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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.' | |
