THE landmark legal challenge by organic farmer Steve Marsh against his genetically modified (GM) canola producer neighbour, Michael Baxter, is set to answer some key questions about accepted farming practices and practical property rights.
The high profile test case is due to commence on February 10 in the Western Australian Supreme Court, with three weeks scheduled for trial.
Mr Marsh is claiming financial compensation - for an amount yet to be disclosed - after about 70 per cent of his 478 hectare farm was decertified, after being allegedly contaminated by swathed GM canola material in November 2010.
At the time, Mr Marsh’s Kojonup property was certified organic by the National Association for Sustainable Agriculture Australia (NASAA), which has a zero tolerance for GM crop.
Slater and Gordon lawyers are representing Mr Marsh pro bono, believing the case has broad public interest, while Mr Baxter’s solicitors are Bradley Bayly Legal. Mr Marsh has also gained strong public backing from other interest groups such as the Safe Food Foundation.
One of the trial’s key elements will be the presentation of evidence to ascertain how the swathed GM canola actually landed on Mr Marsh’s property, Eagle Rest, and where it originated from, with some material allegedly landing 1.5 kilometres inside the boundary fence line. The contents of an undisclosed report by the WA Department of Agriculture into the circumstances of the alleged contamination are expected to be revealed in court.
In contrast, the Department conducted tests and released findings into an alleged contamination in November 2011 on the Cunderdin farm of the Greens' federal candidate for Durack, Ian James, which found no GM seeds were present.
With the legal battle likely to produce a concerted social media campaign by anti-GM lobbyists, key grains sector stakeholders believe the central issues are largely unrelated to popular concerns over the safety of GM technology and they’ll instead focus on genuine property rights issues and NASAA’s tight certification standards.
Since the issue first became public in late 2010, Mr Baxter has been largely shielded from making media comment relating specifically to the trial’s central legal issues.
But in May 2011, he broke his silence and spoke to Fairfax Agricultural Media about his intention to re-plant GM canola that season on his farm “Seven Oaks” - despite legal threats from his neighbour - due to the technology’s success at improving his on-farm weed control strategy.
Throughout the ordeal, Mr Baxter has been supported by the Pastoralists and Graziers’ Association of WA, with Western Graingrowers president and Cunderdin grower John Snooke handling the majority of public comment. Mr Snooke has backed farmers’ rights to access GM technology while being critical of NASAA’s zero tolerance rule.
However, Mr Marsh and his supporters are motivated by a firm belief that existing common law is insufficient to protect those farmers who want to remain GM-free.
In a video released last week, the Kojonup organic farmer said defending himself in the courts has proven to be a very expensive exercise.
“The problem we’ve found is you lose a large part of your income and then it costs you so much to take it to courts; particularly in a case like this where your opponents are very well organised and very well resourced,” he said.
“It’s been a huge relief for Safe Food (Foundation) and others to come in and support us, and obviously it shows the high level of concern in the industry.”
Pro-GM supporters also believe the case may set unwelcome precedents or increase public doubt, resulting in greater regulations around the approval of future GM crops in Australia.
In April 2013, the Court permitted the Baxters to plant GM canola at distances greater than 300m from Mr Marsh’s property provided that the Baxters undertook not to harvest the GM canola by swathing. In June, the WA Supreme Court rejected Mr Marsh’s application for an injunction to stop the Baxters growing GM canola - which has been declared safe by Australian and international regulators - within 400 metres of his organic farm for the 2013 season.
Supreme Court Judge Kenneth Martin said in a statement that he had evaluated the strength of the plaintiff's case in principle as being “an arguable case, not necessarily a strong or overwhelming case, to take to trial”.
Grain Producers Australia chairman Andrew Weidemann says he expects the Marsh v Baxter trial to focus on issues around organic certification processes.
He said the internationally accepted organic certification standard allows for a 0.9pc adventitious presence for GM crop material.
Mr Weidemann said the common view amongst grains industry stakeholders was that organic certification bodies need similar, reasonable thresholds in place to be fair.
“Questions will certainly be asked around the certification body not having a process in place to manage these things, without impacting on the grower negatively,” he said.
Mr Weidemann said the upcoming trial was anything but a 'David and Goliath battle' with Mr Marsh as victim. He said in fact, Mr Baxter was the one being sued and forced to bear the financial and emotional costs, and wasn’t being supported by Monsanto.
In contrast, he said Mr Marsh was receiving support from the anti-GM and pro-organic movements, who are raising funds to help sue his lifelong neighbour.
“At the end of the day this has nothing to do with Monsanto and is a case between two growers; the rest is just a big media beat up,” Mr Weidemann said.
He said organic associations should devise protocols that encourage coexistence, instead of having an impractical zero tolerance of GM canola.
Mr Weidemann said despite negative press around the Marsh v Baxter case, the rate of GM canola adoption has increased nationally over the past two seasons, with evidence of improved yields and grain quality, especially oil content.
“Certainly as time has gone on, canola growers have seen increased benefits from breeding programs that are creating varieties which are proving to be more suitable for the Australian environment,” he said.
CropLife Australia CEO Matthew Cossey said planting of GM canola in WA went up 38pc from 2012 to 2013.
Mr Cossey said commodity segregation is not unique to GM crops and is managed in different forms across the entire agricultural supply chain.
He said farmers regularly grow and successfully keep separate multiple varieties and qualities of different grain crops, within practical industry thresholds.
“GM and non-GM canola can be grown side-by-side successfully and productively without creating marketing issues,” he said.
“Innovation and the adoption of safe, effective technologies is crucial to the long term sustainability and profitability of Australian agriculture.”