Who Owns Life, Not Monsanto?

Percy Schmeiser is a real life hero who played David to Monsanto’s Goliath, and like David, he won Sam Burcher

Percy and Louise Schmeiser in London

Governments approve Monsanto’s GM crops

Percy Schmeiser and his wife Louise are third generation farmers from the prairies of Western Canada in the province of Saskatchewan near the city of Saskatoon.  They feel really blessed not only that his grandparents moved there, but by the fact that in Central Saskatchewan so many types of grain crops can be grown; pulses, oil seeds, in what the locals call God’s Country.

The Schmeisers, like hundreds of thousands of farmers all over the world, were using their canola (oilseed rape) seed from year to year and developing new varieties suitable for climatic soil conditions on the prairies.  Percy had also been the Mayor of his town for over thirty years, a member of the provincial Parliament and an active member of agricultural committees representing his province on new agricultural policy, law and regulations for the benefit of farmers.

In 1996, the Canadian Federal Government and the US Government gave regulatory approval to four genetically modified (GM) crops: soya, corn or maize, cotton and canola. At the time not all GM crops in Canada were herbicide tolerant except for Monsanto’s Roundup Ready canola and soya, both resistant to the company’s herbicide Roundup. The US Government had also approved Bt cotton and Bt corn that has the added GM toxin from Bacillus thuringenisis (Bt). The Canadian government were fully complicit in allowing Monsanto to develop GM crops on Government test plots and research stations in return for a royalty on every bushel of GM crops sold.

Monsanto versus farmer

In 1998, two years after the introduction of genetically modified organisms (GMOs) in Canada, the Schmeisers received a lawsuit notice from Monsanto which said that they were growing Roundup Ready canola without a licence from Monsanto and that this was a patent infringement. Monsanto had a patent on a gene to make GM canola resistant to the glyphosate herbicide in its formulation Roundup. This came as a complete surprise to the Schmeisers who immediately realised that all their research and development on canola over the past fifty years had been contaminated by Monsanto’s GMOs.  They felt that they had a case against Monsanto for liability and the damages possibly caused to them, and that was the beginning of [1] Schmeiser's Battle for the Seed (SiS 19). And 10 years on, the Schmeisers have been invited to London to tell their full story [2].

The Schmeisers stood up to Monsanto’s claims of patent infringement in the Federal Court with just one judge and no jury. The pre-trial took two years to go to court in which Monsanto claimed that despite having no knowledge of Percy Schmeiser ever having obtained any GM seed,  he must have used their seed on his 1 030 acres of land because ninety-eight percent of the land was GM contaminated. And, because the Schmeisers had contaminated their own seed supply with Monsanto seed, ownership of the Schmeisers seed supply reverted to Monsanto under patent law.

Monsanto owns all crops or seeds contaminated, the court ruled

The Court ruled after a two-and-half-week trial that it was the first patent infringement case on a higher life form in the world.  The Judge’s ruling and Percy Schmeiser’s name became famous overnight:

• It does not matter how a farmer, a forester, or a gardener’s seed or plants become contaminated with GMOs; whether through cross pollination, pollen blowing in the wind, by bees, direct seed movement or seed transportation, the growers no longer own their seeds or plants under patent law, they becomes Monsanto’s property.
• The rate of GM contamination does not matter; whether it’s 1 percent, 2 percent, 10 percent, or more, the seeds and plants still belong to Monsanto.
• It’s immaterial how the GM contamination occurs, or where it comes from.

The Schmeisers tracked down the source of the contamination. It was their neighbour who had planted GM crops in 1996 with no fence or buffer between them. Nevertheless, the Schmeisers’ seeds and plants reverted to Monsanto, and they were not allowed to use their own seeds and plants again, nor keep any profit from their canola crop in 1998.

The Schmeisers appealed against the ruling, and after another two years, it was upheld by the Federal Court of Appeal judges even though they did not agree with all the trial judge’s statements. The Schmeisers believe that the case should have been thrown out of Court and not upheld.  After having lost the two trials costing them $300 000 of their own money, Percy took the case to the Supreme Court of Canada.  He was warned that there was only a very small chance that the case would be heard; but was granted a second leave of Appeal by the Supreme Court of Canada.

Schmeiser raised important questions during the Supreme Court Appeal

The Appeal was good news for the Schmeisers, but in the meantime Monsanto had brought another lawsuit against them for $1million in legal costs, fines and punitive damages.  Monsanto said that the Schmeisers were recalcitrant and that they wanted a million dollars from them. For good measure, Monsanto brought a third lawsuit against the Schmeisers to seize their farmland, farm equipment and house, in an effort to stop them mortgaging their assets to pay their legal bill.

Percy Schmeiser effectively raised several important questions at the Supreme Court Appeal:

1. Can living organisms, seeds, plants, genes, and human organs be owned and protected by corporate patents on intellectual property?
2. Can genetically modified traits invade and become noxious weeds that then become resistant to weed killers and become superweeds? (The answer was obviously yes, as these are now all over Western Canada and almost the rest of Canada, see below.)
3. Can the farmers’ rights to grow conventional or organic crops be protected, especially organic crops?
4. Can farmers keep their ancient right to save their own seeds and develop them further if they so desire?
5. Who owns life?  Has anyone, either an individual or a corporation, the right to put a patent on a higher life form?

On the important issue of “Who owns life?” the Supreme Court ruled in 2004 that “Monsanto’s patent on a gene is valid and wherever that gene arrives in any higher life form they own or control that higher life form.”  That was considered to be a major victory for Monsanto at the time, but is a decision that has come home to roost in the form of corporate liability for GMOs. Percy explained that if a corporation own and control a higher life form and they put it into the environment where everyone knows it cannot be controlled or contained and co-existence is impossible then the corporation should be liable for the damages done to an organic farmer or a conventional farmer, as well as for the negative impacts on biodiversity.

Despite strong recommendations by the Supreme Court for the Parliament of Canada to bring in new laws and regulations on patents on life and the rights of farmers to use their seed from year to year these issues have yet to be addressed to date. In the US, Monsanto has filed lawsuits against at least ninety farmers (see [3] Monsanto versus Farmers, SiS 26).  

Monsanto’s contamination no benefit to farmers, the Supreme Court ruled

In 2004, the Supreme Court ruled that in the case of patent infringement the Schmeisers owed no money to Monsanto because they did not benefit by being contaminated by the GM genes.  Furthermore, they had not used Monsanto’s patent because they had not sprayed the Roundup herbicide on their canola crops. However, both parties had to pay their own legal bills. The Schmeisers legal bill was over $400 000 and Monsanto’s was over $2 million. 

In essence, Monsanto had used Percy Schmeiser as a test case to see how far they could exercise intellectual property rights (IPR) over farmers’ rights. “At one point, Monsanto had nineteen lawyers in court, I had one. Talk about intimidation,” Percy said.

No longer able to grow canola in their fields for fear of infringing Monsanto’s patent, The Schmeisers began research into yellow mustard and started cultivating 50 acres of land in preparation for planting. In the autumn of 2005, they noticed canola plants growing despite not having been seeded in those fields for many years. They brought in witnesses and tested the plants by spraying Monsanto’s Roundup herbicide on the plants. Monsanto claim that any green plant that is sprayed with Roundup that does not die must contain their patented gene. When the Schmeisers plants did not die they realised that Monsanto’s canola was in their fields again.

The Schmeisers contacted Monsanto and asked them to remove the canola plants from their property. Monsanto took samples of the plants that confirmed they were their patented variety and two days later Louise Schmeiser received a fax from Monsanto containing a signed release statement which was blackened out in parts.  Louise refused to sign it and insisted that Monsanto send her the unexpurgated document.  Monsanto sent what was essentially a gagging order on the Schmeisers from ever telling anyone, neighbours, and the press about the terms of settlement, or ever taking Monsanto to court again for the rest of their lives no matter how much Monsanto contaminated their fifty acre parcel of land with GM canola.

Victory for Schmeisers and farmers at last

There was no way that the Schmeisers were ever going to sign a statement like that and give up their freedom to a corporation. Monsanto said that if they refused to sign then they would not remove the plants. The argument raged backed and forth; the Schmeisers said they will remove the plants themselves and Monsanto wrote back saying we wish to remind you that the plants that are on your field are our property and you are not allowed to do with those plants what you want. The Schmeisers said get your property off our property, you’re trespassing!  Monsanto said only if you sign the release form.

The Schmeisers wanted the plants off their land before the pods ripened and the seeds were dispersed into the field.  They hired the neighbours to help remove the plants and notified Monsanto about what had been done and Monsanto sent another fax saying that you can’t do what you want with those plants. A bill was eventually sent to Monsanto by the Schmeisers for $640 to pay for the neighbours help to clear the field. Monsanto refused to pay the bill unless Percy signed the release statement.  This went on for about a year so the Schmeisers made a decision to go back to Court amid media reports about the new dispute.     The judge in the small claims Court agreed with the Schmeisers and sent Monsanto a summons. Percy said, “We then had a billion dollar Corporation in Court on a $640 bill and you can imagine the publicity that got in Canada.”

In March 2008, the case went to trial and when the judge came into the Court room Monsanto got up with a cheque in hand to pay the $640 plus $20 costs. “I’ll never forget that $20 costs!” Percy laughed.  “It was a great victory, not only for ourselves, but for farmers all over the world because it has set a precedent where a corporation has accepted liability for contamination and clean up costs”, he said. Percy Schmeiser had become the first farmer in history to successfully counter-sue Monsanto for liability over damages done to his seeds and crops by Monsanto’s GM crops

GM in Canada - lessons learnt

Thirteen years ago when GM soya and rapeseed was introduced in Canada (and in the US) the Corporations and Government told farmers that GM would increase yields, be more nutritious, use less chemicals, and feed a hungry world. Now we will always have a sustainable agriculture, they claimed.  The Canadian Department of Agriculture figures states canola yields have decreased at least ten percent and soya at least fifteen percent [4], but worst of all, farmers are using three to five times more chemicals because of the GM superweeds that have developed.  The reality is that the nutritional content of all crops are down fifty percent of what they were before GMOs were introduced and now we have less yields and more chemicals used, exactly the opposite of what Monsanto promised.

Percy Schmeiser said, “Once you introduce GMOs, believe me the days of organic farmers are over, the days of the conventional farmer are over, it all becomes GMOs in a matter of a few years.”  In addition, he said, there is no such thing as containment, you cannot contain pollen flow.   It doesn’t matter if contamination is by seeds blowing in the wind, or by bees, or by farmers transporting their seeds to market, or so on. Ultimately, farmers, growers and consumers will no longer have a choice because despite Monsanto’s promise that farmers will have choice, they won’t because it’s absolutely impossible for organic and conventional farming to co-exist with GM crops.

Mountains of contaminated produce that cannot be exported

Canadian organic farmers can no longer grow canola and soya crops organically. The seed stocks of those two crops are now totally contaminated by GMOs, which cross- pollinate into other market garden crops from the brassica family. Percy describes the devastating effect GMOs have had on Canada’s markets, as a nation reliant on exporting eighty percent of what it produces.  The markets for rapeseed have shrunk to primarily exporting to Mexico, the US and Japan, Canada is now sitting on a mountain of canola, not one bushel can be exported to the EU.  Furthermore, Canada’s honey markets throughout the world have been lost because of GM contamination.

Schmeiser is also concerned about a new wave of GM crops in Canada called “pharma-plants”. There are six major types of drugs now being produced by GM plants, including  prescription vaccines, industrial enzymes, blood thinners, blood clotting proteins, growth hormones and contraceptives, all known to be much more dangerous than conventional drugs (see [5] Biologicals’, Wonder Drugs with Problems, SiS 42) What if somebody has had major surgery and then eats food contaminated with genes from a plant manufactured to be a blood thinner? Or what about a pregnant woman who eats food contaminated by genes from a plant that is manufactured as a contraceptive? These are just some of the worrying implications of pharma-plants, along with containment and co-existence.

Superweeds now ubiquitous in Canada, requiring supertoxic herbicides

Superweeds have evolved from conventional canola plants that have taken on the genes from three or four companies selling GM canola that has cross-pollinated and ended up in one plant. It had become established in Canada by 1996 (so quickly that horizontal gene transfer was suspected as having been involved, see [6] What Lurks Behind Triple Herbicide-Tolerant Oilseed Rape?, I-SIS Report).  Percy warns that superweeds are ubiquitous throughout Canada in wheat fields, barley fields, cemeteries, university grounds, towns, and golf courses.  He said that all these people that never even grew GM canola have this new expense of trying to control it, and this is responsible for the massive increase in the use of chemicals to control the superweeds.

One third of Canada’s insecticides, herbicides and pesticides are used in Saskatchewan, which has the highest rate of breast cancer and prostate cancer in Canada.  “We’re killing ourselves with the chemicals we are using and the chemicals are more powerful and more toxic than ever before,” Percy says.  He warns that Roundup herbicide is now four times stronger than it was in 1996. Roundup is bad enough as new research reveals (see [7] Death by Multiple Poisoning, Glyphosate and Roundup, SiS 42); the new type “24D”, contains 70 percent Agent Orange, and is being used on the prairies to combat superweeds.  The adverse health effect of Agent Orange in Vietnam is common knowledge and could explain the major health problems, environment damage and loss of biodiversity in Canada.

Monsanto’s culture of fear

Monsanto is perpetrating a culture of fear and intimidation in Canada in an effort to gain control of the seed supply, and ultimately the food supply. It was not easy to stand up to Monsanto. Percy said, “They tried everything to break us down mentally and financially.” His main fear was the harm that they would do to his wife and family.  Monsanto employees would sit in the road in their vehicles watching us all day long when we were working in our field, he said. They would sit in the driveway for hours at a time watching Louise Schmeiser when she was working in the garden and then phone her and say “You better watch it; we’re going to get you.” Monsanto would then phone their neighbours and say if you support Percy and Louise Schmeiser we’re going to come after you and do the same to you as we’re doing to them. Monsanto offered $20 000 worth of chemicals to the Schmeisers’ neighbours if they would say something negative about them in Court.          

Percy warns farmers about Monsanto’s “Inform on your neighbour” policy for a free gift such as a leather jacket or chemicals. He said when the “gene police” arrive on contaminated farm land threatening the farmer and his wife with a court case, what do you think goes through a farmers’ mind? You have a suspicion about your neighbours; it breaks down the social fabric of rural society, farmers’ relationships, farmers not trusting one another, farmers scared to talk to each other about what they are seeding.  We don’t know how many thousands of farmers they have done that to.  But by 2004 at least 30,000 farmers were paying royalties to Monsanto in Canada [8]. As a former politician, Percy thinks this is the worst thing that has happened with the introduction of GM crops, a whole new culture of fear that Monsanto has been able to establish on the prairies of North America and Canada.

If Monsanto can’t find the farmer at home they go to the municipality office and get the farmers address and extortion letters follow.  Percy has collected a lot of letters that farmers have given to him that say:  “We have reason to believe that you might be growing Monsanto’s GM rapeseed without a licence. We estimate that you have so many acres.  In lieu of us not sending you to court send us $100 000 dollars or $200 000 dollars in two weeks time and we may or may not send you to court.”  Can you imagine the fear of a farm family when they receive this letter from a billion dollar Corporation?  The letter ends, “You’re not allowed to show this letter to anyone or we will fine you.” One farmer’s wife sent Percy a letter from Monsanto because she was at her wits end.  Her husband had four heart attacks and she pleaded with them to put her in jail.  Monsanto replied, “We don’t want to put you in jail lady, sell your farm and we’ll let you go for half the money.” This behaviour is ruthless and if Monsanto can victimise farmers in First World countries such as Canada and America, it is a given that they will do this in many countries all over the world.

No new GM crops for Canada

But the Schmeisers’ struggles have brought a ray of hope.

In Canada food is not labelled, and campaigners have protested to find out what’s in their food by demanding labelling.  The National Farmers Union has warned farmers not to buy Monsanto’s GM seeds because of their aggressive attitude.  The Government has been unsuccessful in introducing any new GM crops such as wheat, rice, flax, and alfalfa because there was such an uproar by the people who have seen the damage and don’t want any more GM crops.  Schmeiser said, “If we’re trying to stop them in the US and especially Canada, why would you want to introduce them in the UK and Europe?” He believes that now the Corporations have lost the ability to introduce any more GMOs in Canada they have turned their attention to other countries in the world.  He compared this dominant strategy with the sale of agricultural pesticides and chemicals that have been exported wholesale to Africa and Asia once the North American markets were saturated.

Percy said we do not know if you can ever recall out of the environment a life form that you put into it.  And in relation to GMOs, what are we leaving for the future?  We are at a fork in the road. If you go the GM way, this is what will happen; if you go down the other fork, you will maintain good food, safe food, and your environment.  “I don’t think any of us want to leave to the future generations our environment, our soil, our water, our food, and our air full of poisons, none of us want to leave that,” he concluded.  Percy has five children, fifteen grandchildren and two great grandchildren and that is why the Schmeisers have taken such a strong stand because they want to leave a legacy of safe food, water, air and soil.

He leaves us with a final question: “What will happen if you introduce GM crops in the UK?”   We still have the chance to make the right decision.

Article first published 06/04/09

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References

1. Ho MW. Schmeiser’s battle for the seed. Science in Society 19, 13-14, 2003.
2. Percy Schmeiser addressing GM Freeze Annual General Meeting 29 October 2008, Friend’s Meeting House, London.
3. Burcher S. Monsanto versus Farmers. Science in Society 26, 2005:25:33-48.
4. Canadian Department of Agriculture and Agri-Food Report Past, Present and Future Netherlands August  2005 http://www.ats.agr.gc.ca/europe/4187_e.pdf
5. Cummins J. ‘Biologicals’, wonder drugs with problems. Science in Society 42.
6. Ho MW. What lurks behind triple-tolerant oilseed rape? I-SIS Report, 17 April 2002, https://www.i-sis.org.uk/whatlurk.php
7. Ho MW and Cherry B. Death by multiple poisoning, glyphosate and Roundup. Science in Society 42 .
8. Genetically Modified Soya Beans and the Patent System. TED Case Study, number 769 by Itaru Nittar  TED Case Studies December 2004 http://www1.american.edu/ted/soybean-patent.htm