Will Agresearch's Court of Appeal bid pay off?

[UPDATED: An ERMA spokesperson got in touch to clarify that ERMA isn’t party to the appeal – “In the High Court, GE Free challenged ERMA’s right to receive the applications from AgResearch. AgResearch appealed the High Court decision, and we were in court yesterday to assist in any way we could and to seek clarification of ERMA’s powers under the Act.”]

It was a decidedly slow day at Wellington’s cavernous Court of Appeal today.

Wellington's Court of Appeal which is hearing the GM application case
Wellington's Court of Appeal which is hearing the GM application case

The single case scheduled on the court noticeboard: GE Free NZ vs Agresearch and the Environmental Risk Assessment Authority.

In Court room 1, lawyers for Crown Research Institute Agresearch and ERMA, the Government body that vets applications for imports and trials of genetically modified organisms, aligned themselves on the left side of the court. Lawyers for GE Free New Zealand took their positions on the right.

If the few onlookers gathered to observe proceedings were expecting a legal argument on whether genetic modification trials should be allowed to go on in New Zealand, they’d have been pretty disappointed. What followed was a day of rather dry but occasionally vigorous and interesting legal discussion that focused on how the Hazardous Substances and New Organisms Act applies to ERMA’s process of receiving applications from organisations seeking to import or develop genetically modified material. Nevertheless, the outcome of the appeal could decide the direction and extent of genetic modification trials in New Zealand for the next few years. The stakes for everyone concerned are high.

Agresearch and ERMA are appealing a High Court ruling from last June which saw the anti-GM organisation GE Free successful in having withdrawn Agresearch’s applications to import genetically modified material and undertake GM trials in New Zealand on several species of animals. Justice Clifford ruled back then (see his full judgement at bottom) that:

…the applications are simply too generic to enable the risk assessment called for by HSNO to be meaningfully undertaken. In reaching this conclusion I have carefully considered whether I am trespassing on to a question which should be left to ERMA’s expertise. I have concluded that I have not.

In other words, Justice Clifford was saying that the scope of the GM applications, which according to NZPA sought approval for “laboratory testing of human and monkey cell lines and smaller species of GE laboratory animals, and the development of GE cows, buffalo, sheep, pigs, goats, llamas, alpacas, deer and horses”, was far too open-ended, the information contained in the applications, much too generic to allow a proper assessment of the risk it may pose to the country. His interpretation of the law is that given the lack of detail in the applications, they shouldn’t even be heard, which would have the effect of throwing out Agresearch’s applications before the substance of them has been looked at in any meaningful way by ERMA’s team of experts.

ERMA obviously took exception to its authority being undermined in this way, which is why it was part of that High Court case and is part of the appeal against the judgement.

Agresearch’s lawyers today outlined the intent of the applications in relation to cows, which is to undertake GM research and breeding to allow the production of high-value proteins in milk. They said that the applications were for “extraordinary small modifications”:

“The idea that some fantastic creature can be made as a result of these processes just doesn’t hold water.”

They argued also that the HSNO Act doesn’t specify that organisms have to be identified in a particular way in an application, nor where trials are proposed to be carried out. In effect, Agresearch’s lawyers are arguing that the CRI’s applications complied with the law and should have been processed and considered by ERMA.

ERMA’s lawyers suggested Justice Clifford’s judgement was inconsistent with a 2003 court ruling in the so-called Madge case, where a group calling itself Mothers Against Genetic Modification and headed by ex-Thomson Twins pop star, Alannah Currie, was unsuccessful in attempting to overturn an application approved by ERMA that allowed Agresearch to undertake GM trials that involved inserting human, rat, mouse and deer genes into cows. They said there was no legal requirement specified in the HSNO Act to assess whether an application to ERMA was valid. In effect, ERMA’s scientifically-qualified staff would do the analysis later in the process.

GE Free NZ’s lawyers for their part, suggested the applications were far too broad and slight on detail, indicating what species of host animals were intended to genetically modified but not what “source donor” animals would be used and where the material would be imported from.

They said that if the specific intentions of the GM research had been outlined in detail, such as a desire to find a way of reducing methane emissions from cattle, GE Free NZ may have been been more understanding about its applications.

“[They are] effectively saying Agresearch can go off on its own now and not come back,” said one lawyer of the applications.

It has been suggested to me by people in the scientific community that Agresearch’s applications were indeed broad in nature. There are valid reasons for that – Agresearch doesn’t know with certainty where the science is going to go in the coming years, so wants as broad a remit as possible to experiment. Applications can also be expensive to lodge and have investigated, so the broader you go in terms of species an application covers, the less cost incurred in going through the ERMA process. But was Agresearch too ambitious, especially given the anti-GM sentiment in New Zealand?

Crossing the line?

The three Court of Appeal judges presiding over the appeal had plenty of curly questions for the lawyers that illuminated the key points the case hinges on. Justice O’Regan seemed incredulous that Agresearch would lodge an application that was so generic and broad in nature.

“You don’t apply for building consent to build any kind of building,” he remarked.

Justice Chambers on the other hand thought it nonsensical that an application, that didn’t “flagrantly” contravene the HSNO Act,  would be thrown out before even being assessed by ERMA

“How can they decide the impact of an application on the environment without going through an assessment at an early stage?” He asked.

“The question is the time in the process that they make these assessments.”

The case raises several questions that will be important to be sorted out ahead of other applications to ERMA (which processes around 240 per year).

– As a matter of law, can an authority give legal approval for something that can’t be fully described?

– What must ERMA do to satisfy itself that it has a valid application?

– Is there a line that’s crossed when an application becomes too broad, and if so, where is the line?

From the legal discussion I witnessed this morning, it is hard to know which way the court will go. It seems that GE Free NZ has a good argument that the Agresearch applications were too broad, but Agresearch has a point in arguing that the applications shouldn’t be thrown out at such an early point in the process. ERMA would seem to have a compelling case that its scientists should have the opportunity to assess credible applications.

Court of Appeal judgements often overturn previous judgements, and there’s a chance of that happening here too. Agresearch last November lodged new submissions with ERMA for a narrower range of GM trials to conduct research “on goats, sheep and cows in containment at its Ruakura research facility”. Public submissions on those applications closed in December. So the CRI is pushing ahead in its bid to undertake GM research, albeit in a more cautious way. In that respect, maybe something constructive may indeed have come out of GE Free NZ’s win last year. But the pursuit of the appeal by Agresearch and ERMA suggests both organisations believe broader applications should be considered.

A Court of Appeal decision could be months away, though I understand the matter has been put into urgency so a judgement could be released in a matter of weeks.


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