Marsh v Baxter, Kojonup to Canberra: Foresight, Hindsight and Insight

Summary

Australia is a global leader in organic production and a minnow in global GMO production. Organic produce consistently sells at a premium, while genetically modified (GM) produce consistently sells at a discount. In the case of Marsh and Baxter, the facts were agreed but their interpretation was not and this proved fatal to the case. This was a dispute between two farmer neighbours at Kojonup, Western Australia. When the GMO moratorium was lifted in WA, Baxter promptly planted Monsanto GM canola along his border with his organic neighbour. Marsh had previously warned Baxter that the organic certification of the Marsh farm was at risk if it was contaminated by an incursion of GM canola. The foreseen incursion eventuated and the certifier (NASAA) withdrew the organic certification. Marsh sued Baxter. The parties agreed that the Marsh loss was $85,000. The case (for nuisance and negligence) was lost in the Supreme Court of Western Australia, the WA Court of Appeals, and eventually the High Court of Australia. The cumulative costs of this litigation will exceed $2 million. Monsanto indemnified the GM farmer, whereas the costs put the livelihood of the organic farmer at risk. The case offers no evidence that organic/GM co-existence is viable, and no confidence that current law provides any protection for organic farming from GM contamination or predatory planting.