Grain Farmers unfazed by court ruling

Monday, November 2, 2015

by BETTER FARMING STAFF

Grain Farmers of Ontario is moving ahead with two more court actions in an effort to fight new regulations concerning the use of neonicotinoid-treated seeds. The widespread use of the treated corn and soybean seeds in recent years has been blamed for high losses in hives of overwintering bees. On July 1 the Ontario government brought the regulations restricting the technology’s use into effect.

In a news release issued Tuesday the commodity organization announced that it had filed a legal motion with the Ontario Divisional Court to review GFO’s request for a stay of the regulation. Mark Brock, GFO chair, said a request would also be filed imminently with the Ontario Court of Appeal to review an Oct. 23 Ontario Superior Court of Justice decision to dismiss the organization’s motion for a stay.

Speaking from one of his farms near Staffa in southwest Perth County on Tuesday afternoon, Brock acknowledged the strategy behind initiating the two court actions so close together was complicated.

He explained that the Ontario Divisional Court case was focused on obtaining an interpretation of why the organization wanted a stay. That interpretation, he said, is “the crux of the matter,” because the organization is trying to delay the provincial regulation from coming into force until May 2016.

It’s “all about the pest assessment,” he said. “And really our argument is that this time of year isn’t really the best time to determine if pests are present in our soil. It really should be the spring, and if that’s the case, then let’s just put the regulation off one year so we can do our scouting in the spring of 2016 for 2017 sales seed order. Because a lot of us are struggling right now.”

He said the organization had always planned to file the Divisional Court motion but was not sure a hearing could be obtained soon enough to pause the new regulation in time for farmers to make decisions about buying seed for next year. So, as a “stop gap” measure to get to the hearing phase, GFO decided to file a motion with the Ontario Superior Court of Justice to stay the regulation until the Divisional Court case could be heard.

That strategy backfired when Judge Suhail A.Q. Akhtar, who heard the Ontario Superior Court of Justice motion Sept. 28 in Toronto, dismissed it in his October ruling. The organization’s application could not demonstrate “a reasonable cause of action and is therefore not a valid proceeding,” he wrote in his decision.

Akhtar further noted that if a stay were to be granted, it would not have had the effect GFO had anticipated of giving the industry more time to adjust to the regulation. Instead, the stay would have catapulted farmers into a full-fledged neonicotinoid ban because the organization had asked for a stay of the regulation that outlined the terms of the transition to the ban. “The status quo is not the unfettered rights of farmers to do as they please with neonicotinoid-treated seeds but prohibited use of the pesticide unless accompanied by a PAR” (pest assessment report), he wrote.

The organization’s decision to base its application for a stay on an argument that the regulation interfered with farmers’ property rights, such as being able to manage their farms as they see fit, was also greeted with skepticism. Akhtar noted that the legal case cited to support this argument involved a very different set of circumstances to those in the dispute between GFO and the province of Ontario, which, he wrote, revolved around “economic rather than property rights.”

Moreover, he continued, “the use of farmland has always been highly regulated particularly in the realm of pesticide use. The Regulation simply tweaks control of that use by adding neonicotinoid-treated seeds to the list of controlled pesticides.”

Akhtar dismissed the GFO’s claims of loss as “purely speculative at this stage,” and stated that the organization was not asking “for a determination of rights that depend on the interpretation of the Regulation but a re-writing of that Regulation in a manner that would permit the effects of the Regulation to be delayed to its advantage.”

GFO’s legal counsel, listed in the decision as Eric Gillespie and Karen Dawson, could not be reached for comment.

Asked how much the court actions had cost so far, Brock said, “I’m not sure I can be at liberty to say what that number is.”

He said no one had asked about the cost during the organization’s annual meeting in September. “We don’t feel it’s outrageous yet. I think that’s something that we’re very aware of in terms of what this is going to cost the organization. That definitely has an influence on how we have been proceeding and how we will proceed.”

Brock said he is hearing a lot of frustration from farmers about pest assessments. Growers — himself included — have been doing the testing that’s required to qualify for using neonicotinoid-treated seed but many are not yet finished harvesting this year’s crop, and the pressure is on to order seed for next year’s growing season.

So far, he’s found that to obtain results from five traps over a 100-acre farm as required by the new regulations, he must set 10 to 15 because wildlife are getting into the traps.

Then there’s the question of when growers must submit the required paperwork to seed companies. “I’ve technically bought seed but I haven’t taken delivery of it; I can cancel my order tomorrow and get all my money back, so therefore do I have to have my paperwork done?” he asked. Or should he submit it in the spring when he picks up the seed? “I think there’s some ambiguity there that needs to be resolved.”

Testing so far shows that his properties need the treatment, he said, even though on a map his properties might generally be classified as clay loam and not sand, which is more typically associated with the presence of the pests neonicotinoid-treated seed is used to combat. But his farms often have a range of soils, including sand pockets, he explained.

Brock noted that there may soon be technologies and processes such as variable seeding approaches that might help farmers deliver neonicotinoid-treated seed on only the areas where they’re most needed. But introducing the regulation puts the cart ahead of the horse, he said, and may well discourage life science companies from even bringing new products into the province.

“It became a political issue and that practicality was lost in the discussion,” he said. BF