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.