GM Free Cymru

Judge slams organic certifier as Australian farmer loses GMO contamination case

Date Added to website 30th May 2014

by Lawrence Woodward, GM Education

(29th May 2014)The Supreme Court of Western Australia has ruled against organic farmer Steve Marsh in his case against a neighbouring GMO farmer. Marsh lost his organic status after winds carried harvested seed from a Roundup Ready canola crop on to his farm. The case was hailed as a "landmark". It’s not but there are hard lessons to be learnt.

[Comment from GM-Free Cymru: this is a sober and realistic summary of the Marsh v Baxter case on which judgment has just been made. Of course there is a lot of wailing from those who supported Steve Marsh and who expected a successful outcome, but as Lawrence says, the judgment has to be based on Australian law, and has to be well founded. Such a case might have been successful in Europe, but in Australia GMO growing is allowed and the rules are much more lax. So it was perhaps inevitable that the judge should find that Mr Baxter did nothing illegal, did nothing that was actually very harmful, and was at worst guilty of being a bit careless. So it is NCO that comes in for heavy criticism, for over-reacting to a relatively small case of contamination -- especially since Steve March was not a canola grower himself. Maybe NCO wanted a test case, and maybe they were encouraged in this by thousands of wellwishers. But their actions seem to have been pretty chaotic and inconsistent with respect to the removal of organic certification, and the court case presented seems to have been rather shambolic. If any good does come out of this, it may well be that contamination rules need to be examined very closely and more tightly defined in law.]

This judgement will cause widespread consternation amongst organic farmers and anti-GM campaigners worldwide.

The case become the subject of an international campaign as the industry rushed to fund the neighbour – Michael Baxter – and Steve Marsh garnered support from a wide range of concerned citizens, organisations and organic associations.

In giving his verdict the Judge, Kenneth J Martin, was highly critical of Steve Marsh’s organic certification body NCO (NASAA Certified Organic Ltd) and some of its key staff, notably its executive officer Stephanie Goldfinch.

“What I conclude from Ms Goldfinch's responses overall is her fundamental misunderstanding and misapplication of the National and NASAA Standards against the Marshes.”

“That misunderstanding effectively became the position of NCO, as the decision-maker, as regards the suspension, then decertification of Eagle Rest (Marsh’s farm)”

GMO contamination should not have led to organic decertification

There is no dispute about the fact that in 2010 swathes of Roundup Ready canola – comprising of approx 245 cut plants with seed pods – from Mr Baxter’s farm were blown on to Mr. Marsh’s land nor that 8 self sown volunteers subsequently emerged.

In December 2010, NCO decertified 70% of the farm thereby denying Mr Marsh the right to sell product from that land as organic between December 2011 and October 2013.

This resulted in a loss of income estimated to be $85,000 (Australian).

But in a damning indictment the Judge said there was “a gross overreaction by NCO to this incident by it proceeding to what presents as very much an unsupportable decertification”

“NCO looks to have acted well beyond the scope of its contractual rights with the Marshes in decertifying 70% of Eagle Rest”.

Judge Martin gives a detailed and what seems to be an accurate analysis of the relevant organic standards.

He highlighted that whilst removal of organic status from a specific crop might have been appropriate, there were no grounds for decertifying the land on the scale and time period imposed.

Not a landmark decision and does not endorse GMOs

Contrary to comments made by GMO and conventional farming industry representatives and the Australian Federal Agriculture Minister, the judgement does not endorse GMO cropping.

Nor does it criticise the restrictions relating to GMOs in the standards document of the National Association of Sustainable Agriculture Australia (NASAA).

Judge Martin states; “That is no criticism of the NASAA standards. Rather, it is my concern as to their misapplication by NCO officials”.

Organic organisations, the GMO and farming industry, and both pro and anti GMO campaigners had hailed this action as a “landmark case” which would set a major precedent.

The judgement provides no grounds for that.

Its conclusion is more that this was an ill conceived, misdirected action based on a flawed, arguably incompetent, decision made by the organic certification body.

The Judge commented that rather than to have taken action against Mr Baxter, Mr Marsh should have looked towards NCO

“The Marshes would be better served directing their concerns in that contractual quarter as regards the economic loss sustained.”

It should not be regarded as a “landmark” by either side.

Unresolved issues

The outcome leaves a number of critical issues unresolved and some bitter lessons to be learnt.

    • GMO contamination of a non-GMO crop from a GMO crop did occur but as the judgement said there is no agreed definition of “contamination” or measurement of extent.
    • Whilst some countries (notably within the EU) have defined limits for the presence of GMOs in crop based products there are none for animal products, animals, land , or vegetation on either farmed or non-farmed land.
    • Other countries like Australia and the United States have none at all.
    • The rights, responsibilities and liabilities of farmers where GMO, non-GMO and organic crops are being grown in the same area are ill defined or not defined at all.
    • The case demonstrates that legal action by one farmer against another will not resolve these co-existence issues.
    • This is highlighted by the Judge’s refusal to grant a permanent injunction to prevent Mr. Baxter growing GM canola close to Mr. Marsh’s land to avoid further contamination.
    • The case also shows that voluntary agreements between farmers – as advocated by industry and some governments – are unlikely to work.
It was thought by many campaigners that a win for Steve Marsh could be the platform for changes in the rules governing the cultivation of GMO crops throughout the world but especially in the rest of Australia and the US.

The hope was that a precedent would be set where clear responsibility would be placed on GMO farmers to avoid contaminating neighbouring non GM crops and fields.

But the flawed organic certification decision prevented any possibility of that.

A bitter lesson we have to learn

It is hard to tell how far Mr Marsh was persuaded to pursue legal action for those reasons.

But there is no doubt that he and his family – who face the possibility of having to pay large costs - will be the main ones hurt by this decision.

They have been courageous and determined throughout what has proved to be a tragic endeavour.

The bitter lesson is that no matter how righteous the underlying cause, defeat often hides within the detail and actions need to be considered soberly and critically.

Many people opposed to or concerned about GMO cropping became convinced – without much critical analysis - that this was a strong case.

It became a cause that had to be supported without question – we at GM Education also fell for it.

It was a mistake and we all have to learn the lesson.

Lawrence Woodward