No case for zero tolerance – Marsh vs Baxter

On Tuesday 10 September, the WA Court of Appeals handed down its decision in the Marsh vs Baxter case, in which an organic farmer sued his genetically modified (GM) crop growing neighbour for allegedly contaminating the organic farm, which resulted in a loss of organic certification and therefore a substantial amount of income. By a two to one majority, the Appeals Court judges supported the decision of the original judge, and dismissed all the claims made by the organic farmer.

The temptation for the media to style this story as being about the little Aussie battler organic farmer versus the multinational-backed rapacious GM farmer was obviously too tempting, and this has been the flavour of most of the reporting of this case. The opening sentence of an ABC media report gives a sense of this, ‘An organic farmer in Western Australia whose crop was contaminated with genetically modified (GM) canola from a neighbouring farm has lost his court appeal for compensation,’ is the opening line, and the story goes on to describe the ‘plight’ of the organic farmer in his quest for compensation.

The facts of the case, as described in intricate detail by the majority appeal court judges (and the original trial judge), do not correspond with this characterisation. In both the original judgement and the majority Court of Appeals judgement, a distinctly different picture of the situation emerges.

Put briefly, the judges found that Michael Baxter planted GM canola on his farm in accordance with all the guidelines, and the advice of his agronomist. He observed all the requirements with regard to buffer zones on his property, which in any case was separated from his neighbour’s property by a 20 metre road and a line of trees. To harvest the canola it was first windrowed and left to dry – a standard practice for canola crops. Before it was harvested, some of the drying canola plants were allegedly blown onto his neighbour Steve Marsh’s property, who is a certified organic farmer. Marsh identified the plants, but according to the judges, rather than removing them, left them there for up to six months and meanwhile notified his organic certifier, NASAA, about the presence of the plants.

According to the reported judgements, NASAA subsequently visited the organic farm and decided to decertify it, which meant that Marsh lost his organic certification, and could no longer sell his produce as organic. This resulted in a financial loss which Steve Marsh then decided to seek to recover via a court case. However, as the judges pointed out, areas of the Marsh farm had already been decertified previously due to the use of chemicals; there was no canola being grown on the organic farm so there was no possible risk of genetic contamination; and the decision by NASAA to decertify Marsh’s farm was not necessary based on the guidelines and rules under which it operated.

The picture that emerges from the published findings of the judges is one where, instead of the normal situation where the offending canola stalks would have been quickly collected up and removed, or the neighbour asked to collect them and remove them, the situation was escalated all the way to the courts as a consequence of actions by the organic farmer, the overzealous and seemingly incorrect actions of his organic certifier NASAA (according to the judges), and ultimately a band of anti-GM campaigners who saw the case as an opportunity to inflict some damage on those supporting GM crops.

The case has seemingly backfired on the anti-GM campaigners rather spectacularly. First, the judges have pointed out that merely having some GM crop plants present on a farm does not constitute ‘contamination’; that in any event contamination implies harm or damage and there is no available evidence that GM crops have ever caused harm or damage; and finally that as a consequence of losing the case, it is possible that all the costs of the case will have to be borne by Steve Marsh.
As noted in relation to the first court decision, it seems that the judges are hinting quite strongly that the party most to blame in this situation was the organic certifier NASAA, and the organic standard which sets a zero tolerance requirement, contrary to the more realistic and practical standards that apply everywhere else in the world.

All those anti-GM campaigners who so willingly jumped on the bandwagon now face the difficult moral decision about whether they are prepared to open their wallets and help pay for Steve Marsh’s likely costs.

There are claims that the case will now be appealed to the High Court, but it appears there is a real risk this would simply be inflicting more stress and uncertainty on the two protagonists and further fattening the pockets of lawyers. The reality is that neighbouring farmers have dealt with these sorts of problems in a practical and cooperative manner for generations, and resorting to the courts every time a sheep strays or weeds appear will never be a solution.

Image:  Monsanto

Back to November 2015 index