Agriculture Committee on Oct. 21st, 2014

[The Chair, Conservative, Bev Shipley]

Colleagues, I'd like to call the meeting to order pursuant to the order of reference of today, which is Bill C-18, an act to amend certain acts relating to agriculture and agri-food.

With that, colleagues, I also welcome our witnesses for our panel.

Mr. Chidi Oguamanam is a professor in the Faculty of Law and is here in person.

We also have a video conference. I welcome each of you. From the Canadian Association of Agri-Retailers, we have Delaney Ross Burtnack. From the Agricultural Credit Corporation, we have Jaye Atkins, and from the Compost Council of Canada, we have Susan Antler.

I'm going to leave the professor until last just in case we have a video interruption, so that gives us a little time should something go wrong with our video.

I will start with the Canadian Association of Agri-Retailers and Delaney Ross Burtnack, who is the president and chief executive officer.

[Delaney Ross Burtnack, President and Chief Executive Officer, Canadian Association of Agri-Retailers]

Good morning.

Thank you, Mr. Chairman, and members of the committee, for the opportunity to join you today and share CAAR's position regarding Bill C-18 on behalf of the Canadian agri-retail association and industry.

My name is Delaney Ross Burtnack. I am the president and CEO of CAAR, the Canadian Association of Agri-Retailers. We represent the trusted support network for Canadian farmers, including agri-retailers large and small, as well as the crop input manufacturers, agronomy experts, transportation companies, and other service providers who support agri-retailers across Canada.

You are surely aware that Canada is well-positioned to be a global leader in meeting the burgeoning need to produce a higher volume of high quality, affordable food in order to feed a growing world population. However, projections of global demand in the next 35 years will require food producers to nearly double the amount of food currently produced. This is an unprecedented level of growth that will require significant innovation. For crop producers, success in achieving that goal will begin with access to the best possible crop inputs, including new crop varieties.

The proposed amendments to nine acts put forward in Bill C-18, particularly those proposed for the Plant Breeders' Rights Act, are a valiant and critical step forward in generating investment in agricultural innovation and securing Canada's future as a leader in agriculture. CAAR recognizes the crucial role that innovation in seed varieties will play in the ability of Canadian agriculture to meet future demand. We applaud the Government of Canada for bringing Canada's Plant Breeders' Rights Act into compliance with the 1991 Convention of the International Union for the Protection of New Varieties of Plants, UPOV, a commitment signed by Canada in 1992, and only now being brought into effect. This step will bring Canada in line with its trade partners around the world and stimulate much-needed investment in future crop varieties that will be the foundation of increased food productivity and production efficiency.

As the trusted advisers to Canadian farmers, CAAR aIso recognizes the importance of protecting the inherent right of every farmer to have the choice to invest in the newest and best seed technology available on the market or to utilize their own grain as seed for the next growing season. We are pleased to see that the proposed amendments will now explicitly protect our customers' option to use saved seed on their farm, while protecting the companies that bring forward significant investment in seed technology.

In addition, CAAR is pleased to see proposed amendments that will strengthen the competitiveness of agricultural inputs in Canada. It’s CAAR's mission to enhance the business of Canadian agri-retail. We agree with the CFIA's assessment that the proposed amendments in BillC-18 related to feed, seed, fertilizers, livestock, and plants will strengthen the safety of agricultural inputs, reduce the administrative burden for our industry, promote economic growth in the agricultural sector, and increase trade in agricultural products. CAAR did note, however, that the amendments indicate registrations and licences may be required in future for persons or establishments, authorizing them to conduct a prescribed activity in respect of fertilizers, feeds, or other products.

While this may only be intended as enabling legislation, and perhaps this system change will not be implemented, such a change could have a detrimental impact on retailers, particularly if multiple licences are required for a single establishment. If the government intends to pursue a registration and/or licensing system, we would appreciate the opportunity to join all vested parties, including fellow industry groups, like the Canadian Fertilizer Institute, as well as retailers of fertilizer, feed, and other products impacted by such a system, in working closely with the government to assess the full impact of such changes well before any licensing or registration system is developed and implemented.

We join the supporters of the amendments proposed in Bill C-18, including the Canadian Seed Trade Association, the Canadian Fertilizer Institute, CropLife Canada, and the many grower and industry group partners that form Partners in Innovation, to commend the Government of Canada in taking this step forward to advance innovation in Canada and moving us toward our collective goal of enhancing the Canadian agriculture industry.

Thank you. I would be pleased to answer any questions.

[The Chair, Conservative, Bev Shipley]

Thank you very much, Ms. Ross.

Now we'll move to the Agricultural Credit Corporation, Jaye Atkins, CEO. Six minutes, please.

[Jaye Atkins, Chief Executive Officer, Agricultural Credit Corporation]

Thank you, Mr. Chairman.

First of all, thank you very much for the opportunity to sit in front of this committee today and to share some of our thoughts in regard to Bill C-18.

My name is Jaye Atkins. I am the chief executive officer of Agricultural Credit Corporation, a not-for-profit organization that administers the commodity loan program for the provincial government and also the advance payments program on behalf of the federal government through Agriculture and Agri-Food Canada. The Agricultural Credit Corporation, ACC, is the second largest administrator of the advance payments program and the only administrator currently administering the program in every province across Canada.

We administer the advance payments program to producers of over 250 commodities which, due to various sizes or types, translates into over 4,000 individual product listings.

Agriculture continues to change due to increased technology, improved genetics, causes and effects of world markets, new and improved growing practices, and the increased demand for products, particularly in the areas of biomass and products that are now being sourced for new and innovative uses. It is important that the ability to finance these crops and subsequent products through channels that do not overburden the producer and reflect the changing financial landscape is available to producers nationally.

In reference to Bill C-18, our organization believes strongly that the changes brought forth in regard to the advance payments program assist in updating the Agricultural Marketing Programs Act and better reflect the common and acceptable practices of today's financial industry. Due to the increased costs of production, particularly in the last decade, changes that are proposed will assist in maximizing the eligible advances producers may receive under the program by allowing them more flexibility in the manner in which they qualify for, secure, and repay a loan.

Also proposed changes, particularly in the area of recognizing the changing of many farm operations from sole proprietorships to corporations, cooperatives, and registered partnerships, while still maintaining clear attribution guidelines, reflect current financial institution practices and more commonly reflect the changing ownership structures of many of the farms in production today.

As an organization, we are very pleased with the changes that are proposed and believe they will greatly improve our ability to administer this program. Although there are areas in which we would like to see more changes, particularly in regard to proof of sales and a more reflective calculation of administrator's liability, we completely understand the limitations that may exist to prevent this.

My request to the committee is that once enacted, the act be implemented, defined, and applied consistently to all organizations that administer the program, so all producers nationally are treated equally and fairly, and that all administrators are required to adhere to the act and the guidelines without exception.

I want to thank the committee for the opportunity to be here today. I, too, will take any questions you may have.

[The Chair, Conservative, Bev Shipley]

Thank you very much, Mr. Atkins.

We'll now move to the Compost Council of Canada, Susan Antler, executive director.

Madam Antler.

[Susan Antler, Executive Director, Compost Council of Canada]

Thank you.

We're affected by this act through our relationship with the Canadian Food Inspection Agency, and specifically the Fertilizers Act. Compost falls under schedule II, as well as digestate, which has to be registered.

The Compost Council of Canada is a national non-profit organization dedicated to convincing Canadians that organic residuals do not go to the landfill, but should be returned to the earth for the health of the soil. Nowhere in any of the various acts that are going to be affected by this proposal is there any reference to the health of the soil. We can go ahead and put any inputs we want and prove the inputs that we are going to be allowed to use, but there is absolutely no concern for the integrity of the soil. That's where compost fits in, to get it back into the soil.

The work of the members of the Compost Council of Canada reflects Agriculture and Agri-Food Canada, Environment Canada, every provincial and territorial ministry of the environment, and every municipality across the country, including industry. Our concern is that with the reduction in the concern for efficacy from CFIA it's now up to industry to stand up and take care of our own matters. To that end we have developed a program called the compost quality alliance, which goes above and beyond the requirements of government, to go ahead and test for the agronomic properties of compost, making sure that the consumer trust that now has been given to the industry, versus having oversight from the government, is maintained by our industry.

We are looking for your collective support to increase your attention to the health of the soil with respect to organic residuals, to make sure that they get back to the soil to provide the best possible means for all these new products to have integrity in their long-term viability in the Canadian marketplace, and very importantly, for you to start to get the message out that it's no longer dirt, it's soil. It's the only thing that really matters. Everything that we as Canadians draw upon comes from our soil. As a collective entity, we need to bring more attention to the health of the soil and propel the need for organic recycling in Canada.

Thank you.

[The Chair, Conservative, Bev Shipley]

Thank you very much, Madam Antler.

I'll now move to Mr. Oguamanam, professor, faculty of law, University of Ottawa. You have six minutes, please.

[Chidi Oguamanam, Professor, Faculty of Law, University of Ottawa, As an Individual]

Thank you, Chair.

It's such a privilege to be able to speak to this bill before the committee. I will restrict my intervention to issues bordering on farmers' rights.

As you have noticed throughout the process, there have been a lot of organizations that claim to represent farmers and farmers' interests. They make overlapping claims in relation to breeders, producers, and every other stakeholder in the agricultural industry. This has been reflected in the way they have spoken in relation to the issue of farmers' rights and farmers' privileges, but it also speaks to the very nature of the complicated framework in which we conduct agricultural production in the 21st century.

I want us to pay close attention to what could be the distinction between farming and breeding. They overlap and that is very important as to how we will capture the interests of farmers.

The private sector and technology-driven industrial stakes and investments in agriculture have constituted some degree of pressure to constrain the farmers' ability to use and save seeds and exchange farm-saved seeds. This is understandable because Canada is an industrial agricultural country. Trying to upgrade our law to UPOV 91 has the potential to advance our global competitiveness and also reflects the highly industrialized nature of agricultural production.

There are other benefits regarding enhanced plant breeders' rights. Those benefits are essentially inconclusive and highly contested, but just by the industrialized nature of agricultural production we still have smallholder farmers. Those are the incarnates of historic family farmers. They use, they exchange, and they share farm-saved seeds, including traditional land uses and even those of propagating varieties.

This group of small farmers conducts informal research and development and they are practising conservation. We need them for sustainable agriculture because history shows us that industrial agriculture, genetic modification of plant genetic resources for food and agriculture could sometimes run into crisis.

I invite the committee to consider section 5(3)(2) of the bill. It speaks in relation to farmers' rights or privileges as described in the bill. The rights referred to are in paragraphs 1(a) and (b), which are the breeders' rights:

—do not apply to harvested material of the plant variety that is grown by a farmer on the farmer’s holdings and used by the farmer on those holdings for the sole purpose of propagation of the plant variety.

What this means is that it speaks to only a category of farmers and these are farmers we could call hobby farmers. These are farmers who do not want to do anything commercial with their harvest. They are balcony farmers, actually downtown farmers. These are not the smallholder farmers we should be speaking to.

These smallholder farmers are very critical. They may not afford royalty fees, but in my view they do not constitute a threat to breeders and breeders' rights. So instead of outright banning commercial activity which some UPOV nations have done, some have also followed the path of looking at the size of holding, the size of harvest, and percentage of annual income in relation to smallholder farmers who use propagating varieties in order to determine whether they fall under that exception for farmers' privilege.

I want to draw the committee's attention to article 9 of the FAO 2001 International Treaty on Plant Genetic Resources for Food and Agriculture. Canada is a party to that treaty and that treaty speaks of famine and agriculture from a conservation perspective. It also recognizes the role of traditional knowledge in farming practices. As much as Canada has decided to go through the UPOV 91 model, there is still a lot in the international treaty on plant genetic resources that speaks to farmers' rights, which we can actually help incorporate into this bill in order to ensure that we protect those farmers who are hardly spoken for, who are very critical to the conservation of plant genetic resources for food and agriculture.

I'm happy to welcome questions. Thank you.

[The Chair, Conservative, Bev Shipley]

Thank you very much, and I thank all of the witnesses for adhering to the time.

Now I'll go to my colleagues. I'll start with Mr. Allen for five minutes, please.

[Malcolm Allen, NDP, Welland, ON]

Thank you, Chair, and thank you to all the witnesses.

Professor, the tail end of your conversation was about the two different places where you see conservation. You talk about UPOV 91 in one sense being one structure. Can you highlight for us if other nations...? You kind of alluded to the sense that UPOV 91, which has been adopted elsewhere...that there's room to manoeuvre inside of that in a national sense, if you will, for a national government to make changes to it and it would still be recognized that you've accepted UPOV 91. Is that correct? If so, can you outline some things that others may have done differently, that may have protected what you see as small farm holdings? To be clear, I think what you're saying is a backyard, balcony farmer is not necessarily a small farmer in the sense that we need to protect somebody with two plants on their balcony.

[Chidi Oguamanam]

Let me speak to one country that has not gone with the UPOV 91 model, and that is Norway. Norway stuck to UPOV 78, which is where we're trying to move from right now. The United States is a model for UPOV 91. France is a model for UPOV 91, but what France has done is completely eliminate the farmers' privilege. In the United States, what they have done is measure the ability of a farmer to be exempt from the farmer's right on the basis of the percentage of his income that is derived from the use of proprietary seeds. In itself, that is consistent with the UPOV that has allowed national governments to determine the extent of privileges they will grant to smallholder farmers.

There are several extremes to date: France is one. The United States appears to be the middle ground. Norway stuck to UPOV 78. I believe it is possible to recognize that the international treaty for the protection of plant genetics for food and agriculture, in article 9, helps us to really speak to farmers' rights in a meaningful way, that to also recognize that before plant breeding we had traditional landraces, which is a national patrimony, that may not yet have been affected by agricultural biotechnology. And those can constitute buffers for some crisis situations. We want to support these kinds of farmers, and also recognize that they also do informal research and development. These are the kinds of people who appear not to have been pre-empted by section 5.

[Malcolm Allen, NDP, Welland, ON]

Inside of those, what you see is different exemptions.... It's not a holistic piece of UPOV 91, accept all of the pieces or else none. There are variances that you've articulated, so would you recommend to us that there's a sense that perhaps we need to look at the Canadian identity of farms, if you will, and make a decision as to whether we should have some room to manoeuvre inside of the acceptance of UPOV 91 around what's being called, in this bill, a farmer's privilege? I'm not really sure that's the term we should use, but that's the term that's in the bill.

[Chidi Oguamanam]

Yes, farmers' privilege and farmers' rights. We are party to a treaty that speaks to farmers' right, and then party to a treaty that speaks about a farmer's privilege.

In my view, if we look at article 9 of the international treaty, the FAO treaty, to which we're full party, we could begin to look at how we could recognize that in our own country there are traditional systems of farming, there is traditional knowledge. We have traditional patrimonies. We have landraces that are part of our unique national identity, particularly among aboriginal communities and smallholder farmers, which are even the foundation of agricultural biotechnology.

In essence, we could possibly begin to think about how to make sure that this critical chain in our agricultural evolution is not completely wiped away. My sense would be that we should begin to recognize that these people can actually participate in agricultural research and development, albeit through informal ways of using seeds creatively. These people are custodians of our environment. They are sensitive to conservation. They recognize what happens between one seed and another in an incremental form of evolution of knowledge. We don't want to throw that away, because it's part of our history and it's still consistent.

My point would be that we should not completely forbid smallholder farmers from operating in our own agricultural landscape. We should be able to give them the right to use and save seeds to the extent that we can manage their farm holdings, so that we create a compromise between them and the interests of breeders.

[The Chair, Conservative, Bev Shipley]

Thank you very much.

Now we'll go to Mr. Lemieux. Five minutes, please.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Thank you very much, Mr. Chair, and thank you to our witnesses for being here today to talk about Bill C-18.

Professor, I would like to follow up on some of your comments, as well. Certainly in previous studies the committee has done we've come to know and understand some of the tremendous costs, in terms of both money and resources, to develop a trait that is desirable to farmers so that they will actually purchase that technology to their benefit. It can be in the range of $100 million, or perhaps more. It can take 10 to 15 years, or perhaps longer, to basically bring a new trait to fruition onto the marketplace.

When I read your comments, I don't quite understand where the conflict is. You mention that UPOV is exclusionary and rigid. It's a closed regime of protection, and it alienates the interests and contributions to innovation made by indigenous and local community farmers. But, to me, the first thing I think I would point out is that—

[Chidi Oguamanam]

Where did you see this in my brief or my intervention to this committee? Where were you reading that?

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

No, that was off your blog.

The first thing I'll point out is the fact that this move from UPOV previous to now, to the 1991 regime is not imposing plant breeders' rights that weren't there before. It's simply extending them from 18 to 25 years. So it's not as if the agricultural sector has not seen plant breeder protection. It's been in full operation under the current UPOV regime. This is simply extending it.

That's one of the reasons I don't quite understand why extending it by seven years all of a sudden could be perceived as a flashpoint. It's a dramatic change. To me, it's offering better protection to the plant breeder for the investments they're making to the ultimate benefit of farmers, because it's farmers who choose to buy or not buy that technology.

That actually leads to the crux of my question. The farmer still has the freedom to decide whether to buy that technology or not, to sign a contract or not. It rests with the farmer to decide what he wants to purchase, and if he wants to purchase anything at all. I don't find it exclusionary.

At the end, and what we're hearing from witnesses, is that by better protecting plant breeders' rights we're actually going to offer farmers more choice, not less. If a farmer chooses to not buy the technology or not pay the premiums or royalties, then so be it. Don't. Work with publicly available seed.

You've mentioned here that sometimes indigenous and local community farmers have also contributed to seed development, which I understand and respect. But sometimes it's not always marketable in a large marketable sense. In other words, it can be a community-type endeavour, but it doesn't necessarily mean that what they have discovered has been made marketable and sellable to farmers all across the country or to farmers in other countries, etc.

I'm just wondering if you can comment on these comments I've made.

[Chidi Oguamanam]

We want to recognize that agriculture is essentially an endeavour that recognizes some degree of epistemic plurality. One of them is the industrial model of agricultural production. Definitely, as an immigrant country and civilization, we had no choice when we moved over here and needed to really feed the population.

We are a highly industrialized country, as well. But whenever you have a system that supports only one epistemic way of knowing or doing something, and that one is dominant, the pathway we are treading is one whereby in the next 10 years there might not be anybody who is even dealing with traditional landraces. What we're trying to do is to let them have the opportunity to operate competitively or somehow or other to be self-sustaining in the market. And food is also about culture.

The point I've been making is that we can have the two systems coexist, but we do not want to muzzle the farmer's ability to use farm-saved seeds, even—

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

I don't think we are, though.

I think the advantage of incorporating the farmer's privilege in a federal act is that it is now defined, which is a good thing because that cannot be taken away through a contractual mechanism, whereas now it's somewhat undefined. I would say the farmer is more at risk right now of a contract that's placed in front of him that doesn't leave him the alternative to have a farmer's privilege.

[The Chair, Conservative, Bev Shipley]

Thank you very much for your time.

Now I'll go to Mr. Valeriote for five minutes, please.

[Frank Valeriote, Liberal, Guelph, ON]

Thank you, Professor, for coming before us, and thank you to all of the witnesses.

There is concern, and it has partly been addressed by Mr. Lemieux, that plant breeders are given rights, while farmers' seed-saving is reduced to a privilege.

You addressed this, Professor.

The minister maintains that this is a misunderstanding and that farmers will continue their abilities to save and clean seed as before.

My question is this, and I'm quoting the minister. The minister assures this committee that:

The farmer's right to save seed for future planting is protected and includes storage and/or cleaning of the seed. This is why it is important to update to UPOV 91 standards. A farmer does not need to seek permission from the rights holder to store farm-saved seed for replanting in future years. Let me repeat that: a farmer does not need to seek permission. Recognizing this fact, our government has heard from stakeholders that the language could be improved to make it absolutely clear that storage of seed by the farmer is included in farmer's privilege. Our government will be bringing forward an amendment in that vein.

He goes on to say that confusion comes from the different language spoken as between lawyers and farmers; in other words, they don't speak the same language.

Now, I'm a lawyer. You teach at the university I went to. Can you speak to that linguistic uncertainty? Is there a difference between “privilege” and “right”? Would you change the wording of the legislation to make it clear?

[Chidi Oguamanam]

Thank you very much.

Of course there is a difference between privilege and rights. But when a privilege is enacted and specifically provided for, as in Bill C-18, it looks as if it gets teeth to bite with. To that extent, I'm not losing sleep over whether we choose “privilege” or “right”, because under the international treaty, governments or nation states have the liberty to determine how to legislate on farmers' rights. If a country such as Canada decides to call it a “privilege”, I have no problem with that.

The main issue I want us to pay attention to is in proposed section 5, which does not, in its spirit and letter, accommodate the ability of smallholder farmers to sell their harvest. It completely forecloses that. I think this can be improved upon; we can accommodate that.

If I plant something in my garden and use it to teach my kids how stuff grows, and eventually we take it back in and eat it, it's entirely different. We don't have any ambition to sell that. But there are still people in rural communities who do not have the technical know-how to begin to process licensing an agreement. These are traditional people, smallholder farmers. They can do accidental innovation in a process. We want to accommodate those people.

[Frank Valeriote, Liberal, Guelph, ON]

You're suggesting, then, that we should better define "smallholder farmer"?

[Chidi Oguamanam]

Yes, if need be.

[Frank Valeriote, Liberal, Guelph, ON]

You have no doubt heard from associated groups, the smallholder farmers in other countries. What have you heard from those groups in other countries that have already adopted UPOV 91 about the success or pitfalls of this legislation in its impact on them as smallholder farmers?