Today, the Independent Planning Commission of NSW rejected the coal mine application by Kepco, South Korea. 

Read the Commission's full decision at 'Statement for reason of decision' dated 18 September 2019, or the summary on ABC News by Liv Casben in her article 'NSW's Bylong coal mine proposal knocked back on environmental impacts' dated 18 September 2019.

Where to now? 'A Better Vision for Bylong'?

According to a new study, neurotoxic pesticides known as "neonics" are not only wiping out the world's bees, but also killing off butterflies, fish, and birds, threatening to wipe out "the heart of a functioning ecosystem". A new study says neonics -- the neurotoxic pesticides behind colony collapse disorder -- can be 5,000 to 10,000 times more toxic to bees than DDT.
…
Thanks to intense lobbying by Bayer, neonics are the most widely-used pesticides on the planet. But we cannot stand by as these pesticides threaten to destroy the natural ecosystem, including the pollinators that maintain our food supply.

The latest study says these pesticides, absorbed by plants, are also harming other insect pollinators, fish and birds as they leach into soil and water. The most affected species were terrestrial invertebrates such as earthworms, which are crucial soil-enrichers.  Bees and butterflies were next, followed by aquatic invertebrates, then birds and finally fish, amphibians and certain microbes. 

Find out more and sign the "The Story of Stuff" petition here: http://action.storyofstuff.org/sign/bayer-neonics-birds-bees

If you don't have solar panels on your roof but would love to make a difference, why not switch your energy provider. Check out The Green Electricity Guide by Greenpeace and the Total Environment Centre:
http://www.greenpeace.org/australia/en/what-we-do/climate/The-Green-Electricity-Guide/

Sign the Petition: Don't Pull the Plug on Solar!

Tell your dirty energy provider to support the Renewable Energy Target (RET) by signing the petition by Greenpeace here: https://www.greenpeace.org.au/action/?cid=71

The Renewable Energy Target (RET) scheme which consists of large-scale and small-scale schemes, is aimed at increasing renewable energy generation and reducing greenhouse gas emissions from the electricity sector. It is designed to deliver the equivalent of 20 per cent of Australia's electricity from renewable sources by 2020. The RET is under threat from the current Federal Government who are at present reviewing the RET in their RET Review - another unnecessary legislative review by the Government.

Tell our Prime Minister to protect the Renewable Energy Target (RET) by signing the petition by Solar Citizens: http://www.solarcitizens.org.au/protecttheret

On 26 March 2014, the ACCC wrote a letter to the writer concluding ‘that the conduct of Monsanto is unlikely to be misleading or deceptive and therefore intend to take no further action at this time in proceeding with this complaint’ but ‘may reconsider the matter at a later stage should further information be provided. (ACCC Letter - see below)

The yearly March against Monsanto is taking place today, 24 May 2014, 11.30 am, starting at Town Hall, Sydney, heading towards Hyde Park where you can settle in on a picnic blanket and listen to the speakers from 12.30 am.

Take action now! Participate in our Twitter Storm to the ACCC by copying and pasting the following message and sending it to the ACCC:

Monsanto's toxic agriculture - just because Monsanto says it's sustainable does not mean it is sustainable! @acccgovau ACCC ref no 1707131

Read to the end of this article to find more actions that you can take.

The writer is a Permaculture & Food Forest Designer as well as a lawyer specialising in Sustainable Agriculture Law.

Like many other Australians, the writer has become increasingly concerned about sustainability and specifically the damaging environmental impacts of unsustainable toxic products such as pesticides on our soil and water.

The law: environmental claims & sustainability according to ACCC

The Australian Competition & Consumer Commission (ACCC) has recognised this consumer concern in their Consumer Info Sheet entitled "Your consumer rights: Environmental claims" where the ACCC summarises this problem as follows:

"More Australians are considering the environmental impacts of their purchasing decisions. As a result, businesses are increasingly making environmental claims in an attempt to differentiate themselves and their products from the competition."

One word that some clever marketing departments like to use and abuse is the word 'sustainable'. The ACCC Consumer Info Sheet has specifically provided a definition of 'sustainable' which provides:

"Some businesses make claims that their product or their business is sustainable. For a practice to be sustainable, it must be able to be sustained indefinitely…" 

Monsanto uses the term ‘Sustainable Agriculture’ on its website to promote the sale of their toxic pesticides and genetically modified seeds. 

Schedule 2 of the Competition and Consumer Act 2010 (Cth) sets out the Australian Consumer Law. Section 18(1) of the Australian Consumer Law provides:

"Misleading or deceptive conduct
(1)  A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive."
…

Section 29(1) of the Australian Consumer Law provides:

"29 False or misleading representations about goods or services
(1)  A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(a)  make a false or misleading representation that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use; or
...
(g)  make a false or misleading representation that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits; or
…
(l)  make a false or misleading representation concerning the need for any goods or services; or ..."

The facts & conclusion: Monsanto's wrongly markets Industrial Agriculture as 'Sustainable' Agriculture

Monsanto's Australian website has an entire page entitled 'Sustainable Agriculture' with the tagline 'Producing More, Conserving More, Improving Lives'. http://www.monsanto.com/global/au/whoweare/pages/sustainable.aspx

Monsanto even has a so so-called 'Sustainability' Report: http://www.monsanto.com/global/au/whoweare/pages/sustainability-report.aspx

On pages 9 and 24 of Monsanto's 2012 'Sustainability' Report, reference is made to Monsanto's ongoing 'commitment to sustainable agriculture'. Page 26 of the Report outlines what is meant by Monsanto's first commitment of 'Producing More'. Monsanto's goal is to 'double yields from year 2000 levels by 2030 of Corn, Soybeans, Cotton and Canola". All four plant varieties are genetically engineered and will rely on pesticide use  - not something that is used in an agriculture that is sustainable - since all four Monsanto products rely on pesticide use and are planted solely in monocultures.

Monsanto's products are used in Industrial Agriculture that relies heavily on pesticides. In Permaculture circles, this is referred to as More-on Farming. When industrial farmers spray Monsanto's Roundup on their Roundup resistant genetically engineered crops, the only plants that survive are the Roundup resistant plants and some super weeds. No other plants survive. 

The combination of continued spraying of pesticides and fertiliser on a monoculture GMO crop is that the soil eventually erodes and in the end turns into a desert. The soil cannot rebuild itself.

No farmer who engages in sustainable farming practices - Sustainable Agriculture - would use Monsanto's pesticides. The term 'sustainable' should not be used for non sustainable farming practices, but only farming practices that are sustainable, such as Agro-Ecological Agriculture, Biodynamic Farming, Agroforestry or Regenerative Agriculture.

It is the writer's view that Monsanto engages in misleading and deceptive conduct as well as makes false and misleading representations by using the term ‘Sustainable Agriculture’ in connection with promoting the sale of their toxic pesticides and genetically engineered seeds. Monsanto's chemicals are toxic, not sustainable. Monsanto's genetically engineered seeds are toxic, not sustainable. 

By referring to Sustainable Agriculture in the context of selling their toxic products, Monsanto's marketing material gives the appearance to consumers that it sells products that are environmentally friendly and that the type of farmers that use their products practice sustainable farming methods. Monsanto's GMO seeds are not environmentally friendly, and any farmer using Monsanto seeds should not be allowed to call his or her agricultural practice sustainable. The appropriate terms to be used for this high input chemical agriculture are Conventional Agriculture, Industrial Agriculture, Chemical Agriculture or Biotech Agriculture.

Enforcement: ACCC - statutory body with authority to enforce Australian Consumer Law

The Australian Competition & Consumer Commission (ACCC) is the statutory authority with responsibility for enforcing the Australian Consumer Law.

What this means in practice is that the ACCC makes independent inquiries about what it is that Monsanto is offering and whether their products are sustainable and would be used in sustainable agricultural practices. 

Enforcement: ACCC - a toothless tiger? 

By way of background: On 26 May 2013, the writer made a submission to the ACCC to investigate Monsanto’s use of the term ‘sustainable agriculture’ in promoting their toxic products (see below). Annexed to the writer’s submission to the ACCC was a petition with 1048 signatures of concerned citizens from all over the world who all agree that Monsanto should not be allowed to use the term ‘Sustainable Agriculture’ in promoting their toxic products. 251 signatories are from Australia. Many signatories also provided a definition of the term ‘sustainable agriculture’ based on their understanding.

Particularly noteworthy is the following extract of the ACCC Letter:

Monsanto, on its website, identifies its future goals of 'sustainable agriculture' to promote 'Producing More, Conserving More and Improving Lives'. Monsanto states 'sustainable agriculture' is required in the future to ensure that increased crop yields appropriately counteract a growing population. Monsanto have placed importance on reducing the impacts on natural resources through particular agricultural practices.'

I am of the view that Monsanto clearly identifies what it considers to be 'sustainable agriculture' and they have also appropriately represented the broad general characteristics of sustainable agriculture.

Yes, exactly, Monsanto, the writer and the 1048 signatories of the petition all agree on what 'Sustainable' Agriculture is supposed to be. 

We all agree that 'Producing More, Conserving More and Improving Lives' is what Sustainable Agriculture can deliver. But Monsanto's toxic products are simply not being used in Sustainable Agriculture, but in Industrial Agriculture. Monsanto merely claim to support Sustainable Agriculture. There is no evidence in Monsanto's marketing material that their toxic products lead to higher production, better conservation and improvement of life. These are mere marketing promises.

In reality, Monsanto does not promote Sustainable Agriculture, nor are their toxic products used in Sustainable Agriculture. Monsanto's products are used in the opposite of Sustainable Agriculture - in Industrial Agriculture. 

That's what companies do - they know that consumers want sustainable products, so they make claims that their products are sustainable. How did the ACCC miss the point that they made themselves in their consumer  leaflet, which is quoted again:

More Australians are considering the environmental impacts of their purchasing decisions. As a result, businesses are increasingly making environmental claims in an attempt to differentiate themselves and their products from the competition. 

The point that ACCC has completely missed is that they were supposed to investigate whether the products that Monsanto are selling are in fact sustainable and support a sustainable agricultural system. No, they do not. They are highly toxic, they are unsustainable, and they do not support Sustainable Agriculture. 

Monsanto's toxic products can only be used in industrial monocultures consisting of one GMO plant variety, the seed of which is also sold by Monsanto. These type of industrial agricultural systems are not sustainable, they work only in the short term, leaving the soil depleted and eroded to the point of becoming a desert (see 'Save and Grow - A policymaker’s guide to the sustainable intensification of smallholder crop production by the Food and Agriculture Organization of the United Nations: http://www.fao.org/ag/save-and-grow/index_en.html - already referred to in the writer's letter to the ACCC dated 26 May 2013 which the writer referred to in her submission to the ACCC of 26 May 2013).

It is part of Monsanto's marketing campaign to refer to sustainable agriculture. They know exactly that their lovely marketing material is likely to mislead farmers into thinking they engage in sustainable agricultural practices if they buy Monsanto's GMO seeds and pesticides. And it is so cleverly done that the ACCC appears to have lapped up Monsanto's outlandish marketing claims and appears to agree with Monsanto that toxins are environmentally friendly. Monsanto's promises of increased yields, decreasing pesticide inputs & feeding the world are just that - with no evidence such as data from previous years that would support these outlandish marketing claims.

Monsanto's marketing coup is the promotion of something highly toxic as environmentally friendly. The consumers (farmers and gardeners) that buy Monsanto seeds and pesticides and have not done their own research, are likely to be mislead into thinking something highly toxic is actually environmentally friendly - due to Monsanto's misleading marketing material.

Monsanto is so successful in creating a story of pesticides being environmentally friendly, that the writer was recently advised by a Waverley Council staff member that the pesticide Glyphosate (contained in Monsanto's Round-up) is an environmentally friendly product. Monsanto has clearly been successful, and the ACCC is turning a blind eye. 

It's a mere marketing spiel, and ACCC has simply bought into it. It's a bit like any Joe Blow saying: "I am going to save the world by spraying all my neighbour's gardens with pesticides." and the ACCC believing him.

Take action now!

If you believe that the ACCC should re-consider their conclusion that Monsanto's conduct is not misleading and deceptive, you can do any of the following:

1. Participate in a Twitter storm to the ACCC. Simply copy and past the following: MONSANTO'S TOXIC AGRICULTURE - JUST BECAUSE MONSANTO SAYS IT'S SUSTAINABLE DOES NOT MEAN IT IS SUSTAINABLE! @acccgovau ACCC ref no 1707131

2. Post the following on ACCC's Facebook Page www.facebook.com/ACCCConsumerRights: MONSANTO'S TOXIC AGRICULTURE - JUST BECAUSE MONSANTO SAYS IT'S SUSTAINABLE DOES NOT MEAN IT IS SUSTAINABLE! Please conduct a proper investigation & do not rely on Monsanto's marketing claims that their highly toxic products are being used in 'Sustainable' Agriculture. @acccgovau ACCC ref no 1707131.

3. Assist in preparing a written submission to the ACCC to conduct a proper investigation and not rely on Monsanto's marketing claims of their highly toxic products being used in 'Sustainable' Agriculture. To assist in preparing the written submission, you can:

• Provide pro bono legal assistance: Contact Beatrice Ludwig at info@ludwiglawyers.com if you would like to assist in preparing a submission in response to the ACCC Letter, in engaging in research and in preparing the relevant documents for potential legal proceedings.
• Write an expert report on what type of agriculture is sustainable - for the purpose of submitting it as evidence to the ACCC. Contact Beatrice Ludwig at info@ludwiglawyers.com.

4. Buy local organic produce in your local shop or markets*
​*Update: such as at John's stall at Cambridge Markets Entertainment Quarter (Fox Studios) every Wednesday morning. 

"Update: Steve Marsh’s trial is scheduled to start on the 10th of February 2014 at the Western Australian Supreme Court. Please make a donation now!

"You might not have heard of Steve Marsh yet but this man could lose everything to protect your right to eat GM-free food. Steve is an organic farmer from a farming community South of Perth in Kojonup, Western Australia. In 2010, the state government of Western Australia lifted the ban on GM canola, allowing for the commercial cultivation of this GM crop for the first time. As a result many farmers, including Marsh’s next door neighbour, began growing GM canola. Subsequently, Steve found GM canola plants spread over much of his farm, containing seed. 70% of Steve’s farm was contaminated and he lost his organic certification..."

See http://stevemarshbenefitfund.com.au where you can find out more details and also watch the video explaining the Steve Marsh case.

Steve Marsh is represented by the law firm Slater & Gordon. 

On Saturday, 25 May 2013, the whole world marched against Genetically Modified Food and Crops - in the "March against Monsanto". Beatrice Ludwig, Principal Solicitor at Ludwig Lawyers (formerly BiLegal Lawyers), who is also a Urban Farmer and Seed Saver, gave a talk in Sydney on Patenting of Genes and GMOs. On request, here the transcript.

Ron Finlay said: “Growing your own food is like printing money”. 

And this is why we are all here today. 

Monsanto has managed to obtain a monopoly on the planting of certain seeds that have been genetically modified. Monsanto can claim ownership over these seeds and their offspring, because the patent offices worldwide have been granting patents on genetically modified organisms since 1980 when the US Supreme Court in Chakrabarty decided that GMOs can be patented in the United States.

In the 30 years since, Australian courts have never been asked to decide whether this practice of granting patents on GMOs is actually legal in Australia or whether it is in breach of the Australian Patents Act.

I have brought with me a jar of organic soy bean seeds - seeds that another seed saver freely shared with me. These seeds will grow into soy bean plants, and the plants will produce thousands of new seeds. I will eat some of the plants, and I will save the seeds of the healthiest plants. I will then share some of the seeds with others and re-plant the remaining seeds next year. And so it goes on, year after year, until I die - until my children and grandchildren die. We will never have to buy soy bean seeds again.

This is how farmers have operated for thousands of years. 

Percy Schmeiser case

Seed saving is also what Percy Schmeiser did. Percy Schmeiser is an 82 year old former Canadian canola farmer who had been farming his whole life -- each year saving the seeds of his best canola plants -- and re-planting them the next year. 

15 years ago, Percy Schmeiser found “Round-up Ready” GM canola on his property - despite never having planted it. The seeds could have been brought onto his property by bees or other pollinating insects. He never found out exactly how. The GM canola seed contains a dominant gene that cross-pollinated with Percy Schmeiser’s carefully selected canola plants. The unwanted result was a GM canola crop. 

What did Monsanto do? Monsanto, the patent holder of Round-up Ready canola, took Percy Schmeiser to court - for breach of its patent. The then almost 70 year old Percy Schmeiser was now forced to spend the next 7 years in various courts defending his rights - defending all farmers’ rights.

The Canadian Supreme Court eventually held that Percy Schmeiser was in fact in breach of Monsanto’s patent, that it did not matter how the original GM canola seeds got onto his property - whether someone planted the seeds or whether the wind or insects brought them in.

Myriad Genetics case

What happened to Percy Schmeiser in Canada could not possibly happen to Australian farmers, right? Or could it?

There is in fact a GM contamination case pending in Western Australia, the Steve Marsh case. However, the Steve Marsh case does not concern itself with patentability of GMOs or genes, that is, I won’t be talking about it now.

A genetically modified organism is a human, animal or plant that has a gene from another species artificially introduced into its genome.

Can genetically modified organisms be patented in Australia?

What about genes, the origins of life itself? Can genes be patented in Australia?

A basic premise of patent laws worldwide is that only human inventions can be patented, not mere discoveries of something that already exists in nature. This premise is also the basis of section 18 of our Patents Act that sets out what is patentable.

Despite this general understanding of the patent law, over the last 30 years, patent offices worldwide, including in Australia, have been granting thousands of patents on things that exist in nature, such as genes, and other biological materials as well as GMOs.

But is this practice legal?

Most of us in the general public would not have known anything about this practice, as it never affected us in the past. Most of us have never put our minds to what the consequences of the granting of patents over life would be. 

Australian courts have never been asked whether GMOs can indeed be patented. 

Australian courts had also never been asked to decide whether genes themselves could be patented, that is, until last year, when Cancer Voices Australia sued Myriad Genetics in the Federal Court of Australia. 

Myriad Genetics, a company whose legal interests are aligned with those of Monsanto, had obtained a patent on a breast cancer gene, the BRCA1 gene, the gene recently made famous by Angelina Jolie. 

The BRCA1 gene is not an invention. It is something that exists in nature. It was discovered, not invented. Therefore, it should not be patentable. 

Judge Nicholas, the Federal Court of Australia judge, in his Myriad Genetics decision of February this year, even acknowledged that a gene that is in the human body, cannot be patented. 

However, Judge Nicholas then turned around and held that once the gene is isolated, that is, removed from the human body, it can be patented. It is a bit like saying that if you chop a tree down into fire wood, you can claim a patent on the fire wood.

With respect, the consequence of making an isolated gene patentable is that the gene in the human body and its genetic coding can no longer be freely used. In effect, the Court held that a gene is patentable.

What is disturbing is that the Myriad Genetics judgment of the Federal Court of Australia seems to take it a step further than the Canadian Percy Schmeiser case. 

The Percy Schmeiser case concerned a genetically modified organism, an organism that had an isolated gene from another species introduced. This altered organism is the subject of a patent, not the gene itself.

The Myriad Genetics case on the other hand allows patents on an actual existing gene. Nothing new is created by isolating the gene. 

With all due respect, the Myriad Genetics judgment appears non-sensical and has the potential to result in very unfair outcomes, worse than the outcome of the Percy Schmeiser case. It further erodes our patent law.

There is however still some hope: The second applicant, Yvonne D’Arcy, a cancer survivor, has appealed the Myriad Genetics decision to the Full Federal Court. The hearing is expected to occur some time in August this year. 

Ron Finlay said: “Growing your own food is like printing money”. I would add: “Let’s remove Monsanto’s monopoly to print money.”

Call to Action

So what can we do?

1. At a political level, let’s promote a fair and ethical patenting system. Let’s ask our MPs to not allow patents on genes, whether isolated or in situ, biological materials and genetically modified organisms that can procreate. 
2. Let’s follow the Myriad Genetics appeal case in the Full Federal Court of Australia this August 2013 and ask our media friends to write about it and its possible consequences.
3. To farmers I would say: Don’t enslave yourself to Monsanto by purchasing their sub-standard and expensive GMO seeds. Embrace resilient Permaculture practices instead.

In another disappointing judgment, the Federal Court, this time has rejected the NT container deposit scheme - a win for Coca Cola and other multinationals, but a big loss for the environment and our health.

You can read the judgment here: Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of Australia [2013] FCA 154.

If you would like to find out more about Australian legislation that should be changed in the interest of the public and the environment, please contact Beatrice Ludwig on 0410 583 550 or by email: info@ludwiglawyers.com.

In August 2011, the Final Report of the Review of the Gene Technology Act 2000 (“the Report”) was completed by The Allen Consulting Group.

The Report acknowledges that:

• “over one third of the submissions came from individuals who were mostly critical of the use of gene technology in Australia” (page 17); and
• “NGOs were mostly critical of gene technology in Australia” (page 17).

Nevertheless, the Report does not address the concerns raised by the public nor the NGOs, such as contamination of non GM (genetically modified) crops with GM crops. 

The Australian Government Department of Health and Ageing received a total of 48 submissions. The Report does not address the submissions made by Beatrice Ludwig (submission 41) that a strict liability for GM contamination of non GM crops be incorporated into the Gene Technology Act 2000 (Cth) nor that a compulsory insurance scheme be set up for anyone dealing with GM crops following the example of other countries, such as Germany.

Moreover, the original public submissions were transcribed onto the website of the Australian Government Department of Health and Ageing containing numerous mistakes, some of which literally changed the meaning of the submissions to the opposite. For example, Beatrice Ludwig, in her submission, quoted the following extract from the UN 2011 publication “Save and Grow - A policymaker’s guide to sustainable intensification of smallholder crop production”:

“It is now recognised that those enormous gains in agricultural production and productivity [from monoculture industrial agriculture in the Green Revolution] were often accompanied by negative effects on agriculture’s natural resource base, so serious that they jeopardize its productive potential in the future.” 

The Australian Government Department of Health and Ageing transcript misquoted this as:

“It is not recognised that those enormous gains in agricultural production and productivity [from monoculture industrial agriculture in the Green Revolution] were often accompanied by negative effects on agriculture’s natural resource base, so serious that they jeopardize its productive potential in the future.”

This mistake was not corrected despite requests to do so.

You can read the original submission by Beatrice Ludwig here:

To find out more about the Gene Technology Act or our Practice Areas, such as Civil Litigation, Intellectual Property and Sustainable Agriculture, contact Beatrice Ludwig on 0410 583 550 or at beatrice@ninjalawyers.com.au.

Ninja Lawyers - care of the earth - care of people - fair share