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Agricultural Alert

Whichever way the wind blows: an overview of soil contamination cases

| Published by Felicity Iredale

A brief comparison of soil contamination cases in Australia and America.

Written by Felicity Iredale, Lawyer at Russell Kennedy Lawyers and Isobelle Pepe, Law Graduate at Russell Kennedy Lawyers.

This article will review the various negligence and nuisance cases on soil and crop contamination that have come before the courts. It will also compare the issues that have arisen in Australia and America.

Australia

In the 2016 Marsh v Baxter case¹, an organic farmer sued his genetically modified (“GM”) crop growing neighbour alleging that his certified organic farm was “contaminated” by GM crops as a result of the wind blowing.
Mr Baxter harvested canola by using a technique called ‘swathing’. Mr Baxter’s crops were left out to dry and carried by strong winds onto the Marshes’ land. As a result, the Marshes’ lost their organic certification and income attributable to the certification. The majority of the Court of Appeal concluded that Mr Baxter did not owe the Marshes a duty of care for pure economic loss. For more information click here.

The scenario that occurred in Marsh v Baxter was the first of its kind in Australia. Similarly, and more commonly, crop owners bring claims for contamination caused by the aerial spraying of pesticides on neighbouring properties. In Bootle v Barclay², the Barclays claimed that aerial spraying caused damage to their wheat and lucerne crops when the spray drifted onto their property from the adjoining Bootles property.

America

In 2013, the American case of OSGATA et al v Monsanto, the Organic Seed Growers and Trade Association and other organic and conventional family farmer groups, seed companies and public advocacy interests (“OSGATA”) sued Monsanto. OSGATA tried to pre-emptively prohibit Monsanto from suing their farmers for intellectual property infringement if their fields became inadvertently contaminated with Monsanto's genetically modified crop.

OSGATA asked Monsanto for a pledge not to sue, Monsanto refused, as they stated "a blanket covenant not to sue any present or future member of petitioners' organizations would enable virtually anyone to commit intentional infringement." Monsanto did though make an informal undertaking that they would not to sue. The Court dismissed OSGATA's petition against Monsanto.

In 2012, OSGATA appealed, however the three judges affirmed the lower court's dismissal. They concluded that there was no case because Monsanto had assured that they would not sue farmers whose crops might contain traces, less than one percent, of genetically modified traits.

The discussion above highlights how these types of cases are very fact dependent. As such, from an international perspective, it is hard to draw inferences about when a court will find causation in negligence and nuisance in contamination cases. Despite this, some conclusions about the loss that suffered can be drawn. For example, in all of the examples given, where there was a loss of value, physical damage was found to occur³. It is also worth noting that, of course, intellectual property protection is not unique to genetically modified varieties, and is available to conventionally bred and organic varieties on the same legal basis.

Please contact Andrew Chalet, Principal on (03) 8602 7243 or Dr Peytee Grusche, Senior Associate on (03) 8602 7242 if you would like any further information.


© Russell Kennedy.  All rights reserved.  No part of this Alert may be reproduced, in whole or in part, by any means whatsoever without the prior written consent of Russell Kennedy.

¹ Marsh v Baxter (No 2) [2016] WASCA 51
² Bootle v Barclay [2013] NSWCA 142
³ Department of Agriculture, Fisheries and Forestry. ACIPA. “A farmer’s choice – legal liability of farmers growing crops”.