07/06/2009

GM animal applications invalid – High Court appeal upheld

 

In a precedent setting case, the High Court has upheld the appeal by GE Free NZ in Food and Environment against ERMA and AgResearch.

After 12 weeks of deliberation, Justice Clifford found that ERMA erred in receiving the applications from AgResearch and has declared them invalid. The decision sets aside the decisions by ERMA to proceed with the applications. ERMA is to take no further steps toward hearing and assessing the applications.

In October 2008 GE Free NZ went to the High Court to appeal a decision by ERMA NZ to notify four applications submitted by AgResearch that ranged from importing genetically engineered embryo's created overseas, to field trialing and commercial production of pharmaceuticals in milk, development of animals to model disease and virtually ‘anything else’ that would be of commercial interest.

"It is fantastic news that our concerns about the broad and indefinite nature of these applications have been upheld.” says Claire Bleakley, president of GE Free NZ in food and environment. “The cruelty and unregulated exploitation of animals for unsound GM research is not acceptable to New Zealanders."

The decision instructs ERMA to immediately halt processing the applications made by AgResearch who sought the right to modify nine species of animals, for an unlimited period, for commercial ventures anywhere in New Zealand.

“This was not the ‘case by case’ regulation of ethical research that government promised the public, following the Royal Commission on Genetic Modification, but a wholesale rush to commercialisation that would likely devastate New Zealand’s export and tourism image,” says Jon Carapiet spokesperson for GE Free NZ in food and environment.

The plans directly contradict the recommendations of the Royal Commission to not use food animals as bioreactors. Given the potential to damage rather than develop the economy and to dramatically increase the incidence of unethical treatment of animals, the decision is cause for AgResearch to comprehensively rethink how it serves its mission to ‘create sustainable wealth for the New Zealand pastoral and biotechnology sectors’. Neither AgResearch nor overseas investors must be allowed limitless scope to exploit New Zealand as a GE play ground and threaten the very core of the New Zealand Brand.

“There is an urgent need for Government to direct Crown Research Institutes, like AgResearch, to comply with a Biotechnology Strategy that does not include genetic modification, but one that builds on our existing reputation and supports clean, natural and sustainable production,” says Jon Carapiet.

“In developing the country’s approach to gene technology, it is vital we learn from the history of Mad Cow Disease, Foot and Mouth, Swine Flu, animal deformity through cloning, the failure and bankruptcy of previous GE-animal commercial ventures, and the public distaste for extreme animal cruelty.”

“This is a precedent-setting case and an amazing win for the public of New Zealand that protects our farmers and exporters," says Claire Bleakley. "We would like to thank all who supported and helped us in the process of the case."

Ends.

Claire Bleakley 06 -3089842 /027 348 6731

Jon Carapiet 0210507681

References:

www.gefree.org.nz

www.issues.co.nz/gefreenz



Extracts from the Decision and Background



IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY- CIV-2008-485-2370

UNDER the Judicature Amendment Act 1972 AND UNDER the Hazardous Substances and New Organisms Act 1996

BETWEEN GE FREE NZ IN FOOD AND THE ENVIRONMENT INCORPORATED

Plaintiff

AND ENVIRONMENTAL RISK MANAGEMENT AUTHORITY First Defendant

AND AGRESEARCH LIMITED Second Defendant

Hearing: 9-10 March 2009

Judgment: 5 June 2009



From “Discussion”

To enable effective public participation, sufficient particularity is required at

the application stage. Where the generality of an application precludes this,

therefore, it is not an answer that ERMA might subsequently “impose more stringent controls, narrow down the organism description or restrict the purposes for which the approval is given”.

[149] On balance, therefore, and whilst I recognise the strength of ERMA’s

response to GE Free’s Applications, I have concluded that in this instance the

Applications are simply too generic to enable the risk assessment called for by

HSNO to be meaningfully undertaken



From “Outcome”

[150] GE Free’s application for review is granted. I find that ERMA erred in law

in receiving the Applications for determination under HSNO. In terms of my

discretion as to remedy, I think the error is such that ERMA cannot continue to treat the Applications as if they were valid. I therefore order that ERMA’s decision to accept the Applications as applications under s 40 of HSNO is set aside and ERMA is to take no further steps towards hearing and assessing the Applications.

“Clifford J”

Background

The applications by AgResearch sought to use any or all of 18 domestic livestock and laboratory animals genera of which 9 types -deer, goat, cow, pig, sheep, alpaca, llama, buffalo and horse would be farmed outdoors. AgResearch stated:

AgResearch is submitting four applications with common or overlapping organism descriptions and controls. This application should be read with the other applications. All of the applications are for approval of activities in containment and together they will allow AgResearch to do the following with organisms fitting the organism description in this application:

• GMC07012 (this application): Import into containment livestock and

laboratory animal species (live animals, sperm, embryos – importation

of live animals into containment will be rare). Maintain those animals

for research, breeding and production. Import animal cell-lines

(including human and monkey cell-lines) and E. coli for use in the

development (genetically modification) of livestock and small animals

under GMD07012 [sic] and GMD07074.

• GMD08012: Develop livestock and laboratory animals in indoor

containment. Maintain those species for research, breeding and

production. Develop animal cell-lines (including human and monkey

cell-lines), E. coli and yeast for use in the genetic modification of

livestock and laboratory animals.

• GMD07074, this application: Develop livestock species in outdoor

containment. Maintain those livestock for research, breeding and

production.

• GMF07001: Field test livestock in outdoor containment. Maintain

those livestock for research, breeding and production.



AgResearch could use any technique available, now or in the future, to effect

such genetic modification and could do so using genetic material from the specified

livestock, small animals, humans and monkeys, E. coli and yeast organisms as

specified in the Applications. Each of those approvals could be implemented at

Ruakura, or at yet to be located facilities.



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