Seeds of Change: The Changing Nature of Seed Ownership and Control in Canada

© Derek Masselink 2005

"With a declining global production base due to loss of land, desertification, climate change and so on, producing regions such as Canada may see accelerated opportunities for market growth for seed crops and biotechnology innovations."
- 2004 Canadian Seed Sector Review.

We live in a world of increasing corporate interest and influence. Nowhere is this more evident than in the seed sector. Driven by what has been best described as a pathological requirement to provide economic returns to shareholders giant agrochemical corporations like Syngenta, Monsanto and Bayer are vying for ownership and control of the agrarian equivalent of the Holy Grail - seeds and seed production - the fundamental root of agriculture and ultimately of our society.

Why? The promise of unending economic returns is too great for these corporations to ignore and as a consequence they are pursuing a number of expensive and socially questionable tactics. These tactics include the development and patenting of seeds and seed technology, the acquisition of smaller seed breeding companies, and by lobbying governments to formally acknowledge corporate interest and investment in their federal seed and plant breeding legislation and policies. While much of this corporate activity has occurred south of the border, increasing pressure is being applied to our Federal Government to provide more protection for companies involved in the management and development of seeds and seed breeding in Canada.

Size of the Canadian Seed Industry

Most Canadians are unaware of the size and scope of Canadian agriculture much less the Canadian seed system or industry. Approximately 7% or 68 million hectares (150 acres) of Canada's land base is currently used for agriculture. According to Statistics Canada approximately half of this area is considered "seeded acreage" for field and specialty crops. Of this wheat, canola, barley and cultivated hay account for 84% of the seeded acreage. The remaining seed acreage is planted with specialty crops such as pulses (peas, beans, lentils), ginseng, herbs and spices, industrial crops such as hemp, and, worryingly, bio-based crops related to molecular farming or other non-traditional uses. Unfortunately, acreage devoted to small-scale seed and crop production such as that practiced by home and market gardeners has not been factored into this accounting.

Today the Canadian seed industry proudly states that it generates approximately $700 million in annual sales. Of this, approximately 75% is sold within Canada, largely to those responsible for the management of the 33 million hectares of seeded acreage. The remainder is exported to approximately 70 countries. In spite of these seemingly robust sales the Canadian seed industry recognizes that it could be much larger stating,

"Compared to a number of smaller countries such as the Netherlands, Canada's seed industry is operating at the low end of its potential given land, labour, technology and market demands."

Canadian Seed Sector Review

In 2003 prompted by feelings of inadequacy and by growing corporate concerns around the protection of seed development investments the Canadian seed industry, with $600 million of support from the Federal Government initiated a ten-month comprehensive process called the Seed Sector Review. The primary objective of the Review was to broadly assess the Canadian seed sector and Canada's seed regulatory environment "in a global context." More specifically it was to develop a common understanding of the current nature of the sector, its challenges and options available to facilitate change, and to develop recommendations to government on the structure of its current regulatory scheme and ways in which it could be improved.

Participants in the Review appear to have been largely the big players represented by industry groups such as the Canadian Seed Trade Association (of which Monsanto and Syngenta are members), the Canadian Seed Growers Association, the Canadian Seed Institute and the Grain Growers of Canada. Farmer-focused groups such as the National Farmers Union, the Canadian Federation of Agriculture, and Canadian Organic Growers were excluded from the review process, calling into question the Review's claim of being an open, consultation-based process.

The review culminated in May 2004 concluding that, "a modern, responsive regulatory framework that supports overall competitiveness, profitability and market acceptance for seed producers and commercial crop producers is, in the long run, in the best financial interest of everyone in the value chain."

In order to achieve this level of competitiveness they concluded that it is necessary to achieve four broad results:

1. Improve regulatory flexibility and timeliness - a.k.a. deregulation - largely for the benefit of the companies involved;
2. Foster an environment where science and innovation encourage product and market development where the focus is on profitability and deregulation for the companies involved;
3. Improve sector profitability from cost recovery for research and plant breeding, to increased use of certified seed and Identity Preservation (IP) programs at commercial and farm-gate levels; and
4. Build consumer acceptance and confidence of new crops through quality assurance systems.

How do they propose to do this? Largely through regulatory and policy changes particularly those that protect the intellectual property rights on newly developed and patented seed. One of the biggies included in this is a revision to Canada's Plant Breeders' Rights (PBR) legislation to conform to UPOV '91. UPOV is an acronym for the International Union for the Protection of New Plant Varieties. UPOV '91 significantly extends plant breeders rights over a newly developed plant variety from 15 to 20 years largely at the expense of farmers and gardeners. It also allows breeders to interfere with farmers' current right to save, re-use and sell seed, and allows for potential collection of royalties, not only on the sale of generations of seed but also on plant material and associated value-added products and to increase this protection for up to 25 years.

Other recommendations of concern include: compelling farmers to buy Certified seed, a practice that is not popular with farmers because of the high cost and limited benefit of Certified seed; collecting royalties on farm-saved seed, contravening the "farmers privilege" to save and re-use their own seed, a right currently protected under existing Canadian PBR legislation; and removing the merit-based seed registration requirement which currently requires proof prior to introduction that a new plant or seed variety is superior to existing ones.

The implementation of these proposed recommendations could have a major economic impact on all those involved with the planting, sharing, selling and breeding of seeds and plants in Canada including those traditionally ignored or overlooked by the Canadian seed sector - the small-scale farmers and gardeners. While these changes do benefit the seed industry they do so largely at the expense of those that can least afford it - the farmers and gardeners. According to Terry Pugh, executive secretary of Canada's National Farmers' Union this proposal represents a fundamental shift in Canadian agriculture towards "the privatization of seeds." He adds, "There are no benefits [in this] for farmers."

And it is this lack of benefits - this obvious pursuit of the bottom line coupled with governments apparent inclination to be more considerate of corporate interests than that of its' own citizens - that has mobilized Canadian farmers and gardeners to speak out strongly against the recommendations of the Seed Sector Review. Groups such as the National Farmers Union and the Canadian Organic Growers have been particularly vocal encouraging their members to write in protest of the Review. The Canadian Food Inspection Agency (CFIA), the Federal body responsible for the administration of seeds and plant breeding regulations, is currently assessing the Review and has recently concluded a period of public consultation during which other agricultural stakeholders were allowed to provide comment. Originally a very limited, obscure and arguably orchestrated process, protests by the National Farmers Union encouraged the CFIA to open and extend the public consultation process. It is not clear when the CFIA will announce the conclusion of their assessment process.

Percy Schmeiser

No accounting of the increasingly corporate Canadian seed industry would be complete without a mention of Percy Schmeiser, a Saskatchewan farmer charged in 1997 for illegally saving Monsanto's "Roundup Ready" canola seed. Over six years of litigation Percy Schmeiser maintained that his fields were contaminated by pollen from neighbouring fields planted with Roundup Ready canola and by seeds that blew off passing trucks on their way to a nearby processing plant.

Despite strong evidence supporting the claim of contamination on May 2004 in a highly controversial decision the Supreme Court ruled 5 to 4 in favour of Monsanto, stating that Schmeiser had infringed on Monsanto's legal rights under the Canadian Patent Act by 'using' the companies patented gene when he harvested and sold his crop. In the process the Court established a number of significant precedents that undoubtedly bolstered the Canadian seed sector's interest in having the CFIA approve and implement the recommendations outlined in their Review document.

For starters while the Court ruled in favour of Monsanto it refused to exact the requested punitive damages which would have rendered the Schmeisers both destitute and homeless choosing instead to limit the damages to the assessed value of the 1997 canola crop. The upshot of this is that this decision reduces the ability and therefore incentive for companies like Monsanto to threaten financial reprisals to inadvertent patent infringers.

Secondly and potentially more problematic was the Court's controversial recognition of a patent infringement that seemly ignored the highly publicised 2002 Supreme Court Harvard or Oncomouse Decision which ruled that higher life forms cannot be patented in Canada. Only18 months later, five of the nine justices ruled in favour of Monsanto concluding that higher life forms containing a single patented gene are effectively the property of the owner of the single patented gene. It was hardly the definitive precedent that Monsanto was hoping for.

Arguably of much greater long-term importance was the manner and extent to which the case exposed to the world Monsanto's behaviour toward Schmeiser and hundreds of other farmers. Ann Clark, a noted University of Guelph agronomist, sums up this effect in her excellent assessment of this decision stating:

"The Amnesty International approach of 'the world is watching' is a powerful deterrent to abuse of power, whether in prisons or on isolated farms. Through countless speeches, in unnumbered countries, over the past seven years, Schmeiser informed, mobilized, and integrated an ever widening circle of people - who are going to have to pay the downstream costs of [bio] technology - into this unfolding story. Everyone from environmentalists, scientists, and homemakers, to elevator operators, religious groups, grocery chain operators, food processors, and policymakers has now been awakened to the implications of farming as envisioned by Monsanto. Externalized effects on non-adopting farmers, on seed savers, on the integrity of heirloom varieties, on narrowing crop biodiversity, and on property rights have now been exposed for all to see, to debate, and to act upon.

By broadening the impacted and engaged community, the Schmeisers have effectively shifted the balance of power between Monsanto and farmers, to the great and lasting benefit of farmers."

But this is Canada!

In spite of the good work being done by the Schmeisers, the National Farmers' Union and others, most Canadians remain oblivious to the struggle for control and ownership of seeds. This may be because the struggle involves complex national and international agreements that are hard for the media, much less those involved, to distil down to succinct, understandable ramifications and consequences. It also may be a result of our general lack of interest in how our food is produced and conveyed from the field to our plate. What ever the reason it is not that surprising that many of us would have a limited understanding of our country's small but vitally important seed system.

Twenty-five years ago Canada had a public seed system - a result of the sharing and exchange of seeds between farmers, formal seed breeders, and public, that is, government and university-run seed breeding programs. Today, private interests have radically transformed the Canadian seed system, and our government is dangerously close to handing over what remains of the public aspect of this system to a handful of large, transnational corporations.

This seed system - now an industry - is being transformed, succumbing to the effects of patent law and other intellectual property regimes, corporate consolidation, government manoeuvring and cutbacks further encouraging the participation and interest of profit-hungry transnational corporations who are given more responsibility for the maintenance of this public interest by our seemly emasculated government. In the words of Devlin Kuyek, author of the report Stolen Seeds, "our public goods are being destroyed to make way for private profit and the seed saving and plant breeding practices at the heart of our seed system are being criminalised." And in the process, thorny but critically important issues of sustainability, of fairness, of social and ecological responsibility and citizenship are being overlooked or dismissed.

The situation has all the characteristics and challenges associated with leaving a fox in charge of a henhouse. Hardly a Canadian thing to do, eh?!

Additional Reading

• The Seed Sector Review
• The Percy Schmeiser Decision
• Privatization of Canada's Seed System
• Canadian Food Inspection Agency

Originally published in Island Tides

© Derek Masselink, P. Ag., former Coordinator of the University of British Columbia Farm and Principle of Masselink Environmental Design, can be contacted at derek@masselinkdesign.com.

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