Q: My field of wheat recently had some volunteer canola. I sprayed herbicide but the canola survived. Who is responsible for removing these genetically modified plants from my land?
A: The law in this area is uncertain. Legislation has not kept up with scientific developments, and is ill-equipped to deal with many issues in modern science and agriculture. However, there is some guidance to be found.
In the current legal landscape, you are likely responsible for your own fields. This type of volunteer will likely be treated like any other weed. Almost every plant produces volunteers, or is capable of doing so.
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Plants with novel traits (PNTs) that have been genetically modified are governed by federal legislation. Companies producing such plants must go through a long and rigorous testing process. At the end of that process, the government may approve or disapprove the plant. If approved, the company is given an official decision document approving the PNT “for unconfined release into the environment.” This means there is no restriction on where or how this plant is grown.
This phrase has received a small bit of consideration from the courts. In a Saskatchewan small claims case, the judge concluded this meant that the seed company had no duty of care to ensure its product did not end up on on someone’s land. Suits by organic farmers and others have, thus far, gotten nowhere. While these people have tried to assert that ownership of the gene means responsibility for all the ultimate offspring plants, courts have so far not found this position to have merit. The PNT is seen as a weed, like any other weed. A weed is just a plant growing where it is not wanted.
It would therefore appear that as far as the company producing the PNT is concerned, there is no legal liability for volunteers. Once the seed for that PNT is sold to a commercial seller or to a producer, it would appear that in Canada the liability of the company producing the PNT is at an end.
I note that many such companies have a voluntary assistance program. Even though they are not legally obligated to help you with the problem, many do so on a strictly volunteer basis. Their position is they wish to be partners in agriculture and therefore try to help producers, sometimes by removing the plants or by providing financial assistance to do so. The company will first do testing to see if the plant is one of its varieties. If you have a weed problem and the plants are PNTs, check with the companies that created these plants as they will often be of significant help to you even though they are not legally obliged to do so.
There is the question of pursuing a neighbour for these plants turning up on your land. Often, farmers are reluctant to sue a neighbour, for obvious reasons. As well, to my knowledge such a suit has not proceeded and this concept has not been legally tested.
It may be possible to sue in nuisance. You would have to establish that your neighbour grew the PNT in question, which year it was grown and that the volunteers on your land likely came from his. This is not always easy. Again, the preferable procedure might be to discuss this with your neighbour in a reasonable fashion. It may be that the two of you can agree on some shelterbelts or buffer zones to be maintained along the borders of your farms.
This is a difficult and complex issue that is likely to receive further attention from the courts in the future.
Rick Danyliuk is a practising lawyer in Saskatoon with McDougall Gauley LLP. He also has experience in 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.
