A landmark ruling on GM crops handed down in Western Australia will reignite the debate over whether current laws are powerless against GM contamination.
Does Australia need laws for "biotrespass" to protect organic farms?
The Guardian, 29 May 2014
* A landmark case on genetically modified crops, handed down in Western Australia, will reignite the debate over whether current laws are powerless against developments in biotechnology
The supreme court of Western Australia handed down a landmark decision yesterday, on genetically modified crop liability. The ruling in Marsh v Baxter is an enormous win for the agricultural biotechnology industry, and has disappointed organic farmers and their advocates.
The dispute was between a family of organic farmers, Stephen and Susan Marsh, and their neighbour and former friend Michael Baxter. After Stephen found GM stalks and seeds on his property in 2010, he sought damages and a permanent judgment to stop Baxter swathing GM canola (slashing the crop so it ripens at a uniform rate). The Marshes were concerned about cross-contamination, and the loss of the organic certification of their nearby property, Eagle Rest.
The case went back to the basics of tort law. Justice Kenneth Martin cited Lord Atkin’s classic 1932 dictum in Donoghue v Stevenson:
"The rule that you are to love your neighbour becomes in law, you must not injure your neighbour, and the lawyer's question, 'Who is my neighbour?' receives a restricted reply."
In an epic 150-page judgment, Martin grappled with the complex factual matrix of the case, while also showing a certain wariness at the novelty of the dispute, and the public controversy over GM crops.
First, Martin concluded "that there was no unreasonable interference by Mr Baxter with the Marshes' enjoyment of Eagle Rest merely by his growing RR canola on Sevenoaks during 2010".
Second, he held that Baxter's swathing wasn't "unreasonable interference with the use and enjoyment by the Marshes of Eagle Rest" – irrespective of their organic certification and the contracts that relied upon it.
Third, the Marshes' action in negligence also failed, in part because of the novelty of the case led to "the absence of a duty of care to avoid a foreseeable economic loss".
Finally, the judge rejected the claim for a permanent injunction to stop Baxter swathing in the future, because of "the absence of an empirical basis to support any buffer distance".
Martin's decision will prompt much debate, especially given the factually-specific nature of the dispute. The decision of the supreme court of Western Australia follows unsuccessful cases by organic farmers in Canada and the United States against biotechnology companies.
Marsh's lawyers were understandably disheartened by the judgment. Mark Walter of Slater and Gordon raised the possibility of appeal:
"This is a disappointing result for Mr Marsh and leaves Australia’s non-genetically modified food farmers with no legal protection against contamination from nearby properties ... We will closely examine the judgement of this complex and unique case and advise our client of his legal options, including his right to appeal."
The national association for sustainable agriculture, Australia (NASAA), the organisation that certifies organic farms, was also far from triumphant. "This case has implications for organic, conventional and GM production in Australia and internationally," they said in a statement.
"We welcome the debate this case has generated on how organic and non-organic farmers can co-exist while respecting each other’s right to farm in the way they choose".
NASAA added that the dispute "has also generated debate on the national standards for organic certification and how these standards should be applied". Greens MLC Lyn McLaren was less circumspect, saying the case "failed a fairness test" and was "a saddening result for Steve Marsh and non-GMO farmers holding their breath in hopes of a defence against Monsanto".
While the critics of genetically modified crops were disappointed by the decision, the agricultural biotechnology industry was jubilant. Matthew Cossey, chief executive of CropLife Australia, said the decision was a "victory for common-sense and confirms the long standing tradition of coexistence of all farming methods".
The decision in Marsh v Baxter will no doubt reignite the debate over GM crop liability. A number of scholars have argued that there is a need to revise liability regimes in respect of biotechnology. professor Jeremy de Beer from the University of Ottawa has argued that there is a need to adapt the legal principles of trespass to accommodate recent developments in biotechnology, nanotechnology, and synthetic biology. He has called for the creation of a cause of action for "biotrespass".
No doubt the agricultural biotechnology industry would resist such efforts at law reform. From their perspective, GM crops should be subject to the same liability regimes as other forms of farming and agriculture.
At an international level, there will be further debate over the position of GM crops in the sweeping regional agreements under negotiation – including the Trans-Pacific Partnership. There is an intense struggle between organic farmers and the biotechnology industry at a number of levels in these international agreements – including in respect of intellectual property, GM crop liability, GM crop labelling, and regulation of biotechnology. It remains to be seen whether such international agreements will harmonise the regulation of agricultural biotechnology in the Pacific Rim, and across the Atlantic.