Steve Marsh lost organic certification over most of his farmland in 2010 after GM seeds and swathes blew onto his farm

EXCERPT: The decision was another blow for Mr Marsh. "I guess what this has demonstrated is that common law does not protect farmers against GM contamination, that's obviously very clear," he said.
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Organic farmer Steve Marsh loses GM appeal for compensation from neighbour Michael Baxter

By David Weber and Tyne McConnon
ABC, 3 Sept 2015
http://mobile.abc.net.au/news/2015-09-03/organic-farmer-steve-marsh-loses-gm-appeal/6746108?section=wa

An organic farmer in Western Australia whose crop was contaminated with genetically modified (GM) canola from a neighbouring farm has lost his court appeal for compensation.

Steve Marsh of Kojonup lost organic certification over most of his farmland in 2010 after genetically modified seeds and swathes blew onto his farm.

Mr Marsh went to court, seeking more than $80,000 in compensation.

But last year the Supreme Court dismissed the case, saying neighbour Michael Baxter had not acted negligently and could not be held responsible just for growing a GM crop in a conventional way.

It also awarded Mr Baxter costs.

The Court of Appeal has now dismissed appeals on the case and the costs in a two-to-one decision.

Earlier this year it was revealed that Monsanto had contributed to Mr Baxter's costs while Mr Marsh's campaign has been supported by the Safe Food Foundation.

Outside the court, Mr Baxter said he had been confident of winning.

"We certainly never doubted all the way through that we were probably going to be on the winning side," he said.

"This should never have even gone to court because between farmers, we should've just had a chat over the fence, had a couple of beers, you know, this would've been all sorted out.

"He's an organic farmer, he can't spray, he can't use chemicals, you know he's got red mite, he's got aphids, he's got rust, he's got all the diseases in the world, does he worry about that?

"They blow over the fence, I get them all the time.

"Do I whinge, do I complain? No, not at all."

Neighbours no longer speak

Mr Baxter said he had no relationship with Mr Marsh anymore.

"He took the hard line, he made the decision," he said.

He thanked the Pastoralists and Graziers Association for their support.

The decision was another blow for Mr Marsh.

"I guess what this has demonstrated is that common law does not protect farmers against GM contamination, that's obviously very clear," he said.

"This argument that it's like a leaf blowing next door or something blowing next door, it's quite ridiculous.

"This product's got a technology in it, it's got a patent on it to start with, so you can't tell me a leaf blowing next door or an aphid or a weed is the same as GM technologies."

Mr Marsh said he was considering whether to appeal to the High Court.

"It was obviously a two-one decision so they weren't all against us," he said.

Mr Marsh was asked whether he was prepared for the possibility of losing his farm.

"You've got to deal with what you've got to deal with - if you don't stand for what you believe is right then that's it," he said.

Costs yet to be decided

The court had sought to rule on costs, but that will be decided on submissions in the coming weeks after a request from Mr Marsh's counsel.

Costs are estimated to be in the hundreds of thousands of dollars.

Mr Baxter has said the funds he received from Monsanto were considered to be a loan, and the support was no different to what Mr Marsh had received from other groups.

Safe Food Foundation Director Scott Kinnear described Mr Marsh as a "hero" for "standing up" to GM technology.

Speaking outside the court, Mr Kinnear said the farmer would continue to have the organisation's support if he decided to appeal further.

"We have to sort this issue out, we have to sort it out either in the courts, or politically it needs to be sorted out," he said.

Mr Kinnear said Mr Marsh was already "down significantly on funds".

"He's lost his sheep, which was a significant part of his income," he said.

"We have to help him get back to where he was."

Pastoralists and Graziers Association grain growers' committee chairman John Snook said the decision had big implications for farmers.

"What it means is [farmers] can grow GM canola with certainty, they don't have to be worried about being potentially attacked and sued by an organic neighbour," he said.

"We have always stood by Michael Baxter and will continue to do so until this issue is completely finished."

Appeals Court reached majority decision

Appeals Court president Justice Carmel McLure decided in favour of Mr Marsh and his wife, who were both appellants.

She found the interference with the appellants' use and enjoyment of their property was both substantial and unreasonable and constituted a private nuisance.

Justice McLure said Mr Baxter "had actual knowledge of the risk of decertification when he engaged in the conduct which caused the harm to the appellants".

She said Mr Marsh was entitled to damages amounting to $85,000.

But Justice David Newnes and Justice Graeme Murphy decided in favour of Mr Baxter.

They said Mr Marsh's choice of farming operations did not mean Mr Baxter's lawful use of his own land "constituted a wrongful interference with the appellants' use or enjoyment of their land".

They also said Mr Marsh and his wife had "put their land to an abnormally sensitive use" and they could not "unilaterally enlarge their own rights" and impose limitations on their neighbours to a greater extent than would otherwise be the case.