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WA GM crop decision highlights the dangers of ignoring science in administering standards

Mick Keogh - Sunday, June 01, 2014

Contrary to reports that the decision of the Western Australian Supreme Court in the Marsh vs Baxter GM crop contamination case represents a victory for GM crops and the end of organic farming in Australia, a close reading of the judgement suggests neither is correct. What the judgement does make clear, however, is that those administering production standards (such as organic certification) need to steer well clear of fanatical interpretations that stray a long way from scientific reality.

The Marsh vs Baxter case arose from a situation between neighbouring crop farmers in Western Australia, one of whom was growing genetically modified canola, and the other who was growing organic cereal crops. Some 245 stalks of the GM canola crop were blown across the fence into the organic farmers paddock. This resulted in an accrediting authority deciding to de-certify the organic farm, meaning that the organic farmer could no longer sell product as 'certified organic', resulting in a loss of income. The organic farmer sued his GM-crop growing neighbour for the loss of income, and also sought that the Court impose a permanent injunction on the GM crop farmer, preventing him using certain farming practices in proximity to the organic farm.

A close reading of the judgement handed down by Judge Martin reveals there were a number of aspects of the case that were not immediately apparent from the media reporting that has occurred. This was particularly the case given that the Marsh's were not growing and have not grown canola, and there was therefore no possible way any of the genetic material from the GM canola crop could 'contaminate' any of the commodities grown on the Marsh's farm.

The first is that the initiation of the Court case was, in Judge Martin's opinion, part of a deliberate and considered campaign by opponents of GM crops, and that Mr Marsh was not acting alone when he took action against his neighbour. 

The second and related aspect of the case that was the focus of much of the judgement handed down was the interpretation of Australian organic certification standards by NASAA and its subsidiary NCO, which was the organisation involved in making the decision to remove the organic certification from the Marsh's farm. As the Judge identifies, the relevant clause of the NASAA standard is 3.2.9, which states; 

Organic certification shall be withdrawn where NASAA considers there is an unacceptable risk of contamination from GMOs or their derivatives.

In the view of the Judge, 

To sensibly invoke Standard 3.2.9 there needed to be some sensible risk of a contamination to an organic product then being grown or raised on (Marsh's farm) Eagle Rest. But there was nothing to meet that criterion as at 29 December 2010.

At best, the Eagle Rest swathe incursion and possible spread of GM canola seeds situation might have been monitored and kept under review by NCO once all the swathes were gathered up and removed (preferably long before April 2011). There was a required NCO annual inspection in any event as regards all NASAA certified farming operations.

A 2011 inspection of Eagle Rest by NCO would have revealed that only eight volunteer GM canola plants ever germinated on Eagle Rest. These plants were easily identified and eventually pulled out by Mr Marsh. But even these eight volunteer GM canola plants posed no genetic contamination threat to any other crop or plant species at Eagle Rest as the scientific evidence earlier discussed makes very clear. Nor, if the volunteer plants had been eaten by sheep on Eagle Rest, did they pose any genetic threat to the meat or to the wool of the sheep. At worst, a GM canola seed might have passed through the consuming sheep's digestive system over time and, in due course, from there possibly germinated in the Eagle Rest soil to produce another volunteer plant. But there was nothing at Eagle Rest for the pollen from any of these volunteer plants (if they developed to a flowering stage) to cross-fertilise with.

The decertification of Eagle Rest by NCO on 29 December 2010, and then ongoing throughout 2011 to 2013, manifests as having been unsupportable under a proper application of the NASAA organic standards. 

The Judge went into some detail about his concerns on how the organic standard was interpreted, as the following excerpt from his judgement highlights:

Much of the difficulty for [NCO accreditor] (and for that matter for Mr Marsh) seemed to stem from the fact that the term 'contamination' is not defined in the National Standards or in the NASAA standards. Hence, a hypothetical example put to [NCO auditor] of a GM canola swathe transiently landing on a sheep's back as effectively a source of contamination of the sheep produced interesting evidence as regards [NCO auditor's] perceived contamination of the sheep's wool, effectively by the mere touch of a GM canola swathe, but also of the sheep itself, if any part of the canola swathe was consumed by the sheep (ts 507 - 508).

[NCO auditor] proclaimed herself as someone who preferred to take a scientific approach (ts 532, 547, 574). Her science qualifications (see exhibit 19, par 2) provide some basis for that claim. Regrettably, her evidence shows otherwise as her decisions for NCO as regards Eagle Rest.

I assess it to be the case that [NCO auditor] found it convenient to proffer, on behalf of NCO, absolutist positions wholly against GM canola. This is surprising as, given her science background, she should have known that any sensible assessment of a potential genetic-trait transfer risk from a GM canola swathe at Eagle Rest in December 2010 was unsupportable. That absolutist negative stance is all the more surprising, given she had been (correctly, in my view) advised, probably by the then chairman of NASAA as to the correct meaning of contamination in the context of contact with GM material meaning a 'genetic contamination' (see TB Vol 2, page 289). She then proceeded to relay that information by telephone to Mr Marsh on 20 August 2010 (see ts 509 - 510). Yet later that advice to her appears to have been ignored in her decisions of December 2010.

Ultimately, hundreds of thousands of dollars and a huge amount of Court time has been expended on a problem that could have been solved by the Marshs simply picking up the 245 canola stalks (or asking the Baxter's to do this), and either destroying them or throwing them back over the fence. The fact that the Marsh's spent a lot of time documenting and photographing their location, issuing press releases and seeking media publicity, but did not ultimately remove the canola stalks for four months (they were detected in October, but not removed till the following April) highlights that there was never any intention to seek a simple solution to this issue. 

The NCO auditor, based on the views of the Judge, has thrown 'fuel on the fire' by adopting an absolutist - some would say fanatical approach to the issue, as highlighted by her expressed views about the organic status of the wool from a sheep that has brushed against a GM plant. This approach bears absolutely no relation to any credible science, but more particular so given, as the Judge noted, there was not a single piece of evidence advanced in the case about the nature of the so-called harm that could be caused by a GM crop plant.

Perhaps the most worrying aspect of the whole issue is the response of the organic certifier, NASAA. Despite the Judge pointing out that the problem is not the organic standard but the interpretation of that standard by NASAA staff, a NASAA spokesperson has been quoted as stating "The (zero) tolerance levels are not set by NASAA. They're set by the Federal Government in its national standards for organic and biodynamic agriculture."  

If this quote is accurate, then this is clearly a case of NASAA trying to shift the blame, rather than taking sensible steps to achieve workable co-existence that does not in any way compromise organic farming standards. This is the sort of attitude that will only lead to more money being wasted on lawyers and courts, and will not result in better outcomes for either GM or organic farmers in Australia.
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