Mothers lose gene copying case

A High Court judge has rejected a claim by Mothers Against Genetic Engineering that the Minister for the Environment should have "called in" an application by AgResearch, the Government's biggest science company, to put copies of human and other genes into cows.

In a 79-page judgment released yesterday, Justice Judith Potter ruled that the decision by the Environment Risk Management Authority to approve the AgResearch application was lawful.

But Justice Potter said that ministry processes had been "justifiably" criticised by the group and needed tightening.

"I believe [the mothers group] has justifiable concerns about the process of the ministry in performing its functions of advising the minister in respect of this application.

"While I have reached the conclusion that there was not a failure to consider AgResearch's application, nor that the minister acted unreasonably, I consider the 'informal' processes adopted by the ministry in dealing with such matters are less than satisfactory."

The hearing last month in the High Court at Auckland heard that letters had gone astray and there was no written procedure for "call-in" reviews.

Justice Potter said that perhaps the present court case had alerted the ministry to the need to adopt a protocol which was clear and responsive to the functions and responsibilities it had to advise the minister on such applications.

Given the importance of these matters, in the judge's view, such "informal understandings" were unsatisfactory.

"A clear protocol is needed, supported by systems within the ministry to ensure that the protocol is observed and that the ministry is patently accountable in respect of the process."

The ministry's conclusions should be recorded and the judge thought it desirable that the protocol would include a report to the minister for each application, whether or not the advice was to call in the application.

However, the judge noted that in affidavits and affirmations ministry staff had shown a general knowledge and understanding of this application and its background, supported by other information.

Their assessment was that it did not raise any of the significant effects specified under the Hazardous Substances and New Organisms Act that would require them to advise the minister to call in the application.

It had to be remembered, the judge said, that this was an application for "development" of a genetically modified organism.

"Before there was any issue of 'release' of any [organism] that might result from the development, applications for field testing and release would be required, and each stage would need to meet the detailed requirements of the act, if approval were to be gained."

The judge said that it was neither surprising nor unreasonable that consideration by ministry staff, on behalf of the minister, of the AgResearch application did not alert them to significant economic effects which should have prompted them to advise the minister to call it in.

Nor was it unreasonable that they did not have particular regard to the economic consequences of New Zealand losing its GE-free image, as claimed by the mothers group.

"That is a policy issue which has engaged much debate and prompted the April 2003 report by the ministry and Treasury, but such economic effects are not likely to be raised significantly by a development application."

Justice Potter said that the application for judicial review was concerned with the validity of the processes followed by the minister and the authority.

"It is not concerned with the merits of the decision, nor the merits, or the risks associated with genetic modification."

Accordingly, much of the scientific evidence presented by the mothers group at the court hearing was largely irrelevant.

The judge agreed with the group that there was a need for independent, rigorous and transparent risk assessment and management by the authority.