What
Makes Percy Schmeiser so Persistent?
by Paul Goettlich
Photo of Percy
Schmeiser by Lily Films from "The Future of Food" a video to be released in July 2004
For the past year, Canadian farmer Percy Schmeiser has spent more time in his office than his fields. He and his wife Louise once managed their Saskatchewan canola farm from their spacious, file-filled outbuilding. But after Monsanto [More on Monsanto] filed a claim against the Schmeisers’ land — alleging that the company’s patented Roundup Ready canola was illegally growing in the Schmeisers’ soil — tilling the fields has taken a backseat to plowing through legal papers.
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What
Makes Percy Schmeiser so Persistent?
by Paul Goettlich |
Monsanto claims that since it created the patented genes in the Roundup Ready seeds, it has the right to control the use of the canola plant itself (even though Canadian law has banned the patenting of higher life-forms such as seeds, plants, and animals). Schmeiser sees the case as a conflict between patent law and age-old “plant breeders rights,” which allow farmers to buy seed and plant the offspring.
The last thing the Schmeisers expected after a lifetime of farming was to be caught in a legal battle with one of the world’s leading proponents of agricultural biotechnology. They were ready to retire. Instead, Percy became a folk hero. He’s been asked to speak all over the world about genetically engineered crops. He has met with heads of state, agriculture ministers, thousands of farmers, and community groups. And this spring, he became part of legal history.
Down (Not Out) on the Farm
Louise’s voice cackles over the intercom. It’s lunchtime. Percy rises slowly — he’s 73 years old — and strolls across a tidy driveway to the red brick home where he and Louise reared their five children. She cooks as if the kids were still at home. On the kitchen table sits a baked chicken breaded in Parmesan, mashed potatoes oozing butter, a tossed salad, peas and beans. Rolls and an apple pie come hot from the oven. Apples, bananas and oranges wait in a bowl, just in case any of their 15 grandchildren should appear.
Percy is a third-generation farmer. He’s grown canola for more than 40 years on a 1,400-acre farm east of Saskatoon. Canola was developed in western Canada from rapeseed, a plant of the mustard family that’s long been used to produce industrial lubricants. Canola’s low fat content and inexpensive production cost have made the Canadian oil (hence the name) a common ingredient in mainstream food products such as margarine and vegetable oil. With 4.5 million hectares planted, the Canadian prairies provide the bulk of the world’s supply. It’s the dominant crop in this part of Saskatchewan. In season, the province’s achingly flat squares of farmland can look like a flowing yellow carpet.
The Schmeisers fine-tuned their canola for their land. Each year, Percy and Louise hiked up and down the rows, collecting seeds from the hardiest plants. They cleaned and saved the best ones for planting. After decades of selectively culling (and occasionally swapping seeds with neighboring farmers), the Schmeisers developed what was essentially their own canola strain. Like generations of seed savers before them, they came to regard their hand-picked variety as if they were progeny, holding them nearly as dear as their own children.
Monsanto’s Poison-friendly Seeds
Founded in St. Louis, Missouri, in 1901, the Monsanto Chemical Company built its business selling food additives such as saccharin and caffeine. During the past decade, Monsanto has spun off its chemicals business to focus on biotechnology. By crafting whole systems of pesticides, herbicides, and generically engineered seeds designed to thrive in an environment saturated with those chemicals, Monsanto promised to help farmers feed the world more efficiently.
By altering the DNA of its seeds, Monsanto’s technicians fabricated cotton, corn, soybean, and canola seeds that could resist Roundup, the company’s best-selling herbicide. Using these seeds, a farmer can spray Roundup on a field, and kill any plant that hasn’t been patented by Monsanto. According to the Canadian Canola Growers Association, up to 90 percent of last year’s crop was grown from Monsanto’s Roundup Ready and Bayer’s GE Liberty Link seeds.
Because the Monsanto seeds were created in a lab, the company is legally entitled to something that the Schmeisers are not: a patent. Monsanto has patented the DNA in all the seeds it sells. Using these patents as leverage, the company tries to discourage the age-old practice of seed-saving, with the goal of compelling farmers to buy new seeds from Monsanto each season. In order to enforce its patents, Monsanto requires every farmer who buys its seeds to sign a contract promising to pay $15 for each acre of Roundup Ready seed planted — about $4,500 (Canadian) for a typical canola farm — and requires property inspections to certify that the contract is honored.
Monsanto maintains that it must aggressively defend it patents to protect its investors. Toward this end, the company employs investigators to check for evidence of illegal use of its patented DNA and sponsors toll-free “tip lines” to encouraged farmers to blow the whistle on their neighbors. Monsanto has even placed radio ads to broadcast the names of growers caught illegally planting the company’s patented seeds. When evidence of illegal use is discovered, the company sues the farmer.
Inseminate and Intimidate
Schmeiser never bought Monsanto’s seeds. He’d been grooming his own seeds for decades and was satisfied with the yields they produced. He never sprayed chemicals on his heritage seeds because that would have killed them. He only used Roundup occasionally to spray beneath the power lines that run alongside his property. That’s where he first noticed the Monsanto seed creeping onto his land.
In the summer of 1997, Schmeiser was surprised to see that some of the roadside canola he sprayed with Roundup had survived. Curious, he sprayed about three acres of his crop to see what would happen. About 60 percent of the sprayed plants survived, with thicker clumps closer to the road. The clumps suggested to Schmeiser that Monsanto’s seed had drifted onto his property (probably from passing trucks laden with Monsanto canola).
Schmeiser pops open a pod of canola to reveal the freckle-sized black seeds within. “A little plant like this makes a minimum of 4,000 seeds. Maybe 10,000. You can’t control it. You can’t just say, ‘Put a fence around it and demand that’s where it stops.’ It might end up 10 miles, 20 miles away — or all over the place, and it cross-pollinates.”
It’s not known exactly how Schmeiser initially attracted Monsanto’s attention, but court documents reveal that the company went to unusual lengths to spy on the Schmeisers:
“They watch us, they trespass on our fields,” Percy complained. “Then they harass us, they call us up and threaten us. My wife got a call when I was overseas telling her, ‘You better watch it.’ Now Louise has high blood pressure. That call really shook her up.”
With Monsanto’s genetically engineered plants spreading across the Schmeiser farm, Monsanto asserted that the couple were growing the company’s patented seeds and demanded payment. Unlike scores of similarly accused farmers who signed out-of-court settlements, Schmeiser fought back. He counter-sued Monsanto for trespass and contamination citing the company’s inability to control the spread of its product.
“The question is: where do Monsanto’s rights end and mine begin?” he asked. “At first, it was just the sections by the side of the road. Now, most of my property is contaminated. But it does not matter. Monsanto can claim ownership of the whole thing. My own beautiful seeds no longer matter.”
Genetic Spill
Monsanto was not interested in how the seeds arrived on Schmeiser’s farm. Having given up on the idea that he could be sued for breach of contract, (Schmeiser had never signed a contract) the company simply claimed that anyone caught with their seed is guilty of stealing their property.
Schmeiser was a well-regarded member of his community. He’d served as a Liberal member of the Saskatchewan provincial legislature back in the 1970s. None of that mattered to the judge. The court ordered the Schmeisers to pay Monsanto $19,830 — an amount equal their profits from the sale of their 1998 canola crop — as well as $153,000 to cover Monsanto’s court costs. Schmeiser appealed to Canada’s Supreme Court. The Sierra Club of Canada, the Attorney General for Ontario, the Council of Canadians, and the National Farmers Union all filed amicus briefs on his behalf.
No group watched the case as closely as the world’s organic farmers. In the four years since Monsanto planted its first fabricated canola, the unnatural plant spread across three Prairie Provinces. It now is showing up as “a major weed” in fields, road landscaping, cemeteries, and backyard gardens. Genetic pollution from Monsanto’s drifting canola seeds has devastated the organic canola farmers in Saskatchewan. “We can’t grow certified organic canola anymore,” Arnold Taylor, president of the Saskatchewan Organic Directorate, told the Toronto Star. SOD, which represents more than a thousand farmers, is organizing a class-action lawsuit against Monsanto, Bayer, and others.
The problems caused by Monsanto’s “genetic spill” are no longer limited to the farming community. As Pat Mooney, of the Action Group on Erosion, Technology, and Concentration notes: “There are about five million Percy Schmeisers out here. For all any of us know, we could have Monsanto’s canola in our window boxes.”
Court Sends a Mixed Message
On May 21, in a 5-4 split decision, the Supreme Court of Canada ruled that Monsanto “owned” the genetic formula contained in its Roundup Ready canola seeds. The court also ruled that Schmeiser’s re-use of genetically contaminated seeds constituted patent infringement. The Supreme Court ruling was widely reported as a win for Monsanto but, just as clearly, it could be seen as a victory for Schmeiser.
“I do not have to pay Monsanto one cent for profits, damages, penalties, court costs or their ‘technology-use fee’ of $15 an acre,” Schmeiser told supporters. The Supreme Court agreed that Schmeiser had not made any profit from the unwanted presence of Monsanto’s genes. Because of this ruling, Schmeiser predicts, Monsanto “will have a hard time pursuing patent infringement against other farmers” since the mere use of Roundup Ready seeds does not guarantee any added profit.
“I also believe that Monsanto will face huge liability issues down the road,” Schmeiser stated. “With ownership comes responsibility, and I assume more lawsuits will be filed against them for the contamination of farmers’ fields.”
Pat Mooney notes that the court’s ruling places “the burden of coping with GM contamination... on the farmer rather than the corporate polluter.” This leaves Monsanto free to insist that anyone who thinks Roundup Ready canola might be growing on their land without Monsanto’s permission must “notify the company in order not to infringe on Monsanto’s patent.”
At stake is a 12,000-year agricultural tradition that sustains 1.4 billion farmers around the planet. As Percy puts it, the court’s ruling means “a company’s patent will take precedence over the rights of farmers to save and reuse their seed. I believe that this ruling is an injustice and Parliament must act to ensure that farmers’ rights are protected.”
The next step, Schmeiser says, is up to Canada’s legislators. “We have a conflict between plant breeder’s rights and patent law, and the government will have to sort that out.”
http://www.dragonflymedia.com/cg/cg3107/seedsofjudgement3107.html 31jul04
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