Introduction

In the previous issue of Cultivate, we discussed Australia’s first organic v GM legal battle, Marsh v Baxter. The dispute, between an organic farm operation and a neighbouring GM canola grower, was decided by the Western Australian Supreme Court in favour of the canola grower. However, the findings in the court of public opinion have not been quite as definitive. In cases such as this one, the political agenda can be equally if not more important than the legal one. The issues trumpeted in the streets may bear little resemblance to those argued in the courts, and can lead to a public that is completely misinformed.

Background to the case

The key players

  • The plaintiff Stephen Marsh, owner of Eagle Rest, which was certified organic by the National Association of Sustainable Agriculture (NASAA).
  • The defendant- Michael Baxter, who grows genetically modified (GM) canola on his neighbouring farm, Sevenoaks.

The claim

  • GM cropping was banned in Western Australia in 2004. An exemption for GM canola was authorised in 2010 and Baxter started growing GM canola that year.
  • Marsh claimed that Baxter negligently failed to prevent the escape of GM canola seeds from Sevenoaks to Eagle Rest, which caused de-certification of Eagle Rest and financial loss due to Marsh’s inability to market his crops as organic.
  • Marsh also claimed in nuisance against Baxter and sought a permanent injunction against him.

The arguments

Marsh alleged that:

  • Baxter knew of Marsh’s organic certification and did not take reasonable steps to prevent movement of his GM canola seeds to Eagle Rest.
  • Baxter harvested his canola by swathing, which leaves windrows of canola open to the weather.
  • GM canola seed pods were subsequently found in paddocks on Eagle Rest (and NASAA then decertified those paddocks).

Baxter’s defence

  • Challenged the factual basis for the claim, particularly causation, and the fact that it was a claim for pure economic loss – i.e. the loss suffered was not the contamination of land but the loss of income.
  • Argued that NASAA was not entitled to de-certify Marsh’s paddocks and acted unreasonably in doing so.
  • Argued that his decisions to grow GM canola and to harvest by swathing were both reasonable.
  • Asserted that the burden of requiring farmers to refrain from planting GM canola and/or harvesting by swathing to avoid the risk of de-certification of nearby organic properties was too great to warrant imposing liability.

The Judgment

Before addressing the broader political context and impact of the decision, it is useful to summarise the court’s findings. The Court dismissed Marsh’s claims in their entirety. In respect of the negligence claim, it found that:

  • Baxter did not act negligently in growing a lawful crop and harvesting it using swathing, which is an agriculturally accepted method.
  • In a novel case for pure economic loss, there was no duty of care to avoid a foreseeable economic loss.
  • No degree of vulnerability arose, from a duty of care perspective, from Marsh’s voluntary contractual relationship with NASAA.
  • Even if the Court had found there was a duty of care to take reasonable measures to inhibit movement by wind of GM canola, it would not have found that this duty was breached by Baxter, because:
    • He gave considerable thought to the buffer zones in place between the properties.
    • The incident was an unexpected first-time event.
  • Harvesting by swathing did not factually cause the economic loss suffered by Marsh.
  • The decision of NASAA to decertify parts of Eagle Rest (which was a ‘gross overreaction’ and unsupportable) legally caused Marsh loss and not any conduct of Baxter.

In relation to the nuisance claim, the court found that Baxter did not unreasonably interfere with the plaintiffs’ use and enjoyment of their land by harvesting his crop by swathing in circumstances where:

  • He took advice from a local agronomist and had considered the buffer zones to be implemented.
  • There was no physical damage to persons, animals, land or chattels by the incursion of GM canola pods, which were held to be a physically benign substance.
  • The incursion was the result of unusually strong winds and was not reasonably anticipated.
  • Baxter was not privy to the ‘idiosyncratic contractual arrangements’ which Marsh voluntarily entered into with NASAA.

Marsh has lodged an intention to appeal the decision with the Court, and the appeal will be heard in due course.

The ‘David v Goliath’ court battle

The case was described as a ‘David and Goliath court battle’ by a number of parties, including a member of parliament from the Australian Greens Party, Lynn MacLaren. The Green Party were outspoken in their support of Marsh and their opposition to all things GM.

According to Ms MacLaren’s media statement1, Marsh was challenging his neighbouring farmer over responsibility for contaminated organic crops. It continues, ‘my heart goes out to Steve Marsh, who has found himself at the forefront of this battle between non-GMO and GMO farmers’.

The Green Party and a number of community groups opposing GM food and Baxter seem to have missed the point of the case. Although a convenient platform from which to campaign against GM crops, Marsh v Baxterwas not about the legality of growing GM crops – nor was it about GM contamination of crops or consumers’ choice to eat GM-free food. Growing GM canola is legal in Western Australia and Marsh did not plead otherwise or seek remedies from the court to the contrary. There was no evidence of contamination of Marsh’s crop with GM canola at all. In fact, the extent of the ‘contamination’ was that GM canola seed pods blew onto Marsh’s property, Eagle Rest. Marsh chose not to remove the apparently ‘contaminating’ seeds from his paddocks for five months, even after the Department of Farming and Agriculture of Western Australia recommended removal to prevent any spread of seeds onto his property. He replied that he ‘would rather the plants remain where they were for the time being’.

At trial, Marsh stated his reason for not removing the seeds was that he was ‘too busy’. The court found Marsh’s testimony unconvincing and described his behaviour prior to Baxter deciding to plant GM canola as ‘increasingly fatalistic and anxious about Genetically Modified Organisms (GMOs) reaching Eagle Rest’ and that he had an ‘almost self-fulfilling, high level anxiety’ about GMOs. The court described the treatment of the seeds on Eagle Rest as being ‘afforded the status of infamous celebrities – fenced off and then made the subject of media releases or general publicity’ instead of being removed as recommended. The court also found it probable that ‘unseen hands’ were working with Marsh to publish notices and newspaper advertisements warning of the potential consequences of GM contamination on organic farms.

The issue of alleged ‘contamination’ is further undercut by the fact that Marsh did not grow canola on Eagle Rest. Genetic information can only be passed to the next generation of organism through sexual reproduction and plants cannot cross-pollinate with other unrelated plant species. Accordingly, there was zero risk that the GM canola could transfer its GM traits to any plants on Eagle Rest.

That aside, the ‘unseen hands’ helped Marsh gain widespread support, including from some minor celebrities. The Safe Food Foundation (who raised funds for the part of Marsh’s legal costs not covered by their pro bono representation), sent an email2, encouraging supporters of Marsh to not only contribute to the fundraising efforts, but also to attend a lunch titled ‘Take a stand against Monsanto!’. The Steve Marsh Benefit Fund website also urged readers to ‘Help this farmer stop Monsanto’s GM canola’3.

Monsanto, the agricultural company that developed and owns the intellectual property to the GM canola grown by Baxter, had no involvement in the trial at all. They were not a party to the proceedings and did not provide any financial support to Baxter. Yet many members of the public believed that Monsanto was involved and that an adverse decision would be against Monsanto.

Fear over facts

Marsh v Baxter was about losing money – and not a great deal of it (an amount described by the court as a ‘demonstrably uneconomic amount of money to be litigating over’ compared to the cost of the trial). When NASAA withdrew Marsh’s; right to use its organic certification logo, Marsh lost A$85,000 from not being able to charge premium organic price for his produce, regardless of the fact that no GM material had been mixed up in the produce.

The court queried why the organic certification body had not been sued for the loss. Although the body was not a party to the litigation, the court found that it acted ‘well beyond the scope of its contractual rights with Marsh in decertifying 70 per cent of Eagle Rest’ and that ‘Marsh would be better served directing his concerns in that contractual quarter as regards the economic loss sustained’.

Whether Marsh takes the court’s hint remains to be seen – given he has lodged an appeal against the judgment, it seems unlikely that he will pursue this course in the near future.

On a deeper level – the agenda pushed by the groups supporting Marsh – this case seemed to be about anti-GM sentiment; about drawing the battle lines between organic farmers and GM farmers; about fear rather than facts. Although Marsh lost on the legal front, the activists behind them have scored some runs in the court of public opinion. The overwhelming community attitude continues to veer towards concern about ‘the evils’ of GM.

Often this concern is driven by a lack of information – it is much easier to get ‘air time’ for concerns about GM than it is for proponents to find a platform to discuss the benefits of GM crops (such as higher-yield drought-resistant, pest-resistant crops). In the current global economic climate, it is those in the developed world who have the freedom to oppose the development of technology with the potential to revolutionise our approach to solving world hunger.

Fear of science, technology and change is not a modern ailment. GM technology is feared and misunderstood by many in our community in much the same way that machines were feared when manual production was the ’natural way’ to do things. The answer is not to suffocate technological advances and deny the global community the benefit of GM technology; it is to promote greater understanding of the science involved and the significance of the technology for all (particularly those in emerging markets), while acknowledging the importance of careful testing and judicious regulation.

As the most recent edition of Norton Rose Fulbright’s global food and agribusiness survey has shown, attitudes to GM differ markedly in first world countries and emerging markets. For people living in countries where the biggest health issues are not obesity, heart disease, or diabetes but malnutrition and starvation, it must be difficult to imagine opposition to higheryield, hardier crops developed through GM technology, in the name of choice or premium pricing.

This case raises issues we must all tackle, within ourselves, with our local communities, by our national policies, and through international relations. We live in a global community. Scientific advances are not constrained by borders and the development of GM technology affects us all.