What Legal Safeguards Will Protect Aussie Farmers?

Maitland Mercury 22 September 2005 

By Kellie Tranter

Genetic engineering is a hot subject in northern Europe. Health and environmental concerns are why technologies like these are under a defacto ban all across Europe.

There is a massive popular resistance to this technology. Since their experiences with Mad Cow disease, Europeans particularly have not been prepared to assume the safety of yet another industrial addition to the food supply: they moved quickly to get full labelling of genetically engineered material and the use of GE materials to feed their animals.

Europe has been joined by many other countries like Thailand, Sri Lanka, Brazil, and recently Columbia, in placing moratoriums on the growing of these crops on their national soil. Many other countries including Japan and Thailand have demanded – and are getting- full labelling, which has seriously affected the international market for crops like American corn and soy and Canadian canola. But not us.

Although we presently have a moratorium in most states because of public outcry, the push was for Australia to join China, the US and Canada in accepting this technology with almost no controls. So trails were conducted and are still going on, and the result is “leakage” or “contamination” of our GM-free crops by GM seeds.

If contamination reaches a point where we no longer have GM-free status the value of our products will fall markedly and we will either be forced to continue as producers of GM foods, with their limited markets and with increasing levels of corporate control over farming practices, or undertake a long and costly program to try to regain our GM-free status.

And what about legal protection?

The developers of these products rely on intellectual property law to recover damages from anybody found growing their crops, and they have used them against people who have claimed not to have any knowledge that their crops included any of the GM plants.

But if GM seeds “accidentally” contaminate non-GM crops there is no such strict liability attaching to the developer. Naturally, the developers are perfectly happy with this situation: it makes it easy for them to sue and difficult for them to be sued. They want to keep it this way.

In the US and Canada GM giant Monsanto’s “avowed strategy to aggressively defend its intellectual property rights” involves patent infringement suits against individual farmers. In an article published in 2001, Professor Martin Phillipson of the College of Law at the University of Saskatchewan said, “Essentially, the producers of GM crops appear to have a strong arsenal of legal rights in both intellectual property law (via  patent protection) and in contract law (via the Technology Use Agreements). However there appears to be no corresponding set of obligations in relation to the technology that they market.”

This  problem has now become real in Australia. Australian Associated Press reported last week that the federal and state governments were being urged to consider national liability laws after GM-free canola crops in NSW, Victoria, South Australia and Western Australia were contaminated with genetically modified (GM) material.

Western Australia agriculture minister Kim Chance said the legal framework surrounding the GM technology and its escape needed an urgent review to clarify liability for future and much bigger levels of contamination.

The significance of Australian developments has not been lost in New Zealand where the contamination in Australia have resulted in calls for the Government to protect New Zealand’s exports by introducing strict liability laws to ensure the polluter pays the cost of cleaning up GE contamination.

But not in NSW. Our government, although having extended its GM moratorium to 2008, is reluctant to endorse federal liability laws.

As one would expect, Bayer Crop Science declined to comment and Monsanto Australia, whose GM cotton varieties are used in crops in Queensland and New South Wales, said the existing laws and regulations were enough.

Uncontrolled GE contamination has a potentially disastrous effect on farmers, who risk losing markets that demand GE-free products – in the EU, the Middle East, Japan and other parts of Asia. It is a form of biological pollution that can’t be recalled and could cause long-term environmental problems. So one must ask the questions:

1. Why does Australia feel obliged to jeopardise its world markets in favour of multinational companies, instead of taking the sensible precautionary approach of preserving the status quo until the full extent of the risks and benefits of “new science” have been objectively determined and are properly known?

2. Why should there not be strict liability attaching to the producers of dangerous technology for damage caused by their technology? Statute law gives them easy access to protection for their products and profits but does not make them responsible if their products cause disastrous losses.