Percy Schmeiser
January 2004 | Feature Story
Blowin’ in the Wind
A Canadian farmer takes a lonely stand against biotech giant Monsanto. His seeds and the future of independent farming hang in the balance of a landmark case
By LIANE C. CASTEN
These days, farmer Percy Schmeiser spends more time in his office than in his fields.
He and his wife Louise have managed their Saskatchewan canola for decades. Now, Monsanto holds a claim against the Schmeisers’ land. Percy’s days are spent on phone calls about his legal struggle against the company. The Supreme Court of Canada is scheduled to consider Schmeiser vs. Monsanto Canada Inc. late this month.
In addition to determining who winds up owning the Schmeiser farm, the court’s decision could shape the course of independent agriculture for years to come.
Louise’s voice cackles over the intercom. It’s lunchtime.
Schmeiser rises slowly—he’s 73 years old—and strolls across a tidy driveway to the red brick home where he and Louise reared their five children. She cooks as if the kids were still at home. On the kitchen table sits a baked chicken breaded in Parmesan, mashed potatoes oozing in butter, coleslaw dripping with mayonnaise, a tossed salad, peas and beans. Rolls and an apple pie come hot from the oven. Apples, bananas and oranges wait in a bowl, just in case any of their 15 grandchildren should appear.
Schmeiser is a third-generation farmer. He’s grown canola for more than 40 years on a 1,400-acre farm near Bruno, a small town some 80 kilometers east of Saskatoon. Canola was developed in western Canada from rapeseed, a plant of the mustard family that’s long been used to produce industrial lubricants.
The Canadian oil
Canola was modified through selective breeding to produce seeds that provide edible oil containing an extremely low level of saturated fat. Researchers have raised health concerns about human consumption of canola—including allegations that long-term exposure may promote cancers or suppress the immune system—but canola’s low fat content and inexpensive production cost have made the Canadian oil (hence the name) a common ingredient in mainstream food products such as margarine and common vegetable oil.
With 4.5 million hectares planted, the Canadian prairies provide the bulk of the world’s supply. It’s the dominant crop in this part of Saskatchewan. In season, the province’s immense flat squares of farmland can look like a flowing yellow carpet.
The Schmeisers fine-tuned their canola for their land. Each year, Percy and Louise pulled on their grubbiest jeans and hiked up and down the rows, collecting seeds from the hardiest and most pest-resistant plants. They cleaned and saved the best seeds for planting the following year.
After decades of selectively culling (and occasionally swapping seeds with neighboring farmers), the Schmeisers developed what was essentially their own strain of canola. Like generations of seed savers before them, they came to regard their hand picked seeds as if they were progeny, holding them nearly as dear as their own children.
Monsanto is the world’s leading advocate for a new and different approach to fine-tuning seeds. Founded in St. Louis, Mo., in 1901, the Monsanto Chemical Company built its business selling industrial food additives such as saccharin and caffeine to manufacturers including Coca-Cola.
During the past decade, Monsanto spun off its chemicals business and refocused itself on biotechnology. By crafting whole systems of pesticides, herbicides and genetically engineered seeds designed to produce high yields in an environment saturated with those chemicals, Monsanto promises to help farmers feed the world more efficiently.
While the Schmeisers selected seeds that produced the highest yields in their soil, Monsanto’s scientists created seeds designed to produce the highest yields when used in conjunction with the company’s best-selling herbicide, called Roundup. By altering the DNA of its seeds, Monsanto’s technicians engineered cotton, corn, soybean and canola seeds that resist Roundup.
Using these seeds, a farmer can spray Roundup on a field and it will kill the plants he doesn’t want (like weeds) without affecting the crops he does. The idea proved popular among canola farmers. According to the Canadian Canola Growers Association, up to 90 percent of this year’s crop came from seeds with such traits, including Monsanto’s Roundup Ready and Bayer’s GE Liberty Link.
Because the Monsanto seeds were created in a laboratory, the company is legally entitled to something that the Schmeisers are not: a patent. Monsanto has patented the DNA in all the seeds it sells. Using these patents as leverage, the company discourages the age-old practice of seed saving.
Monsanto would rather sell new seeds each season. In order to enforce these patents, Monsanto requires every farmer to buys its seeds to sign a contract under which the farmer promises to pay a fee for each acre of Roundup Ready seed he plants.
The fee is about fifteen Canadian dollars per acre for canola, or about 4,500 Canadian dollars for a typical canola farm. Monsanto also requires property inspections to be certain that the contract is honored.
Monsanto aggressively defends its patents, which the company insists are necessary to reward investors who fund innovation. The company employs an investigative staff that continually checks farmland for evidence of crops containing its patented DNA. When evidence of illegal use of its generically modified seeds is discovered, the company files suit against the farmer.
Since introducing Roundup Ready canola in 1995, Monsanto has claimed to have filed only a dozen such cases a year in Canada. They’ve managed to settle out of court with every one of those—except for Percy Schmeiser.
Unlicensed or contaminated?
Schmeiser never bought Monsanto’s seeds. Nor did he attend the meetings Monsanto held for farmers throughout the area, where salesmen extolled the benefits of this new agriculture. He’d been grooming his own seeds for decades, was satisfied with the yields they produced.
Besides, he never sprayed chemicals like Roundup on his heritage seeds because it would have killed them. He did use Roundup on occasion, primarily to spray beneath the power lines that run alongside his property. That’s where he first noticed the Monsanto seed creeping on to his land.
It was the summer of 1997. Schmeiser was surprised to see that some of the roadside canola he’s sprayed with Roundup had survived. Curious, he sprayed about three acres of his crop to see what would happen. About 60 percent of the sprayed plants survived, with thicker clumps closer to the road. The clumps suggested to Schmeiser that Monsanto’s seed had been drifting onto his property, probably from passing trucks laden with Monsanto canola, and “contaminating” his hand picked seed stock.
“It will blow in the wind,” Schmeiser said.
He popped open a pod of canola, and revealed the freckle-sized black seeds.
“A little plant like this makes a minimum of 4,000 seeds. Maybe 10,000,” he explained. “You can’t control it. You can’t just say, ‘Put a fence around it and demand that’s where it stops.’ It might end up 10 miles, 20 miles away—or all over the place, and it cross pollinates.”
Monsanto noticed the errant seed about the same time. It’s not known exactly how Schmeiser initially attracted their inspectors’ attention, but court documents and interviews with the Schmeisers reveal the company went to unusual lengths to spy on the Schmeisers:
• According to the documents, Monsanto approached the Humboldt Flour Mill where Schmeiser brought his hand-picked seed for cleaning, and asked for a sample of his harvest for DNA testing. The mill handed over Schmeiser’s seeds. Court documents allege Monsanto had offered discounts to Humboldt Flour in return for providing samples from targeted farmers.
• Monsanto hired a Sasksatoon private investigations company, founded by former Royal Canadian Mounted Police officers, to obtain samples of his canola by entering his farm without permission.
• The company sponsored a toll-free “tip line” through which it encouraged farmers to blow the whistle on their neighbors. The company also placed radio advertisements broadcasting the names of non-compliant growers caught planting the company’s engineered seeds.
• Monsanto agents allegedly loitered just outside the Schmeisers house and office, watching their comings and goings. What’s more, the Schmeisers allege the agents repeatedly made hang-up phone calls.
“They watch us, they trespass on our fields,” Schmeiser complained. “Then they harass us, they call us up and threaten us. My wife got a call when I was overseas telling her, ‘You better watch it.’ Now Louise has high blood pressure. That call really shook her up.”
During the next few seasons, the genetically engineered plants found their way throughout the Schmeiser farm. As a result, Monsanto asserted the Schmeisers were in the business of growing the company’s patented seeds, and therefore owed payment. Unlike scores of similarly accused North American farmers who signed out-of-court settlements, Schmeiser fought back.
“The question is, where do Monsanto’s rights end and mine begin?” he asked. “At first it was just the sections by the side of the road. Now, most of my property is contaminated. But it does not matter. Monsanto can claim ownership of the whole thing.
My own beautiful seeds no longer matter.”
Monsanto’s first case against Schmeiser went to a Saskatoon federal court in 2000. Monsanto was not interested in how the seeds arrived on Schmeiser’s farm. Having given up the idea that he could be sued for breach of contract—Schmeiser never signed—the company simply claimed anyone caught with its seed is guilty of infringing upon the patent and stealing its property.
Monsanto argued that unless patent protection laws are enforced, it will have thrown billions of dollars of investment down the drain. They company argued it must level the playing field for farmers who pay the company’s technology fee when they purchase genetically engineered seeds from licensed dealers.
Schmeiser was a well-regarded member of his community. He’d served as both mayor of Bruno as well as a Liberal member of the Saskatchewan provincial legislature back in the 1960s and 1970s. None of that mattered to the judge, who found that Monsanto’s seeds were being grown, and Schmeiser knew it. The court ordered the Schmeisers to pay Monsanto $19,830—an amount equal their profits from the sale of their 1998 canola crop—as well as $153,000 to reimburse Monsanto for its court costs.
Those court costs keep growing. Schmeiser appealed to the Canadian Appellate Court, and lost again.
Courting disaster
The Supreme Court of Canada is scheduled to hear his case on Jan. 20. Schmeiser sees the case as a conflict between two sets of rights. On one side are age-old “plant breeders rights,” which allow farmers to buy seed and plant the offspring. On the other side is patent law.
The Court has allowed several amicus briefs in support of Schmeiser. The Sierra Club of Canada, the Attorney General for Ontario, the Council of Canadians, the National Farmers Union, Research Foundation on Science, Technology and Ecology, and the International Centre for Technology Assessment have all filed briefs.
But few are watching the case as closely as organic farmers. Drifting genetically engineered canola seeds have wiped out organic canola farmers in Saskatchewan, according to Arnold Taylor, president of the Saskatchewan Organic Directorate.
“We can’t grow certified organic canola anymore,” Taylor told the Toronto Star. Representing more than a thousand farmers, the group is organizing a class action lawsuit against Monsanto, Bayer and others.
Likewise, Schmeiser is counter-suing Monsanto for the company’s inability to control its product on trespass and contamination grounds. If he wins at the Supreme Court level in January, such a suit will be easier to win.
Schmeiser’s attorney, Terry Zakreski, believes that what’s at stake is nothing less than who controls the future of farming in Canada. He’s hopeful that Monsanto can be denied its right to patent something so basic as life itself, citing an earlier Canadian decision where a mouse engineered for cancer testing had already been deemed unpatentable.
The last thing the Schmeisers expected after a lifetime of farming was to be caught in a legal battle with one of the world’s leading proponents of agricultural biotechnology. The Schmeisers built a life on their canola farm, which provided well for their children and their grandchildren. They were ready to retire.
Instead, Schmeiser has become something of a folk hero. He’s been asked to speak all over the world about genetically engineered crops and Monsanto. He speaks with heads of state, to thousands of farmers on national TV hookups, to agriculture ministers, to university professors and community action groups, to anyone who wants to understand how the U.S. and Monsanto work together to promote these new technologies. Along the way, he raises contributions to help support his various legal challenges. He says his donations mainly come in $50 and $100 checks from other farmers.
Schmeiser walks back to his office, while Louise cleans up the kitchen. If they lose their next court battle, they’ll likely have to sell their farm in order to pay Monsanto’s lawyers. Louise’s health has suffered as a result of the stress. The anticipation, which could take weeks, is weighing on both of them.
Liane Casten is a freelance writer living near Chicago. Additional reporting for this report was provided by Monte Paulsen in Vancouver.
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