GM ruling quashed in Court of Appeal – now what?

The journal Nature features a report from Sydney-based New Zealander Branwen Morgan, looking at the implications of the New Zealand Court of Appeal move to quash an earlier High Court decision that saw Agresearch applications to undertake genetic modification research thrown out.

I blogged on the Court of Appeal case in February heading the article: Will Agresearch’s Court of Appeal bid pay off? The decision handed down last week (see the paper below) shows it clearly did pay off. It was obvious during the Court of Appeal hearing that the argument GE Free NZ had earlier scored a High Court win on the back of, was fundamentally flawed.

GE Free NZ was essentially saying that Agresearch’s applications to undertake GM research involving a range of different species were so generic and broad-ranging in scope that they shouldn’t even have been considered by the Environmental Risk Management Authority (ERMA). That would mean that on receiving an application, ERMA would be required to rule straight away whether an application could be considered, effectively vetting applications before the substance of them would have the scientific ruler run over them.

It is like throwing out a submission to a poetry competition before it can be read because the entry  doesn’t appear to have enough stanzas.

It is an argument that the Court of Appeal judges saw little merit in. They concluded:

We accept that there is a real issue as to whether the generic nature of the applications means that they fail to comply with what appear to be relatively specific requirements in s 40(2). However, we also accept the submission made on behalf of
both AgResearch and ERMA that the determination of that issue is a matter requiring a degree of scientific knowledge and the application of that knowledge to the case at hand in circumstances where it will not be readily apparent to ERMA at
the time it accepts the application, and which will be difficult for a Court to evaluate in judicial review.

In our view, the essentially mechanical decision made by ERMA to accept and register the applications should be allowed to stand. ERMA should continue its process of assessment of the applications. We therefore allow the appeal and quash the orders
made in the High Court setting aside ERMA’s decision to accept the applications and directing ERMA to take no further steps towards hearing and asserting the applications.

The decision means ERMA is free to consider applications in the way it has been doing so – if the basic “mechanical” processes of lodging the applications are completed on the right forms with the right boxes ticked, ERMA will be obliged to look in further detail at an application. That sounds like common sense as lets face it, those applying to ERMA are generally organisations that have done their homework and are serious about undertaking serious research here. Bogus applications from crazy scientists therefore are likely to be spiked soon after being received even if they do make it onto the desk of whoever at ERMA is tasked with processing the applications.

So Agresearch is pretty much back where it was when the applications were first lodged in late 2008 and ERMA has the task of considering those four applications again. The outcome is as uncertain as it was first time around.  Agresearch is  no doubt frustrated about the delay the court action has caused. The Nature article certainly points to this:

Despite the recent Court of Appeal ruling in AgResearch’s favour, Barry Scott, head of the Institute of Molecular Biosciences at Massey University in Palmerston North, New Zealand, and former ERMA board member, says these sorts of legal challenges can stifle business development. Jimmy Suttie, science and technology general manager for AgResearch’s applied biotechnologies group, acknowledges this possibility. “The impact is twofold: it makes NZ companies themselves reluctant to invest and, because of the way the international media may view the actions of GE Free NZ, it can suggest that the anti-GM attitude in New Zealand is more extreme than it really is,” he says.

GE Free NZ is making noises about a Supreme Court bid to have the decision reversed. Surely it would be more productive to leave ERMA to actually look at the substance of the applications and decide for itself whether the applications are too general and vague in nature and even ask for more information if necessary? Isn’t that what the role of a regulator should be?


  1. Peter Griffin

    Steffan, ERMA may well now throw the applications out, or ask for more information to determine whether the various thresholds are met – that all seems like common-sense regulatory practice.

    Essentially the GE Free NZ action was a stalling tactic to try and slow down and delay the regulatory process. That’s been a successful tactic for the group, but meanwhile, where is the informed public debate on this issue? The UK’s chief science advisor, Professor John Beddington was quoted in the Herald over the weekend as saying: “classifying GM as either ‘good’ or ‘bad’ was ‘profoundly silly’.”

    I agree with him.

  2. steffan

    Hi Peter
    the answer to the “now what” of your title should be that ERMA throw the applications out as the Court clearly pointed out that ERMA would be challenged by the generic nature of the applications, and while not wanting to guide did point out some thresholds in the HSNO Act, namely a need to identify the organism being applied for. AgResearch hasnt done that.
    An extract from the decision:
    “There is no doubt that the generic nature of the application in this case provides particular challenges to ERMA. But we do not think it would be helpful for this Court to attempt any guidance at this stage of the ERMA process. All we need to say for present purposes is that, in order to give approval to the applications, ERMA will have to be satisfied that they are applications to which approval can be given under the powers provided to ERMA under s 45 (that is, they are, in fact applications within s 40(1)) and that the threshold for approval under the s 45 test is met” (60)

    It is a shame Peter that you take a position of promoting GE as a positive for business when NZ is far better placed to enjoy, legitimise and build on its reputation as clean and green. AgResearch’s partners in this debacle are looking decidedly financially unhealthy and follow PPL, another GE animal venture that failed in business after numerous animal welfare breaches.
    I hope that whatever legal – regulatory process engaged with now for the AgResearch applications is succinct and send these applications packing, saving taxpayers money for more useful, productive research employing some of the more NZ-useful researchers that AgResearch have recently culled. It is also a shame that Science Media and its funders thought it appropriate to tout Ms Monsanto Nina Federhoff around in an effort to hoodwink the public and politicians alike. Outrageous misuse of government science funding. Even you must have cringed at some of statements she made.
    You finish with suggesting that ERMA should be able to decide what info it needs and even ask for more. Sure, if it would with some authority and impartiality, but when it did, AgResearch effectively told it where to go, and ERMA like a good wee lacky went and notified the applications. Not good enough. The process deserves no public respect.

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