Proposed GM lawsuit may stir major waves

Sean Pratt / Western Producer 18oct01

A pending lawsuit over genetically modified canola could have the ramifications of a tidal wave compared to the legal ripple caused by the Percy Schmeiser case, says a law expert.

The Saskatchewan Organic Directorate plans to sue chemical giant Monsanto and possibly others "responsible for introducing" GM canola into the province because it has spoiled markets for Canadian organic canola.

University of Saskatchewan law professor Martin Phillipson said if the organic producers win the case, it would create a huge precedent by attaching liability to the producers of GM technology. That's in sharp contrast to the case in the summer of 2000, in which Bruno, Sask., farmer Schmeiser was found guilty in Federal Court of growing Roundup Ready canola without a licence.

"(Schmeiser) was a simple case of Monsanto alleging he had infringed on their intellectual property rights. The court said he had. End of story. It had nothing to do with the wider social, legal and environmental implications of this," said Phillipson.

A spokesperson for Monsanto said the company has no comment on the suit because nothing has been filed with the courts and it hasn't been officially named as a defendant.

"I'm not clear on whether it involves Monsanto or not," said Trish Jordan.

The lawyer for the Saskatchewan Organic Directorate said the group is awaiting the proclamation of a pertinent piece of provincial legislation before filing documents. That is expected to occur early next year. Directorate administrator Debbie Miller said Monsanto will be the primary defendant listed on the documents once papers are filed.

Canola Council of Canada president Dale Adolphe said organic canola represents less than 0.4 percent of total canola acreage. He said a small force wants to destroy GM canola, which made up 61 percent of the canola seeded in 2001.

Adolphe said organic growers have lost the markets themselves by drafting certification standards that call for zero tolerance of GM material.

"They don't have zero tolerance on pesticides," said Adolphe.

"But they were short-sighted enough to put in a zero tolerance for GMOs."

He also said growers and creators of GM canola have done nothing illegal because the products have passed food, feed, environmental and safety regulations and have made it through the variety registration system.

"If the class action should be targeted at anybody, it would be targeted at the regulatory systems that allowed that."

Saskatchewan Organic Directorate officials said the federal government and other parties may be included in legal action, but the main target will be Monsanto.

Phillipson figures the organic growers have a good case if they pursue legal action under provincial environmental legislation, where they may be able to prove that GM canola is a pollutant.

"The crucial issue is whether or not you can tie it back to the actual producer of the technology itself as opposed to the farmer who planted it down the road."

He thinks Monsanto will be facing a tougher battle than it did with Schmeiser if the suit is launched under Saskatchewan legislation and heard in a provincial court rather than the federal arena where Schmeiser's case played out.

The professor said if the organic growers are successful, it would set a huge precedent.

"Theoretically it could be very damaging for (Monsanto), particularly if this sort of finding spreads to the United States, for example, where they could be in line for big, big payouts."

Growers plan court action to protect organic industry

Sean Pratt / Western Producer 18oct01

A group of Saskatchewan organic growers wants those responsible for introducing genetically modified canola into the province to pay for the damage they allege has been done to their industry.

They also plan to seek an injunction against the introduction of GM wheat.

The Saskatchewan Organic Directorate says international buyers have no interest in Canadian organic canola because growers here can't certify it is 100 percent free of GM material.

"The introduction of GM canola has all but removed this crop from our crop rotations," said directorate president Arnold Taylor.

"Organic farmers use diverse crop rotations to control weeds and build fertility in a sustainable way. Any crop loss in our rotation is potentially gravely harmful and would impair our ability to farm organically."

Taylor spoke at an Oct. 12 news conference in which the directorate announced its plans to launch a class action suit against Monsanto and others "responsible for introducing" GM crops into the province.

The directorate describes itself as an umbrella group of organic certification bodies and producers in the province. But even organic producers who are not under that umbrella are encouraged to participate in the class action suit.

Although they have announced their intentions, the group has yet to file any documents that would start legal action.

That's because they are awaiting the proclamation of new Saskatchewan class action legislation, said Terry Zakreski, the lawyer retained by the organic growers, who is also Percy Schmeiser's lawyer.

A spokesperson for Monsanto said the company had no comment on the pending legal action.

"It's pretty difficult for us to comment on something that might happen or might not happen," said Trish Jordan.

Zakreski expects the province's legislation to be proclaimed on Jan. 1, 2002, with the directorate's legal action to proceed shortly after. In the meantime, the group will be trying to raise $50,000 to pay for legal costs.

So far it has $1,000 in the bank.

In addition to seeking damages for the introduction of GM canola, the group wants an injunction on the introduction of GM wheat – a crop Monsanto is currently working on.

"As far as our markets go it would destroy us," said Taylor.

"If we lose wheat from our crop rotation, our ability to farm organically will be destroyed," he said.

According to Canadian Wheat Board estimates based on surveys conducted by provincial agriculture departments and various organic groups, wheat accounted for about 116,000 of the 736,000 acres seeded to organic crops in Canada in 2000.

Forage, green manure, summerfallow and pasture make up nearly 60 percent of those 736,000 organic acres. Only 42,000 acres of organic oilseeds were seeded in 2000 and most of that was flax.

According to the surveys, there are an estimated 1,536 organic growers in the country. Zakreski said all of those growers are welcome to participate in the class action suit, which could involve another big player besides Monsanto.

"We're investigating the potential liability of the (federal) government for allowing this to happen," said the lawyer.