MONTREAL -- I had an interesting discussion with Sarah Chandler over dinner on the subject of GMOs. Interested in my role over the provincial ordinance banning the entry of GMOs in the province, she emailed the hyperlink to “The Future Control of Food.”

Sarah is coordinator of the Lillooet Restorative Justice Program based in British Columbia, Canada. She currently serves on the Boards of the BC Human Rights Coalition and the Canadian Coalition for the Rights of Children.

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As you can guess, the GMO issue is one of the prominent human rights issues of the book, specifically on the right of access to food. It looks through the lens of intellectual property rights (IPR) at the future control of food and farming, because rules on IPR are central to struggles over the distribution of wealth and power in the 21st century.

As the preface noted, IPR are a source of hidden wealth worth trillions of dollars, and they impose hidden costs on the same scale. I might add that IPR is rights of a few lording it over the human rights of us all.

The book noted that the rules of intellectual property range from confusing to nearly incomprehensible, and the professional practitioners who manage these rights sometimes seem to belong to a secret society. The IP system also determines when and how an innovation becomes available for others to use by defining boundaries around what is accessible and what is not.

The book mentions the paradox that in today’s world, access to food is highly, and unacceptably, uneven. There is massive overproduction and over-consumption, and yet millions experience scarcity and hunger.

The rise of agricultural biotechnology, and the patenting of genetically modified organisms (GMOs) for use in crop production raises the inherent conflict between the traditional role of the law in protecting private property (categorized by lawyers as “real property”), and the use of intellectual property (or patent) law to protect innovations in GM technology.

The issue is highly significant where Provincial Ordinance 007, series of 2007, bars GMO products to enter Negros Occidental on the grounds that the banned product could cross pollinate natural corn.

Here in Canada’s common law world, the primary mechanism for protecting a property owner’s rights is the law of nuisance and trespass. Can organic farmers use the law of nuisance to claim damages for “contamination” of their crops by cross-pollination from GM crops and further remedies (for example injunctions) to prevent further cross-pollination?

This contentious issue has been filed in Canadian and US courts in (in Hoffman, LB Hoffman Farms Inc. and Beaudoin v. Monsanto Canada and Aventis Crop Science Canada Holding Inc and the Star Link Corn Products Liability Litigation without a conclusive resolution.

One of the cause célèbres in the recent history of biotechnology law is the decision of the Canadian courts in Monsanto v. Schmeiser. Monsanto successfully sued a Saskatchewan canola farmer, Percy Schmeiser, for damages and an injunction, where Schmeiser’s crop acquired (without his consent) Monsanto’s patented RT73 gene which gave his crops resistance to Monsanto’s Roundup glyphosate broad-spectrum herbicide.

The legal basis for Monsanto’s successful claim for patent infringement was the courts’ recognition that the company could maintain patent protection in the patented gene when it cross-fertilized Schmeiser’s canola crop. The law on patents overruled that of the law of trespass and nuisance on real property rights.

In other words, woe to the Negrense corn producer—organic or otherwise—whose corn have inadvertently been cross bred with the Bt gene. They might find themselves facing Monsanto with a powerful lawsuit, using as basis the legal precedents in North America.

Please email comments to bqsanc@yahoo.com