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Feds look to limit farmers' ancient practice of saving seed

The federal government is proposing to amend Canada's seed laws to restrict the ancient practice of seed saving for certain crops. Photo by Pixabay

The federal government wants to restrict farmers' ability to save seeds and other reproductive plant materials like tree grafts for some crops – and is asking farmers to comment on the changes during the height of the growing season.

Last month, the government announced it is considering amendments to Canada's seed laws that would force farmers to pay seed companies royalties for decades after their original purchase of seeds from protected varieties of plants. Even if farmers grow that plant variety in later years with seed they produced themselves from earlier crops, instead of buying new seed, they must pay the royalties for over 20 years.

If passed, the changes will apply to horticultural crops like vegetables, fruit trees and ornamental plants. They will also restrict farmers’ ability to save and use hybrid seeds, which combine the desirable traits of several genetically different varieties. Public consultations on the proposed changes opened May 29, 2024 and ends on July 12, 2024.

Critics say the move will further exacerbate a crisis in Canadian seed diversity, supply and resilience to climate change. Over the past 100 years, 75 per cent of agricultural biodiversity has declined globally, and only 10 per cent of remaining crop varieties are commercially available in the country.

Most vegetable seed used in commercial farming is produced outside the country, leaving it vulnerable to supply chain disruptions and mal-adapted to the country's unique climates, according to a May report by the Bauta Family Initiative on Canadian Seed Security.

If passed, the changes will apply to horticultural crops like vegetables, fruit trees and ornamental plants. They will also restrict farmers’ ability to save and use hybrid seeds.

The move comes amid a push by federal officials and agrochemical companies to modify Canada's seed and gene editing laws, a push that recently saw the government let companies sell gene-edited crops without being labeled as such. Taken together, the changes benefit companies at the expense of farmers, the environment and Canada's food security in the face of climate change, says Aabir Dey, Canadian Program Director at SeedChange.

"This is just part of the process, as far as I understand it, of interpreting and changing the regulations so that they can be more profitable for companies that are looking to sell proprietary seed," Dey said. "The way that intention will be communicated publicly is to encourage innovation in the sector [but] whether these types of intellectual property regulations encourage innovation is highly contested."

A spokesperson for the Canadian Food Inspection Agency (CFIA), which is leading the consultations, said in a statement that the changes are meant to "bring Canada's intellectual property framework in line with international standards [and] strengthen intellectual property rights for plant varieties, encourage greater investment in plant breeding, and enhance accessibility to foreign varieties for Canadian farmers."

While the rules will restrict farmers' ability to save and re-use seed, they will not prevent them from saving seed to breed new varieties. The rules also do not apply to open-source seed, which make up "the majority of plant varieties available in the marketplace," they wrote.

Farmer's Privilege

For millennia, seeds were largely produced by farmers, orchardists and gardeners, who would keep seeds from their crops and plant them the following year. Breeders created new varieties by selecting seeds or cuttings from plants with desirable characteristics, crossing them with others and – over many generations – transforming them into a plant well adapted to specific environmental, economic and cultural needs.

It’s how humans arrived at non-poisonous almonds and people bred Brussels sprouts, kale, cabbage, broccoli and cauliflower from the same plant.

Farmers could sell their seeds, and the legal framework for companies to patent or retain intellectual property rights for seed did not exist.That started to change in recent decades. As agrochemical companies like Monsanto – now owned by Bayer – or Corteva developed seeds that delivered higher yields and could withstand intensive fertilizer and pesticide use, they pressured world governments to create a web of regulations to patent the seeds and make farmers pay more to use them.

However, Canadian current seed laws, which were developed in the 1990s following an international agreement, have since included a provision that lets farmers save and use their own seed – the so-called "Farmer's Privilege." Patenting laws are stronger in the US, and the E.U. has more restrictive intellectual property laws.

The proposed changes to Canada's seed laws would curtail that legal tradition and develop stronger patenting and intellectual property laws for seeds. They would also limit the Farmer's Privilege for hybrid seeds, which are more complicated to develop, according to the government's consultation documents. The changes would help "Canada better align with other similar jurisdictions," making it easier for Canadian farmers to access seeds developed by plant breeders in those regions, the documents argue.

Agrochemical companies have for decades used similar arguments to push for limits on the Farmer's Privilege and other rules that protect seeds from intellectual property rules and patents, said Cathy Holtslander, director of research and policy for the National Farmers Union.

“These companies want to have access to plant breeding because it's very lucrative," she explained.

"Everybody needs to eat. In order to eat we need to grow food, to grow plants and to have access to that seed and other propagating materials. If the companies can control that, they can make a lot of money off of it and have a major influence over our agricultural system based on what kinds of seeds they offer and how those seeds interact with fertilizers and pesticides."

As the climate and biodiversity crisis worsen, farmers need to start reducing – not increasing – their synthetic pesticide and fertilizer use, Dey said. Pesticides are linked to biodiversity loss, while the use of synthetic nitrogen fertilizers is the largest source of greenhouse gas emissions from Canada's farming sector after livestock.

Moreover, he noted that adapting to the planet's rapidly changing climatic conditions will be easier if farmers have access to a diverse pool of plant varieties at hand. That will reduce their reliance on imported seeds and make it easier for them to tailor those varieties to meet their local climate.

Those concerns were echoed by Daniel Brisebois, a farmer and plant breeder from Quebec. Having access to existing varieties is "really important" for them to "be able to improve them and adapt them to our situation and to future situations and future contexts," he said. Hindering this access, as the regulations would, "doesn't protect anybody" except large seed companies.

In a rebuttal, the CFIA spokesperson noted that the "changes are intended to encourage innovation in plant breeding, potentially leading to more climate resilient crop varieties and improved genetic diversity."

Beyond their impact on food security, climate resilience and farmers' well-being, the changes would also make it harder to access what he considers the best part of plant breeding: fun.

Plant breeding is "like magic," he said. "It's really engaging; there's an artistic side, a creative side. You're seeing the wonder of what the world can do."

Updates and corrections | Corrections policy

Update: This story was updated on July 11, 2024 to include comment from the Canadian Food Inspection Agency. It was also corrected to clarify some technical details. 

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