Chown claims Marsh v Baxter GM canola transfer a “fraudulent act”

Under parliamentary privilege, Mr Chown made a 10-minute statement suggesting the GM canola swaths - which triggered a landmark legal test-case in the WA Supreme Court - transferred from Michael Baxter’s farm to that of his neighbour Mr Marsh through a “fraudulent act” rather than natural events.

“Tonight I would like to talk to the house about what could only be construed as a fraudulent act that was carried out,” he said.

Discovery of the swaths sparked the decertification of 70 per cent of Mr Marsh’s organic farm by his certifier the National Association for Sustainable Agriculture Australia (NASAA).

A subsequent landmark legal test-case attracted national and international attention and was comprehensively won by Mr Baxter which included subsequent appeals denying Mr Marsh’s claim for $85,000 in losses due to the decertification.

Mr Chown says he’s using his statement as a means of attacking a current Green’s led inquiry in the WA parliament into the merits of setting-up a compensation fund for GM “contamination”.

During his speech, the Agricultural Region MLC and former Dalwallinu farmer tabled a report compiled by the WA Agriculture Department examining how the GM canola transferred from one farm to the other.

It was compiled immediately after the GM canola swaths were reported by Mr Marsh when department officials inspected his Eagle Rest property in early December 2010 and was obtained under Freedom of Information - but it wasn’t used as evidence at the trial.

“In regards to this report and in regard to my opening statement, I have no doubt at all, that this particular contamination, that has been suppressed in regard to this Department of Agriculture report, was not the occurrence of a natural event but was caused by the intervention of a person or persons unknown for the sole cause of bringing the GM industry into disrepute to actually exercising through the courts a possibility to stop these legal crops being grown which failed, I might add,” he said.

“It failed in the Supreme Court, in the Supreme Court appeal and the High Court appeal.

“But this was an act, by a human being or others, with evil intention.”

Mr Chown said at the top of his speech that the alleged “fraudulent act” had caused the neighbouring farmer Mr Baxter, “enormous financial and emotional distress”.

He said it was “an act that politically is still reverberating through this place”.

“I think it was Winston Churchill that said ‘a lie can get half way around the globe before truth has an opportunity to put its pants on’ and in regards to truth, I believe the truth is contained in this Department of Agriculture report that took place some eight years ago,” he said.

“And this report has not seen the light of day and has never been made public and in fact is still stamped confidential and has been supressed to some degree in regard to the legal court cases that took place in regard to this matter.”

To back his claim, Mr Chown referred to photographs produced in the report that were taken during a visit to the Eagle Rest property in Kojonup on December 3, 2010.

He said Rosalie McCauley the department’s manager of GM crops projects, Mr Michael Davis manager of the 2010 audit program and Bill Webb a grower from Kojonup drove around Mr Marsh’s property as the organic farmer showed them what he believed was an incursion or contamination from his neighbour (Mr Baxter), with a number of plants that he’d found not only on the road reserve, but on the property itself.

“Now a picture tells a thousand words – probably more than a thousand words in this case,” Mr Chown said.

“As I’ve just explained canola itself is a highly fragile plant – and we’ve just ascertained that at the time of this incursion the plants were ripe, because they were harvested only a couple of days later.

“What intrigues me in regards to this matter and in regards to this report - and I hope members actually look at this and get their heads around it - there’s a number of photographs taken by departmental representatives and every photograph shows a totally intact plant.

“And it’s obviously from the swath because it’s cut off neatly at the bottom – and when I say ‘intact plant’ there is not a pod missing on these plants found on Mr Marsh’s property – not one.

“In fact point four, photo eight, which is some 1.2kms from the nearest swath – I’ll repeat that 1200 metres from the nearest swath – it’s actually a bunch of plants.

“A bunch of plants that look like they’ve actually been tipped out of a vase, which have supposedly blown there in a wind event.

“So every one of these plants that were found on this particular property, are fully intact with their pods – every one.

“So I ask the question - I would like to know - what sort of wind event can blow canola plants that are ripe, that are extremely fragile, and land on a neighbouring property, across a 25 metre road, fully intact?

“This is a miraculous event.”

Freedom of Information documents also showed that anti-GM forces in WA sought to pay for evidence to be developed out of the US, to present strategically in the legal-test case, out of a bucket of $1.5 million raised to support the Marsh case.

Mr Chown’s talk also explained to other members of parliament the “characteristics” of canola plants including GM canola and the harvest technique of swathing, to show the condition of the plants, at that time.

“One of the unfortunate characteristics of canola is its fragility when its ripe – in fact the pods have a propensity to break and it’s called shedding, and the very little tiny precious seeds within those pods falls to the ground and therefore can’t be collected at harvest time,” he said.

“And this fragility is so bad at times, even in a standing crop of ripe canola, shedding takes place to a large percentage from small wind movements when the plants knock against each other and the pods break or scatter down the middle and the seeds just roll out.

“To compensate for shedding, it’s normal practice all around the world with canola, that you swath it and you swath canola just before it ripens, a month or so before hand.”

Mr Chown said the canola on Mr Baxter’s property was swathed on November 8 or 9 and 20 days later on December 3 his crop was actually harvested.

“So over that swathing period his canola ripened for almost for three weeks and it was the 29th of November when Mr Marsh found canola plant material on the road reserve outside of his boundary,” he said.

“And it was the 1st of December when Mr Stephen Marsh of Eagle Rest rang the Department of Agriculture – and that’s what this report is about – and reported the presence of suspected Genetically Modified Organisms canola plants on his portion of the property and Mr Marsh followed up this phone call with a fax to the department.”

Mr Chown said the report stated that the departmental officials actually offered Mr Marsh an opportunity to pick up and collect the plant material but he refused to do so.

He said members from NAASA also visited the property to look at the plants and the contamination with subsequent visits a week later and on December 21 by representatives of the organic certifier, who offered a similar opportunity.

Mr Chown said the report stated that three canola swaths were located in a southern portion of one paddock and 11 were located within the wheat crop.

But he said nothing suggested the three cut plants could not have been physically collected and removed before seeds from their seed pods scattered or were further scattered across Eagle Rest’s paddocks.

However the “collecting up” did not happen until April 2011, he said.

“So here we have the certification people for the organic body suggesting to Marsh he collect the material but he didn’t do so until many months later,” he said.

“During 2011 only nine volunteer canola plants were found to be growing on Eagle Rest so in effect the plants that were found didn’t shed any more seed than nine seeds.

“And let’s be generous, let’s double it, 18 or 20 – but only nine germinated and of that nine, one was found not to be GM.”

Brian Bradley of Bradley Bayley Legal defended Mr Baxter in the court case and says the inquiry into a GM “contamination” fund is “looking for a solution to a problem that doesn’t exist”, based on the findings Justice Ken Martin’s 150-page judgment handed down in 2014 and confirmed by subsequent appeals.

Mr Bradley said the legal test-case cleared the GM farmer of any wrongdoing and showed GM canola was considered scientifically safe.

Speaking to Fairfax Agricultural Media after the court judgment was handed down in his client’s favour, Mr Bradley said for the purposes of the trial, Mr Baxter did not deny at trial, or press a case at trial, that the canola arrived on his neighbour’s farm “other than being blown from his farm by the wind”.

“In reality that was accepted for the purposes of the trial,” he said.

“There was no evidence that it had got there by activism – there was no evidence to support that - that could never be proven.

“The judge concluded that on the probability test, it was highly probable that it (GM canola swathes) blew over from the wind from Seven Oaks and that was the only reasonable inference that could be drawn from the evidence in the case.”

Mr Bradley said Justice Ken Martin did however comment that Mr Baxter had pleaded in his defence and denied that the swaths had been blown over by the wind, onto the organic farm.

But he said “there was no evidence that it got there by any other means”.

“At the trial, Mr Baxter did not through his lawyers or otherwise, attempt to suggest that the canola did not originate from his farm or that it was blown over by the wind; there was no contest on that,” he said.

“That seemed to be the only logical reason for its presence so Mr Baxter’s legal team decided we would just have to accept that and not run any case against it, at trial.”

Speaking to Fairfax Agricultural Media at that time also, Mr Baxter said the wind was being held responsible for blowing the GM canola up to 1.5kms onto his neighbour’s farm “but that just seems a bit bizarre”.

“It just seems bizarre that, if the canola swaths went through a willy-willy and travelled 1.5kms and landed in his paddock that the canola seed wasn’t shed and was just lying there neatly,” he said.

“You just wonder at times; how did that much canola get over there?”

Mr Baxter said he also questioned why he never saw any canola swaths lying against the boundary fences or on the road between the two farms.

“If it was meant to be such a huge incursion from such a violent wind storm you’d think you’d see a bit more movement than what we actually saw, or found some (canola0 on the road; that’s what I would have thought,” he said.

“You’d see it lying against the fences or on the road or with a dam next door, it’d also be in the dam.”

Janet Thompson was the grains committee executive officer for the WA Pastoralists and Graziers Association at the time the issue flared up and visited Mr Baxter’s farm immediately after Mr Marsh went public about the GM canola detection.

Ms Thompson said she also had grave doubts about the authenticity of claims the wind was responsible for blowing the canola swaths from one farm onto the other.

“I think it's very strange that the brittle, dried, swathed canola plants were large and in-tact after traveling across two high tree lines, two fence rows, and the road, about 1km, all due to high winds,” she said.

The trial evidence said 245 canola swaths landed on the organic farm but only eight volunteer GM canola plants were found growing the following year, which Mr Marsh pulled out.

Justice Martin was also critical of Mr Marsh’s actions in allowing the GM canola swaths to remain on his property for about five months, despite his “anxiety” about GM “contamination”.

“In this period the 245 swathes appear to have been rather afforded the status of infamous celebrities - fenced off and then made the subject of media releases or general publicity,” the judgment said.

“From about late 2008 ongoing concerns manifested in Mr Marsh becoming, as I assessed his evidence, increasingly fatalistic and anxious about GMOs reaching Eagle Rest and allied financial losses this would cause to him and his wife.

“Assessing his evidence overall, I thought that there presented in Mr Marsh what I would see as an almost self-fulfilling, high level anxiety from GMOs.

“This anxiety was increasingly observable up to late 2010, in his correspondence and interactions with people, including the Minister for Agriculture (Mr Redman) and in communications to NASAA.”

Mr Bradley said Mr Marsh “seems to have been preoccupied by the GM issue years before 2010”.

“And when it finally arrived, you would expect an organic farmer to clean it up, to pick up what plant material he could, to prevent the spread of seeds,” he said.

“But he left it there; he preferred to leave it there against the advice of the Agriculture Department and against NASAA advice.

“He left it there until April (2011).

“I don’t know what this thinking was but he seems to have meekly submitted to the NASAA rush to decertify him.”

Soon after his decertification, Mr Marsh employed the services of another lawyer, Richard Huston who was eventually replaced by Slater & Gordon Lawyers who acted pro-bono.

In an interview on ABC radio in early 2011, Mr Huston repeatedly used the word “contamination” to describe the GM swaths found on his client’s organic farm saying their presence was “substantial” and “immediate”.

He claimed to have visited the Marsh property before Christmas and was “dumbfounded” by what he saw.

He also warned of the potential spread of canola seeds which he compared to the tiny coloured confectionary hundreds-and-thousands which are sprinkled on top of cakes or ice-cream.

“The extent of the contamination was absolutely massive,” Mr Huston said.

“It had been suggested that perhaps the Marshes should just pick up the contaminating plants and move on in life.

“Well it would be an impossible task to do that - there was just so much material in their property, extending as far as 1.5kms inside their farm.

“I was just dumbfounded by the amount of contaminating material on the Marshes property.”

Mr Huston promised to look closer at the science behind the plant material but said he’d been told the canola seeds could be “viable” for up to 20 years.

“You can get your calculators out and do your own sums on what that would do to the Marshes livelihood over the timeframe,” he said.

“If it is the case that a (GM) canola seed is viable for germination for up to 20 years, and if therefore it is the case that my clients are decertified for 20 years, or anything of that duration, then their damages, that is their losses, will be in the multiples of that many years.”

Mr Huston said he hadn’t calculated “the precise sums” to measure the exact damages claim but foreshadowed it could be in the millions.

But the final judgement said the remedies sought by the Marshes were for common law damages and a permanent injunction, to stop Mr Baxter growing GM canola or swathing.

“Significantly, the Marshes only claimed a financial injury against Mr Baxter,” it said.

“They did not claim to have suffered any physical damage or injury to themselves, to their animals or to their land at Eagle Rest.

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

“GM canola only posed a risk of transferring genetic material if a canola seed germinated in the Eagle Rest soil (as a volunteer canola plant) and then later cross-fertilized through its pollen being exchanged with another compatible species (such as, for instance, with another canola variety).

“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.

“The Marshes had never grown canola upon Eagle Rest.”