Southerly winds were sweeping through Western Australia’s wheat belt and the 2010 November rains were heavy on Steve Marsh’s farm, Eagle Rest. Wedge-tailed eagles soaring above the estate enjoyed a spectacular view. For hundreds of kilometres, in all directions, lay a patchwork of luminous yellow and green – canola, wheat and barley pastures, broken by occasional paddocks of meandering sheep and cattle.

Marsh, a farmer like his dad before him, was growing oats, rye, wheat and spelt. The son had spent years experimenting with the idea of changing his farming practises from conventional to organic. In the decisive test, he’d divided a barley field in half and used commercial fertiliser on one side, but a more natural, mineralised preparation on the other. The conventional approach yielded slightly more, he says, but the other crops proved of higher quality and capable of attracting a better price – suitable for making malt, rather than for feeding livestock.

Marsh harvested his first organic crop in 2004.

“I guess,” he says, “I needed to prove to myself, before I went and got certified organic, that I wasn’t going to go broke at the same time.” He didn’t go broke. Quite the opposite. Before long, he was selling to artisanal bakeries in the big cities, where people would pay $7 a loaf for organic spelt bread. He started milling flour, and running some organic fat lambs. Business was good.

For some time, though, Marsh had been bracing himself for the moment that came that November morning almost three years ago. He was repairing a fence along the boundary with his neighbour, fellow farmer Michael Baxter. There, as Marsh tells it, he found orange-brown stems and pods – the cut-off tops of weedy canola plants – strewn across a road separating the properties.

Marsh says he found the reaped stalk of a canola plant lodged in his own fence. Inside its slim pods he found the plant’s distinctive tiny, round black seeds, not unlike poppy seeds. Marsh says he used a portable DNA strip tester, which reacts to the specific protein produced by genetically modified plant DNA, and can detect genetically modified organisms (GMOs) in grain and seed within five minutes.

That’s how long it took for Steve Marsh to register disaster for his organic farm. That was the beginning of a dispute now scheduled for a civil trial before WA’s Supreme Court in February 2014, expected to stretch to two or three weeks. Eventually, Marsh alleges, the seeds would spread across 325 hectares of his land.

Marsh v Baxter not only pits neighbour against neighbour. It may influence the standard industry protocols for handling GM crops in future, the definition of what constitutes an “organic” product, and how farmers coexist using different practices. It’s become a landmark case, likely to set new ground rules between those who do and those who don’t do GM.

MARSH’S IS ONE OF THE FEW farms in the region that doesn’t do GM.

GM canola has been growing in WA since the State Government in 2010 overturned a moratorium on planting the GM version of the plant previously known as 'rape’, bringing WA in line with New South Wales and Victoria. The Gene Technology Regulator (part of the federal government’s Department of Health and Ageing) had deemed GM canola safe for the environment and for human health back in 2003. Canola is grown in Australia for its seeds, which are harvested mostly for export and made into oil for consumption by humans and livestock, and for use as biofuel.

The popular choice of grain growers around Kojonup is Monsanto’s Roundup-Ready GM canola. The plant is attractively priced and has been genetically modified to be resistant to the company’s trademark herbicide, Roundup, allowing farmers to keep weeds in check without damaging the crop. Sales of Monsanto’s canola seed are up by almost 40 per cent on last year in WA.

Marsh’s decision to go against the trend emerged from his experience of the ever-waning powers of some sheep dips and commercial fertilisers — overuse had progressively rendered them impotent against worms and weeds. Marsh started instead to think about natural farming systems for his 478 hectares. “It wasn’t organic as such, just a more sustainable system,” he says. “And, since then, I’ve come to the view that we need to work with nature not against it.”

Plus there was the feel-good factor. “I wanted to produce a good, quality natural product that I believe is healthy for my customers,” says the farmer, who endured allergies as a kid, ulcers as a teenager and a bowel-cancer scare as an adult. And, he adds, “to try and get a premium [price] for that” product.

After his DNA strip test, Marsh says he discovered the presence of GM canola on around 70 per cent of his property and up to 1.5 kilometres in from his boundary fence. Each plant, he knew, had the potential to continue sprouting for at least 15 years. He would almost certainly lose his organic certification. This was the nightmare scenario he says he’d been warning government ministers and the Department of Agriculture about for the past two years.

Marsh had sought independent legal advice on who might be liable in a case of crop “contamination”, and had placed signs on his boundaries declaring his property GM free.

Those seeds he picked up that morning were, he suspected, Monsanto’s patented GM canola. He alleges they could only have come from the next-door property of Seven Oaks, where Michael Baxter had made the choice to go with the new technology.

Richard Wainwright for The Global Mail

OVER THE BOUNDARY FENCE, at Seven Oaks, in response to shrinking profit margins, Baxter had researched how he might improve his yield. Discussions with his trusted local agronomist had pointed him towards the benefits GM canola could offer, including the minimal need for pesticides. It made sense, too, as a way to get on top of his rye-grass weed problem, as Monsanto’s GM canola has been modified to be resistant to the herbicide glyphosate, the active ingredient in Roundup. Australia’s rye grass has yet to develop resistance to the weed killer.

The 2010 farming season began with the Baxter family’s tradition of planting out on Anzac Day, while others were enjoying the holiday long weekend and playing two-up. Months later, as Marsh tells it, Baxter had the harvester out, cutting and stacking the crop into windrows. This harvesting method, known as “swathing”, is common, fast and easy, but it runs the risk of plant matter being thrown up in the air, caught by gusts and carried from one property to another.

Each of these farmers’ choices have had consequences for the other. The two men, who’ve known each other since primary school, now find themselves pitted in a conflict of biotechnological versus organic farming methods; man-made versus natural.

Beyond the legal technicalities of Marsh v Baxter lurks an ideological, even philosophical, debate. But, so far, only one side is talking to the media. Michael Baxter declined The Global Mail’s request for an interview.

Farmer vs Farmer

Marsh is suing Baxter for as-yet-unspecified damages over alleged nuisance and negligence, which allegedly allowed seeds from GM canola to blow across a large section of Marsh's property in 2010. As a result of this contamination, Marsh claims, Eagle Rest lost its organic certification on the 325 hectares affected. And as a result of that, he further claims his income has been significantly reduced.

“Nobody wants to take their neighbour to court,” he explains on a yet-to-be-released campaign video made by anti-GM activists who are supporting his court action. “The problem we found ourselves in, you just can’t have such an impact on your livelihood – loss of income. There was really no other way to go about addressing this issue.”

Once he’d identified the rogue GM canola plants back in November 2010, Steve Marsh notified his organic certifier, the National Association for Sustainable Agriculture Australia (NASAA), and the Western Australian Department of Agriculture, which both sent inspectors to verify his finding. NASAA adheres to a policy of “zero tolerance” of GM plants on organically certified farms.

NASAA notified Marsh that 325 hectares – about 70 per cent of his farm – would be decertified indefinitely. Cleaning up Eagle Rest by removing all GM seed and shoots would be costly and involve months of arduous work, NASAA acknowledged, saying, “he will effectively be unable to market produce from theses areas as certified organic until a complete clean up has occurred if this is possible”. Marsh says he has undertaken this task and, at the time of publication, was he awaiting the recertification of Eagle Rest as organic.

According to NASAA boss Jan Denham, the organic-certification body takes its hardline cue from global standards, which often deem there is no place for “known GMOs” in organic systems. While the US National Organic Program tolerates no “inadvertent presence” of GM plants, the EU position allows some wriggle room. That is, the EU sets a maximum unintended presence of GMOs in products of 0.9 per cent (individual EU states have stricter regulations still).

According to court records, Monsanto, the company from which Michael Baxter licenses his GM canola seed, suggests maintaining a five-metre buffer zone between GM and non-GM crops. Baxter’s buffer zone exceeded the company’s recommended minimum.

Farmers using its GM seed must sign Monsanto Technology Stewardship Agreements, which are essentially “no-liability” contracts ensuring the company remains immune from prosecution or liability for any fallout from its products.

The WA Department of Agriculture has established a register of so-called Sensitive Sites, which it says, “may include certified organic, certified biodynamic, aquaculture, horticulture and viticulture” properties. Its stated aim is to share information and let farmers know which side of the GM fence their neighbours are on. According to Steve Marsh, the register affords non-GM farmers no practical or financial protection.

What makes Marsh especially angry, he says, is that he, and other non-GM farmers, called on the state government back in 2009 to introduce legislation that would protect their rights and create a “polluter pays” approach to the problem of so-called “contamination”. The government didn’t listen.

Marsh had hoped a fund would be set up, with money contributed either by the biotech companies themselves or the GM farmers, to help non-GM farmers deal with the loss of income and the costs of cleaning up when “adventitious” – or accidental – events occur. The argument was that liability for GM contamination should be no different to liability for accidental overflows of water or cows getting loose in the neighbour’s top paddock.

“I think there has to be a legislated framework set up, like the Stock Act,” Marsh argues. “I would like to see canola carted in sealed shipping containers, for example, where it can’t escape out onto the roadways. It should also be mandatory for the GM grower to notify his neighbour [of his intention to farm GM crops]. [Right now, that’s] not the case.”

Marsh says his view, “when this all started out”, was this: “Whatever my neighbour does on his side of the fence that is his business, whatever I do on my side of the fence is my business. Now, if he was to grow GM that’s up to him. If I wish to farm organically, that’s my decision. As long as we don’t impact on each other, then coexistence goes on as we’ve always done.”

But when problems of coexistence arise, Marsh says, the government has left farmers with no other recourse but to take their grievances to a civil court.

When news of the legal action against them emerged, the Baxters found themselves under the spotlight. According to fellow GM farmer John Snooke, it was a steep learning curve for the naturally shy Michael Baxter.

“These are good community people all of a sudden facing intense media scrutiny for growing a legal crop,” Snooke says. “The anti-GM groups were opposing them daily, questioning them in the media.

“They’ve been stoic. They’ve learnt a lot.”

Steve Marsh is well aware of the intense pressure he has put his neighbour under. Kojonup and its surrounds have about 2,000 inhabitants and only one of everything else – fire brigade, post office, rural supplies, footy club – so it’s impossible to avoid uncomfortable encounters. Marsh’s laconic Aussie drawl falters when he admits: “There’s been a huge cost, not only on ourselves, but obviously on our neighbour as well. It is very sad it has come to this point.”

Early Adopters

John Snooke’s property at Cunderdin, is about 250 kilometres to the north of Eagle Rest and Seven Oaks. His family has been farming in the region for 100 years. Snooke Road leads from the highway to the old homestead, but my Google Maps app struggles to find it. The third-generation farmer has been a keen spruiker of the new crop technology, having hosted public displays of trial GM crops back in 2009. He’s amiable, intelligent and reasoned, but although his porch is peaceful, the talk can get tough.

Ian Walker/The Global Mail

Third generation farmer John Snooke grows both GM and non-GM canola on his property at Cunderdin.

Snooke explains how he now rotates GM canola crops with two varieties of non-GM canola, using the minimum five-metre buffer between them and his boundaries with neighbouring farmers. Yes, he admits, sometimes there are problems with pollen flow from one crop to another, but very few.

Farmers like to point out that nature knows nothing of fences: “In agriculture, storms happen, water flows, wind carries unintended matter in different places. That’s why we need thresholds. To allow neighbours to coexist and allow trade to flourish,” says Snooke. He’s referring to raising the threshold of GM incursion into organic farms, that would still allow organic certification.

In his role as Chair of the Western Grain Growers Committee of the Pastoralists and Graziers Association (PGA), it’s been Snooke’s job to keep an eye on how the Baxters are faring during the litigation ordeal. The PGA is also helping to bankroll Michael Baxter's defence. Snooke is keen for the GM farmer to have his day in court.

“Sometimes, to progress, you need to have a bit of a debate and thrash things out,” he says.

John Snooke admits that when the Australian grain industry decided to follow the European threshold of 0.9 per cent as its acceptable level of inadvertent GM material occurring in non-GM crops, the growers didn’t give much thought to organic farmers (who take a zero-tolerance approach). After all, there were only a handful of organic grain growers in the state, seven to be precise, compared to more than 700 now growing GM.

“The organic producer really threw a spanner in the works. Nobody thought GM canola would be a problem in an organic spelt crop,” Snooke says.

In Snooke’s book, Steve Marsh as plaintiff is going after the wrong guy. The organic certifier NASAA needs to rethink its “zero tolerance” approach to GM, Snooke says, and create a more realistic threshold for when so-called “contamination” occurs.

“Did they have the right to decertify Steve Marsh when an act of nature supposedly brought in a couple of GM canola plants?” he complains. “That just seems unreasonable when they allow other known toxic substances and give them a threshold.”

Organic does not necessarily mean pesticide-free or chemical-free. Under the industry certifier’s rules, organic farmers are allowed to use certain sprays and powders on their crops.

NASAA guidelines cite maximum allowable limits for residues of “given substances, such as agrichemicals allowed on foods as set by Food Standards Australia and New Zealand”.

Snooke says then of its zero-tolerance approach to GM, “It’s a little bit disingenuous.”

NASAA’s Jan Denham counters that many products used by conventional farmers, even though they’ve been through the regulatory process, are still not allowed in organic products worldwide. The same goes for GM.

In the debate over coexistence, critics of “zero tolerance” say that problems go both ways; that is, the practises of non-GM farmers also affect GM farmers.

For example, organic farmers, while environmentally more benign in some ways, are notoriously less efficient in controlling pests in their crops. GM farmers often raise crops that are effective in resisting specific pests without destroying helpful predator species, such as the ladybirds that eat marauders such as aphids. In this way, farmers growing conventional crops can benefit from a neighbour’s choice to plant GM, just by being in the same vicinity – they get fewer pests without paying the premium for GM seeds.

MICHAEL BAXTER AND STEVE MARSH HAVE ALREADY had one day in court, to decide the outcome of an interim injunction to prevent Baxter growing GM canola for the 2013 season, within a 2.5 km distance from the boundary of Eagle Rest. Once the GM farmer promised that he would dispense with swathing and use a direct-harvesting method instead, the judge agreed that his suggested buffer zone of between 300 and 400 metres was sufficient to allow him to go ahead with planting this year. Marsh had requested a further 800 metres, but the judge wrote that he had no empirical rationale for the extra distance.

The anti-GM lobby is approaching Marsh's case with public relations in mind. The Safe Food Foundation (SFF) is raising a fighting fund for Steve Marsh, with the catchcry: “CAN THIS FARMER DEFEAT MONSANTO?” Despite the fact that Monsanto is not a party to the proceedings, the group’s website pitches the court case as a “David vs Goliath” battle in which what’s at stake is “the right of Australian farmers to produce organic, GM-free food – which ultimately equals your right to choose organic food”.

Some Marsh supporters maintain Monsanto is picking up the GM farmer’s legal bills, but Monsanto refuses to comment.

For the Australian organics industry, the court case is its version of The Castle, with Steve Marsh as the new Dale Kerrigan. It is a rallying point, for those who contend there is sufficient evidence of harm to show GM foods are somehow toxic or relatively unsafe. The SFF’s campaign website calls for an urgent review of GM crop approvals by the regulatory agencies. “To roll over and accept GM contamination is unthinkable!” it says.

In a video that the anti-GM lobby group has produced to explain the background to the case and the reasoning behind its campaign, ABC-TV’s celebrity gardener, Costa Georgiadis, claims Steve Marsh as an everyman, and calls the public to urgent action to defend a sacred right.

“What Steve Marsh represents is our independence,” Georgiadis enthuses. “If we allow an entity to be created that can just unashamedly pollute the integrity of another individual's space, of another individual's belief, of another individual's processes ... If we allow that to happen then that will spread like a cancer across the entire spectrum of society.”

Safe Food Foundation director Scott Kinnear says his group has guaranteed to raise up to half-a-million dollars for the fighting fund, while Marsh’s lawyers, Slater & Gordon, have agreed to do their part of the work pro bono. Steve Marsh says he’s also received support from other people, not just anti-GM greenies, and been humbled by the experience.

Both sides in the broader GM debate have deep pockets. George Kailis, for example, is an organic food entrepreneur and self-confessed international anti-GM campaigner from Perth. The Kailis family has interests in seafood, restaurants, wine, beef and organic olive oil in Western Australia. Kailis says he sells about a billion dollars worth of products a year, many of which are exported.

George Kailis is a latterday convert to organics, he and his uncles having set up the first Red Rooster fast-food chicken outlet in Perth in the early ’70s. And his conversion apparently hasn’t gone down well with other branches of the family. During several phone calls with The Global Mail, Kailis said he was reluctant to go on the public record as he didn’t want to upset his relatives who work in the chemicals industry and others who are pro-GM.

Back in 2002, however, the businessman addressed a West Australian parliamentary standing committee which was assessing the state’s moratorium on GM foods. His 150-page submission was marked with a “Say No to GMO” (genetically modified organisms) bumper sticker showing a skull and crossbones through the “O”. Kailis went on to explain that his family had a $30 million investment in an olive grove at Donnybrook, WA, one of Australia’s largest organic plantations.

“We are substantially committed financially, not just morally, to the position of no GMOs, and organic,” he explained at the hearing. “We also have two other [non-organic] farms, a beef farm in Northcliffe and a 650-acre wine and avocado farm in Baldivis, both of which have significant export markets.”

Kailis admitted he had a vested interest in keeping WA GM-free. “If a brand is even slightly suspect, it loses,” Kailis argued at the hearing. “It does not take much for the consumer to smell a rat. If you have mostly GMO, it is like being mostly pregnant – you are either pregnant or not. I have a real problem with people who want to make a patchwork of GM and non-GMO.”

But, Kailis’ arguments failed to convince the government of the day, which lifted its moratorium to make way for GM canola.

George Kailis is on the board of the Sustainable Food Trust, one of the UK’s most prominent anti-GM activist groups, and has funded the Network of Concerned Farmers in WA. More recently, he has been associated with funding for a disputed scientific study by Australian epidemiologist Dr Judy Carman on the health of pigs fed GM corn and soy, published in June 2013; Carman stands by her findings, pointing out she is an “evidence-based medical researcher” with four degrees.

BOTH PRO AND ANTI-GM ADVOCATES have been stepping up the PR in the past year; there have been high-profile raids on crops and studies slammed. In the midst of this intensifying scrutiny has come the very public conversion of Mark Lynas, a high-profile anti-GM activist in the 1990s who has turned.

Larry Busacca/Getty Images

Mark Lynas poses for a portrait during the 2013 Sundance Film Festival in Park City, Utah.

Before the 300 delegates to the Oxford Farming Conference in January, Lynas apologised, saying he had been wrong. He now described the two decades he’d spent conducting nocturnal strimmer (whipper snipper) raids destroying scientific trial crops as “counter-productive”. He added that his actions had demonised “an important technological option which can be used to benefit the environment”.

The apology was heartfelt and not easy, he tells The Global Mail on the phone from Oxford. “I just wanted to put all of my cards on the table and speak from the heart, really, and say, ‘I got this wrong, I think everyone else in the anti-GM movement has got this wrong. We need to take stock of where we are and I, for one, am issuing an apology.’”

Lynas is a campaigning environmentalist, and an award-winning author on the subject of climate change. What irked him was the slow realisation that his passionately held views on GM were inconsistent with his reliance on evidence-based science when arguing his position on human-induced climate change. When it came to GM, he admits, he actively ignored the weight of evidence in favour of biotechnology.

“We employed a lot of imagery about scientists in their labs cackling demonically as they tinkered with the very building blocks of life,” Lynas says.

“Hence the Frankenstein food tag – this absolutely was about deep-seated fears of scientific powers being used secretly for unnatural ends. What we didn't realise at the time was that the real Frankenstein's monster was not GM technology, but our reaction against it.”

Dominique Faget/AFP/Getty Images

Greenpeace activists demonstrate against GMOs in front of EU headquarters in Brussels in 2008.

The Frankenfood label is the gift that keeps on giving to environmental groups such as Greenpeace and Friends of the Earth, which are supporting the ‘Steve Marsh vs Monsanto’ campaign. Largely because of the success of two decades of negative campaigning, GM crops remain banned in many parts of Europe, India, Asia and Africa. In Australia, the first GM cotton was planted commercially in NSW in 1996, but fiercely defended moratoriums remain in Tasmania and South Australia.

Despite China being the world's largest grower of GM cotton, the meme seems also to have taken hold there in some quarters. Recently, a major-general in the People’s Liberation Army raised questions in a popular newspaper about the potential threat to the nation’s food security if Beijing allowed more trade from the US in genetically modified grains.

“If things change and the West cuts off our grain supply, are 1.3 billion people going to drink the northwestern wind?” Peng Guangqian asked in the nationalist daily Global Times. In the debate that raged afterwards in the blogosphere, Peng’s detractors were accused of being lackeys of Monsanto.

A recent spate of anti-GM documentaries, with titles such as: Genetic Roulette: The Gamble of Our Lives, The Idiot Cycle and Seeds of Death, raise the possibility that GM foods may contribute to a variety of ills; from autism, to allergies, to Parkinson’s Disease to cancers.

Whatever the scientific consensus, public attitudes vary widely. Data on consumer attitudes to biotechnology has been collected for more than a decade by Australia’s Department of Industry, Innovation, Climate Change, Science and Tertiary Education. It shows that our values and emotions (rather than reasoning or logic) determine whether we are for or against eating GM foods.

Perhaps surprisingly, only 14 per cent were strongly opposed to eating GM foods (selecting, on a scale of 0-10, either 0,1,2 or 3), according to the department. The data shows that older people are more concerned. Women are more worried than men. Younger people, it seems, generally couldn’t care less.

The department’s lead researcher, Craig Cormick, says disdain and ignorance operate on both sides of the divide.

“If we're talking to pro-GM activists,” he explains, “they look to everyone to the other side of the spectrum and think, ‘You just don't get it, you're ignorant. You don't understand the science – that's your problem.’”

Down the other end of the spectrum, he says those who are extremely anti-GM, “look at everyone else with outrage and horror that they could be buying into this technology that so appals them emotionally”.

Most of us though are among 75 per cent of people who are undecided about GM. But techno-optimists, such as Forbes magazine’s biotechnology specialist Jon Entine, believe we have arrived at a turning point.

“Every once in a while,” he says, “our society faces major inflection points when certain technologies come into play. We saw it in the 1800s with the railroad, we’ve seen it with nuclear technology, we’ve seen it with computer technology. And I really think that we’re in this kind of inflection period with biotechnology.

“It is literally changing the way we can think about nature. And I mean in a good sense. I don’t believe that we’re violating God’s way, or any kind of natural order of things. But it is a profound experience, which is why it’s scary to many people.”

High Stakes

The outcome of Marsh vs Baxter is being anticipated by GM debate watchers around the globe. The judge presiding in the case, Justice Kenneth Martin, acknowledged its significance, writing in his judgement on the failed interim injunction: “The case now awaiting a trial in early 2014, is unlike prior cases factually known to the law.” While there are previous instances of water, fire, foot and mouth disease and even potato blight causing damage to a neighbouring farmer’s property, this case is pioneering legal territory.

Steve Marsh has not disclosed the amount of damages he is suing his neighbour for; Marsh's lawyer has speculated that Baxter's potential liability could be reach $1 million. While the organic products Eagle Rest had specialised in haven’t been produced for the past three years, Michael Baxter has reportedly had three successful seasons with his GM canola, using fewer pesticides, rotating crops in ways he could not have done before and increasing his yields.

While anti-GM activists are already describing him as a hero, Marsh says he’s happy not to be fighting the battle on his own and has been surprised by the breadth of his support base.

“We’ve had support from all different backgrounds,” he explains on the campaign video. “Not just the environmental – the green movement – it’s across the board, from all different people.”

Justice Martin has said that Marsh has, “an arguable case, not necessarily a strong or overwhelming case”.

If Marsh loses the case, and is required to pay the other side’s legal costs, it’s likely he’d need to sell up and leave his farm. He says, “I discussed [the decision] with my wife. We believe we’re doing the right thing and we made that commitment whatever the outcome, win or lose. And obviously we’re prepared to put the farm [on the line].”

This article has been amended. The original piece described the weather on Marsh’s farm in 2010 as unseasonably wet and windy, when it is not in fact clear that conditions were unseasonably so.

It also incorrectly stated that Australian rye grass has yet to develop resistance to the weed killer glyphosate – in fact several strains of the grass have recently developed this resistance.

How GM canola spread to Steve Marsh’s farm will be considered in the court case but Marsh does not allege it involved cross-pollination. Also, Marsh does not allege that the spread resulted in flowering plants across 70 per cent of Marsh’s property, merely that the GM canola contamination was present across this area of the farm.

Several other amendments have been made for greater clarity of language.