The
Implications of the Schmeiser Decision
by E, Ann Clark, Plant Agriculture,
University of Guelph, Guelph, ON
eaclark@uoguelph.ca
The Crime of Percy Schmeiser
Let us first be clear what Saskatchewan farmer Percy Schmeiser was found guilty
of.
He was found guilty of a) having Monsanto genetics on his land, and b) not
advising Monsanto to come and fetch it.
He was not found guilty of brownbagging - obtaining the seed fraudulently.
Indeed, all such allegations were dropped at the actual hearing, due to lack
of evidence.
Regardless, in his 29 March 2001 decision(http://www.fct-cf.gc.ca
; click on decisions), Judge W. Andrew MacKay made it clear that how it got
there didn't matter anyway. The guilt was the same. Specifically, "Yet
the source of the Roundup resistant canola...is really not significant for
the resolution of the issue of infringement..."
It also didn't matter that Schmeiser did not benefit - at all - from the RR
seed. In order to derive any economic benefit from growing RR seed, you'd
either have to
1. sell it as seed, or
2. spray Roundup.
He did neither. He sold the crop as grain - not as seed, and he didn't spray
Roundup. He acknowledges spraying Roundup around his telephone poles - a standard
practice - which first alerted him in 1997 to the contamination in his field
because some of the plants didn't die. Then, in typical farmer fashion, he
got out his sprayer and made a couple of passes leading away from the road
to see how far the contamination reached - total sprayed area was 3 acres
out of the hundreds of acres sown in 1997. None of these points are disputed.
No one - including Monsanto - argued that Schmeiser actually benefited or
even intended to benefit [Footnote 1] - from growing a crop contaminated with
RR plants. But it didn't matter. He was guilty nonetheless, and fined $15/acre
x 1030 acres, plus the value of his crop $105,000, plus $25,000 for punitive
and exemplary damages.
Editor's note: Punitive damages are leveled when the perpetrator deliberately
sets about to do the crime, hardly the situation in Mr. Schmeiser's case.
We also lost the improved genetics resulting from his lifelong practice of
saving his own seed to produce his own tailor-made variety of canola, as the
crop was confiscated.
The harm that has been done to Percy and Louise Schmeiser, now in their 70s,
is grievous. But of even greater concern is how this incomprehensible decision
will affect all western Canadian farmers regardless of whether they even grow
canola, let alone GM canola.
The Problems with Canola
Canola is a relatively primitive crop, and as such, retains many of the characteristics
of a wild species. Unlike corn and wheat, which have been domesticated by over
10,000 generations of breeding,
*canola pods mature unevenly, obliging farmers to cut and place the crop in
windrows to allow the green seed to dry prior to combining;
*the dry pods also shatter upon maturity, dropping a fraction of the mature
seed to the ground;
*the seed retains dormancy, meaning that particularly under the reduced or
no-till conditions favored in the praries, the seed can remain dormant for
6-10 years, depending on the type of cultivar - Polish or Argentine; and
*the seed can germinate anytime in the Season - not just in the spring prior
to seeding.
Further, because the seed is very small, round, and smooth, it travels readily
in the wind. It is not uncommon for windrowed canola to be picked up and blown
over adjoining fields. Seed is known to be dispersed by transport trucks in
transit - either blown out the top if uncovered or falling off the exterior
if not filled tidily. Schmeiser's contaminated fields are to the east side
of a major haul road leading to Bruno, Saskatchewan, and the prevailing wind
direction is west to east. The initial samples used by Monsanto to charge
Schmeiser were actually taken from the roadside - not the sown fields.
Although canola is primarily a selfing species, outcrossing is in the range
of 20-30%, and canola pollen can move long distances, several km at least,
primarily via insect pollinators. The required isolation distance for hybrid
canola seed is 800 m. Who is it that has to absorb the cost of installing
an 800 m buffer between GM and non-GM crops on neighboring farms? 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. [Footnote 2]
To put these numbers into perspective, Alberta Agriculture has calculated
that even at 0.2% outcrossing (with a neighbor's RR canola, for example),
a crop yielding 25 bu ac-1 with 3% shattering losses would deposit 10,000
outcrossed seeds ac-1 or 4 outcrossed seeds per m2 (http://www.agric.gov.ab.ca/crops/canola/outcrossing.html).
And that is just the genetic pollution from a single season. The lengthy dormancy
interval of canola allows the soil seed bank of contaminated seed to accumulate
with each successive year's additions.
Land can be contaminated with proprietary seed in other ways. If you intentionally
planted RR canola [or any other herbicide tolerant (HT) canola], shattered
RR seed would contaminate your soil next year anyway, and the next, and the
next. Emergence of 'volunteer' canola in subsequent crops is nothing new in
western Canada - but what is new is that the volunteer plants bear proprietary
genes and are tolerant to one or more common herbicides.
You can also bring RR canola into your land inadvertently, as an unavoidable
contaminant in your sown crop. Cross contamination of seed crops with GM seed
is now so pervasive that seed companies will no longer guarantee "100%
GM-free" even in the seed they sell to farmers, for any field crop that
has been subject to genetic modification.
In the aggregate, these arguments explain the widespread occurrence of RR
canola growing in places where it was never sown, and even where no canola
has been sown, in western Canada.
The impossibility of reproductive isolation - both on-farm and post harvest
- is nowhere better illustrated than recent occurrence of contamination within
Monsanto's own RR 'Quest' canola. Seed with an unapproved RR gene was found
to contaminate bags carrying seed with the approved RR 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, of which StarLink contamination in the corn to be sown
in 2001 is perhaps the best known example.
How then can farmers be held accountable for something which the seed trade
itself cannot do?
Well, they can't, and even Monsanto knows it. So, Monsanto's position - which
the judge inexplicably accepted - is that all the farmer has to do is call
them up and they'll come out and deal with it. No matter how the proprietary
genes got there, the judge held that the farmer is accountable for it, and
they are obliged to inform Monsanto about it - or risk the fate of Schmeiser.
Between a Rock and a Hard Place
Now, this is an interesting conundrum. Put yourself in the position of a farmer.
To appreciate the gravity of the choice on-offer, you need to appreciate how
Monsanto's hired investigators operate. They come to the door, advise you
that you're suspected of brownbagging, and offer you a letter stipulating
what you must pay to avoid being formally prosecuted. Should you choose to
pay the fee, you are also obliged to sign a letter which states that signing
obliges you to remain silent and tell no one about what has happened, or face
further prosecution.
Let's say you know that you have one or more of Roundup Ready, Liberty Link,
Navigator/Compas or SMART canola (tolerant to the herbicides glypbosate, glufosinate
ammonium, bromoxynil, or Pursuit, respectively) on your land. You know this
because, like Schmeiser, the plants didn't die when you used the corresponding
herbicide. So - what do you do?
Do you call up the company (Monsanto, Aventis, Aventis, and Pioneer, respectively),
inform them that you have infringed upon their respective patent(s), and ask
them to come out for a visit - then hope they arrive with a sprayer and not
a subpoena? If the latter, no one will ever know, will they? Or do you wait
for a neighbor to report you for suspected brownbagging, using the anonymous
hotline set up by Monsanto for that purpose?
If the respective compan(-ies) [Footnote 3] come out and actually do spray
out the offending plants, do you call them back again a few weeks later, when
late germinating canola has emerged in your wheat or pea crop. How is it that
they are going to eradicate these late germinating, potentially seed bearing
HT plants, in your established crop? Will they compensate you for damage done
to your crop in the process, or from spray drift (a particular problem with
the herbicide of choice, 2,4-D) to your adjoining crops - or your neighbor's?
What if it was canola you were intending to plant in the contaminated field?
You know that you will not be able to distinguish volunteer HT canola from
whatever canola you've planted. You know that volunteer HT canola will set
seed and shatter, just like your sown canola, re-contaminating the land wIth
patent-infringing seed. By definition, If you grow canola on land known to
have HT canola in the seed bank, your problems will necessarily amplify over
time. Where you had one HT plant this year, you could have dozens next year.
So - do you abstain from growing canola entirely? For how long, given that
contamination can occur annually?Or do you take responsibility yourself for
eliminating the proprietary plants? Do you adjust your crop rotation, your
herbicide expenditures - and your bottom line - to cope with contamination
that you did not want and could not stop, and that will reoccur annually so
long as neighbors choose to grow HT canola? Like the StarLink debacle which
continues to haunt US corn growers, consumers, government officials, and the
seed trade, the guilty verdict in the case of Percy Schmeiser illustrates
some of the shortcomings of applying GM technology to field crop agriculture.
Far from making food cheaper, GM technology is necessarily making food more
expensive - and particularly - but not solely - for those who choose not to
grow GM crops.
* Why should non-GM growers be obliged to adjust their rotation and herbicide
schedules and held design in order to protect their crops from contamination
from neighboring GM crops?
* Why should non—GM growers have to absorb costs of coping with gene
flow that is unwanted, Involuntary, and unavoidable - or face prosecution?
* Why should those who have managed their crop specifically for the high-premium
GM-free market be forced to lose the premium because of contamination for
neighboring land?
* Why should any farmer be forced to accept GM contamination in the seed they
sow on their own land?
* Why should taxpayers be obliged to support the mushrooming government infrastructure
needed to monitor, regulate, and negotiate to keep GM crops In the marketplace,
and the virtually endless costs of recalling contaminated seed and food products
from the market?
* Why should consumers have to pay more for food that is worth no more (and
arguably, less to them) because the costs of dealing with unwanted GM both
on the farm and in the marketplace must necessarily, be passed on to the consumer?
* Why should all growers be penalized by plummeting crop prices, even when
a minority of the growers choose to grow GM, causing traditional clients refuse
to buy GM-contaminated grain and choose instead to patronize off-shore sources?
Since when do importing have to buy GM grains, just because we want to grow
them?
What happens when the traits that move are HT, but vaccines, pharmaceuticals,
plastics, and industrial enzymes?
When is the Canadian government going to stop promoting the commercialization
of a technology which has so clearly been released prematurely into the marketplace,
and which so clearly externalizes its true costs of production involuntarily
and unavoidably to its own citizens?
1 The sprayed 3 acres was harvested as part of the whole field. The seed from
the sprayed plot was not separated from the rest of the grain, as would have
been done if the intent had been to capture the RR trait for future use.
2 For the first time, they are also deleterious. No one minded when genes
for higher yield or better disease resistant migrated into their crop. But
when herbicide tolerance genes complicate weed control options, or GM contamination
precludes capitalizing on the lucrative GM-free or organic markets - everyone
minds.
3 You may have to deal with more than one, for the same plants. Doubly and
triply tolerant canola has now been confirmed in western Canada, due to cross-pollination
of one HT-pIant with pollen from another HT-plant. Please send a check or
money order if you can to:
"Fight Genetically Altered Food Fund Inc."
Box 3743
Humboldt SK SOK 2AO
Canada