You can save seed, but can you ‘stock’ it?

As UPOV ’91 becomes closer to reality for Canadian farmers and seed breeders, many questions remain to be answered

Planned amendments to Canada’s Plant Breeders’ Rights Act are generating a lot of questions and few answers, as some farmers begin to fear they’ll be left to reap what the federal government sows.

Omnibus Bill C-18 — known as the Agricultural Growth Act — will affect a total of nine pieces of legislation including the Plant Breeders’ Rights Act if approved by the Senate. The changes could alter if not revoke a farmer’s ability to save and store seed, according to those opposed to the bill.

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“Clearly, it makes significant amendments to the Plant Breeders’ Rights Act, and it does so in a way that I can only describe as convoluted and undefined,” said Robert Watchman, a partner at Pitblado Law who specializes in intellectual property rights and agribusiness.

Speaking at Keystone Agricultural Producers annual meeting in Winnipeg, Watchman explained that the changes are an attempt to bring Canada in line with the International Union for the Protection of New Varieties of Plants’ 1991 convention, commonly called UPOV ’91.

This is the third attempt by the federal government to adopt the nearly 25-year-old convention. Currently, Canadian law is compliant with UPOV ’78.

While broad changes would be implemented through legislation, Watchman said the amendments Bill C-18 outlines for the Plant Breeders’ Rights Act would actually be defined through regulations passed after the bill is passed into law. Regulations that will be enacted through orders-in-council — cabinet-approved orders that aren’t debated in the House of Commons or examined by the Senate.

Some of the terms that remain undefined in the amendments include words like “farmer” and “holdings,” terms that will be key to how the amended law is applied.

‘Convoluted’

What producers at the meeting most wanted to know was how the changes would affect the concept of farmers’ privilege.

“Farmers’ privilege… would be taken into consideration, but in a very convoluted fashion,” said Watchman, adding that “the significance of these changes could be very profound.”

The idea of farmers’ privilege is present in the bill, but in an undefined way spread over three of the act’s provisions, and subject to contractual obligations between a farmer and seed providers, he said.

“The farmers’ privilege only displaces the exclusive right to produce or reproduce the materials, which covers off the growing issue, and only the exclusive right to condition the material — condition is not defined in the act — for the purposes of producing propagated material,” he said. “So one of the changes I referred to was the exclusive right to stock — so you have farmers’ privilege which allows you to reproduce the material, it allows you to condition the material, but it doesn’t allow you to actually stock the material.”

Some see that change as the gateway to end-point or point-of-sale royalties for seed companies. Some companies including Canterra have already made their intention to eventually collect end-point royalties clear.

“There’s a lot of things I think farmers need to be aware of,” said Dean Harder, who farms near Lowe Farm. “I have a lot of concerns… when we think of seed, when I think of seed, in my mind, traditionally, that means I can plant it, and save it and sell it and keep it in the bin, but it seems like that is actually being separated in the bill in terms of saving seed.”

Farmer input?

Paul Gregory of Interlake Forage Seeds expressed concern that farmers would be left out of the regulatory process once Bill C-18 passes.

“We’re not dumb farmers here,” he said. “I think we can do a good job.”

Watchman noted that farmers are part of an advisory committee on the matter, but won’t hold real sway over the process.

“At this point there is provision for consultation, but not really interpretation. At the end of the day, interpretation is made initially by the commissioner, but typically through the courts,” he said.

The potential impact of an extension of plant breeders’ rights on public research was also raised.

“We’ll lose public seed breeding as we know it,” Gregory said, adding niche crops like peas and lentils will be affected first.

Delegates at the meeting later passed a resolution calling for the federal government to enable generic seed developers — which includes farmers — to have access to off-patent plant traits at least seven years before traits come off patent.

Minto-area farmer and seed developer David Rourke put forward the resolution, adding that, “I think a lot of us have some hesitation about believing Minister Ritz about the value of our farm-saved seeds under this regulation and what value we’ll get in the long term.”

Earlier this month the National Farmers Union raised its concerns about the changes to the Seed Breeders Rights Act with the Senate Standing Committee on Agriculture and Forestry. That organization has long argued that the intent of UPOV ’91 is to make farmers dependent on outside suppliers for all their seed.

But Watchman noted that the amendments to the Seed Breeders’ Rights Act could have been more severe had the Canadian government chosen to do more than meet the minimum requirements of UPOV ’91.

“So depending on whether you love it or hate it, it could be worse or it could be better, so there is a little bit of room there for it to go either way,” he said.

About the author

Reporter

Shannon VanRaes is a journalist and photojournalist at the Manitoba Co-operator. She also writes a weekly urban affairs column for Metro Winnipeg, and has previously reported for the Winnipeg Sun, Outwords Magazine and the Portage Daily Graphic.

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