| To farmers considering or growing GM crops,
Although names were not submitted with locations growing GM canola crops, I have reason to believe you are or may be planting GM canola on your property this year. Accordingly, I would like to advise you to seek independent legal advise considering the legal implications of possible economic loss to West Australian farmers as a result of your decision.
After extensive research, the Network of Concerned Farmers has lobbied to prevent non-GM farmers being liable for any economic loss caused by GM crops by the introduction of strict liability with the intention the GM patent owner would compensate farmers for losses their product causes.
Unfortunately this has failed and both Federal and State governments have recommended that common law is sufficient to deal with GM liability. Under common law, the non-GM farmer can take legal action to recover losses against the GM farmer under Tort law, which is the same law as spray drift. The difference however is that insurance companies will not cover GM economic loss as it is considered inevitability rather than a risk. While this is not a desirable outcome, it is the only defence we have, as we should not be expected to accept economic loss from a product we do not want.
On behalf of growers wishing to remain GM-free, I wish to notify you of our intention for our properties and produce to remain GM-free and of the risk that the planting of any GM crops on your property poses to our properties. Accordingly, we are also notifying you that we will not accept the burden of any damage, or loss, which may be consequent on any decision by you to grow GM crops. Should you wish to grow GM canola or other GM crops, you must ensure none of your GM crop or residue escapes and contaminates our land holdings or otherwise causes damage or loss.
Therefore we will be seeking legal recourse if GM crops result in any costs, damage or economic loss including, but not limited to:
- Testing costs or additional contractual requirements required due to market perception that your choice to grow GM crops will cause contamination of our crops and/or produce.
- Segregation costs over and above what is currently required.
- Loss of market access or market premium due to detection of GM in our produce or an inability to prove a GM-free status. (ie. Currently WA’s key market is Europe, which is GM sensitive, and Australia’s key market is domestic which dominantly requests GM-free produce.)
- Loss of organic certification if applicable.
- New control measures required to remove canola from grain sold, including any grading at outturn.
- Any payments due or deducted as end-point royalty or user fees from GM companies for unintentional GM use.
- Any fines associated with any adventitious presence of GM crops.
- Any costs associated with destroying unauthorised GM crops on our property.
- Spray drift from post-emergent glyphosate or glufosinate ammonium.
- All associated and consequent costs and all legal costs.
We emphasise that this list is not closed, and the nature of GM technology means that the scope of potential damage and downstream effects may be far-reaching and significant. We accordingly are putting you on notice so you are aware that these and other scenarios and losses are fully foreseeable and not remote from any action taken by you to plant GM seeds.
While it is our preferred option to ensure the company selling you GM seeds is liable for any economic, environmental or health losses, we regret to inform you that as a GM grower, you will be held jointly and severally liable for any loss we experience. We suggest that you ensure that your insurance covers you for any future claims made against you.
Please be advised that following crop management plans or coexistence principles will not provide sufficient mitigation or afford you an adequate legal defence as these plans are based on an assumption that non-GM growers will accept contamination and unrealistic impositions. Management impositions NOT accepted include, but are not limited to:
- A "tolerance level" of GM contamination which will not be accepted in either seed or produce for market as these limits are set on labelling requirements for GM if applicable, not for non-GM products. As GM canola oil escapes a label for GM in Australia, to give consumers the promised choice, a "GM-free" or "Non-GM" label will be required. Any grower whose produce bears a "GM-free" label can be in breach of the Trade Practices Act 1974 if any amount of GM is detected in the product, even if unintentional. (eg. Action has been taken successfully against a company for false and misleading labelling when 0.008% GM was detected in both "GM-free" and "Non-GM" labelled products.)
- Acceptance of liability for contamination and recall as stated in the CBH delivery conditions.
- To market produce co-mingled with GM produce if there is any sign of market rejection for GM. Any loss of markets or premiums due to GM contamination will be recovered, including losses from delays in ability to market GM contaminated produce compared to non-GM produce.
- Providing buffer zones on non-GM properties where produce derived from these buffer zones are not to be marketed as "GM-free" and to be kept separate from "GM-free" produce.
- Responsibility for notification to the GM companies if unwanted GM plants are found on our property, following recommendations for volunteer control at our expense and allowing the GM companies access to assess if contamination was suitably controlled.
- Any fines, fees or end point royalties applicable for growing GM contaminated crops if contamination is not controlled.
- Sowing crops any differently to what is current best management practise (eg sowing crops off-season to avoid coinciding flowering times).
- Application of additional chemicals or tillage to control unwanted GM plants on our property.
- Routinely testing for GM if required.
- Cleaning out machinery more than is normally required.
- Compulsory quality assurance or identity preservation requirements.
- Loss of ability to save crop seed for replanting.
As a precaution, we may retain seed samples pre seeding and post harvest and will collect evidence of economic loss we have experienced. Legal action will commence when loss is considered substantial.
Thank you. |
