Fate of biodiversity rests on Canadian farmer’s court challenge vs. Monsanto
By Stephen Leahy
InterPress Service, January 18, 2004

BROOKLIN, Canada — The future of world agriculture and countries’ ability to protect their biodiversity is on the line in a final legal battle next week between Canadian farmer Percy Schmeiser and agri-business giant Monsanto.

On January 20 the Supreme Court of Canada will decide if Monsanto’s patent on a process that produces genetically engineered (GE) canola (oilseed rape) is valid. Unlike in the United States, the Canadian court has previously ruled that plants and animals cannot be patented.

The case has enormous implications for the developing world, says Andrew Kimbrell, executive director of the Center for Food Safety, a US nongovernmental organization (NGO) that focuses on food production and the environment.  

Like Canada, most countries do not allow the patenting of seeds or plants but if Monsanto wins, it will have a “de facto” patent on a plant.

“It’s a legal ruse to get around patent bans on life forms,” Kimbrell says.

A Monsanto victory will mean farmers will be unwilling to save seeds because they might contain the company’s genetics, which of course are not visible to the naked eye, he told IPS.

Instead, they will buy seeds, reducing the natural diversity of seed types.

At the same time, Monsanto’s GE patented genes could get into local plants, also harming diversity.

US-based Monsanto is one of the world’s largest chemical and seed companies. It engineered its strain of canola to make it resistant to Roundup, a herbicide the company also created.

There is keen interest in the case around the world, because many legal experts believe patent rights have gone too far and are harmful to the environment and biodiversity, says Michelle Swenarchuk, director of international programs at the Canadian Environmental Law Association.

Trade agreements, and the World Trade Organization (WTO) in particular, insist or push for harmonizing patent laws between nations but effectively adopt the US intellectual property regime, she added in an interview.

“There’s plenty of debate and legal actions by developing countries trying to roll back the breadth of these rights,” Swenarchuk said in an interview.

Vandana Shiva of India’s Research Foundation for Science, Technology and Ecology, says if lower-court verdicts for Monsanto are not overturned and other countries adopt those legal interpretations, it would undermine “the seed-saving practices of hundreds of million of farmers whose livelihoods depend on this practice.”

“Moreover, because seed saving fosters biodiversity and increases productivity, any new constraint on the practice of saving seeds is likely to harm both goals,” Shiva in a statement.

Schmeiser lost two lower court decisions and faces almost one million US dollars in fines and penalties for saving seeds from his 1997 canola crop, as he had done for 40 years.

Monsanto took plant samples from his farm the following year, and found some of them contained the company’s patented genetics.

Schmeiser told IPS that his fields had likely been contaminated in previous years by pollen from a neighbor’s GE canola fields and by seeds that blew off trucks on their way to a processing plant.

The lower courts ruled that no matter how the GE plants got there, Schmeiser had infringed on Monsanto’s legal rights when he harvested and sold his crop.

The company did not return calls for this article, but in a January 12 statement Monsanto Canada spokesperson Trish Jordan said, “We remain confident the Supreme Court of Canada will uphold the previous decisions that found we have a valid patent on this technology.”

Not only does the company maintain that it has a valid patent for plant genes and cells in canola plants, she added, but that Schmeiser violated that patent by knowingly and deliberately planting, harvesting, segregating and selling Roundup Ready canola without paying the required license fee.

The Canadian prairies were once the bottom of an ancient ocean, so they are flat and the wind blows hard most days. Those winds move large amounts of pin-head-sized canola seeds and even whole plants after they have been cut.

With much of the prairies’ two million canola hectares planted with the GE varieties produced by Monsanto and other companies, the patented genes are in canola plants springing up along roadsides, in schoolyards, parks and fields.

“This case is far greater than just Percy Schmeiser,” says Terry Boehm of Canada’s National Farmers Union.

“Given the level at which Monsanto’s GE canola has contaminated Western Canada, the implied liability for all Canadian farmers is enormous. We simply cannot allow the current verdict against Schmeiser to stand,” he told IPS.

At least 500 farmers in Canada and across the border in the United States have been threatened with lawsuits by Monsanto, says Kimbrell. Most farmers pay whatever penalty the firm requests, and sign confidentiality agreements.

About 90 cases have gone to US courts, where Monsanto has won each time, collecting an average of $150,000 in each case, he says.

“Monsanto’s collected millions of dollars from this, and a number of farmers have gone out of business,” adds Kimbrell.

In Canada, farmers have all settled quietly, except Schmeiser.  And that has made the 73-year-old famous among those who oppose genetically modified organisms (GMOs).

His case also comes up in many countries whenever patents and intellectual property rights are discussed, says Nadège Adam of the Council of Canadians, an NGO that supports Schmeiser and will present its views to the Supreme Court next week.

The government of Canada’s largest province, Ontario, also backs Schmeiser because of worries that gene patents will increase its health costs, Adam told IPS.

Schmeiser’s case “has important implications for the development of public policy in Ontario, including the delivery of health care to its residents,” a provincial government submission to the Supreme Court states.

Three years ago, US company Myriad Genetics threatened to sue Ontario over tests for genetic predisposition to breast cancer. Although provincial scientists designed and performed their own tests, Myriad claimed it had a patent on a human gene sequence that has been linked to breast cancer.

Myriad’s test costs three times as much as the one Ontario uses.

Schmeiser and his supporters reject the idea that genes can be patented because they are natural life forms not human inventions.  The Canadian government has refused to get involved in any of this, says Adam. “They’d prefer to have the courts sort it out.”  The Court is expected to decide the Schmeiser case by March.

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