Saskatchewan farmer battles US agricultural giant

Dan Keeton

In late January Saskatchewan farmer Percy Schmeiser finally got his day in court – in fact, several days that could morph into months – in an epic battle with such high stakes as farmers' ancient right to save and plant seeds, and the future of highly controversial genetically modified organisms: GMOs, for short.

On January 20 the Supreme Court of Canada began hearing the appeal from the canola grower of lower court rulings that found Schmeiser guilty of patent infringement for which he was ordered to pay a giant U.S.-based agricultural corporation hundreds of thousands of dollars.

Schmeiser and organizations supporting him say that if the rulings are allowed to stand, mega-corporations like Monsanto will be able to patent whole organisms and have total control over key areas of food production. His case is backed by groups such as the Council of Canadians and the National Farmers Union, which have intervener status. Backing the corporate side are some industry and farm groups, including the Canadian Seed Trade Association and the Canadian Canola Growers Association.

The former mayor of Bruno, Saskatchewan and former MLA is hopeful of a reversal by the Supreme Court, which earlier denied a patent for the so-called "Harvard Mouse" on the grounds that no one should be able to patent a life form. He calls it a "tremendous victory" that the highest court decided to hear his appeal. The seventy-two year-old has been touring the country addressing audiences about the ramifications of his case, or, as he sometimes terms it, his ordeal.

"There is no justice for an average person," Schmeiser told an audience in Vancouver last December. "You cannot stand up to a multibillion-dollar corporation in court. I would not have been able to do it without [help from] people from all over the world, organizations and foundations."

Schmeiser was accused by Monsanto of illegally using its patented GMO canola seeds because of some plants found growing in his fields and an adjacent ditch. The plants engineered by the St. Louis, Missouri corporation are called "Roundup Ready," because they can withstand the toxicity when Roundup, Monsanto's herbicide, is sprayed on crops.

Monsanto filed suit in August 1998, claiming Schmeiser had illegally obtained Roundup Ready seeds. The corporation later dropped that charge but persisted with an accusation of patent infringement. Though the Trial court never established that Schmeiser knowingly planted Monsanto’s Roundup Ready canola, the Bruno farmer was found guilty of patent infringement," states a background article on the Council of Canadians web site.” The Trial Court judge 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. The Federal Court of appeal upheld the Trial Judge’s ruling."

Schmeiser told the Vancouver audience his determination to fight Monsanto boiled down to two issues. "When we were sued my wife and I immediately realized that 50 years of research and development on our pure canola seed that was suitable and adaptable to certain conditions on the prairies, climatic and soil conditions and especially diseases that we had in canola, could now be contaminated.

"We lost 50 years of research and development and we felt that if farmers ever lose the
right to use their own seed the future development of new seeds and plants suitable to their local climatic and soil conditions would be stopped." Schmeiser has no doubt the Monsanto seed contaminating his fields blew in on the strong prairie winds.

Schmeiser was ordered to hand over his entire 1997 crop to Monsanto, and in another ruling was found liable for $153,000 for the corporation's court costs. Monsanto placed a lien on the Schmeiser farm, which prevented him from taking out loans to continue his fight.

Several organizations are backing the farmer's fight. Fundraising efforts are under way and the Council of Canadians is leading a group of interveners, including the Sierra Club of Canada, the Research Foundation for Science, Technology and Ecology, and the International Center for Technology Assessment/ Center for Food Safety.

The Supreme Court will address several questions, said Schmeiser: "Can living organisms, seeds, plants, genes and human organs, be owned and protected by corporate patents on intellectual property? Can farmers’ rights to grow conventional or organic crops be protected? Can farmers keep the ancient right to save their own seed?" And, he asks, "Who is responsible for the genetically modified traits of noxious weeds that then become resistant to weed killers?"

On the first day of trial Monsanto's lawyer argued that the corporation was not trying to patent the canola plant as such, but a portion of it.

A. David Morrow, a lawyer for the Canadian Seed Trade Association, said "Patents create a climate that favors new research," and said Canada's patent system could be harmed if Schmeiser wins.
Ten million acres of Canadian farmland are used to grow canola planted by 30,000 farmers. Half of this land now grows Monsanto plants.
Schmeiser has also alleged bullying tactics by the US corporation both in the United States and Canada. The company uses a private detective service employing ex-RCMP officers who threaten farmers whose fields have been found containing Monsanto plants. Contracts with the corporation forbid farmers from discussing terms of the agreement with others or taking any legal action against the company. Schmeiser says this creates a climate of distrust in an historically supportive rural community.
Worse, the steady contamination by Monsanto's Roundup Ready plants means it might be impossible to grow pure canola in the future, Schmeiser warns. Aside from the environmental damage, this could doom Canadian exports to markets forbidding GMO foods.
As it stands, the Schmeiser ruling means farmers can be found liable of patent infringement even if it can't be proved they deliberately planted a patented seed. Lawyer Steven Shybman, acting for the intervener groups, told the Supreme Court: "This exposes countless farmers to potential liability."