MIKE Baxter’s anger at his lifelong neighbour - and distant relative by marriage - Steve Marsh for dragging him through a heart-wrenching three-and-a-half year legal battle will take considerable time to dissolve.
The high profile legal conflict was billed as a world-first test-case for an organic farmer pursuing litigation against another farmer for growing genetically modified (GM) crops.
But the campaign’s subtext revealed a more intimate personal story where ongoing uncertainty and pressures contributed to Mr Baxter’s marriage ending, while dividing loyalties and testing friendships within the small Kojonup community in south-west Western Australia.
Mr Baxter largely shied away from the media spotlight, eschewing the opportunity to reject accusations made against his family and farming professionalism.
“It didn’t have to go the way that it did and end up in court ...”
He preferred to leave any tough talking to the lawyers and the judge and when the decision was handed down on May 28 exonerating him, the humble farmer typically displayed little if any fanfare or flamboyance.
He spoke briefly to the media on the courthouse steps then shared a few quiet beers later that night with a select band of staunch supporters.
Early the next day, he returned to his Kojonup farm to finish his 2014 seeding program - which will again feature GM canola as a key weed control tool to boost his farm’s viability.
Speaking to Fairfax Agricultural Media about the protracted ordeal, Mr Baxter said one day down the track, when the media circus has moved on and his feelings of anger subside, the two Kojonup farmers may well become friendly neighbours again.
But any renewed bond will be predicated on the Marshes handling disputes in the way Mr Baxter believes the entire drama should have been handled from the start: over a cuppa or a coldie.
'There will always be that anger'
“The Marshes are still living next door,” Mr Baxter told Fairfax Agricultural Media.
“I can see Steve over there right now putting his crop in so he’s obviously getting back on with his life too and carrying on with things. You can’t stop, because you still need income coming into the farm to carry on.
“But for me, that anger will always be there because of what he’s put me and my family through.
“I can’t see us ever jumping over the back fence and having a shake of hands or a chat; at least not for a while yet.
“There will always be that anger, and thoughts that maybe he could have done things differently and it didn’t have to go the way that it did and end up in court.”
Mr Baxter said since the court’s decision, he’d received many phone calls from supporters and mates he hasn’t seen in years offering congratulations and saying, ‘hopefully now you can move on with your life’.
“I do hope things settle down now - which will certainly be a good thing,” he said.
Despite the vocal sustained campaign against GM crops, the WA Supreme Court ruled comprehensively in Mr Baxter’s favour, rejecting Mr Marsh’s claims for $85,000 in compensation from losing his organic certification in late 2010 when GM canola was detected on his farm.
Justice Ken Martin court ruled Mr Baxter followed the prescribed stewardship rules in planting his GM canola crop with added buffer zones and therefore wasn’t negligent.
The judge also rejected Mr Marsh’s application for a permanent injunction to stop Mr Baxter growing or swathing GM canola in future.
GM canola was declared to be a safe, legal product and any assertion of “contamination” or potential harm to the organic farmer was rejected. However, the judgment was scathing of the flawed processes and procedures underpinning Mr Marsh’s organic certifying body, the National Association for Sustainable Agriculture Australia, which has a zero tolerance to GM material.
Justice Martin delivered contrasting opinions on how the two neighbours conducted themselves in the witness stand during the two-week trial.
He said Mr Baxter was “a straightforward and essentially reliable witness”.
“I was impressed by Mr Baxter's direct and no-nonsense answers to questions and, in particular, his willingness on occasion to make concessions against himself,” the judgment said.
But Justice Martin said trial evidence showed Mr Marsh had “increasing concerns” about the prospect of GM legislation in WA.
“His concerns seem to have intensified throughout 2008 into 2009, prior to the growing of GM canola being made lawful in WA from mid-January 2010,” he said.
“The process of Mr Marsh's cross-examination across day two and into day three of the trial, exposed Mr Marsh as particularly anxious about a possible future adventitious entry of GMOs to Eagle Rest.
“From about late 2008 ongoing concerns manifested in Mr Marsh becoming, as I assessed his evidence, increasingly fatalistic and anxious about GMOs reaching Eagle Rest and allied financial losses this would cause to him and his wife.
“Assessing his evidence overall, I thought that there presented in Mr Marsh what I would see as an almost self-fulfilling, high-level anxiety from GMOs. This anxiety was increasingly observable up to late 2010, in his correspondence and interactions with people, including the Minister for Agriculture (Mr Redman) and in communications to NASAA and NCO (mostly to Ms Stephanie Goldfinch).”
Appeal not yet decided
Mr Marsh's lawyers are now ploughing through the full 150-page judgment to decide whether to appeal the court’s decision within the 21 day limit.
Mr Baxter said the court’s decision proved how far wrong the original accusations were, that the organic farm was severely “contaminated” by thousands of GM canola seeds costing millions of dollars in damages, and could be decertified for 20 years, as asserted by Mr Marsh's original lawyer Richard Huston in early 2011.
He said what seemed like an open-and-shut case to start with, focusing on alleged GM “contamination” in pushing for a compensation payout, proved more in-depth that the plaintiff lawyers originally conceived.
About 12 months after the original incursion, only eight GM canola plants germinated on the organic farm and were pulled out of the ground by Mr Marsh, the judgment said.
Those eight plants “posed no genetic contamination threat to any other crop or plant species at Eagle Rest as the scientific evidence earlier discussed makes very clear”, the judgment read.
“Nor, if the volunteer plants had been eaten by sheep on Eagle Rest, did they pose any genetic threat to the meat or to the wool of the sheep.
“At worst, a GM canola seed might have passed through the consuming sheep's digestive system over time and, in due course, from there possibly germinated in the Eagle Rest soil to produce another volunteer plant.
“But there was nothing at Eagle Rest for the pollen from any of these volunteer plants (if they developed to a flowering stage) to cross-fertilise with.”
The judgment also panned Mr Marsh’s response to discovery of 245 canola swathes on his farm saying, “Surprisingly, it appears to have taken Mr Marsh until April 2011 to gather up and remove all the swathes and their (attached) canola seed pods”.
“In this period the 245 swathes appear to have been rather afforded the status of infamous celebrities - fenced off and then made the subject of media releases or general publicity,” it said.
“Asked in cross-examination why it took so long to gather up and remove the canola swathes, Mr Marsh, I thought, gave a very unconvincing response for the inertia. He said that he had been 'too busy'.
“Part of what supposedly occupied his time appears to have been issuing media statements in liaison with NASAA. That is hardly an acceptable explanation.
“If there was a serious incursion problem of GM material at Eagle Rest to be dealt with, as Mr Marsh evidently felt there was, clearly it ought to have been addressed immediately, as a matter of high priority, rather than the swathes just being left to blow around in the paddocks of Eagle Rest for a period of about five months.”
Baxters offered to help
Mr Baxter said the court decision confirmed his belief that Mr Marsh could have taken many other steps to remedy the original situation or cleaned his product to safeguard its organic status.
“We did send a letter offering to help when it all first happened, or help to clean his grain product, but there was never any reply,” he said.
“He (Mr Marsh) certainly could have done things in a much easier way instead of running straight to the media and straight to the lawyers and start sending lawyer's letters out and threatening to send us to court.
“He could have come across the fence and said ‘right, I think we’ve got a bit of problem here, we’ve got a bit of your canola here so maybe keep an eye on it or help us clean it up’.
“It’s certainly not a good feeling when your next door neighbour or anybody is trying to sue you or take you to court, because you’ve always got doubts.
“You start to think ‘Gee, what’s going to happen here? Maybe they do have a case?’
“It certainly puts a lot of pressure on you, but all you want to do is carry on farming to the best of your ability.”
Mr Baxter said he would handle any future incursion on his farm caused by issues on Mr Marsh’s property, “the normal way”.
“Obviously you probably go and talk to the bloke about it,” he said.
“You sit down and have a cup of tea or cold beer or something and say, ‘look we’ve got a problem on our land let’s work it out’.
“You’d try and come to some sort of agreement rather yell and scream and go to the courts and start sending out threatening lawyers’ letters.
“I’m sure he might be thinking now, after all this has happened, ‘Geez this didn’t go my direction and its cost me thousands and thousands of dollars’.
“And it’s also cost his followers hundreds and thousands of dollars to fight the case in the court, and the court’s decision hasn’t gone in their direction.”
'No reason to bow down'
Mr Baxter said he and wife Zanthe knew they’d done nothing wrong from the very start because GM was a legal product, so they stood up and took on the fight, rather than capitulating to an out-of-court settlement.
“We did tell Marshy that we were going to grow GM canola and could see no reason why we had to stand down because we’d done nothing wrong,” he said.
“But they just kept threatening us all the way along saying it had cost millions and millions of dollars and we’ve lost our organic status.
“There was no reason to bow down, so we stood up and went along for the ride and consequently we got the best outcome at the finish.”
Mr Baxter said he’d hate to see anybody lose their farm for any reason.
But he believes Mr Marsh should have thought harder about that potential consequence before embarking on a course of action.
“Steve always said from the start that he may lose his farm if the decision goes in the wrong direction and now it has - but I’d be surprised if he does lose his farm now,” he said.
Public scrutiny trying
Mr Baxter said that intense orchestrated public pre-trial campaigns made him and his family out “to be criminals”.
“Right from the start it was pretty annoying,” he said.
“The first place we really heard about it was in the media when they were slandering us saying ‘the GM farmer has contaminated his neighbour’.
“It was in the news every hour and it was the hot topic of the moment and in all of the papers and it was all really slandering us, as if we were criminals.
“But we were just going about our business, running the farm as normal and choosing to grow a legal product to make things go a bit better and make a little bit more profit.
“Then suddenly you’re making all of these trips to Perth to see lawyers. It had a big impact on the family and the farm and always will.”
Mr Baxter said he found the media throng outside the court “overwhelming” along with the band of Marsh supporters protesting the legal decision.
“You look at those people and they’re chanting stuff out ‘like save our children and GM is poison’ but half those people have no idea,” he said.
“If they actually sat down and looked at the actual evidence they may change their minds but they don’t seem to have any commonsense.
“If they sat down and worked out how safe this GM technology is and the benefits it has throughout the world, they wouldn’t need to protest.
“But no matter what happens you’ll always have those people who’ll keep going on.”