By Michael Jessen
The nine justices of the Supreme Court of Canada have the future of genetically engineered foods in their hands. It may take them nine months to hand out their decision.
On January 20th the court heard arguments in the ongoing dispute between Saskatchewan farmer Percy Schmeiser (http://www.percyschmeiser.com/) and U.S.-based biotechnology giant Monsanto (http://www.monsanto.com). The court will decide whether Monsanto had the right under Canadian law to patent an advanced living organism -- the seed of a variety of canola whose genes Monsanto altered to make it resistant to the company's glyphosate herbicide Roundup.
The case has been winding its way through the courts since August 1998 when Monsanto filed suit against Schmeiser, claiming initially that he illegally obtained their Roundup Ready canola seeds from one or more of their licensed users to plant his 1997 crops. Monsanto later withdrew their claims as they were unable to substantiate them but they pressed on with the charges that Schmeiser had infringed on their intellectual property rights.
Roundup Ready canola is a seed that has been genetically engineered to be completely immune to the herbicide Roundup, one of Monsanto's major moneymaking products. The technology allows farmers to spray the Roundup herbicide on their planted genetically engineered canola and kill all unwanted weeds without affecting the canola crop.
Monsanto claims it can only recoup research and development costs of their biotech seeds by charging farmers extra and demanding that farmers plant them only once, interrupting the ancient practice of year to year seed saving. Monsanto's stance also makes farmers beholden to corporations in ways never before imagined.
Schmeiser has 1,400 acres of farmland in Bruno, Saskatchewan that he has been farming since 1947. Monsanto alleges he planted its proprietary canola in 1997 and harvested the seeds for replanting in 1998 without notifying the company and paying the standard licence fee of $15 per acre. Schmeiser said the seeds had blown onto his property from a neighbour's field or from a passing truck carrying Roundup Ready seeds.
A Federal Court of Canada judge ruled against Schmeiser in 2001, finding him guilty of patent infringement and deciding that the balance of probabilities was that he planted the seeds, that he "knew or ought to have known" that they were Roundup Ready and that he should have contacted Monsanto.
Judge Andrew MacKay concluded that the mere presence of Roundup Ready canola in Schmeiser's field was enough to constitute an infringement and awarded the entire crop to Monsanto.
"His infringement arises not simply from occasional or limited contamination," Judge MacKay ruled. "Growth of the seed, reproducing the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiff's invention, using it without permission."
Three judges of the Federal Court of Appeal upheld that ruling in 2002. They said Schmeiser should have dug the plants up and destroyed them.
The 73-year-old Schmeiser is the least likely of farmers to be guilty of this offence. For more than 50 years, he and his wife have developed canola (a rapeseed hybrid) to be resistant to prairie diseases. They are known throughout the Prairie Provinces as seed developers and savers. Like farmers have for centuries, Schmeiser has improved his crops by culling his worst plants and husbanding the best seeds for the next planting season.
Schmeiser served as the mayor of Bruno and in the provincial legislature as an MLA for more than 25 years. He also sat on many agricultural committees at both the provincial and federal level. Hardly the resume of a biotech criminal.
Herbicide tolerant canola was commercialized in Canada in 1996 and it quickly spread across the prairies. Companies like Monsanto told farmers that there would be bigger yields, more nutritious product, and less chemical use. Today about 70 percent of the crop is genetically engineered -- about 8 million acres. About 30,000 farmers use Monsanto's seeds.
"The Supreme Court of Canada will be the first high court of any nation to consider the question of patent infringement on a living being, in this case a seed," says Dr. Vandana Shiva, founder of the Research Foundation for Science, Technology and Ecology (http://www.vshiva.net/). "Not only will that decision have a considerable influence on the policy debate in Canada, but it is likely to also influence lawmakers around the world who are grappling with this issue."
For Schmeiser and his supporters the issue is now whether patents on plants ought to be allowed in the first place.
"Who can patent life, and who owns life - whether it's seeds, plants, animals and so on?" asks Schmeiser. "Those are some of the main issues that really concern me on a personal level."
Should Monsanto have been given a Canadian patent on Roundup Ready canola in the first place? In 2002, the Supreme Court ruled that the Harvard mouse, a mouse genetically engineered to develop cancer for use in medical research, could not be patented in Canada. The court concluded that Canada's Parliament, when it defined "invention" in the Patent Act 135 years ago, did not intend to cover higher life forms. It ruled that if Parliament wanted to allow patents on these life forms, it would have to change the law accordingly.
There are numerous studies now showing that the gene flow in genetically modified, herbicide resistant canola seeds is more widespread that originally thought. Studies have shown that canola pollen can travel as far as four kilometres in ideal wind conditions.
As reported in The Western Producer of November 14, 2002 (http://www.producer.com/articles/20021114/news/20021114news06.html), two researchers at the University of Manitoba found some bags of conventional certified canola seed contain more than five percent genetically modified, herbicide tolerant traits. Weed specialist Rene Van Acker and pesticide specialist Lyle Friesen found almost no certified seed they examined in a small study was free of GM contamination.
A new report from the Union of Concerned Scientists (http://www.ucsusa.org) substantiates their findings. Seeds of traditional crops are contaminated with DNA from genetically engineered (GE) crops according to Gone to Seed: Transgenic Contaminants in the Traditional Seed Supply, a new UCS report available at http://www.ucsusa.org/food_and_environment/biotechnology/seedreport_fullreport.pdf. Laboratory testing of traditional (non-GE) seeds of corn, soybeans, and canola commissioned by UCS documents the presence of DNA commonly used in commercial GE crops. "These findings suggest inadequate federal standards to protect our seed supply and our food from harmful contaminants like those originating in pharmaceutical (pharm) and industrial crops," says the UCS.
Dr. Van Acker of the University of Manitoba's Department of Plant Science, was also involved in a project to determine the effects of glyphosate herbicide drift on other crops.
The project simulated drift with rates between 1.5% and 25% of the 1/2 litre per acre rate for herbicide application. It showed these low rates of both Roundup and Roundup Transorb can impact the yield and flowering dates of peas, canola, flax, and spring wheat. Of these crops, peas were the least sensitive to these products at these rates, while flax and wheat were the most sensitive. Canola was moderately sensitive. The project’s results showed that drift prevention is critical with glyphosate products, especially around flax and wheat crops. A news release about his findings is reported at http://www.gov.mb.ca/agriculture/research/ardi/newsreleases/nr22032100.html.
As posted on http://www.percyschmeiser.com/Gene%20Flow.htm, an Agriculture Canada study found that over half of certified canola seed lots from across Western Canada contain genes from GM canola varieties. Another study carried out in Australia has learned that canola pollen travels much farther than previously realized. The news that pollen (and genes) from GM canola travel freely in the environment raises new concerns about genetic contamination.
In late 2003, a study published by the UK Royal Society substantiated Greenpeace's warnings that genetically modified (GM) crops can be harmful to the environment. The results of their three-year study clearly show that GM rapeseed and GM beet can be harmful to the environment. Further details of the October 16, 2003 release can be found at http://www.greenpeace.org/international_en/press/?campaign_id=3942.
Only a month later, US Department of Agriculture data revealed that the widespread planting of genetically engineered corn, soybeans and cotton on U.S. farmland since 1996 has resulted in a dramatic increase in the use of pesticides over conventional crops. In a news release found at http://www.centerforfoodsafety.org/BenbrookStudyCFSRelease11-25-03.pdf, a study by the Northwest Science and Environmental Policy Center found that genetically engineered crops have increased pesticide use by about 50 million pounds over the last three years when compared to conventional crops. The complete report can be accessed at http://www.biotech-info.net/Tech_Papers.html.
Monsanto's next venture is genetically modified wheat, something many Canadian farmers are already rejecting. Again the biotech seed is resistant to Monsanto's herbicide Roundup. The Organic Consumers Association (http://www.organicconsumers.org/wheat/) has initiated a campaign to stop GM wheat.
Canada's Supreme Court has been given a momentous task. While their decision may be months away, it will chart the future use of genetically engineered seeds in Canada and perhaps other places in the world.
As Joseph Mendelson has written: "The GE food future will grant the purveyors of chemical companies greater control over our food supply at the expense of our farm communities, our environment, and even our free exercise of ethical and religious beliefs. Only by initiating a complete moratorium on the production and sale of genetically engineered foods can we hope to forestall the unprecedented risks presented by these foods."
Over to you, Supreme Court of Canada. Your serve.
RESOURCES - According to the Action Group on Erosion, Technology and Concentration (http://www.etcgroup.org), formerly RAFI, the top 10 biotech companies accounted for 54% of the combined biotech revenues of $41,782 million (U.S. dollars) in 2002. See the November/December 2003 issue #82 of their Communiqué entitled Oligopoly, Inc. - Concentration in Corporate Power: 2003 for further details.
The submission of the interveners on behalf of Percy Schmeiser to the Supreme Court of Canada can be accessed at http://www.centerforfoodsafety.org/FinalAmicBriefPercy.pdf.
GM Watch (http://www.gmwatch.org), Crop Choice (http://www.cropchoice.com) and the Organic Consumers Association (http://www.organicconsumers.org) provide ongoing news updates about genetically engineered food issues.
The report The Case for A GM-Free Sustainable World published June 15, 2003 by the Institute of Science in Society can be found at http://www.indsp.org/ISPreportSummary.php.
A four-page report entitled Hazards of Genetically Engineered Foods and Crops: Why We Need a Global Moratorium by Ronnie Cummins of the Organic Consumers Association can be found at http://www.organicconsumers.org/ge/gefacts.pdf.
The Pew Initiative on Food and Biotechnology is at http://www.pewagbiotech.org.
Say No To GMOs! is at http://www.saynotogmos.org.
An excellent site with recommended books and articles on the subject of genetic engineering is http://online.sfsu.edu/~rone/Geessays/gedanger.htm.
Food First (the Institute for Food and Development Policy) is a member-supported, non-profit 'peoples' think tank and education-for-action center. Their work highlights root causes and value-based solutions to hunger and poverty around the world, with a commitment to establishing food as a fundamental human right. Their web site is http://www.foodfirst.org.
The Organic Agriculture Protection Fund is at http://www.saskorganic.com.
The essay Untested, Unlabeled, and You're Eating It: The Health and Environmental Hazards of Genetically Engineered Food by Joseph Mendelson, Legal Director of the Center for Food Safety in Washington, DC can be downloaded from http://www.organicandbeyond.org/ge_essay.pdf. It is included in the book Fatal Harvest: The Tragedy of Industrial Agriculture (Island Press, 2002).
The book Engineering the Farm: The Social and Ethical Aspects of Agricultural Biotechnology by Britt Bailey and Marc Lappe (Island Press, 2002 http://www.islandpress.org/books/detail.html?cart=10759364374575&SKU=1-55963-947-4) offers a wide-ranging examination of the social and ethical issues surrounding the production and consumption of genetically modified organisms (GMOs), with leading thinkers and activists taking a broad theoretical approach to the subject.
Britt Bailey and Marc Lappe are also the authors of an earlier book, Against the Grain: Biotechnology and the Corporate Takeover of Your Food, Common Courage Press, 1998.
Ingeborg Boyens is the author of Unnatural Harvest: How Genetic Engineering is Altering our Food, Doubleday Canada, 2000.
Genetically Engineered Food: A Self-Defense Guide for Consumers by Ronnie Cummins and Ben Lilliston was published by Marlowe and Company in 2000.
Michael Jessen is a Nelson writer and consultant on sustainability issues. He can be reached by telephone at 250-229-5632 or by e-mail at firstname.lastname@example.org. His business web site is found at http://www.zerowaste.ca.
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