By Joan Delaney
Percy Schmeiser lost his seed bank and faced
a lawsuit after his farm in Bruno, Saskatchewan,
became contaminated by GMO seeds
www.PERCYSCHMEISER.COM
In 1998, Percy and Louise Schmeiser received a letter that was to change their lives.
Sent by U.S. agro-chemical giant Monsanto, the letter accused the Schmeisers of using unlicensed Round-up Ready seeds to plant a 1997 canola crop on their farm in Bruno, Saskatchewan. The Schmeisers maintained the genetically modified seeds "drifted" onto their property from their neighbour's farm or from passing trucks; they said they didn't want the GMO seeds and never intended to use them.
But under Canadian patent law, the seeds that ended up on the Schmeisers' farm contained genes that Monsanto claimed to own.
Monsanto threatened to sue the Schmeisers for "infringement of patent," seeking $400,000 in damages, including about $250,000 in legal fees, $105,000 in estimated profits from their 1998 crop, $13,500 ($15 an acre) for "technology use fees" and $25,000 in punitive damages, according to a chronology of events on a website set up by the Schmeisers.
However, Percy Schmeiser says the corporation offered to withdraw the legal challenge if he paid its technology use fee and signed a contract to buy his seeds from Monsanto in the future. The Schmeisers claimed this was bribery.
Embarking on a classic David-versus-Goliath battle, the Schmeisers contested the case all the way to the Supreme Court, where it was ruled that Monsanto did in fact own the gene to the seeds that appeared on the couple's land.
"It was my seed grown on my land, but the court ruled that if you get contaminated you no longer own your own seeds or plants, and it doesn't matter how the gene got there. Through patent law it becomes the ownership of Monsanto," says Schmeiser, 77.
Monsanto claims that Schmeiser knowingly used the modified seed. Monsanto Canada spokesperson Trish Jordan says the company doesn't exercise its patent rights if Roundup Ready seeds end up on someone's farm accidentally; the court found that the plants on Schmeiser's farm were "not an accidental presence," she says.
The Schmeisers, however, were partially successful; the court ruled that the couple neither profited nor benefited from the use of the GMO seeds and so should not have to pay anything to Monsanto.
In order to avoid similar problems in the future, Schmeiser says he shifted from canola — which he had grown on his 1,400 acre farm for over 50 years — to wheat, mustard, oats and peas. But before long, Monsanto Roundup Ready plants were in his fields again.
Monsanto agreed to remove the plants if the Schmeisers signed a document promising to never take the corporation to court. The document also contained a non-disclosure clause, preventing the Schmeisers from discussing the details of the agreement.
The Schmeisers refused.
"It's more than seeds and plants now," says Schmesier. "Now they want to take freedom of speech and expression away. That's total control of a person by a corporation and there's no way I'd sign something like that."
Schmeiser instead sent Monsanto a bill for $600, which he says was the cost of removing the plants. When Monsanto didn't pay up, the Schmeisers sued the corporation in small claims court. A hearing date has been set for January 23, 2008.
Schmeiser says if Monsanto is ordered to pay the $600, it will equate to an admission of liability, which could result in thousands of lawsuits across North America by farmers whose seeds have been contaminated.
Although Schmeiser's was one of the first cases involving a company claiming to own patents on life, he's not the first farmer who has experienced the wrath of Monsanto, the world's largest genetically engineered crop company.
According to Greenpeace, hundreds and possibly thousands of farmers around the world are being sued after Monsanto's investigators found their patented crops on the land of farmers who haven't paid the technology use fee.
A 2005 study by the California branch of the Center for Food Safety (CFS) reported that Monsanto's "heavy-handed investigations and ruthless prosecutions" have had the effect of intimidating farmers and changing farming practices that have endured in America for centuries, including the right to save and replant crop seed. The CFS is a non-profit environmental activists group that opposes what it views as harmful food production technologies.
Those who sign Monsanto's agreement are not allowed to save their seeds for re-use; new seeds have to be purchased each year.
The CFS study found that Monsanto begins the process of seizing control of farmers' practices by having them sign the company's technology use agreement upon purchasing the patented seeds. This contract "allows Monsanto to conduct property investigations, exposes the farmer to huge financial liability, binds the farmer to Monsanto's oversight for multiple years," and defines the farmers rights regarding planting, harvesting and selling genetically engineered seeds.
"This is the first time in the history of agriculture that farmers don't own the seeds that they plant," says CFS spokesperson Charles Margolis.
Margolis also says Monsanto aggressively investigates farmers it suspects of transgressions. Thousands of such investigations, the study found, frequently lead to the second stage: Monsanto pressuring the farmer to settle out of court for an undisclosed sum.
Some, like Schmeiser, end up in the courtroom. Monsanto has filed 90 lawsuits involving 147 farmers and 39 small businesses or farm companies, according to the CFS study. CFS says farmers have paid Monsanto a mean of $412,259.54 and that the largest judgment made in favour of Monsanto was $3,052,800.00.
"The only time we exercise our patent rights is where there's been knowing and deliberate misappropriation of the technology, i.e., stealing, and that's something we feel very strongly about," says Jordan. She says Schmeiser is the only farmer who's had an issue with signing the document containing the non-disclosure clause.
Monsanto has offices in 80 countries. The global seed supply industry is estimated to be worth $40 billion a year.
News articles report that in 2005, Monsanto had to pay $1.5 million in penalties to settle U.S. criminal and civil charges for bribing a senior Environment Ministry official in Indonesia and concealing the payment as consulting fees.
In Canada and the U.S., there are no new laws specific to the issues raised by genetic engineering and patents. The Schmeiser case was decided under laws that were put in place in Canada in1869, long before genetically modified organisms (GMOs) existed. In its verdict in the Schmeiser case, the Supreme Court called on the Canadian Parliament to enact a specific law.
Basically, says Schmeiser, what Monsanto possesses is a patent on life forms. "The court ruled that if the gene gets into any higher life forms, Monsanto owns that life form. It's got vast implications."
He says it's impossible to grow a GMO-free crop of canola or soya beans now because all existing seeds have been contaminated.
Schmeiser, who was the Mayor of Bruno, Sask. for 17 years and a town councilor for 12 years, has become an advocate for farmers' rights around the world as a result of his battle with Monsanto. He has received many awards including the Mahatma Ghandhi Award in India.
The Schmeisers have been invited to Sweden in December where they will receive the Right Livelihood Award, also known as the Alternative Nobel Prize, in an event to be held in Swedish parliament.
Schmeiser plans to continue his fight against Monsanto, but he's worried the upcoming case will drag on so long that he'll run out of money and have to drop it. He mortgaged his farm and accepted donations to raise the $400,000 needed to cover his legal costs in the first court case.
"Monsanto is going to fight me tooth and nail in that case because if I win you can imagine the liability they're going to be faced with," he says. "If I win I'm sure they're going to appeal it and it could end up in the Supreme Court again eight or nine years from now."