Schmeiser vs. Monsanto
Vitality July/August 2004
By Helke Ferrie

God and the Supreme Court work in mysterious ways.  They don’t follow a straight line, but somehow justice is slowly achieved, and they always offer great new opportunities for the doggedly determined.  And so it is – and will be - with Saskatchewan farmer Percy Schmeiser whose canola fields were contaminated with genetically engineered seeds made by Monsanto. ¹ Schmeiser lost – sort of – against Monsanto, who would like to think they won, in the May 21 Supreme Court decision.  It was mighty close: five judges ruled for Monsanto and four ruled for Schmeiser. ²   Far from slamming the door shut on human rights and food safety, they opened up barrels of worms with which to renew our earth.

The Respondent: Monsanto

Since 1901 Monsanto has given the world almost all of the worst carcinogenic, neurotoxic, and teratogenic chemicals with which we have (usually unknowingly) poisoned our environment and made Monsanto rich.  Its history as foremost “corporate criminal”, according to the European research source CorporateWatch, began a hundred years ago with artificial sweeteners, ammonium nitrate fertilizers, styrene and polystyrene plastics (all carcinogens) and went on to worse with dioxin, Agent Orange, glyphosate (in the world’s bestselling herbicide Roundup), the 2,4 D family of pesticides, PCBs, aspartame, bovine growth hormone, and   -  since the 1990’s  –  a devil’s kitchen of genetically engineered food plants;  many more are still inside their laboratories in St. Louis, Missouri, such as their current “genetic improvements” to pigs (Ontario Farmer June 15) and plants that deliver medicine and vaccines.  According to R. Fraley, Monsanto’s agricultural sector’s co-president,  “What you are seeing is not just a consolidation of seed companies, it’s really a consolidation of the entire food chain.”  Europeans call Monsanto “Mon-Satan”. ¹

Monsanto’s chemicals were used for war and agriculture, with war being at least an honest pursuit because its stated intent is mass-murder, while agricultural use of the same chemicals requires complex corporate strategies to disguise the slow poisoning of life through side-effects appearing much later.  Not surprisingly, Monsanto also makes drugs which are generally also let loose on the market before real safety is established, a legally sanctioned business practice, as applicable legislation is not precautionary but damage control oriented.  So, by the time the dead can be counted, companies have been laughing all the way to the bank.

In the early 1990’s Monsanto spent US $10 billion to buy up seed companies and introduced genetically engineered products starting with bovine growth hormone (see my article from Vitality July 2001. ) Worldwide, 80% of all GM crops grown were developed by Monsanto.  Whenever such a crop dramatically fails or causes environmental problems, Monsanto’s deep pockets and their powerful connections with governments buy or enforce silence (see Tokar below). GE soya beans were the first to expose what Dr. Charles Benbrook calls “Monsanto’s Big Lie”: contrary to Monsanto’s claims, they require 2 to 5 times more Roundup herbicide than conventional seeds, and instead of reducing the water needed, consumption increases (see his report on http://nelsonfarm.net).  Ethical Investing lists Monsanto under “Health and Planet Destroying Products” and provide full information from the medical science literature and the documented ecological destruction. ¹

The Applicant: Percy Schmeiser

Schmeiser spent the past 50 years perfecting his canola crop through seed-saving and by following plant-breeding principles as old as agriculture itself.  In 1998 Schmeiser’s canola fields produced a mixture of his own and Monsanto’s genetically engineered canola.  The highest concentration was outside his property line in the ditch and some extended in decreasing concentration into his adjacent field.  Many farmers had bought into the Monsanto promise that using its seeds would reduce the use of pesticides, protect their wells, cut costs  and labor.  It took just a few seasons for  most farmers everywhere to realize that this was a false promise. 

Open trucks carrying GM canola were passing Schmeiser’s farm and so began the problem of “volunteer” canola growing everywhere unbidden, and contaminating natural canola by cross breeding.  The US Department of Agriculture estimated that reliable methods of segregation would cost billions and be unworkable (Boston Globe, April 20, 2001 ). In Saskatoon , agricultural research centre Agri-Food Canada tested random samples of supposedly natural canola for contamination with GM varieties and found none conformed with the “mandatory genetic purity of 99.95%”. Pioneer Hi-Breed confirmed that “100% purity, in genetic make-up … is currently not achievable for any agricultural product.” (Remember the StarLink corn mess?) For Schmeiser this meant that a life-time’s plant breeding work was ruined quite literally forever.

Monsanto sued Schmeiser for patent infringement and the case made its way to the Supreme Court in January,  a standing-room only affair.  Especially interesting for me was overhearing so many attending civil servants freely expressing anger and outrage against the Canadian government’s support of GMO technology.  The press came out by the hundreds exceeding anything a movie star or sports hero could expect.  Monsanto had as supportive intervenors various biotech organizations all claiming that research and the future of the human race was at stake if this patent was not protected for the sake of a “seed industry worth $ 100 billion”.   What they want to protect is potential profit.  Seeds themselves have been most effectively protected for millions of years by God herself. 

Schmeiser’s supportive intervenors included the Council of Canadians, the Sierra Legal Defence Fund, the National Farmers Union and many more organizations from Canada as well as around the world.  They supported the farmer’s right to save seeds and they really knew something about farming – unlike the corporate camp.  Interestingly, the Government of Ontario was an intervenor as well: OHIP was threatened by a law suit from Myriad Genetics Inc. for not paying royalties on a test for the genetic predisposition to breast cancer, and so Ontario sought legal clarification and wound up in Schmeiser’s camp. The EU cancelled Myriad’s patent in May, so OHIP is now off the hook, but other such patents are now also thereatened.

The central issue was whether Monsanto’s patent included the whole plant or just the process of insertion of an artificially altered gene causing resistance to the toxicity of Roundup.   Schmeiser lawyer Terry Zakreski asserted that the patent granted to Monsanto in 1995 for GM canola clearly only covers the genetic engineering process, not the plant itself or even the plant seed, and that patented objects never self-replicate, only life-forms do, and that self-replication cannot be patented.    If Monsanto wanted to sue somebody, they should sue another company, if it uses this insertion technique, but not a farmer who utilized the unpatentable natural growth and replication processes.   Guelph University ’s GMO expert Ann Clark asked, “How can the farmer be held accountable for something the seed trade itself cannot do?” http://www.plant.uoguelph.ca/research/homepages/eclark/ 

This is how:  our government in 1995 not only granted Monsanto the patent for the canola gene insertion process, but also “unrestricted release into the environment” without so much as a question about what might happen.   The result: the rapid evolution of “super weeds” which Roundup nor any other chemical cannot kill, a world market that said, “We’ll pass, thank you”, and hopelessly contaminated natural seeds.  Canada lost, and continues to lose a lot of money, farmers are faced with an insoluble mess, and Monsanto continues to make money until this wholesale exploitation strategy will at last no longer pay, a process that has already begun.

The judges needed to consider a Patent Act not designed for biotechnology, their own previous famous decision (the Harvard Mouse case) where they had ruled higher life forms cannot be patented, and the Canadian Biotechnology Advisory Committee 2002 report which urges that the Patent Act should be changed, so that contamination process be taken into account; the report points out that patent law never before had to deal with inventions that can do their own thing on their own time and don’t stay put. The Supreme Court’s job is to interpret the laws made by parliament, and so it navigates between upholding existing laws and suggesting change.   Supreme Court judges aren’t nannies to whose skirts we can cling when big bad corporate wolves come salivating.  We have to punch them out ourselves by demanding changes to the law. 

The May 21 decision shows that five judges argued  “…we are not concerned here with the innocent discovery by farmers of blow-by patent plants … in their cultivated fields.  Nor are we concerned with the scope of the patent, or the wisdom and social utility of the genetic modification of genes and cells – a practice authorized by Parliament under the Patent Act and its regulations.  Our sole concern is with the application of established principles of patent law to … this case.”  They go on: “The Patent Act confers on the patent owner ‘the exclusive right, privilege and liberty of making, constructing and using the invention and selling it to others to be used’.’  Schmeiser was found to cultivate Monsanto’s canola.  These five judges say that he was using somebody else property, because “our task is to interpret the Pastent Act as it stands.”  Right – George Bernard Shaw famously said that most of the time “the law is an ass.”

The four dissenting judges were led by Justice Louise Arbour who has just been appointed Human Rights Commissioner to the United Nations after her predecessor was recently killed in the bombing of the UN office in Iraq .   She led a 1995  landmark inquiry into the abuse of women prisoners at Kingston penitentiary, served as chief prosecutor from 1996 to 1999 for the UN war crimes tribunals for Rwanda and the former Yugoslavia,  indicted Slobodan Milosevic, overruled NATO generals who did not want to arrest war criminals, and forced the investigation of mass graves containing Serb victims.  The world is gaining a great person at the Canadian Supreme Court’s expense.

Arbour et al argued that patent law is irrelevant because it is designed to protect an inventor’s “monopoly over his invention”.  The question, they wrote, is whether growing a Monsanto invention accidentally in any way deprived Monsanto of that legally granted monopoly over their invention.  These four judges found, that in no way was Monsanto’s monopoly infringed, as it could go on making piles of money from people who buy their engineered seeds voluntarily.  The judges cited the international treaty TRIPS which states in article 27 (3) (b) that plants and animals can be excluded by member states from patentability  -   thereby delivering not only a blow to the Canadian Patent Act, but making it mandatory that it be harmonized with the treaty. 

All 9 judges agreed that Monsanto had to bear the costs because Schmeiser had not profited in any way from this contamination.   Schmeiser correctly pointed out that this will make it very difficult for Monsanto to keep suing farmers whose fields are contaminated, because this ruling requires that Monsanto prove that “a farmer has profited from” unwanted seed. “This decision has removed the teeth from their patent”, he observed and pointed out that “now parliament will have to act, because we have a conflict between plant breeders’ right and patent law.”

Then, on June 11, the Supreme Court handed down a zinger of a decision making corporations fully accountable for the damage they cause to the environment through negligence or (greedy) intent.  The Supreme Court ruled that our environment and everything that is in it “should be valued on more than just a (potential) market value basis”, said Sierra Legal lawyer Robert Wright.

Now add to that 18^th century economist Adam Smith’s  famous “invisible hand” of the market which forced Monsanto to abandon its genetically engineered wheat (while still crowing over Schmeiser)  because of world-wide opposition and flat-out refusal by several countries to buy anything edible from North America if this plan went ahead (because of the obvious contamination problem in everything).  Wheat was for the EU and Japan literally the final straw.  In Australia Monsanto had to abandon plans for GM canola for the same reasons. With Europe , Australia and most of Asia refusing most if not all GMOs, Monsanto is hoping Africa will yield (BBC June 21).  Given the long history of imperial exploitation of that continent, I am sure their wits will prove to be even sharper than ours and they will have learned that Japan ’s Nagoya University has formally reported “Monsanto’s fraudulent testing data for GE soybeans”. 

Patent law was designed at a time when 18^th century polymaths invented gadgets and explored an uncontaminated world totally unlike ours today. Patents offered personal control of an individual’s idea, not world control.   Since corporations in the 20^th century obtained the legal status of “persons”, they became hungry giants who never can be satisfied in a world where the stock market demands infinite hunger and eternal growth.

Liability Law, however, carries the archetypal intent of establishing and enforcing personal responsibility, and nothing can ever be really new in its domain, not even biotechnology.   (Here the god of the Old Testament growls from way back in the Garden of Eden demanding accountability.)  It is already doing so most notably in the pharmaceutical arena: New York State ’s attorney-general Eliot Spitzer, famous for successfully indicting Wall Street fraudsters, is suing Glaxo Smith Kline for “deceiving doctors” with fraudulent studies and for withholding negative information on their drugs; he is doing exactly what finally brought down Big Tobacco (Nature vol. 429, June 10).  The European Union stunned North America by tabling a law that would require all corporations to prove their products are safe before bringing them to the market.  If it passes, this will be the most momentous change in the way the world does business.

Schmeiser asserts, “No one should have the right to release into the environment that which destroys the property of others.” Zakreski  (and others) is continuing legal action on behalf of Canadian farmers (see www.saskorganic.com) utilizing liability law.  The two decisions the Supremes made in May and June will help to change patent law in Canada and show that liability law is the correct weapon to use against all polluters, be they genes or giants.