What does the complicity of the state government and its institutions in denying organic farming suitable protection mean for canola growers in Western Australia?
This should never have even gone to court because between farmers, we should’ve just had a chat over the fence, had a couple of beers, you know, this would’ve been all sorted out.
– Michael Baxter outside the WA Supreme Court, 3 September 2015.
I didn’t make it to my 20-year school reunion because Steve and Sue Marsh told me to climb a ladder.
The ladder was propped against a tree at Eagle Rest, their 477-hectare organic farm in the Kojonup region of Western Australia. It was a late afternoon last November. I was 263 kilometres south of Perth, where at that moment, Carine Senior High School Class of ’95 were getting their hair done.
After the interview and my second helping of Sue’s mulberry pie, Steve asked me if I had somewhere to be. I didn’t mention the school reunion.
‘Take your camera up this ladder and look in that hole up there,’ he said.
As the Marshes held the ladder steady for me, I made a joke that if they were planning to murder me and make it look like a tragic accident they needn’t bother, because I didn’t write for the Murdoch press.
At the top of the ladder there was a hole in the side of the tree. It was full of baby green parrots.
In 2010, genetically modified (GM) canola blew from Michael Baxter’s neighbouring farm onto the Marshes’s farm. Marsh vs Baxter ensued. The majority of the media frame it as ‘a landmark case involving two schoolyard mates’ – a series of misunderstandings that could have been avoided with a beer over a paddock fence. Everyone else has made it into a debate about the use of gene technology in agriculture.
Both angles miss the point. It isn’t about a friendship gone awry, or the pros and cons of RoundUp®. Marsh vs Baxter is a story about collusion between the state government and Monsanto, a co-opted Fourth Estate, the death of democracy and the birth of green parrots.
Over a decade ago, the then WA State Labor Government introduced the Genetically Modified Crops Free Areas Act 2003, but in 2008 the Liberal–National party came to office. In 2010, the WA Minister for Agriculture and Food, Terry Redman, issued an exemption order to allow the commercial planting of GM canola in Western Australia.
Marsh warned Baxter as early as November 2008 that Eagle Rest’s organic certification meant that genetically modified organisms (GMOs) were not allowed on his farm. In 2008 Marsh spoke with Baxter about 12 ‘volunteer’ canola plants he had found growing at Eagle Rest.
Marsh vs Baxter is a story about [government] collusion, a co-opted Fourth Estate, the death of democracy and the birth of green parrots.
Volunteers are plants grown from fallen seed during harvest. There were no canola crops at Eagle Rest and it was accepted that the canola had come from Baxter’s farm.
In January 2010, the state ban on the cultivation of GM canola under the Gene Technology Act 2000 was lifted. Baxter planted it on his farm, Sevenoaks, along the boundary that borders Marsh’s property. Smokers at dinner parties, out of consideration for any non-smokers, usually step outside to light up. So why didn’t Baxter exercise similar consideration by planting the GM canola on the far side of his farm, away from the Marsh boundary?
Steve Marsh drove me to where the contamination occurred, the western boundary of Eagle Rest. The National Association for Sustainable Agriculture Australia (NASAA), the certification body for organic farming, has strict rules about contamination. The NASAA standard reads:
In order to ensure the integrity of the property from external contamination the operator should formally advise neighbours, including federal, state, and local government, or statutory authorities, of the organic status in certification of the operation.
I looked around. Wind rustled leaves. I gazed next across at the eastern boundary of Sevenoaks, separated from Marsh’s farm by a 20.9 metre wide road, and wondered why Baxter chose to plant GM canola there when there were several options available across his 900-hectare (9km²) farm. Why the side on top of a windy hill next to the organic farm?
Further more, Baxter swathed his GM canola crop on a windy day. Swathing involves cutting the stalks above ground level before the canola seed is fully ripe, and laying them in windrows on top of the stalks left in the ground to harvest later. A windrow is exposed to the wind.
In evidence given to the Supreme Court during the Marsh vs Baxter trial, Baxter’s agronomist testified that he had ‘seen a willy-willy [a dust storm] lift swathed canola material high into the air and carry it hundreds of metres before scattering it over the ground’.
RoundUp Ready® canola is a money-maker for Monsanto in a few ways. For a start, farmers that wish to plant it have to sign a contract stating that they won’t save seed and will purchase new seed every season. Also, RoundUp Ready® canola has been bred to tolerate the pesticide glyphosate, manufactured by Monsanto.
In December 2010, as soon as Steve Marsh found the inevitable GM canola on his farm, he dobbed himself in to NASAA. He lost 70 per cent of his organic certification and could no longer sell his grains (barley, oats and spelt) for the premium organic price. So he tried to sue Michael Baxter for nuisance and negligence.
Which brings me to the crux of the matter. If this was just a story about a fallout between childhood friends over a backyard fence, one friend wouldn’t have been bankrolled by a biotech company who, according to ‘Ideas Big Enough for a Growing World’, the Monsanto 2015 Annual Report, exceeded $15 billion in sales that year. The report also reads that ‘Adverse outcomes in legal proceedings could subject us to substantial damages and adversely affect our results of operation and profitability.’
In January 2010, when the state-wide ban on GM canola was lifted, Monsanto Australia Ltd (Monsanto) was licensed under the Gene Technology Act for the release of its RoundUp Ready® canola. In March 2010, Michael Baxter consulted a Kojonup agronomist by the name of Christopher Robinson, who recommended he plant RoundUp Ready® canola on his farm.
Robinson graduated with a Bachelor of AgriBusiness from Curtin University in 2002, and I was curious to see how long it would take to establish a link between that university in the wheat belt and the biotech company in St Louis.
Less than a minute into my online investigation, I found Evaluation of the Environmental and Economic Impact of RoundUp Ready® canola in the Western Australian Crop Production System – Curtin University of Technology (Muresk) Technical Report, published by Curtin University researchers in November 2009.
The report includes the statement: ‘The authors would like to acknowledge […] Dr James Neilson of Monsanto Australia Ltd for providing raw data…’ and, the kicker, ‘This work was carried out with funding from Monsanto Australia Ltd.’
The 2009 report is just one of many examples of university agricultural department research being sponsored by corporate interests. If you search undergraduate ‘agriculture’ courses on the Good Universities Guide, it provides you with a list of 24 institutions. But if you hold them up to light you can see Monsanto’s sticky paw prints all over the beakers. It is unsurprising that an agronomist who studied at a research institution that has received funding from Monsanto advised Baxter to plant GM canola. Scientists can’t afford to bite the hand that feeds them.
The same month the agronomist gave him advice, Baxter attended a RoundUp Ready® seminar and entered into a contract with Monsanto, signing the ‘RoundUp Ready Canola Grower Licence and Stewardship Agreement’.
Scientists can’t afford to bite the hand that feeds them.
In response to Baxter’s plan to plant GM canola, the Marshes altered their 2010 crop rotation in an attempt to create a buffer zone. In May 2010 Baxter sowed GM canola in two paddocks adjacent to Eagle Rest. (The Monsanto contract required that Baxter plant five metres back from his boundary.)
In early October 2010 Marsh hand-delivered Baxter a three-page notice about the potential legal consequences if Eagle Rest was contaminated, with an extract from the NASAA rules attached. In October and November 2010 Marsh published notices in local newspapers explaining that if Eagle Rest was contaminated by GMOs and had to forfeit its organic certification, legal action could ensue. On 8 November 2010 Baxter employed a contractor to swath the GM canola.
Prior to this Baxter had used a different method to harvest his canola crop, that of ‘direct heading’, which was harvesting directly. In fact, Baxter had direct headed his non-GM canola that year.
On 2 December 2010, Baxter began harvesting the swaths of RoundUp Ready® canola. Unsurprisingly, some of the seeds from that windy harvest found their way onto Marsh’s farm.
Straight off the bat, Baxter had the legal support of the Pastoralists and Graziers Association (PGA). Even though Baxter wasn’t a member, John Snooke, Chairman of the PGA, contacted him and told him not to pay the compensation.
This detail is telling – the Chairman of a farming organisation that Baxter isn’t a member of contacts him with offers of support. Suddenly it wasn’t ‘between farmers’.
In early 2015 Australian Story ran a two-part story about the Marsh vs Baxter case. Snooke told the program: ‘We made sure that Michael had good legal representation.’
Baxter told Australian Story, ‘They said, “We’ll set up a fighting fund which is just a thingy for farmers to put donations in there to try to help with legal costs.”’
In 2010, the Department of Agriculture and Food (DAFWA) carried out an audit program of the GM canola growers, the aim of which was to assess the compliance of growers with the conditions of the ‘RoundUp Ready Canola Grower Licence and Stewardship Agreement.’ One of the conditions of the contract that GM farmers such as Baxter had to sign was that they accept liability.
Marsh lost the case in May 2014 and was ordered to pay around $800,000 in costs to Baxter. The Supreme Court found Baxter had not acted negligently and could not be held responsible for growing GM canola in a conventional manner. Marsh applied for an appeal. The Appeal Court heard Marsh vs Baxter from 23 to 25 March 2015.
The fact that Baxter’s legal costs were paid by Monsanto didn’t emerge until the appeal hearings on 25 March 2015, when Steve Marsh’s legal team called for an appeal of costs to obtain full disclosure about who was paying Baxter’s legal costs. (Marsh’s legal costs were paid for by the Safe Food Foundation.)
Under the indemnity principle, Marsh would not have to pay the court costs for Baxter if it was shown that Baxter wasn’t out of pocket himself.
The Appeal Court ruled in Marsh’s favour on 25 March, and said that Baxter had 14 days to disclose the funding arrangements. Baxter’s lawyer, Brian Bradley, said outside the court, ‘I can tell you there was no funding by the PGA. No payments whatsoever.’
Prior to the news breaking that Monsanto was paying Baxter’s legal costs, Baxter told Australian Story, ‘I’m out of pocket for all the accommodation, loss of production on the farm, quite a few days in Perth and even days where you can’t go even to your kids’ sports days.’
Baxter did manage to find the time to take a holiday to New Zealand – after the Baxters decided not to pay compensation to Marsh, Monsanto took the couple skiing.
Steve Marsh told me that reporting about the case was fair initially, but that the media soon turned. From the outset of the interview I got the sense that Marsh didn’t quite trust me. At first I thought it was because I had gotten lost on the way to the farm, and when I pulled up in the rental car to meet him at a crossroads, I did a massive burnout by mistake. I thought his reason for not letting me record the interview was because he thought I was a city slicker who couldn’t handle a two-door manual on country roads.
It turns out it was in fact more to do with the Australian journalist who had been flown to Monsanto’s St Louis headquarters. On 11 July 2013 Colin Bettles, Canberra Bureau Chief for Fairfax Agricultural Media, tweeted, ‘Great tour of Monsanto facilities today heard about seed chipping, wheat and drought tolerant crop technologies cotton canola etc’.
In another tweet Bettles sent a photo of a Monsanto goodie bag to Matt Crossey, CEO of CropLife Australia, an international trade body, to which Monsanto is a member, with the words, ‘@CropLifeOZ this will make Matt Cossey v jealous – take home show-bag from Monsanto, but I’d say he’s got 1 already.’
GM canola from the neighbouring estate contaminated the Fourth Estate, it seems.
Steve Marsh lost the appeal in September 2015. When I spoke to him on his farm last November, he was in the process of seeking leave to appeal to the High Court, but as it wasn’t yet approved he said that he couldn’t talk about it.
But, a few months later in February 2016, the High Court rejected the bid for leave to appeal against the Appeal Court’s September ruling. Steve Marsh now has no further options to appeal.
A quick recap. Marsh took Baxter to court seeking $80,000 in compensation, the Supreme Court dismissed the case, there was an appeal, Marsh lost, and now he is a bankrupt farmer who has been ordered to pay $800,000 to his neighbour who was bankrolled by the company that a) owns the patent to the GM seeds that contaminated Marsh’s livelihood and b) was a business partner of the WA State Government.
InterGrain is ‘a leading Australian crop breeding company’ with facilities south of Perth. Its largest shareholders are the WA State Government (48.7 per cent), the Grains and Research Development Corporation (25.3 per cent), and Monsanto (26 per cent). A 2013 article from the InterGrain website includes the words, ‘The Minister for Agriculture and Food, Ken Baston, toured leading cereal breeding company InterGrain’s new facilities in Bibra Lake, Perth recently.’
A great deal of money had been riding on Marsh losing the case. While Marsh vs Baxter was taking place, the amount of canola being grown in WA nearly doubled. According to the 2009–2010 Annual Report of the Australian Oil Seed Federation, in that year 745,000 hectares were planted with canola in WA. According to their 2014–2015 report that number had risen to 1,247,000 hectares.
Industry figures show that between 2010 and 2014, the proportion of canola grown in WA rose from 10 to 21 per cent. A 2015 news article ‘WA Farmers to Plant Largest GM Canola Crop Yet’ published on the Monsanto website, stated:
Thirty per cent of Western Australia’s canola crop this season will be planted to GM varieties as local farmers continue to embrace the technology in greater numbers…local growers have purchased a record 776 tonnes of RoundUp Ready® canola seed, up 20 per cent on last season. More than 337,000 hectares of GM canola will be planted this season in WA, up from nearly 260,000 hectares last year.
The Australian Oil Seeds Federation’s Annual Report 2009–2010 reads, ‘The competitiveness of Australian canola on the world market also improved with our major exporting state, WA, being permitted to grow GM canola.’
On the farm in November, eating mulberry pie, Marsh accused DAFWA of pro-GM bias, evident in their cooperation with Monsanto to relax GM tolerance standards for organic farms months before his farm was contaminated. ‘It is an extraordinary commercial conflict of interest,’ he said.
NASAA’s organic certification has zero tolerance for the presence of GMOs. Marsh told me about an email trail between the WA State Government and Monsanto showing that they anticipated contamination was likely and that they were lobbying to have the organic standards watered down.
The emails, gained through a Freedom of Information (FOI) request, reveal that DAFWA and Monsanto communicated with each other to promote the idea of coexistence of GM and organic in the media, as well as to prepare responses to the questions the state government would face about Marsh vs Baxter, as they knew contamination was inevitable.
While Marsh vs Baxter was taking place, the amount of canola being grown in WA nearly doubled.
Correspondence between DAFWA and Monsanto occurred after the contamination and throughout the trial. Marsh wasn’t being paranoid: just days before the Supreme Court trial began on 14 February 2014, DAFWA made an application to amend the National Standard for Biodynamic and Organic Produce to relax organic GM tolerance levels from zero to 0.9 per cent. The state government claimed that the organic standards restricted business opportunities for Australian producers.
When Marsh discovered the GM canola on his farm, he had reported it to DAFWA in the hope that the department would protect his organic business. Meanwhile, that very department was communicating with Monsanto about its legal standing. The FOI documents reveal that DAFWA and Monsanto had been working together on the issue of GM canola contamination since DAFWA first ran field trials in August 2009.
DAFWA has since claimed the decision to lodge an application to amend the standard was made independent of Monsanto.
Speaking about the case, Monsanto Australia’s Managing Director Daniel Kruithoff said, ‘It has been regrettable to see neighbours and friends end up in court.’
I would add that it has been regrettable to witness democracy die in the arse: to have a state government attempt to water down NASAA’s zero-tolerance standard to GMOs at the same time as they are in business with Monsanto, a company with a vested interest in coexistence of organic and GMOs.
In 2014 a truck carrying GM canola crashed for no good reason in the middle of a GM free zone just outside of Kojonup. The headline read, ‘Concerns over crash of truck carrying GM canola in Great Southern.’
Farmers around the area of the crash were growing GM free canola for export to the Japanese market. Opponents of GM saw the truck crash as a sneaky way to show that opposing GM is pointless.
It has been regrettable to witness democracy die in the arse.
I was going to write an article around the idea that anti-GM farmers in the wheat belt were being shown that resistance is futile by a truck spilling wind born GMOs across their livelihoods. But given the machinations of power, and the links between the state government, Monsanto, the PGA, research, and the media, I’m not sure this truck crash conspiracy even matters anymore.
For organic farmers to be protected from future contamination, the WA parliament would need to introduce legislation. But this seems unlikely.
Rick Wilson, the federal member for O’Connor, the electorate that includes Kojonup, is a member of the PGA. Addressing parliament in 2014, Wilson sang glyphosate’s praises: ‘In the late 1980s the advent of the chemical glyphosate, developed by Monsanto and marketed under the trade name Roundup, changed the crop establishment process irrevocably. Safe for use by the operator and safe for the environment, this broad-spectrum herbicide allowed farmers to dispense with countless tillage operations…’
InterGrain’s strangely prescient motto reads: The Right Choice. The Only Choice.
On the plane home to Melbourne, looking out the window at the wing, I thought about the aerodynamic structure of a canola seedpod.
I never made it to my school reunion. Carine SHS Class of ’95, if you’re reading this, please forgive me but I had to climb a ladder to look at green parrots. At the time I couldn’t quite figure out why the Marshes wanted me to look at parrots, but now, almost a year later, I think I know: Perspective.
The Marshes never stood a chance. Marsh vs Baxter was one man against a powerful intersection of government, corporations, lobbyists, journalists and research institutions. To survive the immense pressure and fear of a court loss, Steve Marsh had to focus on the good things in life. I’m not sure how they are going to keep their farm, hopefully the Safe Food Foundation will be able to raise enough money to pay Baxter the $800,000, but their livelihood as certified organic producers is under threat.
The case that pro-organic people were hoping would set a legal precedent for the protection of organic farming never came to pass.
CORRECTION: In the print and initial online editions of this piece, the quote ‘It has been regrettable to see neighbours and friends end up in court’ was mistakenly attributed to Monsanto corporate spokesman Adam Blight, rather than Managing Director Daniel Kruithoff.