Supreme Court decision upholds farmers' right to coexistence

The Supreme Court of Western Australia has dismissed an organic farmer’s claims for $85,000 in damages over contamination from his neighbour’s genetically modified (GM) canola crop.

Steve Marsh and his wife Susan had, since December 2004, been approved growers of organic produce. Marsh claimed that contamination from Michael Baxter’s neighbouring property in 2010, whose crops include GM canola, caused the Marshes to lose organic certification on more than half of their property from the National Association of Sustainable Agriculture Australia (NASAA).

But Presiding Justice Kenneth Martin found that by exerting a ‘duty of reasonable care’, Baxter should not be found negligent “merely for growing a GM crop” and should not be held responsible, in law, for the gross overreaction of the NASAA.

The proceeding hinged on Baxter’s right to plant a lawful crop on his own farm using orthodox and well-accepted harvest practices without it being considered to be unreasonably interfering with his neighbours’ use of his own property. It thus upheld the principle of coexistence - the freedom for farmers to choose a farm system that suits their own particular needs.

The decision has been welcomed by biotechnology organisation AusBiotech, which claims the case reaffirms the importance of coexistence principles that allow farmers to benefit from continually evolving agricultural technologies that have been demonstrated to be safe and effective.

Dr Andrew Jacobs, a program leader at the Australian Centre for Plant Functional Genomics, said the decision “will give farmers surety that they can choose the crops they grow”. It is the hope of the centre, said Jacobs, that the NASAA’s “zero tolerance threshold for contamination in broad acre crops … might be reviewed and brought in line with similar policies around the globe to support farmers wishing to grow crops for their niche markets”.

Professor Mike Jones, the director of the WA State Agricultural Biotechnology Centre, reiterated this. He stated, “It is to be hoped that organisations that accredit organic farmers modify their rules to acknowledge that nothing in agriculture is 100% - if they adjust their rules to reflect those of similar accreditation bodies overseas to allow for small amounts of unintended presence of other seeds, then organic, conventional and GM crop farmers can all coexist without the antagonism that this case has engendered.”

But the NASAA has expressed its disappointment over the decision, with general manager Ben Copeman calling on state and federal regulators to provide greater certainty on the application of national standards for organic and biodynamic produce.

Copeman said, “Without any legally recognised form of protection, Australian organic farmland and produce is left vulnerable to contamination from conventional farming methods including GM crops. This could seriously threaten the sector’s access to domestic and international organic markets.” The NASAA noted that Australia’s most important grain customers, such as Japan, China and Korea, have zero tolerance to GM contamination.

“Farmers across Australia are left with an uncertain future,” continued Copeman. “The need to recognise and support greater commercial security for both organic and conventional farming is now an issue of national importance.

“The issue of how organic and non-organic farmers can coexist while respecting each other’s right to farm in the way they choose will not go away and needs to be resolved.”