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The West Australian Supreme Court will this week begin to hear a simple agricultural dispute that has become a legal first. With organic and GM farmers at loggerheads, Damien Carrick reports on how a few canola seeds blown in the wind sparked a legal action that is being watched around the world.



The West Australian Supreme Court will this week begin hearing a test case that has farmers around Australia and across the world on the edge of their tractor seats.

The case centres on farmer Steve Marsh from Kojonup, who lost his organic certification when genetically modified (GM) canola seeds from his neighbour's crop blew onto his property and sprouted. Marsh is suing his neighbour for the economic loss that accompanied his loss of certification. This is the first time a case like this has come before an Australian court. It might also be a world first.

So the question is: should the organic farmer bear the economic burden of the use of the GM while the GM farmer gets the economic benefit?

Marsh grows oats, other grains and runs sheep. Until recently his organic certification allowed him to charge a premium on his output.

'Well, Steve feels fairly strongly about these issues; he's brought a claim in negligence and a claim in nuisance, and the background to that is that there was a release of canola seed onto his organically certified farm in the 2010 season,' says Mark Walter, a partner at law firm Slater and Gordon and Marsh's lawyer.

The action is for what's known as pure economic loss. There have been many legal decisions where courts have awarded damages for physical damage caused by the escape of fire, water or disease from one property onto another. But in Marsh v Baxter there's no physical damage. What is alleged is economic loss; loss from a third party's decertification as a result of the seeds blowing onto a neighbour's property. It's a very novel situation but plaintiff Marsh believes the case is a simple one—his neighbour is responsible for his loss.

Baxter sees things very differently. He argues that blame lies with the certification body, the National Association of Sustainable Agriculture. He thinks the standards are unreasonable and/or applied in an unreasonable way. His supporters argue Marsh doesn't grow canola and so his crops were not infested with GM seeds. In other words, GM seeds can't cross-breed with the oats or the other crops he was producing. They also maintain that if Marsh's sheep happen to eat the canola they will not be affected by it.

But Walter dismisses this logic: 'I think it's important to understand that organic farming is a system of farming, it's not just a set of standards that are applied willy-nilly.'

'You need to look at the entire system and how the farms operate. I also think it's a well-established farming practice in this country; I think Australia's got one of the largest areas of land under organic cultivation it's a fairly significant industry, well-known to both conventional GM and organic farmers. So there's no mystery to organic standards and how they operate, and certainly from the plaintiff's perspective he's spent a considerable amount of time seeking to put his neighbours on notice about his vulnerability to decertification. There's no mystery to any of that.'

Walter says there is a fundamental but essentially simple public policy question at the heart of this case.

'To me it's really about "where does the economic burden lie?",' he says. 'The introduction of GM produces benefits to GM farmers. They seek those, they pay a premium for them, but it has potential consequences, and to be frank the consequences are not ... too much of a surprise ... So the question is: should the organic farmer bear the economic burden of the use of the GM while the GM farmer gets the economic benefit?'

GM contamination test case The West Australian Supreme court will commence hearing a test case that has farmers around Australia and even across the world on the edge of their tractor seats.

John Snooke, spokesperson for the WA Pastoralists and Graziers Association, is adamant that Baxter should not be held liable for any reduction in Marsh's income that accompanied organic decertification.

'Michael Baxter grew a legal crop, he complied to all the rules and regulations,' says Snooke. 'The state government has approved GM canola in broad acre farming; it's been a great success and Michael Baxter is really not liable for anything because he's done nothing wrong.'



For Snooke the wider issue is the viability of agriculture into the future.

'We have 4,200 registered grain growers in Western Australia,' he says. 'It is understood this year that 1,000 of those will be growing GM canola.'

'The technology has been fantastic on farm; it's improved farmers' bottom line. So essentially they are voting with their feet. We need in Western Australia, in the broad expanse of the wheat belt, modern technologies. We need to adopt them all the time to remain viable.'

The trial commences today and is expected to last three weeks.

Find out more at The Law Report.

