Tuesday 4 February 2014 5:30PM
The West Australian Supreme court will commence hearing a test case that has farmers around Australia and even across the world on the edge of their tractor seats.
It involves a farmer Steve Marsh who lost his organic certification when GM canola seeds from his neighbour's crop sprouted on his land.
Steve Marsh has sued his neighbour for the economic loss that accompanied his loss of certification.
Damien Carrick: But first to WA. Next week the Supreme Court will commence hearing a test case that has farmers around Australia and even across the world sitting on the edge of their tractor seats. It involves a farmer, Steve Marsh, who lost his organic certification when GM canola seeds from his neighbour’s crop sprouted on his land. Steve Marsh has sued his neighbour for the economic loss that resulted from this decertification. Now, this is the first time the issue has come before an Australian court, and it’s also possibly a world first. Mark Walter, partner with Slater and Gordon is Steve Marsh’s lawyer.
Mark Walter: Well, Steve Marsh is a local farmer in Kojonup in Western Australia, he was born and bred in that district. He’s been farming all his life and he turned to organic farming about 10, 12 years ago.
Damien Carrick: And what does he grow?
Mark Walter: Well, generally oats, other grains and he runs sheep.
Damien Carrick: He’s taking his neighbour, Michael Baxter, to the WA Supreme Court next week in a ground-breaking case. What’s his course of action? Why is he going to court?
Mark Walter: Well, Steve feels fairly strongly about these issues; he’s brought a claim in negligence and a claim in nuisance, and the background to that is that there was a release of canola seed onto his organically-certified farm in the 2010 season.
Damien Carrick: From his neighbour’s property?
Mark Walter: As alleged, from his neighbour’s property, and that led to the decertification of about 70 per cent of his organic farm, and that’s had consequences for the management of the farm and him economically.
Damien Carrick: So this, as I understand it, is a ground-breaking case in terms of Australian law and maybe even in terms of international law.
Mark Walter: I think that’s probably a fair assessment, more because the law evolves that way and this appears to be one of the first occasions where these sets of circumstances have arisen, certainly in this country, probably because GM’s only a fairly recent technology that’s been introduced into agriculture.
Damien Carrick: Now, this is a claim, as I understand it, for what’s known as pure economic loss, because there are lots of legal cases around, say, the escape of fire or water or disease or virus from one property onto another that causes physical damage to a neighbour’s property, but here there’s no physical damage. What is alleged is economic loss; loss from a third party’s decertification as a result of the seeds going onto the neighbour’s property. It’s a very, very different, novel situation, isn’t it?
Mark Walter: Yes, the extension of the common law is a creetive, that is case by case, and every now and then a case comes along where these issues can be examined. I think it’s...it’s probably fair to say everyone regards this as one of those cases, potentially.
Damien Carrick: The...the defendant certainly sees this very differently from you and your client. I think they argue the...the NASA standards, that’s the certification body, the National Association of Sustainable Agriculture... These standards are unreasonable because they would argue it’s not as though your client was growing canola and his crop was infested with GM seeds; the GM seeds can’t cross-breed with the oats or the other crops he was producing, or the lambs that eat the canola, it doesn’t affect their system. The defence would say, ‘There’s no problem here; the way the standards have been written, applied, interpreted is unreasonable.’
Mark Walter: Yes, I think that... I understand how the defence is put and we’ll see what the judge says in the next few months. I think it’s important to understand that organic farming is a system of farming, it’s not just a set of standards that are applied willy-nilly. You need to look at the entire system and how the farms operate. I also think it’s a well-established farming practice in this country; I think Australia’s got one of the largest areas of land under organic cultivation it’s a fairly significant industry, well-known to both conventional GM and organic farmers. So there’s no mystery to organic standards and how they operate, and certainly from the plaintiff’s perspective he’s spent a considerable amount of time seeking to put his neighbours on notice about his vulnerability to decertification. There’s no mystery to any of that.
Damien Carrick: What do you say to the argument that your client, if he had sustained any losses, should really go back to NASA and say, ‘Look, the way you decertified me was completely unreasonable’?
Mark Walter: I think that’s a...sort of an argument the defence will run. I think we’ll have to deal with that during the trial, so I’d prefer not to speculate on that, that’s going to be obviously an issue they want to raise.
Damien Carrick: What do you see as the big, public policy questions surrounding this ground-breaking litigation?
Mark Walter: To me it’s really about where does the economic burden lie. The introduction of GM produces benefits to GM farmers. They seek those, they pay a premium for them, but it has potential consequences, and to be frank the consequences are not that...too much of a surprise, if you look at North America. So the question is, should the organic farmer should the economic burden of the use of the GM while the GM farmer gets the economic benefit.
Damien Carrick: What’s at the heart of this issue? Is this about property rights and compensation, or alternatively is this simply a proxy war, which is looking at the pros and cons of GM agriculture?
Mark Walter: I think it’s quite simply a case of two litigants, two neighbours, two farmers, going to court because they can’t sort out under the current law who should bear the burden of the use of that particular product. It’s as simple as that.
Damien Carrick: I think the defendant told The Australian newspaper last year that he felt the battle was being cast as a battle between a vulnerable organic farmer and the mighty forces of Monsanto, which supplied the GM canola seeds and big agriculture. But he says the opposite’s true. Slater and Gordon, various environmental groups holding rock concerts because they think this is a landmark case... He feels that he’s the one who is being put upon here.
Mark Walter: From a personal perspective it’s always difficult for anyone to be a litigant; it’s never a choice that’s made lightly. I think Mr Marsh has made that decision after a lot of thought. At the end of the day, what does the plaintiff do in these circumstances? He’s told that his remedies lie with the common law. Does he suffer the loss and stay silent, or does he exercise his rights? He’s entitled to exercise his rights if he wants to.
Damien Carrick: Lawyer Mark Walter. John Snooke from the WA Pastoralists and Graziers Association is the organisation’s spokesperson on this litigation. He’s adamant that Michael Baxter should not be held liable for any reduced income that accompanied the organic decertification.
John Snooke: Absolutely not. Michael Baxter grew a legal crop, he complied to all the rules and regulations. The state government has approved GM canola in broad acre farming, it’s been a great success, and Michael Baxter is really not liable for anything because he’s done nothing wrong.
Damien Carrick: As a matter of principle, if your actions lead to someone experiencing an economic loss, should you or shouldn’t you be held liable?
John Snooke: It depends on the circumstances around that loss. The PGA has always maintained that Steve Marsh’s grievances should be directed towards NASA, the organic certifier. Because of their rules and regulations, which are really unnecessary and very difficult to reach, he was decertified and that was what caused him economic loss, not his neighbour.
Damien Carrick: Do you have issues with the standards themselves, or with the way they were interpreted and acted out?
John Snooke: I think it’s an interpretation issue, but the court will tease that out. I’m particularly not bothered and the PGA’s not bothered by NASA’s standards, but you cannot push those standards onto your neighbour, and that’s essentially what’s happening down in Kojonup; the organic grower is trying to make his neighbour adopt his standards which are very strict and unreasonable under an organic system. Broadacre agriculture, mainstream agriculture, has thresholds which allows us to use different production systems, and most importantly it allows us to trade our grain, whether it’s non-GM or GM.
Damien Carrick: That’s really the heart of the issue, because of course the plaintiffs say that no, they are having their neighbour’s farm methods imposed on them, and what they want to do on their property is being compromised by seeds blowing over from another person’s property.
John Snooke: It’s not the heart of the issue at all, because agriculture operates in nature. We have wind, we have rain and we have floods. That means that zero is unachievable, and it’s an unrealistic threshold; it doesn’t operate. And that is the heart of the issue, that the Organic Association is not accepting that agriculture operates in nature. We all get along very, very well, we’ve just got this one obscure event happening in Kojonup, and we think the court will actually tease out these issues, and it’s really needed so the public can have a very deep understanding of what occurred down in Kojonup.
Damien Carrick: Do you know what percentage of farmers in WA have now embraced GM technologies?
John Snooke: We have 4,200 registered grain growers in Western Australia. It is understood this year that 1,000 of those will be growing GM canola, this year. The technology has been fantastic on farm; it’s improved farmers’ bottom line and this is all happening within the context of this court case. So farmers have a very good understanding of threshold. They are increasingly seeing that this case is more about publicity than growing a crop, and they are adopting the technology. So essentially they are voting with their feet. We need in Western Australia, in the broad expanse of the wheat belt, modern technologies. We need to adopt them all the time to remain viable.
Damien Carrick: John Snooke from the WA Pastoralists and Graziers Association. The case of Marsh v Baxter will commence in the WA Supreme Court next week.
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