Court rules organic farmer can't impose special responsibilities on neighbours, can't stop neighbour using GM cropping provided standard duty of care exercised

Court rules organic farmer can't impose special responsibilities on neighbours, can't stop neighbour using GM cropping provided standard duty of care exercised

Content supplied by Federated Farmers

A Western Australian Court of Appeal ruling on genetically modified (GM) crop liability has been welcomed by Federated Farmers as a landmark decision which clearly sets out fundamental responsibilities of good neighbours that apply equally well in New Zealand and around the farming world.

In 2014, organic farmer Steve Marsh sued his neighbour, GM farmer Michael Baxter, for damages after sheaves of GM canola blew onto his property, resulting in his partial decertification as an organic farmer.  Mr Marsh also sought a permanent injunction preventing his neighbour from growing GM crops.

At the time the case went to court, anti-GM groups, confident of a win, hailed it as potentially precedent setting.

However, in its 2014 judgement, the Western Australian Supreme Court found in favour of the GM farmer.  Baxter, it said, had exercised his duty of care as a neighbour by farming his crops according to standard practice. The case was appealed by Marsh.

In its decision this month the Western Australian Court of Appeal ruled that the organic farmer was “entitled to enter into arrangements which had the effect that their land was being put to an abnormally sensitive use, but their neighbours [Baxter] did not then fall under an obligation to limit their farming activities on their own land so as not to interfere with that use of the appellants’ land.”

The court went on to say that “the appellants could not, by putting their land to an abnormally sensitive use, thereby 'unilaterally enlarge their own rights' and impose limitations on the operations of their neighbours to an extent greater than would otherwise be the case.”

Federated Farmers' President and Science spokesman Dr William Rolleston welcomed these findings.

“This is not about organic farming versus GM farming. What we can take from this Australian ruling is that all farmers, regardless of what they are farming and how they chose to do so, have a duty of care to make co-existence work and that this fundamentally relies on being good neighbours.”

“This is no different from current farming practices here in New Zealand, where neighbours grow similar crops for pure seed production. It is also a warning that if farmers enter into a particularly sensitive commercial arrangement such as organic farming they are responsible for maintaining the extra sensitive nature of their operation rather than imposing that responsibility on their neighbours.  We would expect that with an animal quarantine station, so we should also expect it with other activities such as organic farming.”

Dr Rolleston said Federated Farmers is writing to Organics New Zealand in order to open a dialogue to ensure that the lessons and guidance from this Australian case are considered in the setting of standards for the organics industry, and so that New Zealand’s hard working and diligent organic farmers understand their risks and responsibilities and are not unreasonably penalised.

It is also, he said, important to view genetic modification in the right context – something which would be helped by the ruling of the Western Australian Court of Appeal.

“Genetic modification has been used extensively around the world, to the benefit of farmers and the environment, without any incident of harm attributable to the GM aspects of the application,” said Dr Rolleston.

“Although no crops using GM are approved or grown here yet, this vitally important science is being used successfully in New Zealand. GM products such as food enzymes, medicines and animal feed are now commonplace, and a live vaccine against equine influenza has been approved for conditional release.” 

We welcome your help to improve our coverage of this issue. Any examples or experiences to relate? Any links to other news, data or research to shed more light on this? Any insight or views on what might happen next or what should happen next? Any errors to correct?

We welcome your comments below. If you are not already registered, please register to comment.

Remember we welcome robust, respectful and insightful debate. We don't welcome abusive or defamatory comments and will de-register those repeatedly making such comments. Our current comment policy is here.

23 Comments

Comment Filter

Highlight new comments in the last hr(s).

Only a few years back, the top level of my lawn was about 1 catcher on the lawnmower on the weekly mow. Shot up to 2 not long after we got a good spraying of fertiliser when the paddock over the back fence got its top up. Bl00dy annoying.

The court I think came out with a good verdict. ie if you want to do something that is particularly sensitive on your land that is your problem, not your neighbours as long as your neighbours follow good practice. While GMOs are maybe an issue it needs proper research, meanwhile there seems to be little evidence GMO is not good nutritionally. Now damage to the environment, the effects of a monoculture or pesticides residue, not so sure there, that is a bit of a concern and of course the intellectual handbag grab certainly is. The article btw is not a scientific paper it is an opinion and should indeed be read carefully/critically.

"Good practice" is a BS term that means absolutely nothing!!

Organic farming is not sensitive it is the ancient way of growing food and it is a right for all humans to have food that is free from harmful crap!!

Where is the evidence that GMO's are as good nutritionally as conventional food?

GMO grown food is reliant on high doses of pesticides that is why they have GE seeds to withstand the high doses of pesticide......there are now many studies that are showing the synergistic effects of pesticides, fungicides and herbicides have bad consequences for human, animal and soil health.

This Court decision follows the principle that landowners have to fence out problems (protect their own belongings/land etc) from external forces.......I can't help but wonder what the Judges would have done if the boot was on the other foot and it was the GM crop that had in some way been destroyed!! In NZ it is common for all farmers to have public liability insurance to cover any damages that could happen to other people's property.......so I'm thinking this ruling is very much in favour of the insurance industry!

There is no real evidence that GMO's are worse or better nutritionally, this is not the same argument/point as contaminants such as "high doses of pesticide". The reason I avoid GMOs is because of this risk.

No one btw gives humans the right to clean, safe water or food, the society we choose and central govn overseeing it is how this has been achieved.

Well what ever you wonder the court has ruled and I agree with it. I do not see it as fair that someone else's wishes to be organic is forced on someone else who does not wish to be. How is your point of view squared in terms of Libertarianism? ie one has rights over how some other persons property preventing them from using it in a reasonable manner?

If the GM crop (or organic) had been destroyed due to negligence, or bad behaviour then there would have been a different result.

This issue is not just about organic!!......this issue is about the contamination of the entire seed supply of all foods!!

A point will be reached when all crops will have GE contamination and then all food will belong to those who hold the rights to that seed.......so even if you don't want the GE seed crops on your land you will have to pay the likes of Monsanto if their GE seed grows!!!!

In regards to GE which is reliant on Glyphosate:
Maybe you should read Samson & Seneff 2013
You do know that Glyphosate was first patented as a mineral chelator? You do know what a chelator does I hope?

Actually Humans do have the RIGHT to not be subjected to health experimentation......so any interference with the basics of food, water, and other necessities for survival should be a criminal offense and not some right chosen by central government or passed onto central government by voters.......much of the science behind our modern day processed crap foods and healthcare system comes from a Government Funded Agency somewhere.......right down to fluoride in water, aluminium in vaccines etc.............it must always be The Individual First - there should never be anyone or anything ever before the individual as they are supreme and a Governments purpose is to uphold that Individuals right and supremacy at all times!! It is people who allow a Government to Steal, murder, Covet, commit adultery (as in the original meaning of the word - "to corrupt")........and don't go thinking that just because instant death is not involved that murder has not been committed. Is cancer an environmental disease? Is denying people treatments that are not in big pharma's arsenal also murder? Open your eyes!!

You just have to look at Americans to know something seriously wrong is happening to their diets - they have some of the worst health in the developed world. And as they are the longest term users of GMO's, the implications are obvious.

Dr Rolleston will destroy NZ's farming advantage if he has his way .
I suspect he has been made a very attractive offer from a huge corporate - why else would he suggest we allow GMO's to be grown in NZ? There is a HUGE demand worldwide for GMO-Free food.

And his comments that there is no evidence that GMO's do harm is unseemly in a scientist. He must be very aware there are no long term studies proving GMO's safe to consume. But there are studies proving gut damage in animals from eating GMO's (Seralini for one). Whether the damage is from glyphosate spraying or not seems beside the point. The only advantage of these seeds is if you can keep weeds at bay with sprays.
There have never been any long term studies into the safety of GMO foods. Before anyone releases any polluted varieties of seeds into NZ I want to see the results of long term studies into health implications for humans and animals.

a little bit misleading in what the article doesn't say
Marsh's loss was due to loss of Organic Certification and the judgement decided that the Organic Certification Board acted unreasonably and in haste, which left it open for Marsh to seek damages from the Certification Board instead of the neighbour. Trouble was the order for $1 million in costs against Marsh plus his own costs of another $1 million wiped him out. Baxter was funded by Monsanto. Marsh was funded by donations from the local community. I followed the case, and watched the documentary. Marsh was too quick and too honest. He found some GM canola growing just inside his fence and notified the Organic crowd who came out, had a look, and took away his certification

Baxter swathed GM canola and laid it out to dry. In high winds it scattered millions of seeds on Steve & Sue Marsh's place says Chief Judge Carmel McClure. She agrees the Marshes' claim for $85,000 compensation is valid & says the organic certifier was justified in decertifying 70% of their land. The 2 other judges disagreed and the Marshes lost their appeal.
McClure also found the Marshes spoke to and wrote to Baxter, warning that GM canola risked their organic certification. But Monsanto indemnified Baxter for his legal costs, so he has had no worries. Mediation before the trial failed, so Baxter's claim that the neighbours could have 'settled things over the fence & a beer' are a stunt.
Marsh had to sue Baxter or bear the loss of decertification. In 2000, when Australian governments set up the Gene Technology Act, they ruled the courts and common law would settle claims of damage from GM contamination. The 98% of Australia's 134,000 organic & conventional farmers who remain GM-free producers are therefore still vulnerable. Another case of GM contamination was reported just last week.
A Farmer Protection Fund with a levy of $1/kg on all GM seed sales would make the GM industry pay for the damage it does, by automatically compensating GM affected landholders for proven economic loss, extra costs or harm.
The Fund would end bitter wrangles like Marsh vs Baxter. Set it up now!

Dont agree here, I think the court is correct. A land owner can enjoy reasonable use of their land free from undue impacts from neighbours. So if the farmer wants to be anally organic that does not force his neighbour to also be, that is not reasonable.

Agree to a degree, if a farmer wants to farm ethically and organically it is his right NOT to be contaminated from the careless next door neighbour.

But the court said the neighbour did not act in a careless manner but followed good/reasonable practice. Careless/negligent would be a different issue and I would agree with you 100%, it is not the case in this instance.

Personally I avoid GMO's I/we dont need to eat them and there are enough questions to simply be prudent on the issue. I wouldnt mind if NZ banned them totally if only because of the issues surrounding them. The good news however is people want to see labeling stating whether a product contains GMOs or not, that should go ahead and that I think will kill GMOs.

Drying your seed in such a manner that it can be blown all over the place (especially seeing it is GMO) sounds utterly irresponsible to me, regardless of what the court said

Well I guess we agree to disagree, just as well we have courts to strike a fair balance then isnt it.

If it was fair

well from the way i read it, yes it was. the courts however follow the law, Govn's can change laws.

Nothing to do with the current issue that of enjoying fair and reasonable use of your property.

While I agree with not using GMO and food should be so labelled so consumers can choose and that it has a great opportunity for higher margins I get a bit concerned when a council decides to ban it with no real reason/evidence it is harmful.

Trouble is you let GMOs in there is a real risk of contamination further than the confines of where it is being used, this article just being one example of it and until such times as we do have the choice of consuming or not consuming it, then it can stay the hell away from here

That is your choice, you have no right to make such a choice for others.

So the Western Australian Court of Appeal ruled that the organic farmer's land was being put to an abnormally sensitive use because his crops were normal crops? Seriously? Growing normal (Un-GMO) crops is now regarded as abnormally sensitive? I would have thought that it was GMO crops that were abnormal and therefore the risks they posed to normal crops should be regarded as abnormal.

That would be true given a level playing field - but this was big-money (Monsanto) versus little-money (Marsh) - only one possible outcome

read more
http://www.abc.net.au/news/2015-04-08/monsanto-contributed-to-michael-ba...

Unfortunately in these cases one is only as good as the lawyers you employ and how they choose to fight the case........

The Court of Appeal seems to have failed miserably and obviously those sitting judges have no knowledge of the content of the Nuremberg Code!!!