Introduction

The fiery debate regarding GM foods has reignited in Australia with a recent dispute in the WA Supreme Court, Marsh v Baxter [2014] WASC 187 (Marsh v Baxter) which pitted neighbouring farmers and private interest groups against each other.

The Marshes grow organic wheat on their property, ‘Eagle Rest’, which received organic certification in 2006 from the National Association of Sustainable Agriculture (Australia) Ltd (NASAA). In late 2010, Mr Baxter, a recent convert to GM canola, harvested his trial crop of Roundup Ready canola, using a harvesting technique known as ‘swathing’. Some of the cut GM canola was blown by heavy winds onto Eagle Rest, resulting in the decertification of 70% of the property by NASAA. As a result of this alleged 'contamination', the Marshes sued Mr Baxter for common law negligence and private nuisance, seeking compensation and an injunction restraining Mr Baxter from growing GM canola near Eagle Rest.   

Findings

Justice Martin of the WA Supreme Court rejected the Marshes’ claim of private nuisance, finding that there had not been any unreasonable interference by Mr Baxter in the Marshes’ use and enjoyment of Eagle Rest. His Honour considered that the swathing technique was a well-accepted and lawful methodology which had been carried out professionally by a swathing contractor; Mr Baxter had sought advice from a registered and experienced agronomist; and the winds and the subsequent 'contamination' was not an intended outcome, nor was swathe incursion 'reasonably anticipated or expected' by Mr Baxter, given his inexperience of the technique and the novelty of GM farming in the region.

Justice Martin also dismissed the claim of common law negligence, finding that the duty of care argued by the Marshes was 'conceptually misconceived'. Further, Martin J considered that even if he had found a lesser level of duty of care, i.e. to 'take reasonable measures to inhibit movement by wind of GM canola', he would still not be satisfied of any breach. In reaching this conclusion he pointed towards the lack of knowledge at the relevant time as to GM canola swathing and the probability of an escape event, the fact that there was no evidence as to whether the wind events were particularly unusual for the region, and no evidence that the GM canola was actually toxic or at all harmful. The Court also suggested that the appropriate avenue of redress for Marsh was against the organic certification body.

Key consequences

Marsh v Baxter has been described as a 'test case' for GM crops worldwide, but mirrors a similar challenge in the UK in 1998, where Mr Guy Watson, an organic farmer in Devon, challenged the UK government by way of judicial review over the location of a field-scale trial for GM maize next to his organic farm. Ultimately, Mr Watson’s challenge failed on not dissimilar grounds.

The battle between Marsh and Baxter, had also (perhaps misleadingly) been styled as a ‘David v Goliath’ fight, with Monsanto widely rumoured to be financially supporting Mr Baxter’s defence. However, it was the community group, the Pastoralists and Graziers Association of Western Australia, which was in Mr Baxter’s corner. Meanwhile, the Marshes’ litigation fund has been bolstered by a number of lobby groups including Safe Food Australia and Greenpeace, who had hoped a positive outcome might slow the increasing number of GM products available in Australia. International law firm Slater & Gordon have also provided their services on a pro bono basis to the Marshes.

The judgment has been lauded as a triumph of common sense and freedom of farming choice. A victory for the Marshes may have had broad and damaging implications for the cropping community, especially those farmers who share boundaries with organic certified farmers. At the same time, the decision does not suggest that all growers of GM crops have immunity or protection against similar claims in the future. Instead, it establishes that something more will be required for a claim of negligence to succeed, for example, physical damage to crops, livestock or the land. The Court also recognised that the level of experience of a GM farmer, and the local farming community, will be a relevant factor in assessing the liability of the farmer.

Where to from here?

The case might yet prove to be a catalyst of change. Many argue that the major cause of the dispute was not the vagaries of the Western Australian winds, but the inflexibility of the national guidelines which strictly require zero GM trace elements in organic products. This has been asserted as an aspiration that is doomed to fail. Cross-pollination is considered an unavoidable consequence of large scale farming, and is a fact recognised by many overseas jurisdictions, including the US and Europe. Accordingly, the WA government last month lodged a request with the Organic Industry Standards and Certification Council for the tolerated threshold of GM trace elements in organic products to be increased from zero to 0.9%, consistent with the approach in many countries worldwide (including the EU). Agriculture Minister Ken Baston stated that the submission supported "the coexistence principle to allow for organic, conventional and genetically modified productions systems within a farming property". This move has been widely derided by the naysayers of GM crops, but will be considered by the National Standard Sub Committee in August 2014.

As for Marsh and Baxter, this episode between neighbours and (former) friends may yet have a sequel. Marsh has appealed, again backed by the Safe Food Foundation, demonstrating that GM farming in Australia is clearly an issue that will not easily be blown away.