Can a seed developer be liable for the spread of its seeds where they are not desired?
This question was not before the court in Monsanto vs. Schmeiser. However, it is a question being raised by some farmers and opponents of genetically modified plants.
They argue that the voluntary spread of such seeds interferes with other crops and constitutes nuisance and trespass.
Nuisance occurs when one’s enjoyment of her land is interfered with by activities occurring on neighbouring property. Things like smoke, odours, noise, dust and spray drift have all been determined to be nuisances. Some farmers allege that the voluntary spread of GM plants is interfering with their ability to grow other crops, especially organic ones.
A legal finding of nuisance raises difficult questions: is the nuisance the result of the seed developer’s activities, or because the neighbouring farmer planted the GM variety?
Provincial legislation in most provinces prohibits nuisance claims against farm operators if the farmer is using normal agricultural practices. Given the extent of Roundup Ready canola use, it would be difficult to argue use of such canola is not a normal farming practice.
Arguments based on trespass are that the spread of seeds from one property to another amount to trespass.
Arguments based on negligence and product liability are tied together. Given the special properties of GM plants, opponents argue developers must warn farmers about the risk of the crop spreading and contaminating neighbouring fields. The claimants allege a developer has a responsibility to instruct purchasers of the seed how to prevent its spread to neighbouring fields.
Since the 1930s, courts have held that a manufacturer is liable for foreseeable damages arising from the use of its product. The fact that something is patented does not protect the manufacturer. In the case of GM varieties, the allegation is that the developers knew or ought to have known that their seeds are likely to spread and cause damage to someone.
Opponents would have to show that the GM seeds pose a danger, contaminate fields easier than other seeds or in some other way interfere with other crop production.
The defence to these claims will be that cross pollination and the voluntary spread of seeds happens with all crops and are a reality of farming. Opponents will have to show that GM crops pose a greater threat and are different in the contamination they cause than non-GM crops.
A number of Saskatchewan organic farmers are in the early stages of attempting a class action against the developers of GM canola and wheat, basing their case on the above arguments. They also allege that GM crops are pollutants under Saskatchewan’s environmental legislation and therefore, those in control of the seed have a liability to organic farmers.
Given the strong sentiments on both sides and the complexity of the legal issues, I suspect these matters will end up before the Supreme Court in the next five to 10 years.
There are other matters that arise from the Monsanto vs Schmeiser decision. Regarding any moral concerns about manipulating genes to obtain better yields or weed control, the court said, “it is open to Parliament to consider these concerns and amend the Patent Act should it find them persuasive.”
Finally, some commentators have noted the closeness of the 5-4 Supreme Court decision, suggesting that it is not conclusive.
However, in our system, all lower courts are bound by this decision. Second, the Supreme Court has to agree to hear a case, other than certain criminal cases, and is unlikely to agree to hear a case based on similar circumstances and in which it has rendered a decision. So the decision is the current law of Canada, in the same way that laws passed in Parliament are binding, even though not all parties or members of Parliament voted for the law.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.