In December 2013, the Government of Canada introduced Bill C-18, known as the Agricultural Growth Act. The proposed legislation is designed to streamline legislation in the agricultural sector, increase access to new crop varieties, enhance trade opportunities and food safety, and reduce administrative red tape.
Plant Breeders’ Rights
The Agricultural Growth Act proposes amendments to Canada’s Plant Breeders’ Rights Act to bring Canada in line with the International Union for the Protection of New Varieties of Plants (UPOV). (The purpose of UPOV is to promote a system of plant variety protection to encourage the development of new plant varieties. Canada has been a member of UPON since 1991). The Agricultural Growth Act, and the proposed amendments, aim to increase the scope and length of plant breeders’ rights, which the Canadian government anticipates will encourage R&D activity in the private sector, in Canada and abroad, and accelerate innovation in crop variety development and commercialization and create new trade opportunities.
Currently, the Plant Breeders’ Rights Act, among other rights, grants breeders the exclusive right to sell and produce seeds (i.e. propagating material, including plant parts) of a plant variety, and to use seeds repeatedly to commercially produce another plant variety. If passed, the amendments will provide breeders with new exclusive rights to produce, condition (for propagating purposes), export, and store seeds for any of the protected purposes. The exclusive rights granted will apply not only to the seeds of a variety (redefined to cover plant grouping defined genetic characteristics), but also to any variety essentially derived, or not distinguishable, from another plant variety. The protected rights will extend to any harvested materials obtained through a breach of the rights. As well, the amendments will extend the duration of plant breeders’ rights from 18 to 20 years for all crops except trees, which will have 25 years’ protection.
Given the expansion of rights, the amendments also propose exemptions for private and non-commercial purposes, for experimental purposes, and for the purposes of breeding other plant varieties, so that plant breeders can continue to use seeds for a variety of development purposes. In addition, the proposed changes will enshrine a long standing farmer’s right and practice (called the “farmers’ privilege”) to harvest and condition seed from their own crops without infringing a plant breeder’s rights (subject to any contractual covenant with a plant breeder not to save seed); however, under the current amendment as proposed, a farmer is prohibited from storing seed for such purposes.
The Agricultural Growth Act proposes amendments to Canada’s Agricultural Marketing Programs Act that will allow for changes to Canada’s “Advanced Payment Program” for farmers. The Advanced Payment Program is a financial loan guarantee program sponsored by the Canadian government that gives producers easier access to credit through cash advances. Under the Advanced Payment Program, Canada guarantees repayment of cash advances issued to farmers by producer organizations. The guarantees help the producer organizations to borrow money and assists producers in maintaining/managing cash flow throughout the year. The proposed amendments would permit multi-year agreements between farmers and producer organizations in an effort to reduce the red tape currently associated with annual contracts. The proposed amendments would also make changes regarding security agreements, proof of sale and the means of advance repayments to improve accessibility of the program to producers. As well, the definition of ‘corporate producers’ would change to reflect the concept of corporate control rather than majority share ownership (to reflect modern farm ownership structures).
The Agricultural Growth Act will also amend the federal Farm Debt Mediation Act to streamline its interaction with other legislation and ensure that Canada’s Minister of Agriculture can participate in farm debt mediations when Canada has guaranteed a producer’s debt (including under the Advanced Payment Program).
The Agricultural Growth Act if passed will also bring changes to Canada’s Feeds Act, Fertilizers Act, Seeds Act, Health of Animals Act and Plant Protection Act. These proposed amendments are designed to provide the Canada and the Canadian Food Inspection Agency with new authority to inspect products, remove imports, establish new product standards and inspection marks, and require licensing for certain activities (including the international and inter-provincial import and export of feeds and fertilizers). These changes will also permit the Canadian authorities to consider reviews, data and analyses of a foreign government during the approval or registration of new agricultural products in Canada – improving the review process and accelerating the approval of innovative technologies for use in Canada.
Overall, the legislative changes proposed by the Agricultural Growth Act indicate Canada’s desire to foster innovation in agriculture, simplify government regulatory processes, allow for more efficient operation of agricultural businesses, and enhance Canada’s international competitiveness.
The Agricultural Growth Act was introduced on December 9, 2013 and entered second reading on March 3, 2014, where it is still under debate in Canada’s House of Commons. Several important stages of debate and discussion still need to take place before the amendments become law. It is anticipated that industry will be closely involved – both to support and oppose the bill – throughout the legislative process.
The scope and intent of the changes contemplated under this omnibus legislation, are consistent (and complementary) with legislative/ regulatory changes in other aspects of the Canadian agricultural sector. In particular, the passage of the Safe Food for Canadians Act, the Food Labelling Modernization Initiative, the development of an Improved Food Inspection Model by the Canadian Food Inspection Agency and greater crossborder consultation and regulatory harmonization initiatives with the U.S.A., and other countries, all point to a concerted effort by the Canadian government to overhaul and modernize Canadian regulatory structures and systems in the agricultural and agrifood sector.
The Agricultural Growth Act, and the significant changes under that legislation, have been met with mixed reaction from agricultural and farm organizations and industry associations. Some organizations have advocated for such changes for many years and view the Agricultural Growth Act as a step towards improving the competiveness of Canada’s agricultural sector in an increasingly global economy. Other stakeholders, however, have expressed concern over the legislation, especially with respect to the expansion of plant breeders’ rights and the limitations of the famers’ privilege.