The decision in Marsh v Baxterwill no doubt reignite the debate over GM crop liability. A number of scholars have argued that there is a need to revise liability regimes in respect of biotechnology. Professor Jeremy de Beerfrom the University of Ottawa has argued that there is a need to adapt the legal principles of trespass to accommodate recent developments in biotechnology, nanotechnology, and synthetic biology. He has called for the creation of a cause of action for "biotrespass".
No doubt the agricultural biotechnology industry would resist such efforts at law reform. From their perspective, GM crops should be subject to the same liability regimes as other forms of farming and agriculture.
At an international level, there will be further debate over the position of GM crops in the sweeping regional agreements under negotiation – including the Trans-Pacific Partnership. There is an intense struggle between organic farmers and the biotechnology industry at a number of levels in these international agreements.
The Marsh's lawyer, Mark Walter, said the case would have ramifications for Australia's organic industry and raised the possibility of appeal:
"This is a disappointing result for Mr Marsh and leaves Australia’s non-genetically modified food farmers with no legal protection against contamination from nearby properties ... We will closely examine the judgement of this complex and unique case and advise our client of his legal options, including his right to appeal."
The Safe Food Foundation, which helped bankroll Marsh's case, said the future for organic food in Australia was now "uncertain". The Foundation said the judge had erred by criticising Australia's organic food regulators for stripping Marsh's organic status.
The court in its judgment stated the decision by NASAA (National Association of Sustainable Agriculture Australia) to decertify Steve was erroneous. Given the extent of the contamination of Steve’s farm we fail to see how NASAA could have taken any other decision. Certainly 100% of organic consumers would support the NASAA decision.
Because the court did not recognise the NASAA decertification the court did not recognise the economic loss Steve suffered, and dismissed the case that Steve had brought for negligence and nuisance.
Foundation director, Scott Kinnear, said:
“This is a huge setback for organic and Non GM farmers and their choice to remain GM Free. This has been an important test case, of interest to many parties, locally and globally.
“We also call on our legislators to work on finding a solution to this vexed issue. State and Federal governments have continuously stated that the solution to any GM contamination events is common law. This has clearly failed today and demonstrates that the law has not kept up with new technologies such as GM.”
NASAA general manager Ben Copeman said the decision highlighted the need for legislative change for the sector and that it had opened up a "Pandora box" of conflict between the GM and organic farming sectors.
“We found GM canola growing on organically certified land. The court found that there was no risk of GM contamination. While tolerance thresholds for GM contamination are governed by the Federal Government under the National Standard for Organic and Biodynamic Produce, it is not a legislated standard and is not recognised by the courts." More