# Genetic Trespass: GMOs and Agriculture: A submission prepared for the New Zealand Parliament on the Gene Technology Bill 2024

John Paull

► To cite this version:

John Paull. Genetic Trespass: GMOs and Agriculture: A submission prepared for the New Zealand Parliament on the Gene Technology Bill 2024. New Zealand Parliament. 2025, pp.1-6. hal-05017138

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# Genetic Trespass: GMOs and Agriculture

A submission prepared for the New Zealand Parliament on the Gene Technology Bill 2024

Dr John Paull

j.paull@utas.edu.au

March 2025

## Abstract

Farmers are at risk of GMO genetic trespass wherever genetically modified organisms (GMOs) are allowed. An 'apartheid' between GM crops and non-GM crops is doomed to fail. The consequence is that GM crops contaminate non-GM crops. GM crops sell at a discount (currently 15%). So, a farmer's crop that is contaminated by GMOs (e.g. from a neighbouring farm) will be downgraded from non-GMO to GMO, or from Certified Organic to GMO. This will result in an economic loss which is borne by the harmed farmer (rather than by the GMO farmer). The premium for non-GMO, or for Certified Organic, will be forfeited in the downgrade. Two case studies are provided (one from Canada, one from Australia) where non-GMO farmers with GMO contaminated crops have sought a legal remedy. These farmers found no remedy for GMO genetic trespass (and BigGMO multinational corporations have deep pockets for winning litigation against 'Farmer Joe'). The Gene Technology Bill in its current iteration offers no protection to non-GMO farmers against the inevitable genetic trespass by GMOs (were GMOs to be approved for NZ agriculture). In the absence of a pre-emptive solution to the economic harms of GMO genetic trespass to the well being of NZ farmers, the Gene Technology Bill 2024 deserves to be rejected.

## 1. Trespass

As it pertains to agriculture, the essence of trespass is: 'Your stuff is in my paddock without permission'. Trespass involves crossing a boundary, by a person or thing, without authority. It is an offence of incursion which may be civil or criminal (Mann, 2013).

## 2. GMOs

Genetically Modified Organisms (GMOs) in agriculture are about profits and patents. A GMO is a life form where the genetic code has been modified sufficiently to convince a
Patent Office that the modified organism is novel, and an 'invention', and it thereby warrants patent protection (Paull, 2008).

The GMO industry is concentrated in a handful of powerful multinational chemical companies. BigGMO comprises mostly multinational corporations, including: Bayer (incorporating Monsanto); Syngenta; BASF; Corteva (formally DuPont); and Dow Chemical.

The aim of BigGMO is to colonise agriculture with their own proprietary patented organisms. BigGMO financially benefits from both the supply of GMO seeds and the associated chemicals. Most current commercial GMO crops (e.g soy, corn and canola) are herbicide resistant. The GMO cropping regimes rely on multiple applications of herbicides (e.g. glyphosate).

### 3. Genetic Trespass

There is no way of confine GMOs to the field where they are planted (Paull, 2018). GMO plant material in an open field will be distributed far and wide, in the natural course of events. A GMO farm puts neighbouring farms at risk of GMO incursions.

Vectors that move plant material around the landscape and over potentially hundreds of kilometres, include, wind, water, insects, birds, mammals, people, and trucks. Such vectors can and do transfer plant materials, including seeds and pollen, across the landscape, and between farms (Paull, 2018).

Bees can transfer the pollen of a GMO to a non-GMO plant, and thereby contaminate a neighbour's crop. Birds can consume GMO seeds and then distribute them in droppings over many kilometres.

Trucks that transport seed crops to receival depots lose seeds along the way. This is very evident, for example, in the wheat belt of south east Western Australia where numerous canola plant 'escapees' can be witnessed growing 'wild' along the roadside.

While GMO containment may be an aspiration, it is not a reality. Genetic trespass, the incursion of GMOs into neighbouring farms, is an inevitability. Such incursions create a problem and a financial burden for the trespassed neighbours.
## 4. The GMO Discount

Consumers do not want GMOs (GfK, 2017), and, consequently, GMOs sell at a discount in the market, compared to non-GMO ('conventional') crops (Paull, 2019b). The current discount for GM canola versus non-GM canola is 15% (e.g. A$685 versus A$810 per tonne at Kwinana, Western Australia) (Whitelaw, 2025). The consequence of this price differential is that where a non-GMO crop is contaminated with GMOs, then the crop will be bought and sold at the discounted GMO price (rather than the non-GMO price), and the non-GMO farmer will suffer the loss (presently a 15% loss).

Organic crops may attract a 100% premium compared to 'conventional' crops. So, the situation is considerably worse for an organic farmer in the event of an organic crop contaminated by the incursion of GMOs. In that case, the organic premium is lost as well as the non-GMO premium. For an organic farmer, where the crop is GMO-contaminated, the crop will be sold as GMO (and the economic loss may exceed 50%).

## 5. Genetic Trespass Case Studies

It is a brave 'Farmer Joe' who takes on a BigGMO Multinational Corporation due to GMO genetic trespass. The odds are stacked against Farmer Joe who has a busy life of can-do farming, and who likely lacks both litigious gumption and the 'bottomless' pit of cash of BigGMO. The consequence is that few Farmer Joes pursue a legal remedy for their losses due to GMO trespass. Even a lawyer would likely caution them against taking up the fight, and to rather 'take it on the chin' (due to the trifecta of: anticipated costs; the low perceived likelihood of ultimate success; and, in the event of a loss, an award of costs against). History shows that justice for GMO genetic trespass is elusive and fraught. Two case studies are presented below.

### 5.1 Canada

Percy Schmeiser (1931-2020) was a canola (non-GM) farmer in Saskatchewan, Canada. His surrounding neighbours grew GM canola. Monsanto inspectors trespassed onto Schmeiser's fields and took samples of his canola. Monsanto claimed that they detected GM canola. Monsanto claimed a licence fee. Schmeiser refused. Monsanto sued for patent infringement. Schmeiser countersued for libel, trespass, and GMO contamination.

The case proceeded in the Federal Court of Canada and then to the Federal Court of Appeal (MacKay, 2001). Ultimately, Schmeiser narrowly lost in the Supreme Court of
Canada ('the end of the road'), with nine judges and a split result, five judges siding with Monsanto and four with Schmeiser (McLachlin et al., 2001).

Percy Schmeiser summed up the case for genetic trespass: "Nature has been moving DNA around for thousands of years ... You can't control it. You can't put a fence around it and say that's where it stops. It might end up 10 miles, 20 miles away" (CBC News, 2004, p.2).

Many saw no justice for Percy Schmeiser. There is no offence of 'genetic trespass' in Canadian law.

## 5.2 Australia

Steve Marsh is a certified organic sheep and wheat farmer in the south west of Western Australia. His neighbour, Michael Baxter, planted a GM canola crop. The GM canola crop, ready for harvesting, was herbicided (to desiccate it) and swathed (the grain heads cut and dropped *in situ* for later collection). Some of this GM canola (including seeds) appeared amongst Marsh's organic wheat crop (carried by wind or animals?). This GMO contamination meant that Marsh lost his organic certification and he bore the economic penalty of the loss of the organic premium (A$85,000) (Paull, 2015, 2017).

Steve Marsh took his case for 'justice' to the Supreme Court of Western Australia, before the final loss in the High Court of Australia ('the end of the road') (French, Kiefel, & Gordon, 2016; Martin, 2014; McLure, Newes, & Murphy, 2015).

The case of Steve Marsh was lost and he bore the legals costs as well as the economic crop losses. Monsanto underwrote the legal costs of the defendant, Michael Baxter, and apparently sponsored an overseas trip for the defendant.

There was no justice for Steve Marsh. There is no offence of 'genetic trespass' in Australian law.

## 6. Conclusion

There is no way of containing GMOs to a paddock or a farm. Natural factors 'conspire' to facilitate incursions by GMOs into neighbouring farms and public areas (e.g. roadways, parks, and conservation areas) (Paull, 2019a).

The burden of such genetic trespass by GMOs is borne by the harmed party (rather than the offending party). This is inequitable and unfair. For farmers this means that a non-GMO
crop, or an organic crop (all organic crops are non-GMO), that has suffered a GMO incursion will be downgraded to GMO-status. Such genetically trespassed farmers will them wholly lose their earned non-GMO premium (e.g say 15% premium) or their organic premium (e.g. say 100% premium).

A remedy for farmer losses due to GMO genetic trespass appears generally unattainable in the court system. Taking on BigGMO is a daunting task. Both Percy Schmeiser and Steve Marsh put up good fights against Monsanto, but ultimately lost (see §5.1 and §5.2 above).

'Farmer Joe' pitted against BigGMO Multinational Corporation is an asymmetric contest which is weighted against the injured party. The farmer seeking 'justice' on a personal-effort budget versus BigGMO seeking victory on a billion-dollar-corporation budget, is almost a doomed contest from the outset. Such battles can be hard fought, but 'Farmer Joe' gets out-gunned.

## 7. Recommendations

Three recommendations:

7.1 Bans and moratoria on GMO crops ought to be maintained. This protects the reputation of the cropping region (since consumers do not want GMOs). This also protects farmers who are thereby not at risk of GMO genetic trespass and of thereby forfeiting their premiums earned for producing non-GMO crops.

7.2 Where a GMO crop approval is considered, then the issue of genetic trespass needs to be addressed and resolved before a prospective approval takes effect. This would protect non-GMO farmers (who are the overwhelming majority of farmers) from economic losses due to GMO incursions. Such protection could involve legislation that particularises genetic trespass by GMOs as a trespass offence.

7.3 Where a GMO crop approval is considered, there ought to be clear mechanisms, tags, and labelling regimes so that the GMO identity is conserved at every step of the supply chain. This is fair to consumers who are seeking to avoid GMOs. It is fair to farmers and producers who are at risk of product degradation and financial loss due to GMO contamination (viz. genetic trespass).
References

CBC News. (2004). *Percy Schmeiser's battle*. Toronto: CBC News. 21 May.

French, R. S., Kiefel, S. M., & Gordon, M. (2016). Results of Special Leave Applications: Marsh & Anor v Baxter (P44/2015). 12 February. Canberra: High Court of Australia.

GfK. (2017). Decision Factors on What to Eat or Drink: Global GfK Survey (October 2017). London: GfK (Growth from Knowledge).

MacKay, J. (2001). Monsanto Canada Inc. and Monsanto Company Plaintiffs and Percy Schmeiser and Schmeiser Enterprises Ltd. 2001 FCT 256. Ottawa: Federal Court Decisions.

Mann, T. (Ed.). (2013). Australian Law Dictionary: Second Edition. Melbourne: Oxford University Press.

Martin, K. (2014). Judgment: MARSH -v- BAXTER [2014] - WASC 187BC201302729; CIV 1561/2012. Perth: Supreme Court of Western Australia.

McLachlin, B., Iacobucci, F., Major, J. C., Bastarache, M., Binnie, W. I. C., Arbour, L., ...
Fish, M. J. (2001). *Monsanto Canada Inc. v. Schmeiser, [2004] 1 S.C.R. 902, 2004 SCC 34*. Ottawa: Supreme Court Judgements. 21 May.

McLure, C. J., Newes, D. W., & Murphy, G. H. (2015). Judgment: MARSH -v- BAXTER [2015] - WASCA 169; CACV 67 of 2014. 3 September. Perth: Supreme Court of Western Australia.

Paull, J. (2008). Beyond equal: from same but different to the doctrine of substantial equivalence. *M/C Journal of Media and Culture*, 11(26).

Paull, J. (2015). The threat of genetically modified organisms (GMOs) to organic agriculture: A case study update. *Agriculture & Food, 3*, 56-63.

Paull, J. (2017). *Marsh v Baxter (Organic v GMO): A case study*. Biotechnology Law, University of Tasmania, 16 February.

Paull, J. (2018). Genetically Modified Organisms (GMOs) as Invasive Species. *Journal of Environment Protection and Sustainable Development, 4*(3), 31-37.

Paull, J. (2019a). The failures of genetically modified organisms (GMOs): Resistance, regulation and rejection. *Agrofor International Journal, 4*(3), 139-152.

Paull, J. (2019b). Genetically modified (GM) canola: Price penalties and contaminations. *Biomedical Journal of Scientific & Technical Research, 17*(2), 1-4.

Whitelaw, A. (2025). Weekly Grain Marketing: Farmers and the GM conola spread. *Farm Weekly, 13 March*, 34.