A case of organic proportions

Conspiracy theorists are having a field day, blaming it all on Monsanto, a company they love to hate

THE high profile court case between the WA farmer growing organic canola and his neighbour growing genetically modified (GM) canola has the potential to define property rights for a generation.

Depending on what the court decides, it may even prompt new legislation.

The case is based on the fact that the organic farmer lost his certification because GM canola plants were found growing on his property. His neighbour, who grows GM canola, is accused of “contaminating” the crop and has been sued for damages.

All sorts of issues will arise in the case. For a start, there are matters of fact. Was the neighbour actually the source of the GM plants? Canola seeds are tiny and quite sticky. What if the organic farmer inadvertently brought in GM seeds on his boots or his dog had gone wandering?

Assuming a connection is established, there are numerous legal issues. Is the organic certifier’s policy of zero tolerance of GM presence a legitimate basis for withdrawal of certification? Other certifiers allow a small GM presence and there is absolutely nothing harmful about GM canola nor anything superior about organic canola. And perhaps most important of all, does certification amount to a property right and is its loss a basis for compensation?

In terms of any loss, could one of the other certifiers that allow minor levels of GM have stepped in? And could the formerly organic crop have been sold on the conventional market and a conventional crop (perhaps even GM) grown in subsequent years? The organic farmer was previously a conventional canola grower.

The case has attracted a lot of attention from the anti-business, anti-GM crowd, including the publicly listed legal firm Slater and Gordon which is representing the organic farmer at no cost.

Conspiracy theorists are having a field day, blaming it all on Monsanto, a company they love to hate. Many see it as a David and Goliath contest (despite the weight of resources on the side of the organic farmer), and as putting GM crops on trial.

If the organic farmer loses, he will be able to continue growing canola organically. However, like chicken and pig farmers who maintain strict biosecurity to keep out unwanted diseases, he may need to upgrade his efforts to keep out unwanted seeds.

If he persists in seeking certification from a zero tolerance certifier, he may need to apply a big buffer zone. That’s not much different from what a free range chicken farmer must do to keep out bird flu from wild birds.

But certifiers compete with each other in a free market, so another option would be to engage one that allows some GM presence. One day, there may even be an organic certifier that understands how much better for the environment it is to grow GM crops. No tillage and minimal chemical use has to mean something.

But a win for the organic farmer will put the survival of thousands of conventional farmers at the mercy of a handful of people who are not economically viable, not environmentally sustainable, and whose productivity would leave Australia unable to feed itself if their approach was applied to cropping generally.

Any farmers who had organic growers as neighbours could face serious restrictions on the management of their farms and their ability to maximise their income. For canola growers in particular, for whom growing GM varieties is the most profitable, it would be a serious blow.

The market for organic canola is tiny and could not support all affected growers if they switched. Moreover, like any organic production, growing organic canola is inherently risky and also environmentally unsustainable. In most areas of Australia, cultivation should be avoided as much as possible.

It is difficult to see how the government could avoid being forced to legislate to protect the right of farmers to farm as they choose, whether it is organic or GM crops, if the organic farmer wins. The idea that one production method has priority over another, especially when one has such negative implications for farm productivity, is not something that could be allowed to stand.

The common law has long recognised a right to quiet enjoyment of private property, subject to not intruding on the rights of others. For the anti-GM lobby, this case is being approached as one of winner takes all, based on a false assertion of moral superiority.

It would serve them right if the GM farmer counter-sued the organic farmer on the grounds that his GM crop had been contaminated with weeds and other pests.

David Leyonhjelm

David Leyonhjelm

has worked in agribusiness for 30 years and is a Senator for NSW representing the Liberal Democrats.
Date: Newest first | Oldest first


Hick from he sticks
17/02/2014 4:58:25 AM

Got to agree, this is all about big picture ideology and the farmers are just pawns.
17/02/2014 6:09:31 AM

Grossly biased and ill informed commentary Mr Leyonhjelm. But of course entitled to your viewpoint.
17/02/2014 7:24:27 AM

I would assume it revolves around duty of care and what is a reasonable man, we have come some way from the Clapham omnibus, like these guys either side had technical awareness. Then there is damage and what constitutes causality. A very interesting interpretation and development of case law.
Michael B
17/02/2014 7:58:01 AM

Fully agree JJ. In a post on a previous article by Mr Leyonhjelm on this topic, I raised the topic of the weed-issues caused to councils in trying to control feral GM canola growing along the roadsides and tolerant to weed killer, but of course Mr Leyonhjelm did not respond...
Holy Moly
17/02/2014 8:09:50 AM

As farmers are diversifying into diferent things maybe this needs to get sorted out now,other wise it will end up as a sue me sue you situation.
piece maker
17/02/2014 8:31:20 AM

You wouldn't sue a chemical company when your neighbours spray drift damages your crop or the match manufacture when your neighbours burn off escapes and damages your assets so what's the difference with GMO's escaping when the risk of contaminating neighbouring property was so evident from the Canadian experience even before GMO canola was introduced in Australia?
17/02/2014 8:39:03 AM

A couple of corrections worth noting - The source of the GM canola is also in little doubt as entire plants from the swaths were blown over the fence. Most importantly - the organic farmer isn't growing canola at all, the GM canola was found in pasture and a wheat crop where removal of the "contaminant" is pretty simple. This really highlights the ridiculous standard imposed on Aus organic farmers by their own certifying agency, his entire production is de-certified because a GM plant touched it. Anyone else remember "girls germs" from primary school? We're on the same level here...
17/02/2014 8:42:21 AM

David your whole argument may crumble on your penultimate paragraph, - "subject to not intruding on the rights of others".
17/02/2014 9:53:48 AM

Has any thought been given to the potential loss of property rights for the neighbour as a result of a unilateral decision by the 'GM free' grower deciding on farming practices that have the consequence of restricting the neighbor from growing the varieties they want to grow within the so-called buffer zone?
17/02/2014 10:59:49 AM

I agree that some level of sanity and goodwill needs to prevail in this situation. Pitting farmer against farmer is a no-win situation - the only winner are the law firms. There needs to be a generally accepted position that some "natural" level of GM contamination can occur. A zero tolerance approach is simply irrational. The real problem here is that governments have let the GM Suppliers into Aust with no protective legistration in place for a highly promiscous contaminant and have simply left it to the farmers to fight out. Governments love to legislate for everything else, why not GM?
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Agribuzz with David LeyonhjelmCommentary, news and analysis with agribusiness consultant David Leyonhjelm. Email David at reclaimfreedom@gmail.com


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