(First published in 2012 by Australian Organic in Australian Organic Producer)
Legal proceedings have started in Western Australia by a farmer who had achieved organic certification in 2004 but subsequently lost it in late 2010 when genetically modified canola was discovered on his property. He alleges the genetically modified canola came onto his property from a Monsanto licensed “Round-up Ready” canola crop grown by his neighbour in the paddocks closest to his organic farm.
In early 2010 the WA Department of Agriculture permitted the commercial release of seed for genetically modified (GM) canola crops along with fact sheets and other publications. In these publications the Department counselled that it would be sensible for GM farmers to inform neighbours if they wished to grow GM canola and to develop plans to manage volunteer plants with their neighbours as swathed crops may be moved by strong winds into adjacent paddocks.
The Australian organic accreditation standards stipulate that, in order to label or sell produce as organic, no GM material may be used or contained in the produce or farming systems. Organic certification will be withdrawn where there is an unacceptable risk of GM contamination and decertification will be imposed where infringement is significant.
I traversed similar issues in the spring 2011 issue of Australian Organic Producer in relation to chemical drift and what steps organic farmers ought take to educate their neighbours. The law doesn’t discern between substances. If what is escaping from lands is causing significant disturbance there can be a problem.
In the GM case the Plaintiff (organic farmer) alleges that he discussed with the Defendant (his neighbour) the prospect of GM contamination. He alleges that; A) he identified and communicated reasonable steps the Defendant could take to reduce risk of contamination, B) the Defendant did not take these steps, C) he put the Defendant on notice of legal action should contamination occur and identified the significant losses that would result to his organic farm should contamination occur, D) he informed the Defendant that he was unlikely to have insurance cover for such an event, C) he published public notices and signs warning of the risk of contamination and putting parties on notice of legal action if contamination occurred.
The Plaintiff seeks to rely upon the law of nuisance to prevent any future contamination occurring by way of an injunction on the Defendant restraining him from growing GM canola crops and on both that law and the law of negligence to recover the losses he has suffered to date.
As recently stated by her Honour Chief Justice Bergin in the Equity Division of the NSW Supreme Court, nuisance is the unreasonable interference with the use and enjoyment of a person’s land. The determination of whether there has been “unreasonable interference” is by the application of an objective test – whether a person of ordinary habits and sensibilities in the Plaintiff’s position and circumstance would regard the interference with the enjoyment of the land as unreasonable.
Liability in nuisance is not strict or absolute and fault in the alleged wrongdoer must be shown. Damages may be awarded for reasonably foreseeable harm caused by the defendant’s activity that amounted to the nuisance. The Court may also grant an injunction, including a permanent injunction, to restrain an ongoing nuisance.
The law of negligence requires the Plaintiff to establish that the Defendant owed him a duty to take reasonable care to avoid GM canola seed migrating from his property to the Plaintiff’s farm; he breached that duty; and the Plaintiff suffered loss as a result of that breach. To do this, the Court must assess the interface between the facts it finds to represent the true history and relevant issues of the Defendant’s knowledge, the proximity of the parties to each other, the foreseeability of the harm, what control the Defendant had over the situation, the steps taken or available to be taken to prevent the harm, and the Plaintiff’s vulnerability.
Communicate. Communicate. Communicate. Discuss with each neighbour what you are trying to achieve. Most neighbours wish to live in harmony with each other and are usually willing to adapt their activities and practices to accommodate their neighbour’s reasonable use of their land. Despite the fact that the Plaintiff alleges communication didn’t work it’s always best to communicate.
Our communities need to collaborate to ensure the peaceful co-existence of conventional, GM and organic farming operations. Could the organic farmer have done anything else? Yes he could have imposed a buffer zone within his own farm. Alternatively each neighbour could have met half way and sacrificed land by creating buffer zones on each of their properties.
Peter Long practices in New South Wales specialising in rural issues, firstname.lastname@example.org, 0429 024 428. He has done over 120 access and compensation agreement negotiations relating to mining activities.