Regulatory details of Canada's new Agricultural Growth Act will be key say farm groups

Tuesday, March 3, 2015

by SUSAN MANN

Both proponents and opponents of sweeping federal agricultural legislation that came into being last week are watching to see how its regulations shape up.

The Agricultural Growth Act (Bill C-18) was tabled in the House of Commons in December 2013 and passed almost a year later on Nov. 24, 2014. The Senate passed it on Feb. 24 and it received royal assent Feb. 25.

Ontario farmer Ann Slater, National Farmers Union vice president (policy), says there are many regulations that need to be written now as part of the Act. “We’ll be watching to make sure the regulations are as farmer-friendly as they can be.”

In its press release, the federal government says the Act will strengthen intellectual property rights for plant varieties in Canada along with:

• Create a regulatory environment that benefits from the latest scientific research.
• Reduce red tape and regulatory burden on farmers.
• Increase consistency of Canadian Food Inspection Agency (CFIA) regulations.
• Provide the agency with stronger tools to fulfill its mandate of protecting Canada’s plant and animal resource base.
• Align Canada with its international trading partners and expand global marketing opportunities.

The Act makes changes in nine pieces of legislation the CFIA uses to regulate the agricultural sector. There are also amendments to two Acts under the authority of Agriculture and Agri-Food Canada.

Federal agriculture department and agency officials didn’t back to Better Farming in time for this posting on how many regulations will be needed as part of the Act.

UPDATE Thurs. Mar. 5, 2015 – Guy Gravelle, CFIA spokesman, says by email all of the sections of the Act related to the agency are now in effect with the exception of one that amends Feeds Act terms “livestock” and “sell.” The subsection will require amendments to operate, he explains.

Other than that, Gravelle notes each of the acts amended by the new legislation has provisions for “regulation-making authority which can be exercised in future.” Any proposals to make such changes would involve “full consultatins,” he writes.  END OF UPDATE

UPDATE 2:53 p.m. Thurs. Mar. 5 2015: Agriculture and Agri-Food Canada spokesman Patrick Girard says by email about half of the sections that new Act addresses from the Agricultural Marketing Programs Act can be implemented right away; the remainder of the AMPA sections addressed will need regulatory amendments before they can take effect.

Among the changes taking effect April 1:

• A single application will be all farmers need to complete to apply for advances for all the commodities they produce, and farmers won’t need to demonstrate that farming is their principal occupation in order to be considered eligible for an advance.
• Adjustments to the repayment schedule will mean farmers won’t necessarily need proof of sale, and they won’t be penalized if they decide to hold off marketing the product and repay their advance or if they repay the advance because the product has become unmarketable through no fault of their own.

Future improvements include making new commodities eligible for advances including certain “classes of breeding animals,” simplifying and streamlining the application process for advances and creating more options for an advance as well as in how to repay it.

Girard also notes that the new legislation will eventually allow corporations, co-operatives and their subsidiaries to substitute a third-party guarantor “in lieu of each individual in the organization providing a guarantee.” END OF UPDATE

Federal Agriculture Minister Gerry Ritz says in a Feb. 27 release farmers will now benefit from greater access to new crop varieties and the latest technology to remain competitive. Changes in the Act will enable Canada to be harmonized with the 1991 Convention of the International Union for the Protection of New Varieties of Plants, called UPOV ’91. It’s the international standard for plant breeders’ rights.

Canada’s ratification of the UPOV ’91 convention will facilitate farmers’ access to new and innovative plant varieties while protecting intellectual property and encouraging investment.

The most contentious part of the Agricultural Growth Act centred on the changes to plant breeders’ rights. The National Farmers Union in particular didn’t see the benefit of aligning Canada’s plant breeders’ rights legislation with UPOV ’91. In February, NFU representatives again voiced their concerns this time to the Senate Agriculture and Forestry Committee studying the legislation.

Terry Boehm chair of the NFU seed and trade committee, says in a Feb. 9 press release the Act isn’t about fostering innovation. It’s about giving plant breeders powerful tools to extract wealth from farmers through the control of seeds.

“Seeds are powerful,” he says. “Those who control seeds control the food system and ultimately control people.”

Other farm groups don’t see it that way. Grain Farmers of Ontario chair Mark Brock says they’ve been lobbying the federal government for a while to implement UPOV ’91. “Our membership believes in technology and innovation. What speaks to that is we’ve been growing genetically modified crops for a while now because they yield better and they allow us to use more environmentally-friendly practices on our farm, like no-till,” he says.

As for the Act, “what it does indirectly for us is it’s going to lead to some better variety development within Canada,” Brock notes.

With Canada ratifying UPOV ’91, there will be more structure and enforcement of plant breeders’ rights and intellectual property protection that wasn’t part of previous plant breeders’ rights legislation.

Brock says the Act will create an investment environment that will give seed breeding companies confidence to do breeding work and variety development in Canada, knowing their development is protected. At the same time, the Act enables farmers to save and reuse seed on their own farms.

Jennifer Pfenning, Organic Council of Ontario chair, says allowing farmers to save and reuse seeds is a good amendment to the Act.

But she disagrees with the assessment that UPOV ’91 will lead to more variety development in Canada. In jurisdictions that have already adopted UPOV ’91, she says, she didn’t “see any evidence this global regulation has had any kind of positive impact on biodiversity or on farmers’ ability to grow better crops.”

Pfenning says adoption of the regulation in Germany has led to increased lawsuits against farmers by the German regulatory authority enforcing the UPOV ’91 provisions there. One young farmer was sued three years after selling grain to a neighbour because the neighbour planted the grain and grew a crop, she says. The farmer selling the grain didn’t know the buyer was going to plant it.

Most of the lawsuits are against farmers with small acreages and the producers weren’t aware they were contravening regulations, she says. There are 2,000 to 3,000 of these types of lawsuits currently before the German courts, she estimates.

In Canada, seed saving and reuse is mainly done by Western farmers. Brock says farmers can’t save corn seeds because corn is cross-pollinated. For corn and soybean seeds with built-in biotechnology traits, there are contracts that don’t allow farmers to save those seeds. But there are some soybean and wheat varieties where farmers can save and reuse their seeds.

Pfenning says the practice of seed saving depends “on the specific farm’s market and what they’re growing the crop for.” For example, grain grown as a cover crop or for plow down doesn’t need a specific variety. “So if I buy that (seed) from somebody else and plant it that shouldn’t necessarily fall under the purview of plant breeders’ rights.”

The challenge will be to ensure the Act’s regulatory framework doesn’t “set us up to have this very negative scenario that I see happening in Germany,” she notes. “The kind of seed police system there is really bad.”

Slater says despite inclusion in the Act of the provision enabling farmers to save and reuse seeds, called the farmers’ privilege, Cabinet has a lot of power to remove crop kinds and varieties from the privilege at any time.

Gary Stanford, president of Grain Farmers of Canada, and Ron Bonnett, Canadian Federation of Agriculture president, both say the Act will benefit farmers.

Stanford says before the Act was passed Canada was one of only two or three countries that had not ratified UPOV ’91. “What it does is give plant breeders and the people who work to develop new crop varieties in Canada the right to protect their work and the varieties they release to the public.”

It could take more than 10 years before the private sector comes out with any “good varieties,” specific to the needs of the Canadian climate, says Stanford, who along with his sons grows cash crops on 5,000 acres near Lethbridge, Alberta.

Even though private breeders will be working to release new varieties, Stanford says it’s still important for Agriculture and Agri-Food Canada to continue its work developing new varieties. He adds he has talked to federal agriculture officials and told them not to cut public breeding programs.

Bonnett says Canada’s ratification of UPOV ’91 “may give farmers access to some of the newer varieties of seeds, quicker. I know there’s been a lot of concern this may consolidate the breeding but we are starting to hear that for some niche market seed development this is a way to guarantee revenue for small companies.”

About NFU’s assessment of the Act, Bonnett says “the sky isn’t falling quite as bad as they say it is. Farmers still have the choice of what type of seed to buy.”

Some of the radical environmental groups have tried to spin ratification of UPOV ‘91 as big companies taking control of the world but “that’s more rhetoric than fact,” he notes.

But similar to the NFU and other farm groups, the Canadian federation plans to be involved in the government’s development of regulations for the Act, he says. BF