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Landmark court hearing likely in GM canola dispute

Kate MatthewsCountryman

Biotech giant Monsanto says a court dispute between two Kojonup neighbours over genetically modified canola contamination will not impact on demand for GM seed this growing season.

If it proceeds, the landmark WA Supreme Court case will test common law rights of property owners to recover losses resulting from GM contamination and the right to prevent future contamination.

A writ was lodged this week by legal firm Slater and Gordon on behalf of organic wheat and oat grower Stephen Marsh against his neighbour and childhood friend, Michael Baxter.

Mr Marsh alleges 70 per cent of his farm was stripped of organic status after GM canola seed blew onto his farm from the Baxters' property.

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His lawyer Mark Walter said Mr Marsh was seeking damages for the loss of organic certification and the cost would depend on how long it took for re-certification.

An injunction to protect the organic farm from future contamination was also lodged as part of the writ.

Mr Walter said it had already been shown that the current 5m buffer zones were inadequate and they would be calling for these to be increased.

The distance would be a matter for the courts to determine but Mr Walter suggested 2.5km would be reasonable.

Since it was first publicised in December 2010, the alleged contamination has weighed heavily on both families and the local community.

"This is a big step; no-one wants to be suing their neighbour, especially in a farming community," Mr Walter said. "However, once the full extent of the ongoing losses was clear Mr Marsh really had no choice but to go to court."

Safe Food Foundation director Scott Kinnear said it was a test case for organic and non-GM farmers and was "the tip of the iceberg".

Until the case has been resolved, he is warning farmers to reconsider planting GM canola on their farms.

But demand for GM canola has steadily grown since the WA Government gave growers the choice in 2010.

Monsanto corporate affairs spokeswoman Keryn McLean said 90,000 hectares of GM canola were grown in WA last year, up from 70,000ha the previous year. This year, Monsanto is expecting 125,000ha to be planted.

With the writ served, Ms McLean said the court case would not make a difference or cause grower hesitation.

"Farmers have already made their decisions and our forecasts are based on seed sales and what's going on, on the ground," she said.

"It all comes back to a farmer's right to farm and farmers doing their best to work together amicably."

Co-existence will also be a topic widely debated in the coming weeks as many groups, including lobbyists and the State Government, discuss the organic industry's zero tolerance thresholds.

WAFarmers, which supports co-existence between GM and non-GM growers, doubts that the Marsh legal case will be successful.

Incoming president Dale Park said it was a pity it could not be resolved farmer-to-farmer over the back fence.

"I doubt we will see future cases until we see a result but I doubt they will be successful, and if they are successful, it will be a real Pandora's box," he said.

PGA Western Graingrowers chairman John Snooke welcomed the news the writ had finally been served.

"We will defend our members Mick and Zanthe Baxter and support them through this case," he said.

"We will also continue to defend the use of GM technology and plant breeding.

"It is inappropriate for the PGA to comment on the specifics of this case now the writ has been served."

Papers were served on the Baxters' lawyer, Brian Bradley, of Bradley Bayly, on Tuesday while the Baxters were on holiday.

Mr Bradley declined to go into detail because the case was before the court. "The case will be defended and my clients have, in their view, a good defence," he said.

Slater and Gordon expects the case to go to trial next year depending on court availability.

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