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Seeds of conflict

(Friday, Nov. 14, 2003 -- CropChoice news) -- Judy Steed, Toronto Star, 11/10/03: Percy Schmeiser vs. Monsanto reaches Canada's Supreme Court early next year It's a 21st Century case study of technology versus tradition. Who will win?

Canola You're in business.

You make widgets that have yellow heads.

One day, a competitor who specializes in blue-headed widgets notices some blue-heads in your inventory. He accuses you of stealing - and sues you for patent infringement.

You say you don't know how the blue-heads got on your shelves, you don't want them, and worse - they seem to be "infecting" your own product.

He insists you pay a technology fee. You refuse. He sues you. The lower courts side with him, ruling that it doesn't matter how the blue-headed enhancements got there. He's got a patent and you don't. Furthermore, you are required to turn over all your widgets to him, plus 50 years' worth of R&D.

You appeal to the Supreme Court of Canada.

Welcome to the landmark case of Schmeiser vs. Monsanto Canada Inc., to be heard in Ottawa early next year by the nation's top court.

It's a classic Goliath versus David match-up - a U.S.-based biotech giant versus a lone Saskatchewan farmer - but in fact Percy Schmeiser, a 73-year-old, is not alone.

In the United States and Canada, Monsanto has already won many lawsuits and settlements from farmers, in similar cases relating to patent infringment.

This is a story about seeds - biotech seeds that have been genetically engineered to be resistant to herbicides or pests. Intended to be a boon to farmers, genetically modified organisms (GMOs) are viewed as saviours or devils, depending on your point of view.

Farmers who buy Monsanto's genetically modified seeds must sign technology agreements and agree not to save and use seeds from their genetically modified crops. But the technology, though engineered, patented and subject to controls, can be tricky to manage - it can blow and spread into fields where it wasn't intentionally planted.

Schmeiser, of Bruno, Sask., a town of 640 people 90 kilometres east of Saskatoon, was a conventional farmer and a "seed saver."

He planted his own canola, selected and crossbred over decades to thrive in the particular conditions of his family farm. In the age-old tradition of farmers, Schmeiser exchanged seeds with others, shared plant knowledge and contributed to biodiversity.

"He never took out a patent on the seeds he developed," wrote Stuart Laidlaw, author of Secret Ingredients: The Brave New World of Industrial Farming, a recent, critical account of modern farming practices, "but considered them his, nonetheless." (Laidlaw is a member of the Star's editorial board.)

The trouble began for Schmeiser when Monsanto's Roundup Ready canola appeared in his fields.

The crop is now widely grown in Western Canada. The name, "Roundup ready," refers to the fact the variety has been genetically modified to be resistant to glyphosate, the active chemical in Roundup, Monsanto's best-selling herbicide. Roundup kills every green plant it touches - except RR canola or Monsanto's other genetically modified products, such as soybeans. Thus farmers can spray and kill weeds without killing their crop.

According to the factum Schmeiser has filed with the Supreme Court, he employed chemical herbicides "as little as possible." He did use it them "burn off" fields before planting. And he was paid by the local power company to spray Roundup along power lines.

But Schmeiser did not spray Roundup "in crop" to kill weeds, because it would have killed his heritage variety - his own seeds, that he'd saved, replanted, and developed.

In the summer of 1997, Schmeiser's factum states, he noticed some canola plants - "volunteers," as they are called - survived his spraying along power lines.

Curious, he conducted "a spray test" with Roundup on about three acres of his crop. Roughly 60 per cent of the plants survived, growing in clumps, thicker near the road.

The next the spring, as usual, Schmeiser planted his collected canola seeds.

Monsanto came calling. The company maintains investigative staff to check out farmers' fields for evidence of its genetically modified seeds being used illegally. If such crops are found and the farmer hasn't signed a technology use agreement (TUA) and paid the fee, Monsanto seeks to protect its patent.

Since the introduction of Roundup Ready canola in 1995, Monsanto has had "seven to 10 cases a year where a farmer violated the patent," according to Monsanto Canada spokesperson Trish Jordan. "In most cases," when Monsanto confronted them and/or filed statements of claim, "they settled out of court."

By the company's account, the only person they haven't been able to settle with in Canada is Percy Schmeiser.

The case went to a Saskatoon federal court in June 2000.

Schmeiser's defence was that he collected his seeds as he always did, he did not segregate them and did not spray Roundup. The gene in Roundup Ready canola only functions if the plant is sprayed with Roundup, which Schmeiser says he did not do.

A pillar of community, he served as mayor of Bruno and councillor for more than 25 years; he was a Liberal member of the Saskatchewan Legislature in the 1960s and 1970s.

But Schmeiser lost the case.

Judge Andrew MacKay "ruled that it did not matter how the patented genes got into the field, all that mattered was that they were there and that the crop was known or ought to have been known by Mr. Schmeiser to be tolerant to Roundup," Laidlaw wrote in his account of the case.

Schmeiser appealed, and in May 2002, lost again.

Reached on his cellphone as he tromped across a field on his farm, Schmeiser watched a flock of snow geese land in a just-harvested wheat field - he no longer grows canola - and talked about the court battles, and constant fund-raising, that have consumed his life for the last five years.

"If you can patent a plant, what about birds, bees and animals - and ultimately humans?" he said. "Where does it stop?"

The Supreme Court hearing, expected to begin in January, is being closely watched around the world. Various estimates suggest there are hundreds of similar lawsuits pending elsewhere. Other nations are not bound to what Canada's Supreme Court decides. But its interpretation of events, and the rationales given in its decision, will be read very carefully.

Interestingly, "There was no finding that Mr. Schmeiser had any part to play in originally causing Roundup Ready plants to appear on his land; there was no finding that he segregated seed from such plants ... (or) that he exploited or took advantage of the Roundup Ready gene," says his factum to the Supreme Court.

"Yet the Trial Court concluded that Mr. Schmeiser was an infringer and awarded his entire crop to Monsanto."

As well, Schmeiser was ordered to pay $153,000 to Monsanto for court costs, and $19,832 "which represents his company's profits from the sale of his 1998 canola crop," according to Monsanto's Jordan.

The Harvard mouse case, in which the Supreme Court of Canada ruled last December that Harvard Medical School cannot patent in Canada a genetically altered mouse that was patented in the United States, is one reason Schmeiser vs. Monsanto is being watched globally.

Canada is known for acting independently, and having one of the strongest food-safety and seed registration systems in the world - which helps ensure worldwide demand for its high-quality wheat and grains, especially in Europe and Asia.

The hearing will also be watched because it will have to reckon with profound, interconnected issues:

Can living organisms - seeds, plants, genes, human organs - be owned and protected by corporate patents on intellectual property?

Can genetically-modified traits "invade" noxious weeds that then become resistant to weed killers?

Can farmers' right to grow conventional or organic crops be protected? Can farmers keep the ancient right to save their own seeds?

Who owns "life?"

Monsanto's perspective is clear.

The venerable U.S.-based firm - founded in St. Louis, Mo., in 1901, built on saccharin, caffeine and aspirin, expanding into rubber, uranium, acrylic fibres, nylon and plastics - has refocused and bet the business on biotechnology, agriculture and genetically modified seeds.

"We are a business," says Monsanto's Jordan. "It's critically important to us to protect our intellectual property. Patenting allows for continued investment and innovation. People have to be rewarded for innovation."

Monsanto continually tracks down illegal users of its genetically modified seeds. "If we have evidence to show (a farmer) is violating the patent, we file a statement of claim," Jordan says. The money from these out-of-court settlements "goes into charities," not corporate revenues. Some U.S. farmers have complained about Monsanto's "intrusive" and "heavy-handed" tactics, according to a recent report in the New York Times.

Yet Monsanto believes it's doing good for the world and for farmers by engineering crops, such as cotton, corn, soybeans, canola and (soon) wheat, to be pest resistant and/or herbicide tolerant, enabling farmers to reduce the amount of pesticides and/or herbicides they use. And enabling Monsanto to offer a complete system with seeds genetically modified to work with Monsanto's own herbicides and pesticides.

And it is true that farmers have, for the most part, embraced the products.

Canola farmers in Western Canada have not been deterred by the technology fee - $15 an acre for canola, amounting to $4,500 per 3,000 acre (1,200 hectare) farm, every year - on top of the cost of buying the genetically modified seeds every year.

"Farmers like Roundup Ready canola," says Ernie Doerksen, general manager of the Canadian Canola Growers Association "Revenues are higher due to higher yields, less dockage (weeds), lower herbicide costs and lower tillage costs." (This is disputed by other sources, including Schmeiser and the European Union.)

The association represents 60,000 canola farmers across the Canadian prairies, where most of the world's canola is grown (4.5 million hectares planted last year). "Ninety percent of this year's production is from 'plants with novel traits,' " says the association's policy analyst, Rick White.

Modern canola, developed in western Canada in the 1970s, is a wonder plant, producing one of the healthiest edible oils in the world, with the lowest level of saturated fat, only 7 per cent, compared to 15 per cent in olive oil.

Since genetically modified canola was introduced in 1995, "farmers have voted with their wallets," White says. As well, genetically modified canola "has been tested by the regulatory approval process, by Health Canada and the Canadian Food Inspection Agency and authorized for release. They were satisfied it was safe, and I trust the science. I can't say enough good about it."

Yet Schmeiser's objection to the crop - that it contaminates his own - is shared by the Saskatchewan Organic Directorate (SOD), comprised of 1,100 organic farmers. SOD has launched a class action lawsuit "to get compensation for the loss of organic canola as a crop and to get an injunction to stop GE wheat," says the group's president, Arnold Taylor.

In fact, "We can't grow certified organic canola anymore," he said. "Even pedigreed seed stock is contaminated with Monsanto's GE Roundup Ready or Bayer's GE Liberty Link canola."

Third-party studies support this point.

A scientific team from the University of Manitoba's department of plant science, studying the "pending approval of the unconfined release of Roundup Ready wheat in North America," noted that "GM traits (transgenes) have become ubiquitous in canola crops in Canada." In other words, they have spread all over; this has resulted in added costs for "non-adopters" to get rid of unwanted genetically modified plants.

Genetically modified Canadian canola seed has travelled abroad - and been unwelcome.

A furor erupted in Europe three years ago over the discovery that imported Canadian canola seeds - sown in Britain, Sweden, France and Germany and sold as a genetically-modified free product for foods ranging from ice cream to chocolate - had been contaminated by Roundup Ready canola. Apparently cross-pollination had occurred, back home in Canada.

Europe has banned genetically modified foods and crops out of concern for their long-term impact on the environment and human health.

Schmeiser has become a folk hero in the global movement opposed to genetically modified organisms, and speaks frequently to groups in the U.S., Latin America, Africa and Europe - government agencies, NGOs, farmers and activists - who fear the long-term consequences of spreading gene traits. When interviewed for this story, he was preparing for yet another trip, this time across the Atlantic, to address European audiences, including a food safety conference in Berlin.

"I never charge for a presentation," he says. "My expenses are paid by the organization that brings me in, and people make donations" to his legal defence fund, which is supported by his Web site. To date, his legal costs exceed $200,000.

The battle, he says, is bigger than just one farmer. "If the biotech companies win this, they get control of the world's food crops. Farmers can no longer collect seeds. They have to 'license technology.' They become serfs on the land. It's back to feudal times."

He maintains that, in practice, GM crops are not so great. "Farming the Monsanto way," in his opinion, "is bad farming practice. You have to let the weeds germinate and grow to 4-5 inches - robbing your crop of fertilizers and moisture - before you spray (with Roundup).

"In the prairies, dryland farming, we have to conserve every bit of moisture we can get from the snow.

"Monsanto said GM crops would be bigger yielders, using less chemicals and more nutritious. We've found the opposite: they give poorer yields, need more chemicals, and the quality's poorer."

Others will surely dispute this.

But in any event, Schmeiser's canola seeds were contaminated and Monsanto got them.

"So Monsanto can sue any farmer and take his seeds and make him destroy his crop," if the genetically modified trait is found, says Schmeiser.

"There is no such thing as a safe distance (from GM crops)."

Resisting has brought his family stress, yet strengthened his resolve.

"My wife and I made a commitment we would not give up. We lost 50 years of R&D. I'm a seed developer. It hurts. Farmers should never lose the right to their own seeds. Our ancestors came over here to be free. I'm a third-generation farmer. If my grandfather and father were alive today, they'd want me to stand up for the rights of farmers."

Monsanto, Schmeiser says, was able to put a lien against his property, including his house, "so I couldn't borrow any money. They didn't want me to be able to fight them. If it wasn't for the world community, I couldn't have proceeded."

"If I lose, I'm looking at half a million dollars.There's hundreds of farmers in North America that Monsanto has lawsuits against. They're waiting for the outcome of my case."

"Every morning you wake up afraid you're going to lose everything. It's that whole fear culture, a reign of terror they've established on the prairies. If you settle, you have to sign a non-disclosure agreement. You can't say anything about what Monsanto's done to you. And you have to let their gene police come onto your fields for three years, into your granaries, with or without your permission."

Keith Downey is the father of canola. A plant breeder who headed Agriculture Canada's Saskatoon Research Centre for decades, he led the transformation of rapeseed to canola, which is now "on the heels of King Wheat as the number one crop in the west," says Agriculture Canada.

Downey approves of "herbicide tolerant crops" as "an effective way of growing canola in a sustainable way - low tillage, direct seeding into stubble, good for soil conservation."

Yet he understands European "safety concerns, on the scientific level, about the possibility of weeds becoming tolerant to herbicides, about GM traits crossing to other species."

And, he adds, "we do have concerns about GM wheat, on the scientific level."

Professor E. Ann Clark of the University of Guelph has a PhD in crop production and plant physiology, and has filed an affadavit on Schmeiser's behalf. She regards the government's sanctioning of genetically modified crops "primarily as a service to industry, with at most a cursory consideration of the health and safety of the public and the environment."

Canola seeds spread easily, she says. "The seed is very small, round and smooth, it travels readily in the wind...it can blow over adjoining fields ... (or) be dispersed by haul trucks." Canola pollen can move long distances "via insect pollinators."

"Pollen has always moved - it did not start with genetic modification. But this is the first time we've called it genetic pollution, because the genes that move are proprietary."

She illustrates "the impossibility of reproductive isolation - both on-farm and post-harvest" by citing a case of contamination "within Monsanto's own Roundup ready 'Quest' canola. Seed with an unapproved Roundup ready gene was found to contaminate bags with the approved gene, obliging the urgent recall of thousands of bags of seed, some of which was already on-farm and being sown. This is just the latest example of cross contamination within the seed trade itself ... How then can farmers be held accountable for something which the seed trade itself cannot do?"

(Monsanto said it wasn't a safety issue, but a trade issue. The unapproved gene was not then approved in Japan.)

The National Farmers Union is on Schmeiser's side. Its vice president, Terry Boehm, says the key point is that "Percy Schmeiser didn't use the utility of that gene. We feel the judges ruled on a far too narrow basis of patent law. That's why we've requested intervener status before the Supreme Court."

That's where the major players in the case will have their final say.

On Schmeiser's side, the Supreme Court has granted intervener status to the National Farmers Union, the Attorney General of Ontario (concerned about the impact of patenting life forms on public health care), the Council of Canadians, the Sierra Club of Canada, the Washington-based International Centre for Technology Assessment, the Delhi-based Research Foundation for Science, Technology and Ecology, and the Action Group on Erosion, Technology and Concentration.

They argue that the Patent Act does not permit the patenting of higher life forms; that farmers' right to save seeds is vital to biodiversity; that GM plants will produce unforeseeable impacts on the ecosystem.

On Monsanto's side, the Supreme Court will hear from the Canadian Canola Growers Association, Ag-West Biotech Inc. (set up by the province of Saskatchewan to support agricultural biotechnology), the Canadian Seed Trade Association and BIOTECanada, an industry group.

"It's important that the Supreme Court hears how many farmers have adopted this technology and benefited from it and rely on it," says Ernie Doersken of the Canadian Canola Growers.

"We feel if patents are not granted, if developers can't patent their intellectual property, they'd stop doing research here, stop registering their varieties and Canadian farmers would be less competitive."

Yet GMOs are not an automatic sell. Genetically modified potatoes were pulled off the market in 1999, Monsanto's Jordan says, "when McCain Foods decided it didn't want them and markets dried up."

And Monsanto is facing huge opposition to its plan to introduce genetically modified wheat.

Japan, the United States' No. 1 export market for wheat, has warned that "if there is GM wheat, there is some potential for the collapse of the U.S. wheat market in Japan," said the Asian nation's Flour Millers Association.

The Canadian Wheat Marketing Board has said that 80 per cent of its customers would reject genetically modified Canadian wheat.

Elsewhere in the world, problems pile up. Farmers in Brazil are said to be growing Roundup Ready soybeans illegally and refusing to pay the tech fee. In the United States, Monsanto is facing an anti-trust case that accuses the company and "other big agricultural seed giants of conspiring to control the world's market in genetically modified crops," the New York Times reported in September.

As well, corporate revenues are declining - partly because Roundup's patent protection has expired - and Monsanto is laying off about 9 per cent of its 13,200 workforce.

Global revenues are down from $5.4 billion in 2001 to $4.6 billion last year. (Roundup's sales fell from $2.4 billion in 2001 to $1.8 billion in 2002.)

Giant though the firm is, Monsanto doesn't win every battle. Its bovine growth hormone, known as rBST, was rejected by Health Canada after a nine-year effort, though it was approved in the U.S.

The Canadian Veterinary Medical Association study - confirmed by government scientists - showed that "cows treated with the hormone are up to 50 per cent more likely to become lame and have increased risks of reproductive problems and mastitis - an udder infection," the Star reported.

When Oakhurst Dairy Inc. of Portland, Me., stated on its milk cartons, "no artificial growth hormones," Monsanto sued.

Oakhurst is fighting back. Stanley Bennett II, president of the family-owned firm, told a reporter that "we have the right to let people know what is and is not in our milk."

Monsanto accuses Oakhurst of "carrying labels that seem to disparage the use of artificial growth hormones in cows."

Bennett told the Star that he's committed to fighting Monsanto on "pure freedom of speech" grounds.

For Monsanto, the battle with Schmeiser boils down to a simple issue. "Mr. Schmeiser profited from a technology he didn't pay to use," Jordan says. "He violated our patent. He did something wrong and he's required to pay the remedies provided by the court.

"We tried to settle repeatedly, before trial and after trial. We could have avoided a lot of costly court cases."

Schmeiser is not going to back down. The day we talked, he and his wife were celebrating their 51st wedding anniversary. "Someone asked me, would you do the same thing over again. My wife and I said yes. Not because we want to be heroes. We just don't want to see the land, air, food and water full of poisons.

"We're going to go down fighting for the rights of farmers, we want to leave a legacy of safe food and good food."

The National Farmers' Union's Terry Boehm recalls that "in the past, we were told that asbestos was safe, then DDT and PCBs. Now we know the harm they caused. The public has every right to be skeptical about GMOs. We do not know their long-term impact. We're being used as guinea pigs."

'It's critically important to us to protect our intellectual property. Patenting allows for continued investment and innovation. People have to be rewarded for innovation.'

'We feel if patents are not granted, if developers can't patent their intellectual property, they'd stop doing research here, stop registering their varieties and Canadian farmers would be less competitive.'