In 2019 and 2020, the Government of Canada is conducting a review of the regulatory frameworks governing seed. Changes are being considered for the Plant Breeders’ Rights Act and Regulations. If any of these changes are implemented, the implications for farmers and farming in Canada will be profound.
Below are some of the basics: what is the history of plant breeding in Canada, what are the proposed changes, and perhaps most importantly, why should organic farmers and consumers care?
The History of Plant Breeding and Plant Breeders’ Rights in Canada:
The cost associated with breeding new plant varieties is high. This is why, in 1990, plant breeders were given the right (under the Plant Breeders’ Rights (PBR) Act and Regulations) to generate royalties in return for the use of new plant varieties. This allows them to take legal action against individuals or companies that infringe on the exclusive rights of the holder. As Chris Thoreau noted in a recent article, “in fairness, if I spend 10 years developing and growing ‘Chris’s Super Sweet Carrot’ and I start selling it, I do need to recoup the cost of breeding that seed” (Marrapese, 2019, para. 11). Seems to make sense, right?
Canada is not unique in its adoption of a PBR Act. While the PBR Act and Regulations govern how intellectual property rights (IPRs) for new varieties of plants are implemented in Canada, we actually belong to an intergovernmental organization called The International Union for the Protection of New Varieties of Plants (UPOV). UPOV provides templates for member countries like Canada to adopt (and we have adopted the UPOV ’91 model).
There is an exemption in the PBR Act, however, referred to as Farmers’ Privilege. Farmers’ Privilege allows farmers to save seed of PBR-protected varieties and to plant the saved seed on their land in future seasons. As the National Farmers Union notes, this means that while farmers pay a royalty on the initial seed purchase, they have had “the right to freely saved seed from the first year’s crop for planting subsequent crops” (NFU, 2018).
Canada is not the only country to recognize the importance of Farmer’s Privilege. In fact, Canada is a signatory to the Food and Agriculture Organization of the United Nations (FAO) Plant Treaty. As a signatory, Canada, like many other countries, agrees not to limit any rights that farmers have to save, use, exchange and sell farm-saved seed/propagating material (subject to national law and as appropriate).
A Changing Landscape:
Seed Synergy, a coalition of associations in Canada’s seed sector (which includes CSI, CSGA, CSTA, CPTA, CropLife Canada, and CSAAC) is lobbying for changes to the current system. They argue a need for more plant breeding investment to “support Canada’s cereal, pulse and specialty crop producers”(Zienkiewicz, 2019, para. 4). An article in Germination goes on to state that “variety development research for these crops is significantly under-resourced when we consider the long-term view with increased global competition and the rapid pace of new technology innovations” (Zienkiewicz, 2019, para. 4).
The Seed Synergy group is not wrong. We do need more investment in plant-breeding to support our producers (in particular, their need for climate and regionally appropriate seed). The urgency is most notable in cereals and pulses, where there is a tendency for farmers to sell seeds to each other (excluding novel varieties that are patented).
The changes they’ve proposed, however, will have serious implications for farmers and farming in Canada (if implemented). Why? Because the two changes being proposed would restrict Farmers Privilege for all UPOV’91 PBR-protected varieties (i.e. all varieties registered with PBR’s after February 27, 2015).
What are the Proposed Changes?
The Government will be opening a public consultation on the following two royalty collection options on all UPOV’91 PBR-varieties:
| 1. | End-point-royalties: The producer would have to pay a royalty on all harvested material of UPOV’91 varieties – including crops produced from farm-saved seed. The royalty is paid when the farm delivers grain to the supply chain. |
| 2. | Certified seed contracts with trailing farm-saved seed royalty obligations (Trailing contract royalties): Producers who purchase UPOV’91 PBR-varieties as certified seed would enter into a contract that either waives the Farmers’ Privilege to plant subsequent crops of that variety with farm-saved seed entirely, or requires the farmer to pay a “trailing” royalty for farm-saved seed used in later years of production. These producers would have to report on their annual use of farm-saved seed and authorize breeders to verify their declarations. |
In addition to restricting the Farmers’ Privilege on UPOV’91 varieties of cereals and pulses, the Government is also considering the elimination of the Farmers’ Privilege on UPOV’91 varieties of fruit, vegetable and ornamental crops. Although the rates of farm-saved seed use on protected varieties for these crops are much lower than cereals and pulses, removing the Farmers’ Privilege for these types of crops eliminates any form of seed saving for newly protected varieties of fruits, vegetables, and ornamental crops.
What Would this Mean for Organic?
Introducing royalties on farm-saved seed would lead to organic farmers being further pressured to buy conventional, untreated seeds. How?
The shortage of certified organic seed in the marketplace is well-known. While organic regulations mandate organic farmers to purchase organic seed, they are allowed to purchase non-GMO conventional untreated seed if there are no equivalent organic varieties available. The result is that 30% of the organic/ecological farming sector uses conventional untreated seed (COTA, 2014).
Organic farmers, however, are nothing if not patient and innovative. Saving and adapting conventional untreated seed to their farm is one way of ensuring that the variety they need is organic and adapted to their production system and location. If organic farmers are not able to save UPOV’91 registered varieties they could always work with pre-UPOV’91 varieties, but it is has been suggested that these varieties could be de-registered, taking them out of circulation. Both situations leave organic farmers little alternative but to continue purchasing conventional untreated seed every season, increasing their costs, compromising their production system, and compromising the integrity of the organic movement.
As Emma Holmes, organic industry specialist for British Columbia stated in a recent article for COABC, “the market for certified organic seed is expected to continue to grow in the coming decades as the consumer demand for organic products increases and certifiers are adopting stricter enforcement around purchasing organic seed when available” (Holmes, 2019, para. 7). The paradox is palpable and the repercussions far-reaching; from the farmer that incurs the cost, to consumers who demand organic products, to the biodiversity that is fostered through participatory plant breeding, it is unclear at this point how farmers – in particular, organic/ecological farmers- would benefit from increased royalty collection systems on PBR varieties.
Our Involvement
Some of you may already be aware of these consultations and the proposed changes to seed governance in Canada. In November 2018, Agriculture and Agri-Food Canada (AAFC) and the Canadian Food Inspection Agency (CFIA) announced initial in-person consultations in Ottawa (November 3, 2018), Winnipeg (November 6, 2018), Saskatoon (December 4, 2018) and Edmonton (December 6, 2018) focused primarily on value-creation for cereals. Organic had a strong presence; I attended the Ottawa consultation along with numerous other organic representatives, and members of the organic sector were present at consultations in Edmonton, Saskatoon and Winnipeg.
What’s Next?
We anticipate that online consultations will be announced this year, though with the upcoming federal election we are unsure whether they will take place pre-or-post election. Our goal is to ensure you are informed so that we are ready to mobilize if and when consultations open. Follow our social media channels in the coming weeks as we engage with some of our board members on their opinions on the proposed changes. We will of course continue to keep you informed via email.
For more information on what you can do to take action in the short-term please visit the National Farmers Union website and join their Save Our Seed campaign.
We owe a huge thank you to our partners at USC Canada for taking a leadership role in coordinating the organic sector and ensuring we have a unified voice for organics. We are stronger when we work together. If you can, please share this letter with a neighbor or friend to spread the word on this important issue.