From: Jim Diamond <[log in to unmask]>
Reply-To: Biotech Forum <[log in to unmask]>
Date: Fri, 17 May 2002
Percy Schmeiser's case was, I believe, heard on appeal before a Federal
(Canadian) court -- at least it was scheduled for May 15th-16th. A decision
will probably take quite a while. The following article give valuable
information on what's at stake and a lot of interesting information about
canola. Schmeiser was, strictly speaking, found "liable" rather than
"guilty of a crime" -- it's a civil, not a criminal case.
The title is intentional hyperbole; the article that follows is excellent.
Jim Diamond
=====================
http://www.plant.uoguelph.ca/faculty/eclark/percy.htm
On the Implications of the Schmeiser Decision
Published in Genetics Society of Canada June 2001 Bulletin
E. Ann Clark, Plant Agriculture, University of Guelph, Guelph, ON
([log in to unmask]) 2001 E. Ann Clark
_________________________________________________________________
THE FEDERAL CRIME OF PERCY SCHMEISER
Let us first be clear on the crime for which Saskatchewan farmer Percy
Schmeiser was found guilty.
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 bulletins),] 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:
* sell it as seed, or
* 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 ac 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(1) - from
growing a crop contaminated with RR plants. But it didn't matter. He was
guilty nonetheless, and fined $15/ac x 1030 ac. Monsanto also seeks the
value of his crop $105,000, plus $25,000 for punitive and exemplary
damages.
He 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
70's, 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 PROBLEM(S) 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 especially under the reduced or
no-till conditions favored in the prairies, 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 haul trucks - 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(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 per acre with 3% shattering losses would deposit
10,000 outcrossed seeds per acre or 4 outcrossed seeds per square meter
(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 seed bank of contaminated seed to accumulate
in the soil with each successive year's addition.
Land can be contaminated with proprietary seed in other ways. If you
intentionally planted RR canola [or any other herbicide tolerant (HT)
canola variety], 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 the 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 by signing, you agree 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
glyphosate, glufosinate ammonium, bromoxynil, or some ALS inhibitors,
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/or 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)(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 fresh 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,
marketers, consumers, government officials, and the seed trade itself, 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 will necessarily make food more
expensive - and particularly - but not solely - for those who have chosen
not to grow GM crops.
* Why should non-GM growers be obliged to adjust their rotation and
herbicide schedules and field design in order to protect their own 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 from 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 incurred
because a minority of growers chose to grow GM, causing traditional
clients to refuse to buy GM-contaminated grain and instead to patronize
off-shore sources?
* Since when do importing countries have to buy GM grains, just because
we want to grow them?
* What happens when the traits that move are not 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?
FOOTNOTES:
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-plant with pollen from another HT-plant.
_________________________________________________________________
2001 E. Ann Clark. This text is the property of the author, E. Ann
Clark. It may be downloaded or reproduced in whole or in part by any
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so long as this copyright notice is included. It may be reproduced on
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======================
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