Seeds and Plants

Canada's regulatory system for seeds and plants

Current approaches to protecting genetic resources

Strengths and Weaknesses

Efficiency

Substitution

Redesign

Canada's regulatory system for seeds and plants (adapted from Pham, 2019)

Introduction

Few of the plants that dominate the current diet are indigenous to Canada. Canadian farmers and scientists have a long history of adapting seeds and plants to Canadian conditions.  European settlers significantly disrupted First Nations patterns of agriculture and seed saving and adaptation, bringing in seed from other places that was not well suited to the Canadian climate, and also appropriating seeds developed by indigenous farmers and spreading them to other parts of the world (see Burelli, 2019).

Farmers around the globe were the early  breeders and  adapted varieties over the course of each season to create strong, resistant varieties. This ultimately became the motivation for a public breeding system with professional breeders who built on the work of farmers. Canada’s agricultural seed breeding remained primarily in the public sector up until the 1970s, with a free and open exchange of seeds to help advance this mission.  The shift to the private sector has resulted in a significant change in plant breeding priorities, determined largely by private firm interpretations of market conditions (Kuyek, 2004).

Canada's approach has also been shaped by formal and informal international agreements.  Most western countries have followed similar approaches to seed regulation (adapted from Halewood and Lapena, 2016).

  • Variety registration - countries establish conditions that plant varieties must satisfy to be included in national variety lists, so that they can be sold; distinctiveness, uniformity and stability (DUS), with added value relative to other varieties.  Farmers varieties are often unable to meet all those requirements and therefore often cannot be sold
  • Plant variety protection for novel and DUS varieties - in theory, the idea is to encourage innovation by plant breeders by restricting the ability of others to use the varieties for production, multiplication,  propagation, selling, importing, and exporting.  But, in most countries, novelty and innovation have a particular definition that is not consistent with sustainability, so such laws become means to reinforce the dominant food production model, with all its attendant problems. As with variety registration, it also excludes farmers' varieties.

But Canada has been an inconsistent participant in international agreements, sometimes signing on but then not fulfilling obligations under the treaty by claiming national law exemptions from the international rules, failing to enact domestic regimes that are actually consistent with international obligations (while claiming that they are), or not becoming a signatory.

The seed regulation system is now very complex, with multiple actors fulfilling a wide range of functions (see page 5 diagram of Canada's Seed System: a summary description, CSTA et al., 2017).

Federal

Early regulation of seed was primarily focused on seed quality and fraud prevention. Rooted in criminal law provisions of the BNA Act, the first Seeds Act was introduced in 1905 (Phillips, 2008).  A key dimension of this regulatory and breeding approach was trait stability and uniformity across multiple environments, not population diversity.  This approach makes fraud prevention easier, but seriously compromises ecological resilience (see Strengths and Weaknesses).

Rooted in these earlier traditions, now three pieces of federal legislation are the foundation of seed policy and regulation: an updated Seeds Act, the Plant Breeder's Rights Act and the Patent Act. These Acts guide the production, processing, and sale of seeds in Canada. The Seeds Act is the broad regulatory framework that guides seed registration and the Seed Regulations provide detailed requirements to align with the Seeds Act. The Plant Breeders Rights Act outlines intellectual property rights for plant breeders who wish to protect their new varieties and be rewarded for their work. Canada’s Patent Act protects the ways genes are manipulated to create new varieties.  The constitutional authority of the last two acts is derived from federal authority over patents and intellectual property (see Constitutional Provisions).

Seed Act and regulations (with recent amendments from the Budget Implementation Act 2012, the Agricultural Growth Act, the Safe Food for Canadians Act)

The main purpose of the Seeds Act is to ensure that farmers have access to seed that is high quality, meaning there are “minimum standards for [varietal] purity, germination, quality, and disease for seeds” (S-8, s. 4(c)). There are also regulations surrounding grading, testing, inspection, naming, labeling, and documentation before being sold.  These requirements apply to domestic, imported and exported seed and the Act is administered by the CFIA. For certain seeds to be sold in Canada they must go through variety registration (52 crops and their varieties in Schedule III) or pedigreed seed certification (70 crops and their varieties listed in Schedule II). These processes ensure seeds being created are completely new, have the right characteristics, and are agriculturally valuable. Pedigreed seed must meet minimum standards for varietal purity, disease presence, and weed seed contamination (Bauta, 2014). With variety registration, a recommending committee must be formed by the Minister of Justice to establish and administer protocols for Parts I and II of Schedule III. Members of these committees must have specific knowledge about protocols for testing varieties and ensure that tests being administered are tailored for the crop being evaluated, practical, and based on scientific knowledge. Transparency, fairness, and consistency are noted in the regulations to ensure that the seeds are being tested in an equal manner. A variety can be cancelled if it is susceptible to disease, contamination, compromised genetic purity, alteration changes the variety from the reference sample, there are potential risks to human, animal, or environmental health, false or misleading information, registering a trademark after registration, the variety is altered so it falls under a different registered variety, is indistinguishable from another registered variety, or the variety no longer adheres to registration requirements.

These regulations  apply largely to field crops such as wheat, legumes, and oilseeds. Some crops appear on both Schedule III and Schedule II. These crops must complete both processes in order to be sold by variety name in Canada. Crops that are not listed on either schedule, such as most fruits and vegetables, are not subject to the Seed Regulations and can be sold by variety name.

Plant Breeders Rights Act

The PBR Act was first introduced in 1978 but died in Parliament and was re-introduced in 1990 based on the International Union for the Protection of New Varieties of Plants (UPOV) 1978 convention (Kuyek,, 2004). The UPOV is an international organization with a mission to reward and protect the creation of new plant varieties. There are two versions of its convention titled UPOV ‘78 and UPOV ‘91, a revised convention that provides further protections to plant breeders and more regulations on saving seed. Both agreements are voluntarily signed by countries who wish to establish plant breeder protections. Having based its earlier version of the PBR Act on UPOV 78, in 1998 the federal government introduced a bill to amend Canada’s PBRs with UPOV 1991, but it again died on the floor of Parliament (Kuyek, 2004). Later, a revised PBR approach again based on UPOV 1991 was brought back and was formally ratified in 2015 as the Agricultural Growth Act.

Under the Act, rights may be granted to a plant variety if it is new, clearly distinguishable from all varieties already registered, stable after repeated planting and propagation to reproduce essential characteristics, and sufficiently homogeneous (S.C., c. 20, s. 4(2). Rights holders have the exclusive right to produce and reproduce the propagating materials of that variety, condition propagating varieties, sell, export, or import the variety, use the variety to produce another commercial variety, use plants or parts of plants as propagating material for ornamental purposes, stock and store varieties for future actions, and authorize any actions conditionally or unconditionally upon payment of royalties (S.C., c. 20, s. 5(1)). Rights holders can exercise rights over plant varieties that have been essentially derived from their variety but this does not apply  for private or non-commercial uses, experimental, or for the purpose of creating new plant varieties. This provision is referred to as Farmer’s Privilege. It establishes that a farmer can stock, produce, reproduce, and condition a plant variety on their property for propagation, but cannot sell the seed. If a person infringes on PBRs they are held liable to the PBR holder and any associated individuals or interested parties (S.C., c. 20, s. 41(1)). The person is liable for all damages sustained by the PBR holder or interested parties.

A controversial aspect of UPOV 91 is seed royalties on farm-saved seed, permitted under the new legislation. Consultations on royalties occurred in 2018 and 2019, but remain unfinished under widespread contestation from farmers and grain commissions, and the federal government has indicated it will not continue with the consultations.  However, the Canadian Plant Technology Association and the Canadian Seed Trade Association have announced a pilot project to require Seed Variety Use Fees on new varieties (a type of contract royalty), starting with 2 wheat and 1 soybean variety.  The Canadian seed industry says it is committed to not imposing such fees on current varieties only on new introductions, and that some of the revenue will be reinvested in variety development.  Many farm and commodity organizations have similarly expressed strong disapproval of the pilot.  Already tensions have arisen over including publicly funded wheat varieties in the pilot and one seed distribution company has already agreed to remove 2 of them from the pilot, in exchange for funding from the commissions (Cross, 2020). A 2022 NFU analysis suggests that seed companies are shifting what seeds they make available to farmers to those with more royalty generation for the seed industry.

Patent Act

Under the Patent Act, breeders can patent types of processes and gene sequences deemed "plants with novel traits" or genetically engineered.  This is discussed further under Goal 4.  It is possible for such patents to be contested through the Federal Court when firms, farmers, seed savers and First Nations feel the patent violates provisions or their rights, but such actions are usually time consuming and expensive  (Burelli, 2019) and only large firms typically have the resources to undertake them.

Provincial

The provinces use a variety of legislative and regulatory instruments to manage specific plant health and propagation issues under its jurisdiction for agriculture land use, and marketing of agricultural goods.  These are supplements to the federal system.

Table: Provincial seed and plant instruments

Jurisdiction Approach Key Acts / Programs Key weaknesses
BC Certified potato seed Seed Potato Act Does not appear to regulate other seed outside of federal system
AB Service charges for Seed Grower Commissions Marketing of Agricultural Products Act (Peace Region Forage Seed Growers Reg plus for Alfalfa, Potatoes)
SK Checkoffs for canaryseed, Agr-food Act
MB None found
ON None found
QC Mandatory seed types for insurance and stabilization for potato, cereal, emerging crops, oilseeds, grain corn Legislative authorities for crop insurance and income stabilization Has seed provisions for organic farmers but can they reasonably be met?
NB Contribute to potato propagation material Potato Plant Propagation Centre
PE Information on seed potatoes planted; restrictions on plantings in infected areas; seed potato testing Potato Regulations of Plant Health Act
NS Phytosanitation for potatoes Potato Industry Act
NL Phytosanitation, particularly for potatoes Plant Protection Act
YU none found
NWT None found
NU None found
Municipal

Municipalities have no direct jurisdiction  though will on occasion call for action by senior levels of government and fund organizations working in this area.

Non-state actors with regulatory authority

The Canadian Seed Trade Association (CSTA), the Canadian Plant Technology Agency (CPTA), the Commercial Seed Analysts Association of Canada (CSAAC) and the Canadian Seed Institute (CSI) are amalgamating. The Canadian Seed Institute(CSI) was established in 1998 in response to cost recovery initiatives of the government of Canada, it provides system verification/oversight  in place of official inspections by the government and is recognized by the CFIA as an approved conformity verification body. The privatization of the process occurred in 2012 under the Harper government and seed inspectors are no longer government employees. In this regard, it is a result of neoliberal off-loading by the state.

The Canadian Seed Growers Association, rejected joining with the other four organizations. Originally an organization of on-farm breeders, it has become a private, not-for-profit organization with 3,500 members who grow pedigreed seed for crop production purposes, many of whom are large seed breeding organizations, although it also has many mid-sized farmer members.  Its regulatory authority flows from  the Canadian Regulations and Procedures for Pedigreed Seed Crop Production (Circular 6) and it administers the pedigree seed certification system which includes inspection processes. Pedigree seed can be replanted on a farm, but cannot be sold by the farmer under its variety name.

Current approaches to protecting genetic resources

In general, there are two approaches to protecting seed and plant genetic diversity: in situ (or using the seeds and plants on the landscape) and seed banks (storing seeds long term in isolated facilities).  In both cases, there is a need for collection, characterization, evaluation and documentation of plant genetic resources.

Canada is a signatory (brought into force in 2004) to the International Treaty on Plant Genetic Resources for Food and Agriculture.  Canada contributes genetic material and funding to the Crop Trust which funds seed banks across the globe.  It participates in the FAO Multilateral System of sharing genetic resources and information on 64 of the crops that provide for 80% of human consumption, including 35 crops and crop complexes and 29 legume and grass forages used for animal feed.

Canadian plant gene banks hold less than 2% of global resources. There are 3 Canadian gene banks: Plant Gene Resources of Canada, Saskatoon, Saskatchewan; Canadian Clonal Genebank, Harrow, Ontario; and Canadian Potato Genetic Resources, Fredericton, New Brunswick (ECCC, 2018).  The Saskatoon seed bank holds some 110.000 seed samples including "foreign and indigenous plants, wild and weedy relatives of crop species, cultivars and inbred parental lines, elite breeding lines, and some rare and threatened species and genetic stocks". (About Plant Genetic Resources)  The Harrow collection focuses on tree and small fruits and has about 3000 accessions, 2/3 of which are indigenous and wild relatives of the main Canadian fruit crops.

In-situ preservation is more fragile, relying primarily on heritage seed growers and organizations, with minimal state involvement.  This network of ecological seed savers, however, has become more mature since 2012, with over 100 regional and national partner organizations and hundreds of farmers participating.  Some 9000 participants have attended 350 training events since 2015 and 70-100 farmers are engaged in on-farm varietal improvement trials. There's been a 250% increase in seed collections in Canada with some 60-100 farmers/year growing  out about 500 crop varieties.  A new regional seed bank serves farmers in Atlantic Canada (Seed Change, 2019).

Some of the key organizations in this system include:

Strengths and Weaknesses (adapted from Pham, 2019)

The Seeds Act and Regulations protect farmers from bad quality seed, within dominant productivist parameters: high yield, certain quality parameters (often related to processing requirements) and to some extent disease resistance.  And Canadian exports do often enjoy a solid reputation, in part because of the seed system.  It also requires that private breeders meet public standards and reduces the number of proprietary varieties in the market.

The movement to a mixed public - private regulatory model from the 1970s (Kuyek, 2004; Kneen, 1992) might not be problematic if the system was designed around broader public objectives.  However, this is not the case, so the privatization process has reinforced the dominant models of seed production and agricultural practice. The regulatory environment is primarily designed to facilitate commercialization of seed resources, conventional approaches to production and processing, and to benefit the dominant seed industry.

At the root of the regulatory issue is plant breeding for what purposes?  Put another way, what plant traits are prioritized by breeders and favoured by the regulatory choices, in which crops, for what uses and for whose benefit?  Are these purposes serving the transition to a sustainable, health promoting and just food system?

... [C]reating uniform and genetically ‘stable’ cultivars that are deployed over large areas in monocultures is inappropriate for dealing with the current and predicted threats to agriculture. (Doring et al., 2011:1945).

What we need are cultivars with wider ranges of environmental tolerance, which contribute to environmental stability but express under different conditions of environmental benefits and stresses.  The current system is not conducive to such cultivars, in fact many of them can not meet the conditions of seed categorization for commercialization.  And as we create more "brittle", and less biodiverse, farm and regional conditions associated with a range of phenomena, from  limited crop rotation to climate change, we continue to lower the possibilities of crop success except under relatively perfect conditions.  The long standing focus on yield is particularly problematic because it tends to lower the competitive ability of the crop.  A related consequence is that synthetic chemicals are required to boost the crops competitive capacities against other plants (usually known as weeds), and diseases, essentially high performance under conditions of high inputs (Fess et al., 2011).  In fact, resistance to certain diseases is largely ignored as a priority by some breeders because they presume that synthetic chemicals are a viable solution (Doring et al., 2011). As more and more problems emerge for which chemical control is limited, or as environmental problems mount from pesticide application, this is increasingly a non-viable strategy. Breeding trials reinforce this problem by creating "clean" plots using synthetic pesticides.  As such, on-farm and participatory breeding programs are better structured for such discoveries than centralized ones.  A focus on yield is also known in some crops and  studies to compromise nutritional quality (MacRae et al., 1989; Doring 2011).  Breeding for resilient populations may also require more regional, rather than universal, marketing strategies because their value may be limited to specific regions (Doring et al., 2011).  It is relatively well documented that "modern" varieties do not usually perform well in the types of low - input environments that characterize sustainable systems, including environments subject to frequent moisture stress (see Goal 5, Sustainable food).

By breeding under high-input conditions, the opportunity to exploit advantageous genetic differences at low input levels is lost, resulting in exclusion of important alleles needed to provide adequate and superior varieties ..., (Fess et al., 2011: 1760).

Landraces and heritage varieties typically do well, because of the diverse range of characteristics and biochemical processes that have evolved in such environments (Fess et al., 2011).

The Canadian government acknowledges the importance of genetic diversity but fails to recognize its role in contributing to the narrowing of the gene base (About Plant Genetic Resources).  So effectively, we have a finger in the dyke scenario: the government continues to support an approach to food and seed development that is narrowing the gene base and then tries to prop up the system with limited conservation approaches and resources.  In-situ and ex-situ conservation are underfunded.  The seed system relies alot on the NGO network highlighted above for in-situ conservation because the dominant agriculture sector focuses on the dominant varieties.  This network is particularly important for vegetable seed conservation.  That this network is so important is in itself an indicator of policy failure in this area.