Key Points
- Existing law and regulations clearly allow farmers to save PBR-protected seed from all crop kinds to grow future crops on their own farms.
- Removing Farmers Privilege will not provide better varieties to Canadian farmers.
- CFIA ignored impacts of regulatory change on farmers, women and Indigenous rights.
- CFIA did not provide evidence to support its economic claims.
- Amendments would weaken public plant breeding and food security.
- Public investment in public plant breeding is necessary for nation-building.
- The proposed amendments should not be enacted.
What is being proposed
Canada Gazette, Part I, Volume 159, Number 32: Regulations Amending the Plant Breeders’ Rights Regulations proposes to remove the Farmers’ Privilege for fruit, vegetable, ornamental and hybrid varieties; extend Plant Breeders Rights protection duration from 20 to 25 years for new varieties of potato, asparagus and non-tree woody species (e.g. berries), and reduce fees and other administrative requirements for companies applying for PBR protection.
Farmers’ knowledge is seed knowledge
Farmers, including Indigenous farmers, are the original plant breeders. Today’s agricultural biodiversity and the genetics that are the foundation of modern plant breeding were developed by them. None of the new varieties would exist without generations of farmer knowledge of plants, agronomy and seed-saving. For over a century Canadian farmers have supported public plant breeding through various channels, including by funding farmer-directed crop commissions that allocate resources to projects that address our priorities. Restricting farmers’ access to these varieties by removing Farmers’ Privilege and thus requiring annual payment for seed asks farmers to pay yet again. Removing farmers’ ability to raise future crops from seed they have grown on their own holdings unacceptably impinges on age-old seed saving practices and farmer autonomy.
PBR-protected varieties
Under Canada’s UPOV ‘91 compliant Plant Breeders Rights (PBR) Act, plant varieties that are new, distinct, uniform and stable are eligible for PBR protection. Section 5(2) paragraphs (a) to (h) of the Act grants the PBR holder exclusive rights to sell, propagate, import, export the variety for 20 years, and for tree species for 25 years. PBR holders are entitled to collect royalties from farmers when they buy seed or other propagating material of the variety. If the variety is used without the PBR owner’s permission, the holder may sue for infringement. The Act provides PBR holders with a time-limited monopoly, allowing them to restrict access and charge royalties to growers.
Farmers Privilege
Canada’s UPOV ‘91 compliant Plant Breeders Rights (PBR) Act includes (Section 5.3(2)) Farmers’ privilege, which provides an exemption that allows farmers to use seed or other propagating material of a protected variety they have purchased to grow subsequent crops on their own holdings without requiring permission from or royalty payments to the PBR holder for the variety:
5.3(2) The rights referred to in paragraphs 5(1)(a) [to produce and reproduce propagating material of the variety;] and (b) [to condition propagating material of the variety for the purposes of propagating the variety;] and — for the purposes of exercising those rights and the right to store — the right referred to in paragraph 5(1)(g) [to stock propagating material of the variety for the purpose of doing any act described in any of paragraphs (a) to (f);] 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.
Seed saving matters
Seed saving enables secure access to seed, farmers’ most important input; and also enables:
- on-farm climate resilience through variety adaptation to specific environments and farming practices;
- replacing lost woody perennial berry and fruit tree stock in orchards (due to wildlife and/or excessive cold, drought, flooding) with the same variety when not available commercially;
- access to propagating material in the event of severe supply chain disruptions which is a significant risk as most of Canada’s vegetable seed is imported;
- reduced seeding/propagating costs (though not a zero cost, as seed saving requires time, skill, storage facilities);
- price discipline on seed sellers – price hikes will be limited when farmers are able to switch to farm-saved seed if the purchase price rises too high;
- ability to keep using a variety if the breeder decides to take it off the market before the PBR protected period ends.
No evidence of public benefit from proposed amendment
Making farmers pay more for seed will increase private breeders’ profitability but will not necessarily translate into more breeding, nor breeding in Canada for Canadian growing conditions. There is no requirement for PBR holders to use increased profits or royalty payments for breeding.
Most of Canada’s vegetable seed is imported from Europe or the USA, and most of the applications for PBR rights for horticultural crops are from foreign breeders. There is no impediment to foreign breeders entering the Canadian market for fruit, vegetable and ornamental varieties.
Foreign breeders would need much higher revenues than could be raised by an incremental increase in annual seed sales for horticultural varieties within Canada’s small market (most growers already purchase seed annually) to justify breeding for Canadian conditions. Canada would still function as a residual market for foreign companies’ existing horticultural varieties.
Strengthened PBR regimes go hand in hand with increasing consolidation in the seed sector. The global seed system is dominated by four foreign multinationals – Bayer, BASF, Corteva and Sinochem. They may use money gained as a result of the proposed regulatory change to further consolidate their holdings within Canada and internationally, further reducing competition in the seed sector, instead of investing it in plant breeding.
Implications for food security and sovereignty
Further concentration of seed ownership and control increases monopoly power in the food system, leading to higher prices for farmers and consumers. Increasing farmers’ costs makes the food system less resilient and contributes to higher grocery prices. Canada is dependent on imports for the majority of our fruit and vegetables. Climate change, currency fluctuations, and political upheaval make our imported food supply precarious. A regulatory change that reduces seed-saving and increases farm operational costs will make it harder for Canadian horticulture farmers to stay in business, increasing our dependence on imported food.
Farmers privilege not a barrier to foreign breeders
The CFIA’s rationale that eliminating Farmers’ Privilege is needed to stimulate foreign investment in plant breeding is not supported by evidence. UPOV statistics show that the number of PBR applications by foreign breeders in Canada is higher than many countries that have more restrictive farmers’ privilege rules. From 2000 – 2022, Canada ranked 7th among UPOV nations for PBR titles received from, and issued to, non-residents. Canada also placed in the top 10 UPOV countries receiving applications from non-residents in 2012 when Canada’s PBR Act was based on UPOV ‘78, which has a shorter period of protection than UPOV 91 and no restrictions on farmers’ seed saving.
No evidence to support CFIA’s economic claims
The CFIA did not provide evidence to support its claim that extending the period of protection on potatoes, asparagus, and woody plants, would encourage greater domestic breeding or greater access to international varieties.
No data was provided on how much additional revenue breeders would gain by eliminating Farmers’ Privilege on horticultural crops. Most farmers in Canada’s small horticultural sector (25,145 farms per Census of Ag 2021) buy seed and/or plants every year. No estimate was given for how many farmers who currently use the Farmers’ Privilege would switch to public domain varieties versus switching to annual purchases of PBR-protected seed. Thus, there is no calculation of the aggregate increase in breeders’ revenue potential from the proposed amendments, nor how this compares with the total cost of breeding. This data should have been provided to allow evaluation of the CFIA’s economic claims.
The Small Business lens calculation the CFIA provided is also inadequate. The CFIA recognized an impact on just 56 small businesses due to reduced cost of fees paid to the CFIA for processing PBR rights applications. Yet all but one PBR rights application in 2025 came from foreign corporations, their Canadian subsidiaries, AAFC or Universities, none of which can be considered small businesses. Canada has 190,000 farms with just over 25,000 growing horticultural crops: nearly all would be considered Small Businesses. The CFIA omitted increased seed costs to farmers due to removing Farmers’ Privilege from fruit, vegetable, ornamental and hybrid crops from its analysis.
The CFIA’s gender analysis only looked at the plant breeders’ profession where PBR-holders are predominately male, claiming a positive impact that would be gender-neutral, as well as altogether failing to consider the negative economic impact on women farmers, who comprise approximately 35% of horticulture farm operators.
No consideration of inherent Indigenous rights
The CFIA analysis regarding Indigenous rights was limited to determining that the proposal does not affect Modern Treaty obligations. Modern Treaties are specific, limited agreements, mostly in northern areas. Many crops affected by the proposed regulatory amendment were developed by Indigenous people. Corn, the first widely hybridized crop; tomato, one of Canada’s biggest horticultural crops; and potato, famous for the wide diversity of its traditional varieties, are all of Indigenous origin. The intersection of Indigenous science and traditional knowledge with western science is complex and contested. There is no evidence the CFIA consulted with Indigenous communities regarding implications of the proposed amendments for inherent Aboriginal rights under Section 35 of Canada’s Constitution Act.
Access to public domain varieties not relevant
Farmers understand they have access to varieties that are in the public domain (where PBRs do not apply or have expired). Continued access to these varieties, which is not affected the proposed amendment, should not be seen as compensating for removing Farmers’ Privilege from PBR-protected horticultural and hybrid varieties.
Fairness
The proposed regulatory amendment would primarily benefit a few large foreign seed companies by increasing their monopoly over horticultural and hybrid plant varieties without providing significant benefits to Canada, and would harm thousands of Canadian farmers by reducing their autonomy and increasing their costs. It would have knock-on effects on Canadian consumers by increasing risks to food security and contributing to higher costs for food. The public benefits the CFIA claims regarding increased plant breeding investment are not supported by evidence.
Public plant breeding is nation-building
The CFIA’ claim that removing Farmers’ Privilege will stimulate foreign and private investment in plant-breeding, and that this will benefit Canada, does not stand up to scrutiny and is against Canada’s national interest.
Canada is a residual market for foreign seed companies. The varieties they offer to Canadian farmers are bred for their primary markets, and will not be optimized for the wide diversity of Canadian growing conditions. Relying on foreign-bred varieties will weaken our agriculture sector.
Public sector plant breeding in Canada has a strong track record of delivering quality varieties, but is increasingly under-funded as governments implement austerity budgets and publicly-developed germplasm is transferred to the private sector for commercialization. Removing farmers’ privilege may slightly increase royalty revenues to public plant breeding institutions, but amounts will not be enough to properly fund needed breeding programs.
Plant breeding for Canada’s needs cannot be funded by PBR-royalties alone, the apparent rationale for imposing unfair restrictions on farmers’ seed saving and enabling multinational seed companies to raise seed prices. Removing Farmers’ Privilege will not compensate for the federal government’s retreat.
The Canadian government should instead commit to a nation-building project of ensuring public plant breeding generates the kind of seed needed to address changing climate conditions, evolution of plant disease and pest problems, and dependence on foreign breeders for fruit and vegetable seed.
Cabinet should not approve the proposed Regulations Amending the Plant Breeders’ Rights Regulations.
