AN appeal by Kojonup organic farmer Steve Marsh against a Supreme Court finding in favour of his GM-cropping neighbour, Michael Baxter, will hinge on whether appeal judges are convinced Mr Baxter had a greater duty of care to protect Mr Marsh’s organic certification.
Former Western Australian governor Malcolm McCusker, appearing for Mr Marsh and his wife Susan, asserted on Monday, the opening day of the appeal, that Mr Baxter was in breach of his duty of reasonable care when he harvested a genetically modified (GM) Roundup Ready canola crop by swathing without considering the risk of swathes blowing over the fence.
“He (Mr Baxter) had a duty to ensure (GM) canola does not go onto a neighbour’s property,” Mr McCusker said.
“Mr Baxter’s duty was to take reasonable care to ensure his farming practises and GM product did not adversely affect his neighbour’s organic certification.”
After a high-profile 11-day hearing in February last year, Justice Kenneth Martin found in part there was no common-law negligence or breach of reasonable duty of care by Mr Baxter in growing a lawful GM crop and deciding to swathe it - cut it, rake it into windrows to dry and then process it to recover the seed.
The Marsh farm, Eagle Rest, separated from the larger Baxter farm, Sevenoaks, by a road reserve, was certified in 2004 by the National Association of Sustainable Agriculture Australia (NASAA) and its subsidiary NASAA Certified Organic (NCO).
Certification and a contract with the NASAA enabled Mr Marsh to label his cereal crops and lamb meat as ‘NASAA Certified Organic’.
The appeal hearing was told most of the Marsh farm was de-certified from 2010 until 2013 after 245 Roundup Ready canola swathes blown by the wind from windrows on Mr Baxter’s farm were found in Mr Marsh’s paddocks in late November 2010.
The appeal is before Justices Carmel McClure, David Newnes and Graeme Murphy, and Mr McCusker confirmed for Justice McClure that each swathe contained a number of seed pods and that each pod contained a number of seeds.
Mr McCusker confirmed that the unwanted germination of GM canola seed “volunteers” in Mr Marsh’s paddocks could contaminate a harvest of other subsequent crops in the affected paddocks and, more importantly, seeds could be carried by sheep that ate the volunteer plants, to unknown locations.
He said there was no risk to other crops from “genetic transfer”, but there was a risk in that meat from sheep which may have eaten the GM plants could not be sold as organic.
“The certifying authority sent a number of inspectors out to determine what the contamination was,” Mr McCusker said.
“They determined there was an unacceptable risk of contamination - there was a risk which was unacceptable to the certifying agency.”
Mr McCusker acknowledged that Justice Martin had spent some time in the original hearing looking at the private contractual arrangements between Mr Marsh and the NASAA to evaluate whether Mr Baxter’s farming practises had caused unreasonable interference.
However, Mr McCusker said he did not believe the “contractual side of it is important”, other than Mr Marsh was required under the contract to notify the NASAA of a risk of a breach of his farm’s certification, which he did.
Not notifying the NASAA may have constituted misleading or deceptive conduct under the Competition and Consumer Protection Act 2010 in relation to any organic farming claims, the court was told.
Mr McCusker referred to evidence provided to the original hearing that organic products attracted a “premium price” in comparison to equivalent non-GM and GM products.
As a result of being decertified, crops and meat produced by Mr Marsh between 2010 and 2013 could not be sold as “organic”, he said.
The Marsh property was recertified in 2013 after the risk of “viable GM canola seeds and cross-pollination had been eliminated”, Mr McCusker said.
He referred to evidence in which it was shown Mr Baxter had been informed by Mr Marsh of his organic certification.
Mr McCusker also referred to evidence where Mr Baxter may have read a Department of Agriculture and Food WA notification from January 2010 warning of a potential risk to the status of livestock raised on organic pasture and organic crops from the possibility of cross-pollination with GM crops.
He said Mr Baxter had stated in evidence he had not swathed any previous crops and the GM canola crop was the first he swathed.
The reason he gave in evidence was that it was a means of dealing with a wider ryegrass problem, however Mr Baxter had alternative means of dealing with weeds and a “direct harvest” alternative to swathing, Mr McCusker argued.
“We are not challenging swathing as a legitimate agricultural practise,” he said.
“It is still a legitimate option, but it is a question of balance between the risk to his organic neighbour and the need to swathe.
“We say there were agricultural advantages to swathing, but they were all theoretical and they were outweighed by the duty of care to protect the organic certification of his neighbour.
“It wasn’t a compelling choice (to harvest by swathing). He (Mr Baxter) wasn’t compelled to swathe.
“There was no evidence that the crop had to be swathed.
“Mr Baxter knew of the possibility of GM canola coming over into (Mr Marsh’s farm) and did nothing to prevent it.
“Mr Baxter knew of the risk and took no steps whatsoever,” Mr McCusker said.
Justice McClure twice reminded Mr McCusker that he would have to prove an error in fact for the appeal to succeed and stated that the three judges may need to review all of the evidence presented in relation to an alleged breach of a duty of reasonable care, not just selected pieces.
Mr Marsh had originally sought $85,000 in damages and a permanent injunction against Mr Baxter.