Much at stake in GM test case

Landmark legal action which may affect how genetically modified cropping technology is used by Australian farmers is expected to be launched this month.

Perth law firm Slater and Gordon announced last week that it would lodge a writ in the Supreme Court within three weeks on behalf of Steve Marsh.

It would claim negligence and nuisance against Mr Marsh’s neighbour, Mick Baxter, after swathed genetically modified canola seed allegedly blew onto Mr Marsh’s farm from Mr Baxter’s property, contaminating his land and causing the loss of his organic status.

Mr Marsh was de-certified by the National Association for Sustainable Agriculture Australia (NASAA) in December 2010 and wants a proper legislative framework to protect the rights of non-GM farmers.

“Farming has been continuing for a long time without GM and now with its introduction we are starting to see all these sorts of problems, ” he said.

NASAA, organic and biodynamic certifying groups have a zero-tolerance policy towards GM materials and say consumers want GM-free food.

Slater and Gordon lawyer Mark Walter has described Mr Marsh’s action as “a landmark case” because it will be the first time GM crops will be dealt with in court in Australia.

He said if the issues were not resolved by negotiation and mediation, it might be entered for a hearing and trial.

Mr Walter said a trial would depend on the judge and could be at least 12 months away, run for two to three weeks and cost both parties $1 million or more.

However, the State’s two key farming groups say it is uncommon and a sad state of affairs when farmers begin suing each other.

WAFarmers president Mike Norton said government and industry had handled the issue poorly by not doing enough work in the lead up to the release of GM canola.

“There is going to be a winner and a loser, ” Mr Norton said.

“Ultimately if it’s Mr Marsh who wins, then that’s certainly got some real ramifications for the ongoing use of GM technology, which is probably a bit sad in some respects because we probably need these sorts of tools in our tool box.”

If Mr Marsh is successful, how much compensation he is awarded will also need to be determined.

Mr Walter declined to give an amount, saying losses were ongoing and damages still being calculated.

“Farming by a judge and precedent can be a fairly dangerous path to go down, but that’s where we are at unfortunately, ” Mr Norton said.

Some members of the Pastoralists and Graziers Association (PGA) believe the case will never make it to trial and NASAA and other certifiers need to lift their zero-tolerance threshold to enable co-existence.

PGA president Rob Gillam said it was difficult to comment on the situation.

“If the writ is about common damages from one farmer to another, then I can see no reason why it should set a precedent, ” he said.

“However, if it involves the use of GM technology, the implications may be more widespread.”

Monsanto spokeswoman Keryn McLean said GM farmers had done nothing wrong and zero tolerance was not possible in a natural environment.

GM canola has been approved as a safe and legal crop by the Office of the Gene Technology Regulator.

Agriculture Minister Terry Redman declined to comment but has previously said that the existing legal framework was adequate to deal with GM crops.

Financial support

Legal cases, whether they make it to trial or not are costly exercises and if Slater and Gordon lawyer Mark Walter is correct, could cost both parties involved in the first GM contamination case up to $1 million or more.

Organic grower Steve Marsh is being supported by the Safe Food Foundation, which has partnered with Friends of the Earth.

The Safe Food Foundation spokesman Scott Kinnear said the foundation was flying Mr Marsh and his lawyer to the Organic Expo in Sydney this weekend to rally support. “We don’t want Steve to lose his farm and we don’t want him to have to pay out all of his current income, ” Mr Kinnear said.

Mr Marsh’s neighbour, Mick Baxter, is being supported by the Pastoralists and Graziers Association (PGA), which has established a defence fund.

PGA grains spokesman John Snooke said the association had set up a facility to help “good honest hardworking producers from being attacked in a senseless manner”.

Monsanto spokeswoman Keryn McLean confirmed Monsanto would support Mr Baxter, but not financially. “Mr Baxter has done nothing wrong. He met all the stewardship requirements for what is an approved safe and legal crop, ” Ms McLean said.