SUBMISSION OF OBJECTIONS BY THE AFRICAN CENTRE FOR BIOSAFETY (ACB)

ObjectionsSyngentaGA21.pdf Objections To The Application Made By Syngenta Seedco In Respect Of Event Ga21 To The National Department Of Agriculture, South Africa

By Mariam Mayet and Shenaz Moola, 13 September 2004. Read more.

OVERVIEW SCIENTIFIC OBJECTIONS

A scientific assessment was made of the available information. The main findings are:

• A full assessment of the scientific data could not be made because of the designation of sections of the application as Confidential Business Information
• Genetic modification by the application of recombinant DNA technology is characterised by scientific uncertainty. This stems from several factors including the inherent imprecision of currently employed recombinant DNA techniques, the use of powerful promoter sequences in genetic constructs and the generation, as a result of genetic modification, of novel proteins to which humans and animals have never previously been exposed
• The molecular characterisation information provided by the notifier indicates several irregularities including open reading frames and a truncated constructs which could give rise to unintended gene effects
• The transfer of the herbicide-tolerant trait to weeds could result in increased herbicide application. The potential for economically important weeds developing herbicide tolerance is a cause for concern
• Glyphosate use has resulted in several unwanted effects on aquatic systems and terrestrial organisms and ecosystems
• The US experience of Roundup Ready field trials has shown a marked increase in herbicide usage, particularly glyphosate
• In the Argentinean experience, the large scale uptake of Roundup Ready Soya has had devastating impacts on food security and the environment

SUMMARY OF PRELIMINARY AND LEGAL ISSUES Non Compliance with PAJA – EC has No Authority to Take Decisions

Administrative action on the part of the Executive Council (EC) established under the Genetically Modified Organisms Act (“GMO Act”), more particularly, decisions taken by it approving applications for the import, release and marketing of genetically modified organisms (GMOs) adversely affect the fundamental human rights of the public. Decision-making on the part of the EC established under the GMO Act concerning GMOs fall within the purview especially of section 4(1)(a) and (b) of Promotion of Administrative Justice Act No 3 of 2000 (‘PAJA’). Regulation 6 of the Regulations made under the GMO Act is inconsistent with the provisions of PAJA. In terms of the judgment of the judgement of Wills J, in an unreported judgment in the matter of Sasol Oil (Pty) Ltd and Bright Sun Developments CC v Mary Metcalfe NO Case No 17363/03, High Court of South Africa (Witwatersrand Local Division) PAJA triumphs the said Regulations made under the GMO Act. In any event, Regulation 6 dealing with an invitation by an applicant to members of the public in the area where a release is intended to take place is not within the contemplation of sections 3 and 4(1) of PAJA. Both section 3 and 4(1) of PAJA deal with administrative action. It is clearly the intention of the legislature that PAJA should apply to the duty on the part of the administrator regarding administrative actions vis-a-vis the public, in ensuring fair administrative justice.1 In the light of there having been a failure on the part of the EC to comply with sections 3 and 4(1) of PAJA, read together with the said PAJA Regulations, we believe that decision-making on the part of the EC will be ultra vires and therefore null and void. 2. We therefore call upon the EC to desist from making any decision and comply with the said provisions of PAJA.

EC has a Constitutional and Statutory Duty to Protect the Environment and not Further Commercial Interest of Gene Giants

It is our respectful submission that the EC is obliged to refuse the approval sought by the Applicant because the EC has a duty to do so in terms of section 24 of the Constitution, in order to protect the environment. Indeed, the application must be refused because the statutory framework obliges the EC to inter alia adopt a risk averse approach in assessing environment hazards and to evaluate the environmental impacts of the proposed activities and to have regard to the cumulative potential impacts of such activities on the environment. Regard must be had in particular, to the explicit purpose of the field trial, namely to evaluate the efficacy of GA21 GM maize, increase seed production for the purpose of exporting seed to the US for additional trials, and support the global evaluation of the GA21. In other words, to use the land of South Africa, as a nursery for the production of seeds to assist and to support applicants for approvals elsewhere in the world. This is particularly pertinent, given that GA21 is key to Syngenta gaining access to the global seed market, as is borne out by the litigation pending in the US courts between Syngenta and Monsanto. It is not the role of the EC, to become embroiled in the bitter fight between these two multinational gene giants for control over the global seed market.

South African Government makes a Mockery of Biosafety

The National Environmental Management Biodiversity Act, 2004 (NEMBA) came into effect on the 1 September 2004. Section 78 of NEMBA creates the possibility that where the Minister is of the belief that the release of a GMO may pose risks to the environment, and therefore, an environmental assessment is required to be conducted in terms of Chapter 5 of NEMA, then such intended release, will in terms of section 78, be deemed to be a listed activity in terms of Chapter 5 of NEMA. Environmental assessments of listed activities is to be regulated through a series of Regulations to be promulgated in terms of section 24(5) of NEMA, using powers that have been created by Act No. 8 of 2004. It stands to reason therefore, that such Regulations must be drafted in a way, so that section 78 is itself operationalised. However, the draft Regulations issued under government notice 764 in Government Gazette26503 of 25 June 2004, have been drafted in a way that completely ignores section 78 of NEMBA. As it currently stands, these Regulations do not apply to GMOs. This means that section 78 has potentially been rendered unimplementable.

It is our belief that that these Regulations were never intended to apply to GMOs, because the DEAT does not take biosafety seriously. As the situation currently stands, we have no alternative but to conclude that the South Africa government makes a mockery of biosafety.