Scott Kinnear on Steve Marsh’s Case – Sunday 2 March 2014
By Scott Kinnear
This trial has been a massive amount of work for Steve Marsh and his legal team and all of us behind the scenes fund raising to cover the cost and communicate Steve’s story.
Closing submissions were heard on Thursday and Friday 27 & 28 February. Julie’s blog for those two days is below and a huge thanks to her for attending the trial and for her support of Steve and his wife Sue. I would like to extend here a huge thankyou to Steve and Sue on behalf of all their supporters for taking this brave stand to ask the court to address the issue of GM contamination as it applies to common law. This was the only avenue available to Steve given the legislation to govern GM in Australia did not impose any reasonable controls to limit and or mitigate contamination.
As the founding Chair of The Organic Federation of Australia in multiple submissions (to parliamentary enquiries) and agricultural industry meetings discussing co-existence going back to 2000, I presented the industry view as follows:
1. That contamination of organic farms by GM was inevitable. Not a matter of if but when.
2. That buffer zones and legislative controls were needed to minimise the risk and spread of GM contamination where it is not wanted in organic and or Non GM farming systems.
3. That common law was a dreadful path to take to resolve these issues. That it would be too costly for individual farmers to take without massive assistance and risks. (Steve could lose his farm if he loses the trial!)
The organic industry has been operating in Australia with standards and quality assurance systems of certification for decades and this gives us export market access governed by Export Control orders administered by AQIS. GM is a new comer to cropping systems in Australia. We believe that making GM canola legal does not remove the duty of care for one neighbor to act reasonably toward another to avoid spreading GM where it is not wanted. This is the essence of Steve Marsh’s case!
The WA Australian Supreme Court has taken the decision to publish all the transcripts, opening and closing addresses and witness statements online. It will take a while to read and if you have the time is recommended. It will show that the evidence is strongly in Steve’s favour. That Mr Baxter knew Steve was organic, that he could not tolerate GM canola on his farm and that he would lose his certification if it got on there. Despite this Mr Baxter planed next to Steve’s farm instead of further back and then to make matters worse, swathed (mowed, raked and wind rowed) the GM canola and left it to dry for several weeks. It was during this time that the winds came up and blew the GM canola onto Steve’s farm.
Mr Baxter’s lawyers have argued that NASAA made a mistake in decertifying Steve and that he did not get contamination of end product. Essentially they are hoping to have Steve’s case dismissed because of this! This argument dismisses the intention and operation of organic standards and certification. The NASAA standard is written with the clear requirement that GM cannot be tolerated. The sanction of decertifying Steve’s farm was designed to remove the risk of contamination of GM in Steve’s end product. To suggest end product contamination is the only measure for decertification is unacceptable to consumers who understand organic agriculture is a system that is kind to animals, beneficial to the environment and seeks to remove the risk of GM and chemical contamination.
We learned that hundreds of GM canola plants containing thousands of seeds landed on Steve’s farm. NASAA had no alternative but to decertify his farm to manage the risk of contamination. Only a small number of mature plants were found in the next growing season and none the year after. NASAA fast tracked re-certified of Steve’s farm in November 2013. (There may have been more eaten by sheep that Steve did not find). Given the evidence of GM canola volunteer plants from field trials in Tasmania now more than ten years after they took place, NASAA could have left Steve de-certified for more years waiting to see if any more volunteer GM canola plants came up.
If Steve wins then organic and Non GM agriculture can farm confident that their neighbours have to consider their sensitivities. We would expect organic and Non GM farmers to alert their neighbours to their sensitivity to GM and pointing out the methods of GM contamination and how they can be avoided. The GM industry would not fall over. GM canola growing would still be viable and would still continue albeit with GM farmers being more careful. The precedent set will mean that GM farmers will be very careful about proximity of GM to Non GM canola and the practice of swathing.
If Steve loses then the GM industry is free to farm GM without regard to an organic or Non GM farmer neighbour. We would expect to see contamination events rise rapidly as at least now the voluntary guidelines make it clear that GM farmers should try and avoid contamating organic and Non GM. That volunary caution may be thrown to the wind – literally! Organic farming would be under cost pressures to try and contain contamination on their farms at their expense and with GM wheat as early as 2017 we would be facing a grim future.
What we would like to see moving forward
The voluntary guidelines should be codified into legislation and strengthened. GM farmers should be subject to penalties for breaches of the laws. Buffer zones for GM next to Non GM canola within a certain distance and a ban on swathing within a certain distance should be introduced. A compensation scheme funded by the GM industry should be established so that farmer versus farmer common law action is NOT the mechanism for supporting farmers like Steve who suffer loss and damage through GM contamination.
I will update this comment in coming days and weeks!