Chown: GM inquiry “misrepresentation” of Marsh v Baxter test-case

Chown: GM inquiry “misrepresentation” of Marsh v Baxter test-case


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Jim Chown says WA Agriculture and Food Minister Alannah MacTiernan’s justification for backing an inquiry into biotech crops is “factually incorrect”.

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WA Liberal Upper House member Jim Chown wants the truth told about the actual outcomes of Marsh v Baxter legal test-case which cleared the GM farmer of any wrong-doing.

WA Liberal Upper House member Jim Chown wants the truth told about the actual outcomes of Marsh v Baxter legal test-case which cleared the GM farmer of any wrong-doing.

WA LIBERAL Upper House member Jim Chown says WA Agriculture and Food Minister Alannah MacTiernan’s justification for backing an inquiry into Genetically Modified (GM) crops is “factually incorrect”.

And he says that false premise supports his belief the inquiry process is flawed, politically motivated and may produce legislative recommendations that restrict the profitability and potential of WA grain growers.

The inquiry into potential mechanisms to allow compensation for economic losses, caused by “contamination” from the presence of GM crop material, was demanded in a petition presented to the WA parliament by Greens MLC Diane Evers.

A public examination was subsequently approved by the WA parliament late last year and will now be conducted by the Standing Committee on Environment and Public Affairs, with public submissions currently open.

But Mr Chown said he was concerned a letter from Ms MacTiernan to Committee Chair Matthew Swinbourn MLC, giving the inquiry Labor’s backing, had cited the incorrect outcome of the Marsh v Baxter legal test-case, as justification.

“However, in WA s only case in 2014, Marsh v Baxter, the court found against the GM farmer (Baxter) so it may be useful to review the adequacy of existing laws,” her letter said which also attached a summary of the 150 page judgment handed down by the WA Supreme Court.

Mr Chown said the minister’s statement was “completely and factually incorrect” and questioned whether she’d read and understood the final judgement because it had in fact found in favour of the defendant Mike Baxter - a GM farmer from Kojonup in WA’s Wheatbelt.

The plaintiffs, Steve Marsh and his wife Susan Marsh, were seeking to claim $85,000 in damages due to the loss of their organic certification, plus a permanent injunction against their neighbour Mr Baxter, to stop him from using GM canola in future.

Mr Chown said the Committee inquiry was counterintuitive to the proven legal facts that the Marsh v Baxter case established; despite it being cited as a reason for investigating “compensation” for non-GM farmers.

He said any form of regulated compensation for organic growers and non-GM growers was “unnecessary under common law”, which was “conclusively” proven in Marsh v Baxter.

Mr Chown said the core legal issue - which various judges highlighted, including in the unsuccessful appeals process pursued by the Marshes, - was the flaw with the zero tolerance for GMs, applied in organic certification rules in Australia.

He said those rules are “impractical” and deny the proven scientific evidence and pragmatic facts of GMs being safe to humans and the environment.

The judgement in the Marsh v Baxter case found no actual physical damage had been caused to the organic farmer’s property and the financial loss resulted from the organic certifier’s flawed rules and zero tolerance for GMs, he said.

The judgment said, “The state of the evidence led at the trial on both sides was that (Roundup Ready) canola swathes were physically harmless to persons, animals or land, even if consumed”.

“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,” it said.

“Nor could Mr Baxter be held responsible, in law, for the reactions to the incursion of the Marshes' organic certification body, NCO, which in the circumstances presented to be an unjustifiable reaction to what occurred.

“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.”

Mr Chown said the court found Mr Baxter didn’t have any case to answer in regards to the matter of alleged “contamination”, in the legal challenge initiated and pursued by his organic farming neighbours where about $1 million was raised in public funding to pursue their case, by supporting groups, with pro-bono legal backing, for an alleged $85,000 loss.

But he said, as a long-serving member of the WA parliament, including on several Committees, he’d not previously experienced a request being made to a sitting minister, seeking their formal “imprimatur” for a public inquiry.

“The minister’s response to the Committee is completely and factually incorrect in regards to the outcome of the Marsh v Baxter case yet the Committee continues to pursue an inquiry that’s based on a false premise,” he said.

“To continue this inquiry, that’s predicated on false information by the minister, calls into question the high standards that have been set by the WA parliament and the Committee system.

“In fact, the minister needs to issue a correction and apologise to the Legislative Council next time we sit, in mid-March, and the Committee needs to reconsider its reasons for conducting this inquiry.

“I’d also be very guarded against how the inquiry treats the actual, proven outcomes of the Marsh v Baxter case and its legal conclusions.”

Nothing to see here

Ms MacTiernan admitted an error in her letter but remained committed to supporting the inquiry going ahead.

“There was a typographical error in one sentence of the letter – it should have read that the court found against the non-GM farmer,” she said.

“Read in context, the intent of the paragraph is clear – that despite the 2005-06 review of the Commonwealth’s Gene Technology Act 2000 concluding that the current law allows for effective remedies for persons incurring damage from GM crops, the Marsh v Baxter case found that there had been no unreasonable interference by the GM farmer in the Marsh’s use and enjoyment of their non-GM property.

“As such, I believe it would be useful for a Parliamentary committee to review the adequacy of existing laws.

“We need to ensure that GM and non-GM farming can co-exist.

“Growing GM crops makes financial sense for some farmers – but if neighbouring farmers growing organic crops lose money as a result of contamination, we need to look at whether that financial burden should be shared.

“We will await the outcome of the committee’s inquiry.”

Mr Chown said Mr Swinbourn’s presentation to parliament on the inquiry also failed to disclose relevant details and proven legal outcomes, of the Marsh v Baxter case.

“This uptake (of GMs) has given rise to claims by farmers who do not cultivate genetically modified crops of economic loss caused by the presence on their properties of genetically modified material,” Mr Swinbourne’s statement said.

“The recent case of Marsh v Baxter in the Supreme Court of Western Australia, which appears to be the first of its type in Australia and involved a farmer taking legal action against a neighbouring farmer for damages for contamination, has drawn significant attention to this issue in Western Australia.

“It ignited debate on whether the common law provides adequate remedies and whether a compensation mechanism is required.”

Mr Chown said the Committee inquiry was an overall “misrepresentation of GM crops” which needed to be addressed in submissions by the farmers who benefited from the technology’s use “otherwise they may not like the outcome”.

But he said fear based arguments against GM crops had been occurring for several decades and were used more recently, and unsuccessfully for attempted political gain, during debate over the GM Crops Free Areas Act which was repealed in the previous WA parliament by the former Liberal/National government.

“This WA Labor government, which argued against the repeal of the GM Crops Free Areas Act without any scientific facts to support their argument, and certainly the current Agriculture Minister, would also be very sympathetic to having an outcome, via this committee inquiry, which would justify some form of compensation fund that could possibly be legislated through the parliament, at some stage in the future,” he said.

“So the industry needs to stand up and fight for what’s right, and so do those who understand the science of GM crops, and make submissions stating their case.

“A number of highly qualified people in this state including agricultural scientists and in all of our universities should also be stating their case and making submissions, saying that any form of regulation seeking a compensation fund to penalise against GM growers, is totally unnecessary.

“It would be a very one sided and a stilted form of regulation and more questions arise as to how any so called ‘contamination’ would be proven and how much compensation would be allocated.

“Such a fund would also certainly inhibit the development of broadacre cropping in this state in the future because the millions of dollars required to develop these crops, may not be forthcoming, due to fear of overregulation.”

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