GM crops and legal risks for farmers - what are we risking?
In 2008, the state governments of New South Wales and Victoria lifted their bans on the commercial production of GM canola. In 2009, the West Australian Government decided to allow large-scale trials of the crop. The introduction of genetically modified (GM) canola poses legal risks for both farmers that adopt the technology and those that do not.
Moe Parr, a 75-year-old seed cleaner from Indiana in the United States, warned Parliamentarians about his experiences with GM crops. Over a decade of growing GM crops in North America has resulted in increased corporate control of agricultural multinationals in farming and reduced profits for farmers.
Moe’s story
In February 2007, after having been under surveillance as he went about his business, Moe Parr was served papers by the County Sheriff that Monsanto was initiating a lawsuit against him. Monsanto alleged that Moe had aided and abetted, encouraged and enticed his customers to break the law that gave Monsanto patent rights on Roundup Ready GM Soy.
Monsanto spent the next 14 months investigating Moe. The company issued a subpoena to investigate Moe’s bank records, tax records and deposit records. When they found cheques deposited in his account they could see which farmers he’d cleaned for.
Moe was forced to settle out of court because he couldn’t afford the legal fees to take Monsanto on. Had the case gone all the way to the Supreme Court, it would have cost Moe around US$1 million to defend himself. The settlement means that Moe has to get all the seed he cleans for farmers tested for GM contamination and give Monsanto the results. He must also get statements from farmers saying the seed is not Roundup Ready soy.
As a result of the lawsuit, Moe’s customers are scared to save seed and he has basically lost his soy seed cleaning business. Fortunately, he can still clean wheat, oats, barley and rye which are not genetically engineered, meaning that he hasn’t completely lost his livelihood.
Moe Parr informed Parliamentarians, “In effect I have become an unpaid enforcement officer for Monsanto. Because of GM contamination and the monopoly control of seeds by biotech companies, in the United States it is nearly impossible to go back. Farmers in Australian still have a choice about whether they want to go down the GM path or not.”
Moe’s story has become increasingly common in the United States. Monsanto has sued thousands of US farmers for patent infringement since the introduction of GM crops in the United States. Across the border in Canada, experience has shown that the contamination by GM canola of nearby conventional (non-GM) or of organic crops is inevitable. GM canola has been found to cross-pollinate with non-GM canola more than 26km away. It is therefore not surprising that in Canada over 90% of certified non-GM canola seed is contaminated with GM material.
Liability risks for non-GM farmers
The non-GM farmer faces liability exposure in two main ways:
1. The non-GM farmer’s crop, harvest or land is contaminated and he or she seeks to recover under the applicable common law doctrines of nuisance, trespass or negligence; or
2. The non-GM farmer’s crop, harvest or land is contaminated with GE and he or she faces legal action for patent infringement or for marketing a crop as GE-free when it isn’t.
Liability if a non-GE farmers land is contaminated
If a non-GM farmer’s crop is contaminated it is unlikely that he or she will be able to recover any lost income. A 2006 Australian government paper which studied the legal liability of farmers growing crops concluded that “under the existing law of negligence and private nuisance, the chances of a successful action against a farmer growing a crop by a neighbour in most cases are small.” Where the Government has approved the GM crop, and the farmer has followed the conditions of the license it will be extremely difficult to prove a claim of negligence or private insurance.
Liability for patent infringement or wrongly marketing a crop as non-GM
If a non-GM farmer’s crop is contaminated with GM material there is a risk that the GM company may sue the farmer for breach of intellectual property rights. In the US, Monsanto spends over US$10 million annually investigating, intimidating, pressuring and suing farmers. It has sued for, and won, judgments as high as US$3 million and several more over $1 million. Press reports and Monsanto’s own statements suggest that the company investigates roughly 500 farmers each year, with the vast majority of cases being settled out of court.
Where a farmer has incorrectly stated that his crop is GE free, he or she may face legal action for a breach of contract. Defending such a claim would involve considerable legal costs. There may also be a liability under the Gene Technology Act 2000 (Cth) and corresponding state legislation for an unauthorised or inadvertent use of a GM crop.
Julie Newman, Western Australian canola farmer and member of the Network of Concerned Farmers said, “GM canola will risk the livelihoods of non GM canola farmers. The end point royalty system, under which Monsanto can deduct fees from non-GM canola farmers even for accidental contamination, leaves them completely without choice.
A number of states in the US have introduced laws to protect farmers. Last September, the state of California passed legislation protecting farmers from being sued by biotech companies for accidental GM contamination.
What can be done in this David and Goliath battle between farmers and agricultural multinationals?
Both Federal and State Governments must protect the interest of farmers before those of multinational agribusiness companies. It must introduce strict liability legislation to protect non-GM farmers from any economic losses caused by GM contamination.
Recommendations:
1. The State and Federal Governments must introduce strict liability legislation
Non-GM growers should not be held liable for contamination events if their crops, harvest or land are contaminated and subsequently contaminate the crops or harvest of others. Legislation should be enacted to ensure that GM technology providers and GM farmers are held strictly liable for any contamination that occurs as a result of the sowing, growing, harvesting, transport and storage of GM crops. The Gene Technology Act should also be amended to ensure there is no liability for non-GM farmers, following examples in Austria and Norway.
2. A mandatory insurance policy or bond prior to commercial planting
A mandatory insurance policy or bond should be required from technology providers prior to any commercial planting. The scale of the insurance coverage of the size of the bond will depend on the extent of proposed planting, and will increase or decrease as the areas under GM crop cultivation increase or decrease. This will insure that any liabilities are actually met and cannot be avoided by under-capitalisation or other devices.
3. Non-GM farmers should put GM farmers on formal notice
Non-GM farmers should write a letter putting GM farmers on formal notice that they may be liable for contamination. This will help prevent the farmer growing the GM crop from arguing in court that the damage could not be foreseen.
Constituents can express their concerns by writing to their local MP or to the following: The Hon. Tony Burke MP, Federal Minister for Agriculture, Fisheries and Forestry; The Hon. John Cobb MP, Shadow Minister for Agriculture, Fisheries and Forestry; and The Hon. Ian Macdonald MLC, New South Wales Minister for Primary Industries.
For more information on this issue, visit the websites of: The Network of Concerned Farmers, Gene ethics: Working for a GM free future, Biological Farmers of Australia.
