Friday 14/2: CERTIFICATION guidelines and the zero tolerance policy were major points of interest on day four of the Marsh versus Baxter trial currently underway in the Western Australian Supreme Court.
Former National Association for Sustainable Agriculture Australia (NASAA) certification officer Diane Gore took to the witness stand in the afternoon. She was questioned about a number of phone and email records which demonstrated communications between Mr Marsh and NASAA, the usual timeframe in which review outcomes were communicated back to certified NASAA growers and the extent of observable canola swaths on Mr Marsh’s property at the time of the alleged incursion of genetically modified (GM) canola onto his property.
Ms Gore was also pressed with questions about NASAA’s certifying guideline which says that once an organic farm has been decertified because of GM contamination the owner of that property will not regain their organic certification for five years – no exceptions.
Earlier in the day Department of Primary Industries, Parks, Water and Environment (DPIPWE) Tasmania chief plant health manager Andrew Bishop took to the witness stand.
Michael Baxter’s defence lawyer Patricia Cahill, Bradley Bayley Legal, cross-examined the expert witness over issues relating to Tasmania’s co-existence laws and whether there in fact should be such a thing as the concept of nil tolerance if nature didn’t allow for it.
Ms Cahill also addressed issues concerning limited testing methods available to the Tasmanian Government in relation to GM plants and the Tasmanian Government’s testing and subsequent control of volunteer plants from State trial sites in the late 1990s and early 2000s.
Next to enter the witness stand was managing director and senior consultant of 3D-Ag, Peter McInerney, Wagga Wagga, New South Wales.
Throughout her cross-examination, Ms Cahill pressed Mr McInerney with questions pertaining to his qualifications and the diversity and differences between farm land and farming systems in WA’s Great Southern and NSW’s Riverina region.
Mr McInerney made clear his opinion that the use of GM canola in certain situations combined with a number of other strategic methods was sometimes a preferable way to control paddock weed burdens and that swathing and windrowing was in fact a preferred method of harvest because of its ability to reduce risk associated with pod shatter, exposure, harvest timing and weed seed bank management.
He also agreed that a diverse approach to weed management was integral and in particular, the need for growers to get away from relying solely on herbicides, including the idea that less reliance upon glyphosate would result in better long-term herbicide resistance management in the future.
Ms Cahill also questioned the witness about the well-known economic argument which weighed up the planting of a highly profitable canola crop for short-term financial gain versus planting a low-margin pulse crop for soil health, water retention and weed management.
Mr McInerney said the only reason growers should utilise Roundup Ready canola was to combat ryegrass and other weed resistance issues because there was no economic benefit in planting GM canola.
He suggested that National Variety Trials (NVTs) hadn’t demonstrated yield benefits in the past but Ms Cahill was quick to point out that NVT sites were chosen for specific reasons, some because they presented little to no weed competition, as well as other factors.
After each witness’ cross-examination they were then re-examined by Mr Marsh’s counsel, Richard Niall, Slater & Gordon Lawyers.
Today (Friday) the plaintiff’s counsel was expected to call four more witnesses including former NASAA certification arm executive officer Stephanie Goldfinch and Morton Seed and Grain managing director Johnathan Morton.
Thursday 13/2: LAWYERS representing Michael Baxter continued to question his neighbour Steve Marsh as to why it took him so long to sort out and collect the GM canola swaths which caused the alleged incursion on his organic farm on the third day of the landmark GM trial.
During her continued cross examination of Mr Marsh, Mr Baxter’s legal counsel, Patricia Cahill, Bradley Bayley Legal, asked why - after several on-farm inspections by National Association for Sustainable Agriculture Australia (NASAA) once he’d attempted clean-up - did he not chase up NASAA regarding the recertification of his farm’s organic status once he hadn’t heard back from the organisation within what he deemed to be a reasonable period of time.
Ms Cahill also pressed Mr Marsh why he decided to attempt to fence-off swaths and flowering canola plants in his paddocks prior to being collected as late as April 2011.
She asked whether the purpose was in fact because he thought it would assist in legal proceedings against Mr Baxter, to which Mr Marsh answered no.
Ms Cahill also asked the plaintiff if, with the benefit of hindsight, would he have appealed NASAA’s decision for decertification in 2010? Mr Marsh replied he would need to be in the position at the time to formulate an answer.
Mr Marsh was also asked whether he thought it to be reasonable that NASAA decertify up to 70 per cent of his organic farm when as little as three swaths of canola were found in certain corners of certain paddocks.
Ms Cahill asked whether Mr Marsh in fact thought de-certification would assist him in lobbying the Western Australian government to make the commercial production of GM canola illegal and assist him in making a legal case against the defendant, Mr Marsh again answered no.
Throughout the day Ms Cahill also addressed issues pertaining to several letters and press releases Mr Marsh had sent to fellow Kojonup farmers as well as local and State media organisations, the wording and contents of biosecurity signage erected on the boundary of his Eagle Rest farm, the contamination status of conventional canola as ruled by NASAA’s organic standards, a list of possible costs and damages he sought to claim from the defendant prior to the alleged contamination, as well as the professional screening and cleaning process of Mr Marsh’s harvested organic grain and whether or not it could ever guarantee organically-labelled grain products bound for human consumption were 100 per cent organic material.
Further questions were also asked about the reason for all the plaintiff’s sheep being decertified by December 2010 due to drenching with a non-compliant substance and a subsequent suspension notice which noted three further livestock non-compliances, how the plaintiff spent his time after the initial alleged incursion and what prevented him from attempting to minimise volunteer risk by picking up swaths in the paddock, his understanding of the roadside tree buffer which separates Eagle Rest from the defendant’s Seven Oaks farm and the application of an unapproved substance to one of his paddocks in 2012 which led to further decertification clauses.
By 3:30pm on Wednesday, the plaintiff was being re-examined by his own legal counsel, Richard Niall, Slater & Gordon Lawyers and at 4:05pm stepped down from the witness stand.
Mr Marsh is seeking damages worth $85,000 and an injunction to stop his neighbour Michael Baxter from growing GM canola crops within one kilometre of his farm.
Today the court heard from witness Andrew Bishop, chief plant health manager, Department of Primary Industries, Parks, Water and Environment (DPIPWE), Tasmania.
Wednesday 12/2: THE organic farmer suing his neighbour in the landmark GM court case took to the witness stand on Tuesday.
The court heard from plaintiff Steve Marsh about the alleged GM contamination event that took place on his Kojonup organic farm in 2010.
Much of the afternoon session was devoted to Mr Marsh’s affidavit and the exhibition of a number of farm photographs and maps to establish the location, topography and condition of Mr Marsh’s Eagle Rest farm for judge, Justice Kenneth Martin.
Photos of sensitive site signage erected around the boundary of Eagle Rest accompanied numerous copies of further documentation pertaining to Mr Marsh’s case, including a letter to former WA Agriculture and Food Minister Terry Redman in 2009, letters sent to the West Arthur and Kojonup shires before the alleged canola swaths were found on the organic farm and GPS paddock locations of where the alleged swaths were discovered.
Documents relating to Mr Marsh’s National Association for Sustainable Agriculture Australia (NASAA) organic status accreditation, the search for and clean-up of canola swaths and subsequent decertification were also committed to evidence throughout the afternoon.
In her cross examination of the witness the defendant’s legal counsel, Patricia Cahill, Bradley Bayley Legal, began to build her case by pressing Mr Marsh with questions concerning a 2008 non-GM canola incursion at Eagle Rest that wasn’t reported to NASAA, whether Mr Marsh thought the commercial production of GM canola should be made illegal and his understanding of NASAA’s organic standards prior to and following the alleged contamination.
Earlier in the morning counsel for the plaintiff, Slater and Gordon lawyer Richard Niall, outlined Mr Marsh’s net financial losses on a year by year basis.
He concluded that in the 2010/11 financial year his client suffered losses of $20,000, while in 2011/12 and 2012/13 Mr Marsh suffered losses of $65,000 ($32,500 for each of the financial years).
Following that, the rest of the morning session was spent by the defendant’s counsel objecting to, and Justice Kenneth Martin’s excising of, sections of Mr Marsh’s witness statements and affidavit before Mr Marsh’s cross-examination on the witness stand.
The plaintiff is seeking to claim $85,000 in lost earnings from alleged GM canola contamination and a permanent injunction to prevent the defendant from planting GM canola crops within one kilometre of his farm.
The plaintiff’s counsel is also seeking to prevent the defendant from swathing canola on his farm.
It is expected up to two hours will be spent continuing to cross-examine the plaintiff this morning before further witnesses, including National Association for Sustainable Agriculture Australia’s Claire Coleman and Stephanie Goldfinch, take the stand.
Tuesday 11/2: LAWYERS representing Kojonup organic farmer Steve Marsh are seeking a permanent injunction that would restrain his neighbour Michael Baxter from planting GM canola within one kilometre of Mr Marsh’s farm.
Mr Marsh’s legal team claim up to $85,000 worth of damages were suffered after the temporary suspension of the Marsh farm’s organic status from December 2010 to November 2013.
In addition to the permanent injunction and a damages claim, Mr Marsh is also seeking to prevent Mr Baxter from swathing his canola crops altogether.
These statements came on the first day of a civil hearing that is expected to last up to three weeks, when Mr Marsh’s counsel, Richard Niall, presented his opening statements to Justice Kenneth James Martin.
Mr Niall largely questioned defendant Michael Baxter’s decision to plant and swath GM canola which allegedly blew across the boundary fence and into Mr Marsh’s paddocks – causing the decertification of his organic farm.
Mr Niall outlined his belief that Mr Baxter owed Mr Marsh a duty to take reasonable care that GM seed didn’t transfer onto Mr Marsh’s Eagle Rest farm, which as a result, caused significant financial losses that were said to be clearly foreseeable from the outset.
Mr Baxter’s lawyer Patricia Cahill, Bradley Bayley Legal, outlined her defence by telling the court the National Association for Sustainable Agriculture Australia’s (NASAA) standards were unreasonable and incoherent, making them the centre of the defence’s case.
She believed the case need not be bought against Mr Baxter for alleged contamination but the bodies responsible for creating near impossible standards truncated with generic definitions.
She pointed to the absence of a definition for the word contamination and outlined that current standards mostly addressed the potential issue of contamination of end-products ready for organic or non-GM labelling.
On January 24 this year a document was released by the certifying body which outlined the breaches of national organic standards on Mr Marsh’s farm.
In the coming weeks Ms Cahill will argue that the so-called standards outlined by the certifying body were not standards but mere explanations of what may or may not have occurred on the property since the alleged contamination.
Ms Cahill will argue that NASAA had no power or entitlement to de-certify Mr Marsh’s organic property on the basis that Mr Marsh didn’t attempt to utilise GM material within his production system, the introduction of GM material was beyond Mr Marsh’s control, there is no evidence to suggest his crop was really contaminated via cross-pollination and he didn’t try to sell any produce thought to be contaminated by GM material – as outlined in the organic certification standards.
The defence outlined its argument that NASAA couldn’t rely on general principles and recommendations to ground its decertification and it also ignored the practical reality that modern farming practices cannot control the birds and the bees from also assisting in contamination methods and if that were the case then GM farmers were being set up to fail.
“Our submission is this,” Ms Cahill said.
“Decertification wasn’t permitted by NAASA because there was no risk of cross-pollination or genetic contamination, Mr Marsh had the ability to clean grain if canola seeds were to be found and he didn’t carry out any of the actions outlined in the standards.”
Ms Cahill also outlined Mr Baxter’s right to grow GM canola on his farm, swath that crop and abide by the legal buffer zones – which she believed he had done.
She said Mr Baxter observed and carried through with the Department of Agriculture and Food WA’s recommended GM guidelines and informed Mr Marsh of his planting intentions.
She also brought to the court’s attention that one of Mr Marsh’s GM-contaminated paddocks had already been quarantined by NASAA due to sheep which had been drenched.
“Having done what he (Mr Baxter) ought to have done there are no reasonable grounds to restrict his right to grow and swath GM canola on his farm,” Ms Cahill said.
Mr Niall spent much of the morning session trawling through nine volumes of what he claimed to be critical background documentation pertaining to the location and topography of Eagle Rest and Seven Oaks farms (owned by Michael Baxter), the organic certification and decertification process undertaken by NASAA, generic Monsanto contracts, the use of glyphosate in modern commercial agriculture and the introduction of commercial GM canola production to WA by the State Government in 2010.
He claimed two factors were of critical importance to the case – the location of Mr Baxter’s GM crops and the method of harvest undertaken before the contamination.
“Our position is that it was plainly foreseeable that swathed material could blow onto Mr Marsh’s property,” Mr Niall said.
He also questioned why Mr Baxter’s two paddocks of GM canola were swathed and his two non-GM varieties were direct-headed in the same year.
Mr Niall claimed in the face of several communications with Mr Marsh, Mr Baxter indifferently and recklessly planted and harvested GM canola in his chosen paddocks which was a breach of duty.
Mr Niall also claimed vulnerability because Mr Marsh had no control over the area planted to GM canola in his neighbour’s farm and he took many steps to alert his neighbour of the possible ramifications and risks involved.
“GM canola and swathing are lawful but it doesn’t answer the question as to whether it was negligent,” he said.
He said the defendant could have chosen a different location to plant his GM crops, as well as different weed control tools and harvest methods.
It was also noted in the court that both parties had agreed on a timetable for the trial whereby the plaintiff would finish presenting early evidence by Friday and the defence by Wednesday next week.
Monday 10/2: All eyes will be on WA's Supreme Court today as the world's first genetically modified contamination trial starts.
The long-awaited trial of Kojonup farmers Steve Marsh v Michael Baxter for alleged contamination by genetically modified (GM) canola was due to start 10.30am.
Mr Marsh is seeking financial damages - for an amount yet to be disclosed - after about 70 per cent of his 478 hectare farm was decertified, after being allegedly contaminated by swathed GM canola material in November 2010.
He’s also seeking a permanent injunction to stop his neighbour Mr Baxter growing GM canola in future.
At the time the alleged contamination occurred, Mr Marsh’s property was certified organic by the National Association for Sustainable Agriculture Australia (NASAA) which has a zero tolerance for GM crops.
Slater and Gordon lawyers are representing Mr Marsh pro bono, believing the case has broad public interest, while Mr Baxter’s solicitors are Bradley Bayly Legal.
Mr Marsh has also gained strong public backing from other interest groups such as the Safe Food Foundation.
A Mandurah organic food store owner has also thrown their support behind Mr Marsh by holding a fundraiser to contribute towards his legal costs.
The civil trial won’t be heard before a jury and is likely to run for two to three weeks with evidence presented from both sides and about 20 expert witnesses called to testify.
A decision is not expected to be made when the trial period ends - it’s likely that Justice Kenneth James Martin will hand down a decision in April or May.
Slater and Gordon's Commercial and Project Litigation lawyer Mark Walter said the trial could have implications beyond the organic industry and could impact the conventional farming industry as well as consumers.
"As far as we know, this is the first court case of its type anywhere in the world," Mr Walter said.
