Court rules organic farmer can't impose special responsibilities on neighbours, can't stop neighbour using GM cropping provided standard duty of care exercised

Content supplied by Federated Farmers

A Western Australian Court of Appeal ruling on genetically modified (GM) crop liability has been welcomed by Federated Farmers as a landmark decision which clearly sets out fundamental responsibilities of good neighbours that apply equally well in New Zealand and around the farming world.

In 2014, organic farmer Steve Marsh sued his neighbour, GM farmer Michael Baxter, for damages after sheaves of GM canola blew onto his property, resulting in his partial decertification as an organic farmer.  Mr Marsh also sought a permanent injunction preventing his neighbour from growing GM crops.

At the time the case went to court, anti-GM groups, confident of a win, hailed it as potentially precedent setting.

However, in its 2014 judgement, the Western Australian Supreme Court found in favour of the GM farmer.  Baxter, it said, had exercised his duty of care as a neighbour by farming his crops according to standard practice. The case was appealed by Marsh.

In its decision this month the Western Australian Court of Appeal ruled that the organic farmer was “entitled to enter into arrangements which had the effect that their land was being put to an abnormally sensitive use, but their neighbours [Baxter] 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.”

The court went on to say that “the appellants could not, by putting their land to an abnormally sensitive use, thereby 'unilaterally enlarge their own rights' and impose limitations on the operations of their neighbours to an extent greater than would otherwise be the case.”

Federated Farmers' President and Science spokesman Dr William Rolleston welcomed these findings.

“This is not about organic farming versus GM farming. What we can take from this Australian ruling is that all farmers, regardless of what they are farming and how they chose to do so, have a duty of care to make co-existence work and that this fundamentally relies on being good neighbours.”

“This is no different from current farming practices here in New Zealand, where neighbours grow similar crops for pure seed production. It is also a warning that if farmers enter into a particularly sensitive commercial arrangement such as organic farming they are responsible for maintaining the extra sensitive nature of their operation rather than imposing that responsibility on their neighbours.  We would expect that with an animal quarantine station, so we should also expect it with other activities such as organic farming.”

Dr Rolleston said Federated Farmers is writing to Organics New Zealand in order to open a dialogue to ensure that the lessons and guidance from this Australian case are considered in the setting of standards for the organics industry, and so that New Zealand’s hard working and diligent organic farmers understand their risks and responsibilities and are not unreasonably penalised.

It is also, he said, important to view genetic modification in the right context – something which would be helped by the ruling of the Western Australian Court of Appeal.

“Genetic modification has been used extensively around the world, to the benefit of farmers and the environment, without any incident of harm attributable to the GM aspects of the application,” said Dr Rolleston.

“Although no crops using GM are approved or grown here yet, this vitally important science is being used successfully in New Zealand. GM products such as food enzymes, medicines and animal feed are now commonplace, and a live vaccine against equine influenza has been approved for conditional release.”