Organic farmer loses WA Court appeal against GMO crop neighbour
By Joe Lederman and Gemma Mainland (FoodLegal Consultant)
FoodLegal Lawyers and Consultants
© Lawmedia Pty Ltd, October 2015
In a blow to organic farming, the Western Australian Court of Appeal has held that a farmer of genetically modified (GM) crops was not liable for the losses caused to his organic farming neighbour. On Thursday 3 September 2015, the court handed down its judgment in the landmark genetically modified negligence case Marsh v Baxter.
Following previous hearings over the dispute, it held by a two-to-one majority that Michael Baxter, a farmer of GM crops, was not liable for a loss suffered by Steve Marsh, a neighbouring organic farmer.
The majority judgment, by Justice David Newnes and Justice Graeme Murphy, focused on the fact that Marsh had chosen to farm organic produce, which did not create an additional duty on Baxter or make his lawful use of land constitute “wrongful interference” with use of the neighbouring hand. They noted that Marsh’s use of land was “abnormally sensitive” and this did not permit the imposition of limitations on neighbouring land beyond what is normally required.
The majority judgment stated:
The appellants were, of course, entitled to enter into arrangements which had the effect that their land was being put to an abnormally sensitive use, but their neighbours 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.
It was also stated to be not relevant that Baxter was aware of the strict conditions Marsh’s farm was under to meet the organic standard:
It is not to the point that the appellants sought to make the respondent aware of the relevant terms of the NASAA contract. Nor is it to the point that the appellants were carrying on their organic farming activities under the contract before the respondent commenced, or even was permitted to commence, to grow GM canola. Neither enabled the appellants to enlarge their rights at the expense of their neighbours.
The judges further noted that the actions taken by GM farmer Michael Baxter were “common and ordinary” uses of the land at the centre of the dispute:
In the circumstances, in our opinion, in the district of Kojonup, crop farming, including canola farming, was a common and ordinary use of the land, and harvesting was integral to or a necessary part of crop farming. Swathing was a conventional and moreover the generally preferred method of harvesting canola crops, and formed part of the common and ordinary use of the land in the district.
In contrast, organic farming was “at best, an isolated practice in the area”.
In her dissenting judgment, Justice Carmel McLure stated that the interference with Marsh’s use and enjoyment of his property was “substantial and unreasonable” and constituted a private nuisance. Justice McLure further stated that Baxter “had actual knowledge of the risk of decertification when he engaged in the conduct which caused the harm to the appellants”.
In the original Western Australian Supreme Court hearing in May 2014, Marsh claimed but was denied $85,000 in damages and a permanent injunction against Baxter. Marsh’s basis for the claim was due to the loss of his organic certification after contamination from GM crops from Baxter’s neighbouring farm. However, the Court held Baxter not to be negligent and instead focused on the “unreasonableness” of decertification by the National Association of Sustainable Agriculture Australia (NASSA) and NASAA’s subsidiary certifying organisation NASAA Certified Organic Pty Ltd (NCO), who decertified approximately 70 per cent of the Marsh property.
The Courts costs decision has yet to be announced but is estimated to be many hundreds of thousands of dollars.
Outside the court after the decision was handed down on 3 September 2015, the unsuccessful plaintiff organic farmer Steve Marsh told gathered news reporters that he was considering a further appeal to the Australian High Court. He also noted the decision in the WA court of appeal was not unanimous.
Justice McLure noted that the use of gene technology “has long been highly contentious and divisive” but that this debate went beyond the matter in contention.
Contrary to the expectations of the Organic farmer and his supporters, this Australian court decision appears to strengthened the legal position of in favour of the farming of GM crops. The decision has not imposed any stricter duty of care or threshold for protecting Organics farming neighbours.
This is general information rather than legal advice and is current as of 8 Oct 2015. We therefore recommend you seek legal advice for your particular circumstances if you want to rely on advice or information to be a basis for any commercial decision-making by you or your business.