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STATUS REPORT - BIOWATCH LEGAL CASE

For access to information held by the Department of Agriculture in terms of the Constitution, Section 32 (1)

Background - Biosafety takes a back seat to commercial interests in South Africa

The first genetically engineered (GE) crops were commercially released in South Africa in 1997; at this time no legal framework to ensure biosafety was in place. When the GMO Act came into force in December 1999, Biowatch decided to have a critical look at the Act that regulates GMOs in South Africa.

Through a number of workshops with environmental and human rights lawyers we analysed the Act and concluded that the GMO Act is a conceptually flawed piece of legislation which shows a “cynical disregard” for best biosafety practice. Amongst other serious concerns we concluded that:

• The Regulations provide no clarity on the procedures to be followed for environmental impact assessments for GMOs
• The “Precautionary Principle” (if you don’t know, don’t do) which is enshrined in our National Environmental Management Act (NEMA) is ignored in the GMO Act
• The GMO Act does not provide for adequate public participation.
• The Act shows complete disregard for the “polluter pays” principle enshrined in NEMA. Corporate interests are clearly protected over public interests, e.g. liability for harm caused by GMOs is placed on the “end user”, meaning farmers and consumers, rather than those who develop the technology.

Biowatch takes action to protect public interests

Action was needed; GMOs are being released into the environment at a rapid rate with inadequate biosafety measures. The lawyers felt that legal action should be taken in terms of NEMA because the risk assessments required by NEMA had not been carried out. The National Department of Agriculture (NDA) did not respond to our concerns, disagreed with the critique of the GMO Act and vigorously defended the Act.

Instead of taking legal action at that time, we decided to first request more information from the NDA regarding risk analysis. Also, as part of our ongoing monitoring of the release of GMO permits, we continued to request information from the Registrar of GMOs and over time requested the following information:

• Access to a selection of risk assessments
• Information on legislation governing granting of field trial licenses prior to the GMO Act
• An update on licenses granted
• Permission to peruse and inspect licenses granted
• Permission to inspect records regarding compliance with the public participation provisions of the GMO Act
• Details of pending applications, exact co-ordinates of the field trials and crops approved for commercial release.

What is the Court Case about?

To date the NDA has not released any information regarding risk assessments or environmental impact assessments or most of the other information requested. We received information regarding licenses granted, but in some cases this was incorrect or incomplete. We feel that the public has a right to this vital information on how a very controversial technology is being managed so that we can ensure that our right to safe food, safe environment and the right to choose are being upheld.

A legal firm was appointed to advise us regarding our rights to access the information held by the NDA. The lawyers recommended that we access the information in terms of a provision in the Constitution, section 32(1). Papers were served on the NDA on 23 August 2002.

The NDA opposed several issues in the Biowatch affidavit, most importantly they said that we did not get the information because we did not follow the Promotion of Access to Information Act (PAIA). However, PAIA was not yet in force at this time. They also contended that the release of some of the information would impact negatively on the commercial interests of the company.

Whose interests count?

On 19 February 2003, Monsanto South Africa (Pty) Ltd made an application to intervene in the proceedings on the basis that they have a direct and substantial interest in the subject matter of the proceedings. Two other companies, both distributors of Monsanto's GE seed, have now intervened, Stoneville Pedigreed and Delta Pineland. Biowatch consented to this intervention. Biowatch also sent a letter to Monsanto’s lawyers, asking for a complete list of the documents and information they would have no objection to Biowatch having access to.

The Monsanto affidavit challenged Biowatch’s case on the following points (These are just some, not all of the points made):

1. Biowatch did not follow the internal procedure contained in section 19 of the GMO Act.
2. Biowatch does not have locus standi and is not acting in the public interest but simply represents and advances the personal interests and opinions of its trustees.
3. Biowatch should have followed the internal procedure of the PAIA to apply for access to information.
4. The information required, in particular the risk assessments submitted, includes confidential information that can harm Monsanto’s commercial and financial interests.
5. Monsanto also argues that they have a right to the protection of confidential information i.t.o. the Constitution and PAIA.
6. Monsanto also challenges the expertise of the applicant (EPS), and the expert affidavits, including Rachel Wynberg and Christine Jardine.
7. Furthermore, Monsanto challenges the points made by Biowatch regarding the Percy Schmeiser case, the Mexican Contamination, the environmental impacts of Roundup Ready and Bt crops.

Biowatch had to prepare a substantial affidavit, replying to all of the challenges Monsanto put forward. One very alarming realisation of this process was the difficulty in finding a suitably qualified scientist to verify and support the affidavit. It has been difficult to find a scientist with the relevant expertise not under financial support from Monsanto, and therefore willing to give an honest and independent opinion. A scientist from the UK was finally found.

The Open Democracy Advice Centre (ODAC) has intervened as an amicus curiae (friend of the court), to argue the importance of access to information in an open and democratic society. Access to information is the key to open the door to ensuring other rights are protected, such as the right to healthy food and environment, the right to choose what food we eat and corporate accountability.

The case will be heard at the High Court in Pretoria from 24 – 26 May 2004.

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