By Marty Logan, Partner at Pitt & Moore

A recent decision from the Supreme Court of Western Australia deals with an issue which is in many ways as old as mixed cropping, but at the same time is at the cutting edge of modern agriculture. It discussed the conflict between neighbouring crop farmers, one being totally organic and the other growing genetically modified (GM) canola.  As will often happen with neighbouring crops, some of the GM canola ended up in the organic farmer’s paddocks and he sued his neighbour.  A battery of expert witnesses were called and the decision delves deeply into the legal and scientific issues raised by this conflict.

As to the relevant facts, the organic farmer had been growing various seed crops (but not canola) organically for several years. His farm had been certified as organic by a certification company (NCO).  His neighbour had been growing standard canola for many years.  After the prohibition on using GM crops in Western Australia was lifted he decided to plant GM canola, in part to beat a persistent weed problem.  The GM crop was Round Up resistant, and therefore the weeds could be sprayed after the crop had emerged.  The organic farmer warned him not to plant the GM crop along their mutual boundary as it might affect his organic status.

The GM farmer took advice and decided that it would be ok to plant the GM crop given that there was a sufficient buffer between the paddocks (including a planting setback as recommended by the GM seed supplier and a tree lined roading reserve). The harvesting method chosen by the GM farmer was of central importance to the dispute.  He harvested using the swathe method rather than direct heading.  Swathing involves the heading the canola crop before it is fully ripe and then pushing the plants into standing windrows, the cut plants are then left to ripen by being exposed to the elements for 2-3 weeks before being harvested.  This is a well-recognised method for harvesting canola and has several advantages to the canola farmer including the ability to cut the crop, and any intermingled weeds, before the weeds are fully mature and can set their seeds.  It also helps to avoid canola seed loss which can occur with direct harvesting of a mature crop.

However while the swathes were drying out a strong wind blew some 245 swathes over the trees and road reserve into the organic farmer’s cropping paddocks. The organic farmer notified NCO of the presence of the GM swathes on his property and NCO first suspended, and then later withdrew certification as to 70% of the organic farmer’s paddocks.

The organic farmer sued the GM farmer for the relatively modest losses he had suffered as a result of not being able to sell his crops as organic, but more significantly sought an injunction prohibiting the GM farmer from ever using his boundary paddocks for GM canola again.

At least on the surface this was not a clash of world views in that the organic farmer was apparently not trying to argue that GM crops were inherently dangerous or undesirable. Instead he just wanted to maximise the returns he could get from his land and believed that he could get the best prices through organic farming.  On the other hand the GM farmer considered that he could maximise his return by using the GM crop.

The claim raised a number of novel and complex legal and factual issues.

Some of the significant legal issues arose from the fact that there was no dispute that the swathes did not in themselves pose any risk to the neighbouring farm and were not dangerous. The damages arose from the loss of certification rather than any physical damage.  This is known as a pure economic loss and the Courts are very reluctant to award such damages because they can be open ended and in many ways unrelated to the originating events.  For example here the loss, arising from loss of certification, depended on the terms of a contract between the organic farmer and NCO which the GM farmer was not a party to and had no control over.

Much of the expert evidence dealt with the possibility of the GM crop establishing itself on the organic farm, or any of the DNA from that crop making its way into the product from the organic farm. In the event 8 “volunteer” GM canola plants did appear on the organic farm the next year, but these were easily identified and eradicated.  In essence there was no possibility of the GM crop being established on the organic farm and no chance of transference of the GM DNA to other crop on the organic farm.  It might have been different if the organic farmer had also been growing canola.

The Judge ultimately came down comprehensively in favour of the GM farmer, both on the facts and the law. He was clearly not impressed by the fact that the organic farmer had left the swathes in place on his farm for months, not taking any steps to remove them, but instead treating them as “infamous celebrities”.  Despite his denials, the Judge thought there was a clear anti-GM stance by the organic farmer and this motivated many of his actions.  However the Judge was even less impressed by the evidence of the NCO manager who decided to decertify the farm.  It was clear that she had taken a zero tolerance stance regarding GMOs (one seed was too many) and although she claimed to be motivated purely by science, the Judge decided this was not the case.  Apart from anything else the standard she applied was much stricter than the guidelines in the NCO contracts.  The zero tolerance of GM (or other non-organic) material only applied to deliberate use by the organic farmer.  When it came to accidental contamination from other sources, there was a lesser standard to be applied involving unacceptable contamination.

Here the clearly identifiable swathes could have been collected and removed immediately. Any seeds that had come loose could have been separated from the organic crop when the seeds were dressed.  There was no practical risk of the GM canola contaminating the organic product or becoming established on the organic farm.

The bottom-line here was that certification should never have been withdrawn, therefore the organic farmer’s losses arose from the overzealous actions of his contracted certifier rather than from anything the GM farmer had done.

Given the resources applied to this matter it is possible it will be appealed, but it is difficult to see how it can succeed given the factual findings.

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Marty Logan is a Partner at Pitt & Moore, Lawyers and Notaries. www.pittandmoore.co.nz

Marty is a commercial dispute resolution lawyer. He has a particular interest in Food Law alongside his specialist knowledge of Maritime and Fisheries Law. Email: marty.logan@pittandmoore.co.nz