The Classic David vs Goliath Struggle.....
By Helke Ferrie
God and the Supreme Court work in mysterious ways. They don’t follow a straight line, but somehow justice is slowly achieved, and they always offer great new opportunities for the doggedly determined. And so it is — and will be — with Saskatchewan farmer Percy Schmeiser whose canola fields were contaminated with genetically engineered seeds made by Monsanto.* Schmeiser lost — sort of — against Monsanto, who would like to think they won, in the May 21 Supreme Court decision. It was mighty close: five judges ruled for Monsanto and four ruled for Schmeiser.** Far from slamming the door shut on human rights and food safety, they opened up barrels of worms with which to renew our earth.
The Respondent: Monsanto
Since 1901 Monsanto has given us many of the worst carcinogenic, neurotoxic, and teratogenic chemicals in the world, with which we have poisoned our environment and made Monsanto rich. Its history as foremost “corporate criminal,” according to the European research source CorporateWatch, began a hundred years ago with artificial sweeteners, ammonium nitrate fertilizers, styrene and polystyrene plastics (all carcinogens) and went on to worse with dioxin, Agent Orange, glyphosate (in the world’s bestselling herbicide Roundup), the 2,4 D family of pesticides, PCBs, aspartame, bovine growth hormone, and — since the 1990s — a devil’s kitchen of genetically engineered food plants; many more are still inside their laboratories in St. Louis, Missouri, such as their current “genetic improvements” to pigs (Ontario Farmer, June 15) and plants that deliver medicine and vaccines. According to R. Fraley, Monsanto’s agricultural sectors co-president, “What you are seeing is not just a consolidation of seed companies, it’s really a consolidation of the entire food chain.” Europeans call Monsanto “Mon-Satan.”*
Monsanto’s chemicals were used for war and agriculture, with war being at least an honest pursuit because its stated intent is mass-murder, while agricultural use of the same chemicals requires complex corporate strategies to disguise the slow poisoning of life through side-effects appearing much later. Not surprisingly, Monsanto also makes drugs which are generally also let loose on the market before real safety is established, a legally sanctioned business practice since applicable legislation is not precautionary but damage control oriented. So, by the time the dead can be counted, companies have been laughing all the way to the bank.
In the early 1990s Monsanto spent US$10 billion to buy up seed companies and introduced genetically engineered products starting with bovine growth hormone (see my articles Vitality Feb. 2000 and July 2001). Worldwide, 80% of all GM crops were developed by Monsanto. Whenever such a crop dramatically fails or causes environmental problems, Monsanto’s deep pockets and their powerful connections with governments work to buy or enforce silence (see Tokar below). GE soya beans were the first to expose what Dr. Charles Benbrook calls “Monsanto’s Big Lie”: contrary to Monsanto’s claims, they require two to five times more Roundup herbicide than conventional seeds, and instead of reducing the water needed, consumption increases. Ethical Investing lists Monsanto under “Health and Planet Destroying Products” and provides full information from medical science literature and the documented ecological destruction.*
The Applicant: Percy Schmeiser
Schmeiser spent the past 50 years perfecting his canola crop through seed-saving and by following plant-breeding principles as old as agriculture itself. But in 1998 Schmeiser’s canola fields produced a mixture of his own and Monsanto’s genetically engineered canola. The highest concentration was outside his property line in the ditch and some extended in decreasing concentration into his adjacent field. Many farmers had bought into the Monsanto promise that using its seeds would reduce the use of pesticides, protect their wells, cut costs and labour. It took just a few seasons for most farmers everywhere to realize that this was a false promise.
Open trucks carrying GM canola had been passing Schmeiser’s farm and so began the problem of “volunteer” canola growing everywhere unbidden, and contaminating natural canola by cross breeding. The U.S. Department of Agriculture estimated that reliable methods of segregation would cost billions and be unworkable (Boston Globe, April 20, 2001). In Saskatoon, agricultural research centre Agri-Food Canada tested random samples of supposedly natural canola for contamination with GM varieties and found none conformed with the “mandatory genetic purity of 99.95%.” Pioneer Hi-Breed confirmed that “100% purity, in genetic make-up…is currently not achievable for any agricultural product.” (Remember the StarLink corn mess?) For Schmeiser this meant that a lifetime’s plant breeding work was ruined quite literally forever.
Monsanto sued Schmeiser for patent infringement and the case made its way to the Supreme Court in January, a standing-room only affair. Especially interesting for me was overhearing so many attending civil servants freely expressing anger and outrage against the Canadian government’s support of GMO technology. The press came out by the hundreds exceeding anything a movie star or sports hero could expect. Monsanto had as supportive intervenors various biotech organizations, all claiming that research and the future of the human race was at stake if this patent was not protected for the sake of a “seed industry worth $100 billion.” What they want to protect is potential profit. Seeds themselves have been most effectively protected for millions of years by God herself.
Schmeiser’s supportive intervenors included the Council of Canadians, the Sierra Legal Defence Fund, the National Farmers Union and many more organizations from Canada as well as around the world. They support the farmer’s right to save seeds and they really know something about farming — unlike the corporate camp. Interestingly, the Government of Ontario was an intervenor as well: OHIP was threatened by a lawsuit from Myriad Genetics Inc. for not paying royalties on a test for the genetic predisposition to breast cancer, and so Ontario sought legal clarification and wound up in Schmeiser’s camp.
The central issue was whether Monsanto’s patent included the whole plant or just the process of insertion of an artificially altered gene causing resistance to the toxicity of Roundup. Schmeiser lawyer Terry Zakreski asserted that the patent granted to Monsanto in 1995 for GM canola clearly only covers the genetic engineering process, not the plant itself or even the plant seed, that patented objects never self-replicate, only life forms do, and that self-replication cannot be patented. If Monsanto wanted to sue somebody, they should sue another company, if it uses this insertion technique, but not a farmer who utilized the unpatentable natural growth and replication processes. Guelph University’s GMO expert Ann Clark asked, “How can the farmer be held accountable for something the seed trade itself can’t do?”
This is how: our government in 1995 not only granted Monsanto the patent for the canola gene insertion process, but also granted its “unrestricted release into the environment” without so much as a question about what might happen. The result: the rapid evolution of “super weeds” which Roundup nor any other chemical cannot kill, and hopelessly contaminated natural seeds. As well, the world market for Canadian canola said “No thanks” to the GMO version. Canada lost, and continues to lose a lot of money, farmers are faced with an insoluble mess, and Monsanto continues to profit until this exploitation strategy will at last no longer pay, a process that has already begun.
The judges in this case needed to consider several issues: a Patent Act not designed for biotechnology; their own previous famous decision (the Harvard Mouse case) where they had ruled higher life forms cannot be patented; and the Canadian Biotechnology Advisory Committee 2002 report which urges that the Patent Act should be changed so that contamination process be taken into account (the report points out that patent law never before had to deal with inventions that can do their own thing on their own time and don’t stay put). The Supreme Court’s job is to interpret the laws made by parliament, and so it navigates between upholding existing laws and suggesting change. Supreme Court judges aren’t nannies to whose skirts we can cling when big bad corporate wolves come salivating. We have to eradicate them ourselves by demanding changes to the law.
The May 21 decision shows that five judges argued “…we are not concerned here with the innocent discovery by farmers of blow-by patent plants…in their cultivated fields. Nor are we concerned with the scope of the patent, or the wisdom and social utility of the genetic modification of genes and cells — a practice authorized by Parliament under the Patent Act and its regulations. Our sole concern is with the application of established principles of patent law to…this case.” They go on: “The Patent Act confers on the patent owner ‘the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used.’” Schmeiser was deemed to have been cultivating Monsanto’s canola. These five judges say that he was using somebody else’s property, because “our task is to interpret the Patent Act as it stands.” George Bernard Shaw famously said that most of the time “the law is an ass.”
The four dissenting judges were led by Justice Louise Arbour who has just been appointed Human Rights Commissioner to the United Nations after her predecessor was recently killed in the bombing of the UN office in Iraq. She led a 1995 landmark inquiry into the abuse of women prisoners at Kingston penitentiary, served as chief prosecutor from 1996 to 1999 for the UN war crimes tribunals for Rwanda and the former Yugoslavia, indicted Slobodan Milosevic, overruled NATO generals who did not want to arrest war criminals, and forced the investigation of mass graves containing Serb victims. The world is gaining a great person at the Canadian Supreme Court’s expense.
Arbour et al argued that patent law is irrelevant because it is designed to protect an inventor’s “monopoly over his invention.” The question, they wrote, is whether growing a Monsanto invention accidentally in any way deprived Monsanto of that legally granted monopoly over their invention. These four judges found that in no way was Monsanto’s monopoly infringed, as it could go on making piles of money from people who buy their engineered seeds voluntarily. The judges cited the international treaty TRIPS which states in article 27 (3) (b) that plants and animals can be excluded by member states from patentability — thereby delivering not only a blow to the Canadian Patent Act, but making it mandatory that it be harmonized with the treaty.
All nine judges agreed that Monsanto had to bear the costs because Schmeiser had not profited in any way from this contamination. Schmeiser correctly pointed out that this will make it very difficult for Monsanto to keep suing farmers whose fields are contaminated, because this ruling requires that Monsanto prove that “a farmer has profited from” unwanted seed. “This decision has removed the teeth from their patent,” he observed, and pointed out that “now parliament will have to act, because we have a conflict between plant breeders’ rights and patent law.”
Then, on June 11, the Supreme Court handed down a zinger of a decision making corporations fully accountable for the damage they cause to the environment through negligence or (greedy) intent. The Supreme Court ruled that our environment and everything in it “should be valued on more than just a (potential) market value basis,” said Sierra Legal lawyer Robert Wright.
Now add to that 18th century economist Adam Smith’s famous “invisible hand” of the marketplace, which effectively forced Monsanto to abandon its genetically engineered wheat because of worldwide opposition and flat out refusal by several countries to buy anything edible from North America if this plan went ahead (because of the obvious contamination problem in everything). Wheat was for the EU and Japan literally the final straw. In Australia, Monsanto had to abandon plans for GM canola for the same reasons. With Europe, Australia and most of Asia refusing most if not all GMOs, Monsanto is hoping Africa will yield (BBC, June 21). Given the long history of imperial exploitation of that continent, I am sure their wits will prove to be even sharper than ours, and they will have learned that Japan’s Nagoya University has formally reported “Monsanto’s fraudulent testing data for GE soybeans.”
Patent law was designed at a time when 18th century polymaths invented gadgets and explored an uncontaminated world totally unlike ours today. Patents offered personal control of an individual’s idea, not world control. Since corporations in the 20th century obtained the legal status of “persons,” they became hungry giants who never can be satisfied in a world where the stock market demands infinite hunger and eternal growth.
Liability law, however, carries the archetypal intent of establishing and enforcing personal responsibility, and nothing can ever be really new in its domain, not even biotechnology. It is already doing so most notably in the pharmaceutical arena: New York State’s attorney general Eliot Spitzer, famous for successfully indicting Wall Street fraudsters, is suing GlaxoSmithKline for “deceiving doctors” with fraudulent studies and for withholding negative information on their drugs; he is doing exactly what finally brought down Big Tobacco (Nature, vol. 429, June 10). The European Union stunned North America by tabling a law that would require all corporations to prove their products are safe before bringing them to the market. If it passes, this will be the most momentous change in the way the world does business.
Schmeiser asserts, “No one should have the right to release into the environment that which destroys the property of others.” Zakreski (and others) is continuing legal action on behalf of Canadian farmers (www.saskorganic.com) utilizing liability law. The two decisions the Supremes made in May and June will help to change patent law in Canada and show that liability law is the correct weapon to use against all polluters, be they genes or giants.
Sources and Resources:
* How Monsanto became the “World’s Most Unethical and Harmful” company: www.corporatewatch.org and www.ethicalinvesting.com). See B. Tokar’s history of Monsanto in The Ecologist vol. 28/5, Sept. 5, 1998, also available via his website www.social-ecology.com. To learn how Monsanto operates see the 1999 National Film Board documentary "The Genetic Takeover," the documentary 2002 "Deconstructing Supper" by Moving Images in BC: www.movingimages.ca, and the Council of Canadians 2000 video "Beyond McWorld."
** The Supreme Court decision is on www.percyschmeiser.com
Barstow, C., The Eco-Foods Guide What’s Good for the Earth is Good for You, New Society Publishers, 2003
Nestle, M., Safe Food: Bacteria, Biotechnology, and Bioterrorism, University of California Press, 2004
Rowell, A., Don’t Worry – It’s Safe to Eat, The True Story of GM Foods, Earthscan 2004
Tokar, B. ed., Redesigning Life?, McGill-Queen’s University Press, 2001
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