Introduction 

The Supreme Court of Western Australia is under worldwide observation as it deals with a significant case regarding the proximity of genetically modified (GM) and organic farms. 

Organic farmer Steve Marsh, from Kojonup 260 kilometres south-east of Perth, is suing his neighbour, Michael Baxter, after herbicide tolerant GM canola seeds allegedly made their way onto his property from Baxter’s farm. Ethical arguments regarding genetic modification aside, the decision will have significant legal ramifications for the agriculture and farming industries. 

The Claim 

Marsh is claiming financial compensation after losing an estimated $85,000 in earnings and the organic certification for about 70 percent of his farm. Further to the claim for damages, and perhaps more importantly for the broader farming community, is an application to the court for a permanent injunction that would prevent Baxter from planting any more GM seed. 

The question to be tried is essentially the extent to which growing GM crops carries with it a fiduciary duty to ensure that no damage is caused to neighbouring farms (that employ different farming methods). 

There are some parallels to Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79, where the Court of Appeal of the Supreme Court of Western Australia found that the Department of Conservation and Land Management did not owe a duty of care to grape growers to avoid the risk of damaging grapes by smoke taint while carrying out prescribed burning on adjacent land. 

This finding was on the basis that the Department had a statutory obligation to manage the land in accordance with the relevant fire management plan (which included prescribed burning-off) and that imposing a duty of care would be incompatible with that obligation. 

In the current case, Baxter has no obligation to plant a GM crop but maintains he complied with the relevant regulations and “best practice” recommendations (such as maintaining buffer zones). The question is whether he owed further duties to his neighbour. 

Farmers are heavily reliant on one another’s goodwill to prevent the spread of pests and diseases, but this case tests the limit of that responsibility. As GM agriculture becomes more prevalent, the establishment of a fiduciary responsibility for farmers with GM crops would have a significant impact on the industry long-term. 

Three weeks have been scheduled for the trial and farmers all over the globe wait with interest for the potentially landmark trial to reach a conclusion. We will continue to report on this matter.

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