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Joining us today is Ryan White who is an Associate in the Corporate Group at HopgoodGanim, Ryan thanks for joining us.

Thanks for the invitation.

Now Ryan in what could have global significance the Supreme Court in WA is currently considering a case involving genetically modified seeds, what's the case about?

So this case centres around two farmers from Kojonup; Michael Baxter operates a farm that uses genetically modified herbicide resistant strain of Canola seeds and his neighbour Steve Marsh farms organically, so he's received organic certification from NASAA.  Mr Marsh and Mr Baxter's farms share a common boundary which is just separated by a road and Mr Marsh is alleging that during harvest in 2011 some GM Canola seeds from Mr Baxter's crop blew onto Mr Marsh's property and sprouted.  Now the NASAA maintains a strict zero tolerance policy in certifying farms as organic, and what that means is that if it's an accidental presence of non-organic materials, such as GM seeds, it will result in the property being decertified.  So Mr Marsh is suing his neighbour for the economic loss that he suffered as a result of the loss of that year's crop and also his loss of organic certification.  Perhaps more importantly he's also seeking an injunction which will prevent Mr Baxter from either planting further GM Canola seeds or from swathing GM Canola within a minimum distance from Mr Marsh's property. 

Yeah well it seems like it's not very difficult for seeds to be blown from property to property, what do you see as some of the main issues raised in this case and have we seen similar issues before?

Look we really haven't, the case is unique and certainly in Australia and that's the reason why it's been attracting so much attention.  GM itself is a fairly new development, planting GM Canola in WA has only been permitted since 2010 and it's really seen as an area of controversy, certainly this case is the first time that these sorts of issues have been considered by the courts and we really will see some significant implications for both farming practices generally and the way that GM and organic farms are going to co-exist in the future.  So leaving aside I guess the ethical considerations regarding GM the main issue here is whether Mr Baxter owed his neighbour a duty of care to avoid introducing his GM seeds into the organic crop.  And it's an interesting one because it's not disputed that Mr Baxter had lawfully planted GM Canola, and he was also lawfully entitled swathe his crop.  Mr Baxter maintains that he complied with the best practice recommendations such as maintaining buffer zones and so he's acted in his opinion lawfully.  The question is whether he owed additional duties to Mr Marsh to prevent this GM seed from entering Mr Marsh's property and whether that duty was breached as a result of Mr Baxter's actions.  Now interestingly Mr Baxter's lawyers have also raised questions about the NASAA's certification practices arguing that the de-certification of Mr Marsh's property was not justified and that a zero tolerance approach to contamination is really unworkable in the natural world, where you are going to have a measure of cross pollination by insects and elements and that sort of thing.

And just on that decertification, and I don't know if you know this, but we've been talking here about GM seeds, would the same apply if it’s a normal non-organic farm if those seeds were spread onto organic farm, you know, they might have been spraying pesticides, could we see the same de-certification?

That's correct, so the issue is non-organic material being on the organic property, so that could be the GM and it's also certain prohibited pesticides, it could be prohibited fertiliser, it could be any one of a number of issues that are not organic.

So the case certainly has potential ramifications for lots of farms in Australia, not just ones using GM seeds versus organic seeds, what are some of the potential ramifications if the farmer – the organic farmer in this case is or isn't successful?

The immediate outcome will be that either Mr Marsh does or doesn't get what he's seeking, so compensation for the loss of his crop and for the loss of organic certification and then the injunction which will prevent Mr Baxter from planting further GM Canola and prevent him swathing his crop.  But beyond this and really more importantly is that it's going to serve as a precedent to future interactions between GM and non-GM as you point out and organic farmers, both across Australia and potentially much further.  So if Mr Marsh is successful GM and non-GM farmers will have a new range of issues to consider in deciding what crop to plant and where they plant it and also their choice in their method of harvesting, and these decisions are going to be heavily influenced by their neighbours.  Farmers are traditionally quite heavily reliant on one another's good will to prevent the spread of pests and diseases but this really tests the limit of that responsibility and as GM becomes more prevalent establishing a fiduciary responsibility for farmers with GM crops is going to have a significant impact on the industry long term.  Depending on the court's commentary around the certification practices, that may also lead to a re-consideration of these requirements for organic certification, the circumstances in which organic certification would be revoked and whether a zero tolerance policy is really workable.

It certainly does raise a number of interesting issues and I'm sure many people will be watching this one closely, Ryan thanks so much for sharing your insights on it.

It's a pleasure, thanks for your time.

That was Ryan White, who's an Associate in the Corporate Group at HopgoodGanim.  Listeners if you have any questions feel free to get in touch you can do so by sending an email to [email protected] or using the send a message to presenter button on your screen.