The Divine Right of Stagnation

Commentary, Agriculture, Rolf Penner

The tangled debate over genetically modified organisms is symptomatic of a basic confusion in our culture about the role and function of property rights. Specific to the controversy about this cutting-edge science is a wider issue, from which property rights derive, the concept of “non- interference rights.” Do farmers who fear GMOs possess what might be called a divine right to stagnation? Can those who want to use GMOs do so without adverse neighbourhood effects? Where do their rights stop and where do other people’s rights begin?

The resolution of disputes about GMOs depends on the answers to these questions. Figuring out ways to apply non-interference rights to inventions and discoveries becomes ever more complicated as the electronic and biogenetic revolutions of our time accelerate. Other cases in point are oil rights, vertical-space rights and copyrights and patents.

Non-interference rights, sometimes called “negative rights”, assert a claim on behalf of every individual not to be interfered with in the peaceful enjoyment of his own life, liberty and property. Their meaning can be contrasted to what some call “positive rights,” entitlements that require someone else anyone to furnish goods or perform services.

When we enshrine negative rights in our moral and legal codes, we are attempting to prohibit force and fraud in our dealings with each other, whether initiated by individuals or private groups or governments. Under the freedom inherent in such a liberal reading of the “social contract,” a wide range of presently forbidden activities would be legalized: the exchange of property on mutually agreed terms between willing buyers and sellers, marrying your rhinoceros, driving without a seat belt or painting your house whatever god-awful colour you choose.

Opponents of GMO’s argue that farmers who choose not to grow them should be able to carry on as if these new forms of plant life had never come into existence, the claim that sone have called the divine right of stagnation. Science has shown that growing genetically modified plants can lead, through the natural movement of pollen, to a very low degree of outcrossing into neighbouring land. A nearby field of the same crop may therefore wind up with the occasional plant that has modified genes, despite the wish of that farmer not to grow such crops.

One of the main fears is purely economic. The presence of any GM seeds, we are told, could lead to lower prices and loss of markets or market share when customers demand 100% GM-free products. Although not limited to it, this is particularly true for growers who claim that their product is totally organic. Other, non-organic farmers also point to the fact that many markets, especially in Europe, have slammed the door shut on GMOs, and those have had spillover effects because they also refuse to buy crops from developing countries in Asia and Africa who experiment with the new strains.

At first glance, this inadvertent spread of GM seeds looks like a clear-cut violation of property rights. The picture gets fuzzier, however, when we look at the question of actual damage. The plants look the same, smell the same and yield either the same or, in some cases, improved nutritive content. And science has shown there is no risk in consuming them or their seeds.

If you really want to get technical, someone’s touching you on the shoulder, turning around in your driveway or walking across your lawn is a violation of your property rights. These examples are seldom considered as serious breaches because they lack a key component: tangible physical harm. If someone punched you in the nose, drove over your mailbox or spray-painted your house, a claim for redress would be valid. Why, then, should this standard not be applied just as strictly to GMO’s?

One might be tempted to question the motives of those who invoke the non-interference ethic in this context. Are they genuinely concerned about the right to plant whatever crop they choose and to raise it in the manner they see fit on their own property? Or are they manipulating the concept of property rights in order to satisfy ideological imperatives, or to limit competition and raise consumer prices, thus assuring higher incomes or market share for certain groups?

Even if this isn’t the case, questions still remain. What demonstrable economic damage, if any, do the new crops wreak? Who is ultimately responsible for it? Some insight can be gained by observing the behaviour of those who have singled out the developers, patenters and cultivators of GMOs as whipping-boys.

One lobby, the Saskatchewan Organic Directorate, claims that Monsanto and Aventis (now owned by Bayer), two companies active in the development of GMOs, are responsible for producers’ inability to grow organic canola in Canada. This organization has taken the two giants to court. Among those funding the costs of the suit are Greenpeace, the Council of Canadians and Bio-Suisse. Last November, at a European conference on the co-existence of GM and non-GM crops, University of Manitoba plant scientist Rene Van Acker advocated mandatory compensation for what he terms “non-target effects.”

On the other side of the issue, an increasing number of people contend that the organic community itself, along with radical environmentalists, has caused the marketing problems for which it blames the GMO promoters. For example, in the July issue of the British journal, Nature, Dr. Philip Campbell argues: “The problem is an artificial one, based in essence on an ultimately arbitrary and self-defeating definition of ‘contamination’ by the organic movement.”

Alex Avery, a plant physiologist and director of research at the Hudson Institute’s Center for Global Food Issues, agrees: “[T]hey have, for decades now, not only rejected science and scientific analysis when it comes to food production and food safety, but have actively campaigned against it, undermining the scientific process and people’s confidence in it wherever possible. Along the way they are building themselves a niche market based on people’s fears and false health claims. To now use scientific evidence (outcrossing) to protect a market based on rejecting it is a contradiction. You can’t choose to ignore scientific evidence when it doesn’t suit your purposes.”

A recent example of this double game, Avery points out, is the recall of organic corn meals in the UK, “…which contained levels of the cancer-causing fungus fumonisin that were on average 20 times higher than the European Commission’s safety limit. Yet the environmental community is arguing that the public should not be concerned because the toxins are ‘natural’. Can you imagine the outcry if this had been found in GM corn?”

Further weakening the case, Avery maintains, “…is the fact that the organic community writes its own rules and has never before guaranteed a product; they have always guaranteed a process. There is no reason to believe that they shouldn’t continue to do so in a GM environment. Realistic yet strict levels could easily be accommodated in the organic system, similar to what is in place with regards to pesticides. However that would mean they were interested in being reasonable, and to date they have been about as reasonable as the terrorist group Hamas.”

In his article “Legal Liability Issues in Agricultural Biotechnology”, University of Oklahoma law professor Drew Kershen adds: “It is not widely known, but they are already doing this with regards to GMO’s. Farmers, in fact, don’t lose their organic certification solely because transgenic material is found on their farms or in their crops. They lose certification only if they intentionally use GM material or if they fail to take reasonable measures to prevent GMO’s on their farms or in their crops. This is the same in Canada where certification is voluntary as it is in the U.S., and in Europe, where it is not”.

This common misconception, according to Kershen, is based on a half-truth. Growers sometimes sign contracts guaranteeing their crops are 100% GMO-free. When it turns out they are not, by whatever miniscule amount, the company they deal with can then discount the product. But the company can still turn around and sell it as organic – through blending or even as is, if the levels are below the permitted maximums. Growers who’ve experienced this sometimes get the impression they are no longer certified and cannot sell their product as organic. This is not true across the board; they just happen to be among those who signed more restrictive contracts.

The Canadian Wheat Board, too, resorts to the non-interference ethic on strictly economic grounds. Unlike the environmentalists, the Board is not arguing these plants are dangerous; their primary concern is loss of market share resulting from consumer uncertainty. While understanding the concern, Professor Kershen thinks setting a zero tolerance on GMO’s would establish a dangerous precedent: “[W]hat happens when their customers then demand zero dockage or, worse yet, zero percent fecal contamination? Are they then going to ban weeds and mice?” Another , related question is why the Wheat Board would need standards even higher than those of organic producers, who tolerate low levels of GM material as long as industry procedures are followed?

Cynics have pointed out that the Board’s existence depends on legislation that denies western Canadian farmers property rights in their own wheat. Farmers who try to sell outside the CWB can end up in jail. To invoke property rights whenever convenient and deny them when they get in the way is clearly a contradiction.

The selective use of science can be dangerous, as the continuing BSE disaster illustrates. A consistent approach, with protocols based on reasonable estimations of public health risk instead of zero tolerance, would have been better for everyone right from the start. Yet the GMO foes’ insistence on shunting aside relevant data and on manipulating the concept of rights – aided and abetted by the large number of people willing to overlook these evasions – indicates that few have learned the lesson. We may very well stumble into the same pitfall again, and compromise grain markets as badly as the ones for livestock.

“Negative rights” are enshrined in our moral and legal codes. They impose on all the obligation to refrain from violating the life, liberty and property of others. They do not endow us, in the absence of demonstrated, proven harm, with the right to prevent our neighbours from using their time, energy and property to explore scientific advances.

The judgements of our courts in the law suit by the Saskatchewan Organic Directorate will be an important test of this principle. They will decide whether farmers have a divine right to stagnation, and whether they will be successful in taking the rest of us down with them.