A Saskatoon lawyer experienced in agriculture, intellectual property and biotechnology law said producers might have a right to sue for the damages caused by genetically modified wheat if it is released into the marketplace.
Craig Zawada said producers who don’t wish to grow GM wheat might be able to sue if GM wheat seeded by others contaminates their farms.
Zawada spoke to farmers who packed a meeting room in Saskatoon for a Canadian Wheat Board information seminar on the release of GM cereals.
No court has yet addressed the issue of who’s responsible for GM contamination so it’s unclear what the ultimate outcome could be. Zawada said the courts might look to precedents set in agricultural and non-agricultural industries.
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“Pesticide drift may be a starting point for some lawsuits, but genetic drift may not be a perfect fit here,” he said.
Under environmental law, judges may look at whether the product was appropriately used, he said.
“If standards are followed then it would be hard to show that an individual producer or a company was at fault,” he said.
“Tort will be the likely legal weapon of choice … courts hate to create new laws and there are a number of actions within this class that may apply,” he said.
Tort law refers to the legal process to settle a civil wrong done by one person or company to another, where no contract between the two exists.
Within tort law, areas that may apply to GM contamination of non-GM fields are nuisance, strict liability, trespass, negligence.
The right to use and enjoy land can form the basis for a nuisance claim if someone else interferes with that right.
“This will be in light of all circumstances and will be balanced against the public good,” he said.
If the government and a majority of the population see the use of GM crops as being significant to the public good, then nuisance claims may become difficult to use, he said.
Successful use of this class of action in agriculture has included aircraft disturbing livestock, odours from pig and mushroom farms, road dust and uncontrolled weeds.
“Statutory authorization, the Agricultural Operations Act of Saskatchewan, may play a role here,” said Zawada.
That law, which is similar to those in Alberta and Manitoba, allows farmers to operate unhindered from nuisance claims if they are following normally accepted practices.
Zawada said nuisance problems must also occur repeatedly or be an ongoing problem, which GM contamination “could well be.”
The source of the problem must also be proved and DNA origins may implicate the seed developers, as well as neighbouring farmers.
“It might be tough to prove that a specific neighbour is the source, but it would be easy to prove that the company that licensed the seed in the first place was responsible,” he said.
There is precedence that any use of land for non-natural or dangerous processes places a heavier burden on alternative users to prevent damage to surrounding landowners.
In the case of strict liability, losses must be intentional or negligent and reasonable care is not a defence.
Under strict liability, acts of God such as abnormal windstorms, acts of strangers or statutory authority can be used as a defence against a claim.
Agricultural precedents in this area include top dressing of manure on frozen ground and in some cases aerial spraying.
Trespass may apply to unwanted spreading of GM wheat because it places the responsibility of preventing something that a person owns or controls from entering the property of another.
“You don’t need to prove damages for trespass … but if you can’t show damages then you may win and be awarded a settlement of a dollar. You may get a warm feeling inside from this, but it won’t solve the problem,” said Zawada.
He said pollen drift from a GM crop to an organic, non-GM crop may be an example of this type of tort claim.
Negligence may apply to a claim if the user of product such a GM crop fails to meet a standard of care and should have foreseen a problem in cases where injury occurs.
In agriculture, this form of law has been used in the improper application of pesticide and selling hogs that are known to carry a disease without informing the buyer.
Zawada said legislators might decide if legal remedies are available for damages to farms that are marketing non-GM products.
“Provincial agricultural operations acts may be changed to specifically include GM plants and animals. Governments may set minimum standards for what is considered clean with a level of tolerance for some GM content,” he said.
Legislators look to public opinion, Zawada said, so they may not respond until pressured to do so.
“In this situation, waiting for a court to decide may be too late. Entire export markets could be lost before a court rules. Either way the costs (of identity preservation and market loss) will flow back to the farmer,” he said.
