Baxter wins GM case

28 May, 2014 04:00 PM
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Steve Marsh (left) and Michael Baxter.
I felt I’d done nothing wrong all along and was confident the law would show that in the end
Steve Marsh (left) and Michael Baxter.

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  • UPDATED: IN A landmark decision on genetically modified (GM) canola and property rights, the much-anticipated verdict in the Marsh v Baxter case has found in favour of GM canola grower Michael Baxter.

    Justice Kenneth James Martin handed down his verdict at 2pm Perth time in the controversial Western Australian Supreme Court case between neighbouring farmers Michael Baxter and Steve Marsh.

    Supporters from both sides attended court for the decision.

    Mr Marsh was suing his life-long neighbour for $85,000 in alleged damages after about 70 per cent of his 478 hectare Kojonup organic Eagle Rest farm was decertified in late 2010, from the presence of GM canola swathes.

    Mr Marsh was also seeking a permanent injunction to prevent Mr Baxter from planting GM canola crops within 1km of his farm or future swathing.

    The verdict follows a trial which started on February 10 with evidence presentation and summaries from both sides concluding on Friday, February 28.

    About 20 expert witnesses were called and Mr Baxter also took the stand to defend his decision to plant GM canola.

    “The absence of a reliable underlying evidentiary platform to support a perpetual injunction against swathing was a significant deficiency in its own right,” today's judgement summary said.

    “Accordingly, the Marshes' action against Mr Baxter wholly failed.”

    The Marshes now have 21 days to appeal the decision and are carefully considering and reviewing the full 150 page judgement document before making any decision.

    Baxter pledges to keep farming

    Mr Baxter was flanked by the eldest of his three sons, Rhys, and spoke to media briefly following today's decision.

    He thanked his legal team and strong backing throughout the ordeal from the WA Pastoralists and Graziers Association.

    The Kojonup GM farmer said he was extremely pleased by the court’s decision and to win the case that’s been hanging over his head for more than three years.

    He also said his legal opponents and the Marsh supporters had no idea of the trial’s ongoing emotional impact on him and his family, including divorcing his wife Zanthe, since the ordeal started.

    Mr Baxter also pledged to continue running his farm and cropping program as normal.

    “There’s no reason why I shouldn’t,” he said to Fairfax Agricultural Media.

    “I’m pretty relieved it’s over now after three and a bit years of waiting to arrive at this decision.

    “I felt I’d done nothing wrong all along and was confident the law would show that in the end which it has.”

    Mr Baxter said the decision wouldn’t change any of his on-farm practices “because there’s nothing wrong with GM and the court proved that”.

    He said Mr Marsh only found nine plants growing on his property 12 months after the GM swaths blew over from his farm.

    “They carried on and said it was all a huge contamination but really, only nine plants isn’t much of a problem is it?” he said.

    'Disappointing result' for Marshes

    About 30 protesters carrying placards and supporting Mr Marsh expressed displeasure at the decision immediately outside the court today, shouting various slogans including, “corruption, greed and shame on you”.

    Acting for Mr Marsh and his wife Susan, Slater & Gordon, Commercial and Project Litigation lawyer Mark Walter, said it was a disappointing result “and leaves Australia’s non-genetically modified food farmers with no legal protection against contamination from nearby properties”.

    “We will closely examine the judgement of this complex and unique case and advise our client of his legal options, including his right to appeal,” he said.

    “Slater & Gordon has been proud to provide legal services to Mr Marsh, under its Public Interest and Pro Bono Scheme.

    “All third party costs – such as court fees, expert and barrister costs – are met by the Safe Food Foundation through donations.”

    The SFF raised about $750,000 to support Mr Marsh’s legal challenge and has also called for more donations to cover the trial’s full costs.

    Causes of action dismissed

    The summary statement said that Justice Kenneth Martin dismissed both the Marshes' causes of action in common law negligence and private nuisance.

    “For private nuisance, his Honour assessed that it had not been shown that there had been any unreasonable interference by Mr Baxter in the Marshes' use and enjoyment of Eagle Rest,” the summary said.

    “This evaluation involved a balancing of many considerations.

    “His Honour focused relevantly upon Mr Baxter's decision to harvest his RR canola crop by the swathing process, rather than his decision to grow RR canola in 2010.

    “Mr Baxter had grown a lawful crop in 2010.

    "In deciding both to grow and to swathe that crop that season he had acted with advice of a local agronomist, Mr Robinson.

    “Mr Baxter had used an orthodox and well accepted harvest methodology by swathing his RR canola crops in 2010.

    “He had engaged a swathing contractor to cut the canola plants and push them into windrows, where they would dry out for some weeks before the final phase of harvest.

    “The end of season winds and the blowing of swathes from Sevenoaks eastwards into Eagle Rest had not been an outcome intended by Mr Baxter.

    “Even so, no physical injury whatsoever had been sustained at Eagle Rest in consequence.

    “Mr Baxter was not to be held responsible as a broad acre farmer merely for growing a lawful GM crop and choosing to adopt a harvest methodology (swathing) which was entirely orthodox in its implementation.”

    The summary said there was “no evidence at the trial of any genetic transference risks posed by the RR canola swathes blown into Eagle Rest at the end of 2010”.

    “In 2011, eight GM canola plants were found to have grown up as self-sown volunteer plants on Eagle Rest,” the transcript said.

    “They were identified and pulled out.

    “No more volunteer RR canola plants grew on Eagle Rest in subsequent years.

    “But from 29 December 2010, 70pc of the Eagle Rest area was decertified by NCO.

    “Consequently, the Marshes were denied the right, as organic operators in the period between December 2011 and October 2013, to apply the 'NASAA Certified Organic' label to their organically grown crops or produce from decertified paddocks (paddocks 7 - 13).

    “This result was occasioned by the erroneous application of governing NASAA Standards applicable to NASAA organic operators as regards GMOs (genetically modified organisms) at the time.”

    The high profile landmark legal battle has attracted world-wide attention since the dispute kicked off in 2012.

    In an unprecedented move, court transcripts were made available online during the trial, to help keep farmers, rural residents and other interested parties informed about the unfolding events.

    Spotlight on organic certification rules

    Australian Organic said it wanted a review of the laws and related codes affecting GM production to protect the interests of all farmers.

    Chair of Australian Organic Dr Andrew Monk said “unfortunately there are two losers in this case”.

    “It’s really sad to see two neighbours go to court when there should have been enough precautions in place before crops were even put in the ground,” he said.

    “Unfortunately GM technology has imposed some significant additional risk management and testing requirements on the organic sector.

    “Today’s court decision does not change the fact that many consumers don’t want to eat foods that contain GM.

    “It’s not ideological to meet consumer expectations, it’s good business sense.”

    During the Marsh v Baxter trial, defence lawyer Patricia Cahill, Bradley Bayley Legal attacked the certification rules of Mr Marsh’s organic certifier, the National Association for Sustainable Agriculture Australia (NASAA) which has a zero tolerance for GMs.

    The summary decision said Mr Baxter could not be held responsible, in law, for the reactions to the incursion of the Marshes' organic certification body NASAA and its subsidiary certifying organisation NASAA Certified Organic Pty Ltd (NCO) - which in the circumstances “presented to be an unjustifiable reaction to what occurred”.

    It said the Court needed to examine and evaluate the workings of the Marsh/NASAA/NCO private contractual relationship “as an aspect of its overall task to evaluate whether there had been an unreasonable interference by Mr Baxter with the use and enjoyment by the Marshes of the Eagle Rest land”.

    “In the end, there was not,” the summary said.

    “The Marshes' positions over time, in terms of attempting to formulate a perpetual injunction, had fluctuated considerably over the period after they had commenced their action, right up until the end of trial.

    “The plaintiffs' position fluctuated from 2km down to 1km when seeking appropriate buffer distances restraining Mr Baxter from his growing or swathing GM canola.

    “By the end of the trial the injunction sought against growing GM canola was abandoned.

    “So too was the attempted imposition, by permanent injunction, of some fixed linear buffer distance to be measured from the western boundary of Eagle Rest.

    “Instead, what was sought was a perpetual injunction against the swathing of GM canola by Mr Baxter in only his eastern boundary paddocks of Sevenoaks, with no identified linear distance of buffer.

    “In the absence of more convincing and reliable evidence to justify an identifiable linear buffer distance to support a permanent restraint against the activity of swathing, the claim for a perpetual injunction was not supportable, even when it was diminished to the extent seen at the end of the trial.

    “This was particularly relevant in circumstances where the remedy of injunction sought is discretionary relief.”

    'Victory for common sense'

    In a statement, CropLife Australia said the court’s decision highlighted the need for immediate federal government action to correlate Australia’s unrealistic organic marketing rules with international standards.

    CropLife also said the decision emphasises the need for activists to “stop creating unnecessary conflict between farmers and for the Australian organic industry to start seriously considering bringing their marketing rules in line with the rest of the world”.

    CropLife Australia chief executive Matthew Cossey said it was “a victory for common sense and confirms the long standing tradition of coexistence of all farming methods”.

    "The decision however reinforces the need for the federal government to take urgent action to prevent future unnecessary conflict caused by Australia’s flawed organic standards,” he said.

    “We want to ensure that all Australian farmers have a choice to grow any approved crop on their land.

    “No farmer should have to change their farming methods simply because of unreasonable, illogical and internationally inconsistent organic marketing rules.

    “There are groups out there trying to exploit situations for their own political advantage and using our farmers as pawns in an ideological game.

    “We will continue to work hard to ensure that this regrettable situation doesn’t occur again so that all farmers, whether they farm using organic, conventional or modern methods, can go on farming in the cooperative manner that has been in place for centuries.

    ”The solution to prevent this from ever happening again is simple; fix the regulations that have allowed the organic industry in Australia to create self-imposed standards.

    “This is a point from which the agriculture sector can move forward, but now is the time for cooperation, not conflict.”

    Joint CEO of the Australian Centre for Plant Functional Genomics Michael Gilbert said he was pleased by the WA Supreme Court’s decision, saying it would “give farmers surety that they can choose the crops they grow”.

    He said the outcome is not about the safety of GM crops but more about the NASAA’s organic certification which has a zero tolerance threshold for GMs in broad acre crops.

    “We hope that the NASA policy might be reviewed and brought in line with similar policies around the globe to support farmers wishing to grow crops for their niche market,” he said.

    “GM crops can be consistent with organic farming.

    “In any event, there is no evidence whatsoever, that GM crops are harmful.

    “That is scientifically irrefutable.

    “This has been a complete waste of donors’ money, and must have been a traumatic experience for Mr Baxter.

    “He has now been vindicated.”

    FarmOnline
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    READER COMMENTS

    Michael B
    28/05/2014 5:06:36 PM

    This is excellent news, and I hope a good lesson to those trying to stuff GM products down our throats!
    Happy farmer
    28/05/2014 5:50:03 PM

    Great result for the Baxters and a great result for Australian farmers. Well done to the PGA for once again backing a winner, another victory for farmers - the list just keeps growing.
    scrite
    28/05/2014 6:59:20 PM

    Michael B ?? Did I get that right???
    realist
    28/05/2014 7:38:52 PM

    When the public realises that the chemical laden 'franken' foods made from GM crops is what is making them all fat and sick they can look back on this case as a very very bad decision. The poison companies that are pushing the GM crops are like big tobacco 40 years ago.
    LTF
    28/05/2014 7:51:24 PM

    Despite this decision, it would be wrong for GM Companies or supporters to use this decision to promote the production of GM crops in Australia. It has nothing to do with the need to satisfy consumers of the food safety aspects of every GM product before it is placed on retail shelves..
    Chrisgo
    28/05/2014 8:00:58 PM

    Michael B seems confused. The Baxters have won at great personal cost for growing a crop they are legally allowed to. There is far too much emotion in the GM crop debate and far too little scientific evidence to support the case against GM technology.
    x
    28/05/2014 8:16:36 PM

    Great to see practical common sense prevail and this ruling will hopefully force those with a "flat earth " mentality to face reality .
    Deej
    28/05/2014 9:48:08 PM

    Mmm...I'm with "scrite" Michael, you may need to read the article again. To put it mildly - this is a poor result
    First Officer
    28/05/2014 9:56:40 PM

    Thank You Mr. Baxter, defender of science ! Your victory today will mean many millions will eat, rather than starve, in the future. You have let slip the surly bonds of luddism and kept open the door of the future !
    Craniologist
    28/05/2014 10:16:36 PM

    Scrit, it seems that Michael B doesn't know if he is coming or going, just like the anti-GMO lobby. So good to see a rare piece of justice and common sense from our courts. The unimaginable thing is, it was all over eight or nine wildlings. Wouldn't a normal person just pull them out and get on with life.
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    COMMENTS

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    I'm sure u are familiar with the term "divide and conquer" Sen Wang, the major role of gov't is
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    In the meantime,somewhere on Brisbane Ave........more of the same! "Those pests from the