The use of genetic engineering and biotechnology to create genetically-modified crops has attracted worldwide attention in the past decade and is quite a divisive issue.
In SA, the debate resurfaced in November, when the state government extended the ban placed on GM crops to September 1, 2025, from September 1, 2019. In all other mainland states, it is possible to grow GM canola and cotton.
Under the Genetically Modified Crops Management Act 2004, it is an offence for a person to cultivate GM crops in SA, carrying a maximum penalty of $200,000. Liability can also extend to managers, or members of a governing body, if an offence under the act is committed by a body corporate.
Given the ability to grow GM crops in other states, the spread of GM plant material poses potential issues for farming land close to state borders.
There is the potential for issues to arise when GM crops from a farm interstate 'contaminate' farming land in SA. This is the case when the definition of 'cultivate' in the act extends to dealing with or disposing of any plant or plant material that has formed part of a crop.
A person would be in breach of the act if they deal with a crop that has been 'contaminated' and a landowner may be subject to ministerial orders requiring the destruction of the crop - no doubt at their own expense.
A farmer, whose land is contaminated, would potentially be left with no crop to harvest if the entire crop had been contaminated and an order made for destruction.
Further complicating the matter is that it is not clear whether the farmer would have any rights to pursue another person for the losses suffered. If the 'contamination' has occurred as a consequence of farmers interstate sowing GM crops, there will be two issues in pursuing another farmer for compensation.
Firstly, that farmer will have planted the crop legally in that state and secondly, it may not be possible to identify the source.
It remains to be seen whether the new state government will alter the ban.
This article was written by Anthony Kelly and was first published in The Stock Journal on Thursday 10 May 2018.
Practice Area: Farm Law