Benefits of UPOV 91 come with price tag

The federal government plans to pass legislation by August that will strengthen plant breeders’ rights so that Canada will finally conform to the international UPOV 91 treaty. 

The National Farmers Union continues to raise alarm bells over the change, and its fear mongering resonates with those who like to view farmers as the victims of big business.

Most of the controversy surrounds farmers’ ability to save their own seed, but in truth many farmers are not fully aware of how the current rules work, let alone what the changes will mean.

Most varieties of wheat, durum, barley, oats and flax are currently protected by plant breeders’ rights, meaning you can save seed for your own use but can’t sell or trade it to another producer. Just check the seed variety guide.

Regulators typically go after only those making significant sales of protected varieties, but it’s still illegal on a smaller scale. 

Under the updated legislation, the ability to save and use your own seed is specifically granted under farmer’s privilege, but the naysayers claim that just calling it a privilege shows it’s something that could be removed.


The regulators say they wrestled with the term privilege and considered using farmers’ exclusion instead. However, what you call it is less important than the practical ramifications.

There are many instances where farmers give up the right to save their own seed. In many closed loop production systems, there’s a requirement for producers to use certified seed and sell all of the production back to the company. No seed can be retained. 

Farmers judge the merit of these contracts and don’t get hung up on saving seed if the overall opportunity is to their liking.

With canola, virtually no one is interested in saving their own seed. With hybrid seed, many of the benefits are lost in subsequent generations. Besides, the seed treatments used for canola are not approved for on-farm application. 

There are lots of complaints about the price of canola seed, but the crop dominates Western Canada’s acreage because it typically generates some of the best returns. 


With cereals, we’re used to most of the varieties coming from public breeding programs. Producers buy certified seed when they want to try a new variety, but after that they usually save their own seed from one year to the next. The federal government is withdrawing from variety development on many of the major crops. Private companies are investing to fill the void, and they say the improvements to breeders’ rights will increase investment. 

Will the new legislation actually lessen the ability of producers to save their own seed on the crops where the practice remains prevalent? The legislation by itself won’t, but subsequent regulations could eventually curtail farmers’ privilege.

Officials promise this would happen only after extensive consultation, but it’s certainly possible in the years ahead. This also opens the door to end point royalties on farmer saved seed. More varieties that benefit farmers will be available as we move to UPOV 91 and beyond, but farmers will be paying for them. There’s no free lunch.

Canada is one of the last developed nations to move to UPOV 91 standards. It’s been talked about since the original legislation died on the order paper in 1999. While the modernization is long overdue, as farmers we’ll also need to modernize our attitude. 

The private sector won’t invest without a way to recoup their money.


Kevin Hursh is an agricultural journalist, consultant and farmer. He can be reached by e-mail at

  • Dayton

    Does anyone else see where this is going? Saving seed is going to get very complicated from now into the future. If you happen to mix up variety a you will now be liable to pay royaltys on each. Watch seed costs rise now and into the future.