AGRICULTURE: Canada’s Top Court Backs Monsanto Against Farmer

By Stephen Leahy Reprint | | Print |

Stephen Leahy

BROOKLIN, Canada, May 21 2004 (IPS) - Canada’s top court ruled against farmer Percy Schmeiser on Friday, upholding agri-business giant Monsanto’s patent on genetically modified (GM) canola, a decision observers say will have implications for agriculture worldwide.

Canada’s top court ruled against farmer Percy Schmeiser on Friday, upholding agri-business giant Monsanto’s patent on genetically modified (GM) canola, a decision observers say will have implications for agriculture worldwide.

However, the Supreme Court of Canada also ruled Schmeiser does not have to pay Monsanto’s court costs of more than 200,000 dollars (146,000 U.S. dollars) and can keep 20,000 dollars in profits from his 1997 crop that sparked the six-year legal battle.

"I can save my home and my farm," Schmeiser said.

"My battle is over but not the battle in my heart. A farmer should never lose his right to use (his) seeds from year to year," the 73-year-old added in a press conference.

In upholding Monsanto’s patent over the process that created the plant the court, in a tight 5-4 decision, in essence granted the company control over the plant. At the same time the majority decision said plants are higher life forms and therefore cannot be patented, explained Schmeiser’s lawyer, Terry Zakreski.

"These are the same set of judges who said in 2002 that higher life forms can’t be patented," she told IPS.

That decision concerned a laboratory mouse used in cancer research, known as the Harvard Mouse.

The very unusual fact that Schmeiser did not have to pay Monsanto’s court costs and that it was a 5-4 decision means there will be more litigation in future, Clark predicted.

"It’s about as a weak a victory for Monsanto as you could get."

Nonetheless it is a serious loss, because not only did the court not recognise the fundamental right of farmers to save seeds, "it’s allowing seeds to become a tool of oppression," said Terry Boehm of Canada’s National Farmers Union (NFU).

Schmeiser has steadfastly maintained that his fields were contaminated by pollen from a neighbour’s GM canola (oilseed rape) fields and by seeds that blew off trucks on their way to a nearby processing plant.

Monsanto maintains that Schmeiser knowingly infringed on their patents.

Lower courts and now Canada’s highest court have ruled that no matter how the plants got there, Schmeiser infringed on Monsanto’s legal rights when he harvested and sold his crop.

"We conclude that the trial judge and Court of Appeal were correct in concluding that the appellants ‘used’ Monsanto’s patented gene and cell and hence infringed the Patent Act," said Friday’s judgement.

All crop seeds are the result of thousands of years of seed saving and selection by farmers around the world, said Boehm. Allowing a de facto patent, "usurps the entire history of that seed".

One positive outcome of the decision, he added, is the court recognised that Monsanto has to take responsibility for any genetic pollution.

With much of the two-million canola hectares in Canada planted with GM varieties from Monsanto and other companies, canola plants with patented genetics can be found growing wild in farmers fields, along roadsides, in schoolyards and parks.

A Monsanto official was predictably happy with the decision.

"The Supreme Court has set a world standard in intellectual property protection, and this ruling maintains Canada as an attractive investment opportunity," Executive Vice-President Carl Casale said in a statement.

The ruling will affect farmers worldwide, says one expert.

"This will come as shocking news to indigenous farmers in Mexico, whose maize fields have been contaminated with DNA from genetically modified plants, and to farmers everywhere who are fighting to prevent genetically modified organisms from trespassing in their fields," said Silvia Ribeiro, from the Mexico office of ETC Group, an international civil society organisation based in Canada.

According to Ribeiro, advertisements in Chiapas, Mexico are already warning farmers that if they are found using GM seed illegally, they risk fines and even prison.

"In Monsanto’s world, we’re all criminals unless a court rules otherwise," she added in a statement.

"It’s a bit strange that if your land is contaminated that the legal onus is on you to report it," agrees Clark.

In order to not infringe on Monsanto’s patent, according to ETC Group, farmers who suspect that GM canola is on their property must notify the company in writing.

Accordingly, ETC Group and partner organisations around the world are organising a campaign to have people send Monsanto Chief Executive Officer Hugh Grant a letter advising him the company’s seeds may be squatting on their property.

According to Clark, every farm in western Canada probably contains GM canola. But of the three agri-business companies selling canola in Canada, Monsanto is the only one that protects its patents this way, she added.

It is well past time for the Canadian government to deal with the issue, said Nadège Adam of the Council of Canadians, a non-governmental organisation (NGO) that has supported Schmeiser.

The patent laws need to be amended to ban patents of life forms because there will be further abuses, Adam told Friday’s news conference.

At the very least, Canada should amend laws to allow a "farmers exemption" for the re-use of seed and an "innocent bystander" provision so that you cannot be charged with infringing on a patent unless you use or benefit from it, said Zakreski.

"Monsanto’s victory will be short-lived," predicts Adam. "The backlash against GM crops is getting stronger."

"This ruling will unite farmers and others opposed to corporate control of food and life, and galvanise civil society to take the issue out of the courts and back to politicians," agreed ETC Group’s Executive Director Pat Mooney, in a statement.

Although there is much hype about the success and potential of the biotech industry, all is not well. According to a recent report in the ‘Wall Street Journal’, publicly traded biotechnology companies in the United States lost 41 billion dollars from 1990 to 2003.

Last week, Monsanto said it would stop development of its Roundup Ready GM wheat, citing lack of a market for the crop.

"By not caving into the extraordinary pressure from Monsanto on this issue, Percy Schmeiser and his wife Louise have changed the course of history," says Clark.