Legally Containing the Uncontainable: Establishing a Liability Scheme for GE contamination in Canadian Agriculture

An increasing amount of litigation has been seen to address the spread of genetically engineered (GE) genes; however the focus has largely been on patent infringement to protect the seed developers. Farmers that lose profits due to the contamination of their fields by the (unintentional) flow of gene drift however are often overlooked. This paper tries to address this gap by asking how the current Canadian legal framework deals with the matter of recourse for GE contamination. Finding this system deficient, the paper then looks toward the common law procedures to mediate a solution. An overview of how other jurisdictions have dealt with the matter gives a basis of what opportunities may be available in the Canadian system. I use a socio-ecological framework as well as a more traditional policy analysis to assess the effectiveness of the Canadian regulations in coping with the issue of liability due to contamination. The paper concludes by recommending managing contamination through a compensatory fund on a strict liability basis at the provincial level. The funding ought to come from a seed tax paid by those who benefit financially from the introduction of the GE seeds so as to ensure that both the polluter‟s pay principle is respected as well as allowing for a type of ecological monitoring of the ecosystem.