THE lawyer who spearheaded Kojonup farmer Mike Baxter’s legal defence in the landmark legal test case over Genetically Modified (GM) crops has issued a stern warning about a political inquiry that’s considering setting-up a compensation fund for GM “contamination” in WA.
Brian Bradley of Bradley Bayley Legal says the inquiry is “looking for a solution to a problem that doesn’t exist”, based on the findings of the legal battle in the WA Supreme Court, as ruled by Justice Ken Martin in his 150-page judgment handed down in 2014 and confirmed by subsequent appeals.
Mr Bradley’s legal team won the litigation claim that was pursued by Mr Baxter’s neighbours, Steve and Sue Marsh, seeking compensation for losing their organic certification, when GM canola swaths were detected on their farm in late 2010.
Mr Bradley said the legal test-case cleared the GM farmer of any wrongdoing and showed GM canola was considered scientifically safe.
He said at trial, the defence called Dr Patrick Rudelsheim - an expert witness from Belgium - who gave evidence that GM canola wasn’t toxic or harmful and was incapable of causing any damage to people, animals or the land.
His evidence established that GM canola was incapable of cross-pollination with just about any other plant, except canola, and had a “remote chance” of cross pollination with some turnip varieties.
But Mr Bradley said the Marsh legal team called Dr Rene Van Acker from Canada who when cross-examined was asked why he hadn’t addressed the question of whether GM canola was a potentially harmful material, in his report presented at trial as evidence.
He said the Canadian expert’s answer was that he’d been asked not to address that specific question.
“That tells you that someone in the plaintiff’s camp, in Marsh’s camp, asked him not to answer that question - in Slater and Gordon’s letter to Van Akker the question was asked but he didn’t answer it,” he said.
“The inference we can draw from that is that his evidence would have been the same as Rudelsheim - that GM canola is not a harmful substance and is not poisonous, it is not toxic and it can’t harm anything.
“That is where the expert evidence got to in a case which was prepared for Mr Marsh by Slater and Gordon and supported by the Safe Food Foundation.
“Surely they would have had access to any number of experts, so you can infer what you like from the fact that they didn’t produce any expert, not one, at trial who even attempted to allege that GM canola is harmful.”
Mr Bradley said the inquiry’s terms of reference “pre-suppose or proceed on the false assumption that GM canola is capable of contaminating a neighbouring property”.
He said that was an issue in the Marsh and Baxter case but “the evidence was all one way”.
“The world acknowledged experts - one for Marsh and one for Baxter - agreed that GM canola cannot cross pollinate with wheat, barley, oats or anything other than canola, except for a slight risk with weeds such as wild turnip,” he said.
“So it cannot affect an organic farmer.”
Mr Bradley also warned that setting up a compensation fund for alleged GM “contamination”, which the political inquiry was examining, carried other inherent risks.
“A question that really concerns me about this is; what safeguards are there to stop grossly exaggerated claims being made for instance by organic farmers?” he said.
He said in before the legal proceedings were commenced through Slater and Gordon, exaggerated media statements were made claiming the damage to the organic farm, due to the GM canola swaths, was purportedly valued at hundreds of thousands of dollars.
“In the end by the time the trial had commenced it was agreed that the damage caused by the de-certification to Marsh, not by contamination, was at $85,000,” he said.
“Does this mean that if there’s a repetition of this sort of case, with the encouragement of a compensation fund, the GM farmer has to endure the threat of proceedings for hundreds of thousands of dollars?
“Another question that must be asked is; what is to stop some zealot or ideologist entering a GM farm, picking up GM canola material and carrying it onto an organic farm and dumping it there, without the knowledge of course of either the GM farmer or organic farmer?
“If that happens then the compensations scheme could compensate the organic farmer at the cost of the GM farmers who presumably have to contribute either directly or indirectly into the compensation fund.”
Mr Bradley also questioned how the compensation scheme would be funded and if GM growers would be forced to pay into it; even though GM canola is scientifically proven safe.
“Is it going to be a form of tax on the GM farmers, or is it going to be a fee that the GM seed provider has to pay and pass the cost onto the GM farmer when the grain is purchased?” he said.
Mr Bradley said a GM compensation scheme was also a “deterrent” to the advancement of future biotechnology options which was “a big issue” given WA producers had adopted GM canola willingly, with plantings continuing to grow each year.
“The farmers who farm profitably today are survivors,” he said.
“They have got there by adopting modern farming methods, becoming more profitable by adopting crops like GM canola, because they experience the economic and agronomic benefits.
“A compensation fund for GM ‘contamination’ would just be another cost to the farmer and another deterrent to the take-up of GM technology.
“And then what happens when the next GM crop is developed that is suitable to WA like a wheat, barley or oats variety that can perform better in dry conditions or in the presence of low salinity?”
NASAA standards at legal fault
Mr Bradley said the definition of contamination also needed to be understood during the inquiry’s considerations, in the legal context of what the test case proved.
He said the Marsh/Baxter trial Judge found that the National Association for Sustainable Agriculture Australia (NASAA) decision to decertify the Marsh farm an unjustified.
At the time, the NASAA standards did not define “contamination”.
“When the normal person thinks about contamination, you think about something poisonous, toxic or radioactive etc – an extremely nasty sort of thing – which GM Canola isn’t,” he said.
“But the NASA standards today still do not require the certifying organisation to de-certify an organic farmer, for the accidental entry of GM material onto the organic farm.
“The Commonwealth Department of Agriculture and Water Resources on January 4 issued a guideline for responding to contamination by prohibited substances in the organic export supply chain.
“These guidelines recommend a tolerant approach; they basically advocate moderation.
“And it is only in cases of deliberate conduct by the organic grower in using GMs that de-certification should follow.
“Of course, the produce of an organic farmer cannot pick up the GM material.
“There can be no crossing of genetic material between the sorts of crops and produce that organic farmers grow.
“Research shows that even if there is some level of cross pollination between conventional canola and GM canola it is nowhere near the 0.9pc level necessary to make the canola breach the standards for export or the standards set by European countries.
“In other words this inquiry is looking for a solution to a problem that doesn’t exist.”
Mr Bradley said any adventitious entry of GM canola material onto a neighbouring farm should be handled by “moderation and common sense” on the part of the farmers involved.
He said the trial judge found that the NASA standards did not require Mr Marsh to be decertified.
Those standards have now been amended to provide a definition of contamination – but still do not require decertification in the event of the adventitious entry of GM material.
“This is a very important point because if the organic certifiers follow the recommendation of the Department of Agriculture and Water Resources - the January 2018 protocol - then common sense will prevail and decertification will not follow, unless there has been a deliberate introduction by the grower,” he said.
Mr Bradley hoped the WA politicians overseeing the inquiry would adopt a “fair and balanced approach”.
“When the Marsh and Baxter case got to the Court of Appeal, the majority of judges held that it was not necessary for Justice Martin in the first trial to make a finding of the decertification; that the decertification was incorrectly made,” he said.
“The Court of Appeal decided the case on the basis that Baxter had not done anything unreasonable in growing and swathing the GM canola and had not been negligent.
“He wasn’t liable in nuisance because he’d not done anything unreasonable – and he wasn’t liable at common law because he had not breached his duty of care to Mr Marsh.
“On the decertification issue, the court of appeal felt that the trail judge did not have to go as far as deciding that NASAA had wrongfully decertified Mr Marsh.
“If and when the next case arises, the next plaintiff will have to address all three issues; ie the negligence, nuisance and the decertification issues.”
Mr Bradley said since 2010 when the Marsh v Baxter case erupted, to his knowledge there had not been any reported case or even claim relating to damage allegedly caused by the spread of GM canola.
“Why is a compensation scheme needed if a problem doesn’t exist,” he said.
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