result in additional pressure to alter Australia’s strict organic standard:  Unlike the US, EU and Japan which allow for small levels of GMO presence in organic crops, the Australian organic standard maintains a zero tolerance position.

“If the organic side doesn’t win the case, then there will be a lot of pressure brought to bear  for a change to the Australian organic standard and  that might remove some of the difficulties of co-existence between the conventional farmers and the organic industry,” FoodLegal‘s Lederman told Australian Food News today.

Lederman also said the outcome of the case might partly depend on the scientific evidence of the organic farmer since the Australian organic standard appears to state expressly that the buffer zone between GMO and organic crops can be as little as 15 metres, which is not vastly different from the buffer zone of 5 metres recommended by the seed company Monsanto. However in this particular case, the buffer zone between the two farmers was far greater. At the  interlocutory stage of the proceedings (the plaintiff was unsuccessful  in a bid to obtain an injunction against the GMO farmer) both sides  appeared to recognise that leaving the harvested GMO canola crop in the  field after harvesting might have been a cause of the original  cross-contamination but the scientific evidence was not presented in support of an appropriate buffer zone distance of separation.

FoodLegal‘s Lederman said the court decision may clarify who must bear legal responsibility and who has the onus of proof for scientifically determining what buffer zone, if any, should exist or to determine whether and how cross-contamination can be avoided. Whoever wins, Lederman says, there are certainly going to be pressures for regulatory change.

He said that if a judge were to consider awarding damages, such damages may require quantification of the price premium (if any) for certified organic product compared with the pricing of the GMO product, as well as the cost of restoring the lost organic certification over a period.

“Without knowing more about the particular case, it would also be interesting to consider the potential additional arguments about organic industry viability and the model of many organic farming businesses that might rely on a higher pricing model for the certified ‘organic’ status of the crop compared with a higher yield and higher volume-based production model for the conventional broadacre farming operation, ” Lederman said.

GMO critics say the spread of genetically modified crops damages the environment, such as by fostering herbicide-resistant weeds, and that food made with the crops have the potential to harm humans. Proponents of the GMO crops say the crops are proven safe and are grown lawfully in Western Australia. This court case may well require the parties to produce more empirical scientific evidence to be assessed by the court.

Lederman suggests that one option would be for the Australian organic standard to ease its zero tolerance policy towards GM. In the event Standards Australia does not change its zero tolerance policy, Australian organic farmers risk losing organic certification due to contamination, particularly as GMO production increases. Some in the organic industry say a relaxation of Australia’s very strict organic standard risks a decline in GMO-free food exports for Australia. However, the broader issues are not necessarily all going to be discussed in this court case.

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.

There have been court cases in the USA on cross-contamination but these have centered around the issue of intellectual property and involved Monsanto directly, and not a civil claim of negligence by a neighbouring non-GMO farmer against a GMO farmer such as this case that has been brought in Australia by Mr Marsh against his former childhood friend and neighbour Mr Baxter.

Joe Lederman was also interviewed recently by the ABC program ‘The World Today’ on this issue: