In a landmark court decision, a judge has ruled against a West Australian organic farmer who claimed his neighbour contaminated his farm with genetically modified canola.
Steve Marsh sued former friend Michael Baxter in the WA Supreme Court, alleging he lost organic certification for more than half his farm after GM canola drifted onto his land from Mr Baxter's property.
In 2010, Mr Marsh's oats, rye and sheep farming property in Kojonup was certified organic by the National Association for Sustainable Agriculture Australia.
But he alleged GM canola blew 1.5km inside his fence, causing him to lose his certification.
Mr Baxter claimed he followed all regulations on buffer zones and notified his neighbours when he planted the GM canola.
After a three-week trial, believed to be the first of its kind in the world, Justice Kenneth Martin delivered his findings on Wednesday in favour of Mr Baxter, but reserved his decision on costs.
In his judgment summary, Justice Martin dismissed both causes of action against Mr Baxter - common law negligence involving the breach of a duty to ensure there was no escape of GM material, and the tort of private nuisance.
Evidence at trial was that Roundup Ready (RR) canola swathes were harmless to animals, people and land unless the canola seed germinated in the soil and cross-fertilised.
"There was no evidence at the trial of any genetic transference risks posed by the RR canola swathes blown into Eagle Rest at the end of 2010," Justice Martin said.
He noted that in 2011, eight GM canola plants were found and removed on the property and there were no others in subsequent years.
Justice Martin said there was no evidence of "any reasonable interference" by Mr Baxter, who had used well-accepted harvest methodology.
"Mr Baxter was not to be held responsible as a broadacre farmer merely for growing a lawful GM crop and choosing to adopt a harvest methodology (swathing), which was entirely orthodox in its implementation," he said.
Justice Martin said Mr Baxter was also not responsible for the reaction to remove the Marshes' organic certification.
Outside court, Mr Baxter said justice was served and hoped the case provided certainty for other farmers.
"It's been three years of going through this and finally we've got the right result," he said.
Mr Marsh could not say whether he would appeal the decision because he still had to read the 150-page judgement.
Slater & Gordon lawyer Mark Walter, who represented Mr Marsh pro bono, said in a statement it was a disappointing result and left non-genetically modified food farmers with no legal protection against contamination from neighbours.
Mr Baxter was supported by the Pastoralists and Graziers Association, while Mr Marsh had the support of the Safe Food Foundation.
Network of Concerned Farmers spokeswoman Julie Newman said farmers should never have been pitted against each other and urged the government to consider making legal changes to protect all farmers.
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