/ 8 March 2005

High price of access

Biowatch South Africa won a major victory two weeks ago on access to information about genetically modified (GM) crops in South Africa. Pretoria High Court Acting Judge Eric Dunn granted Biowatch access to all its key requests for information — but in a surprising twist, he also ordered the environmental NGO to pay the legal costs of giant biotech multinational Monsanto.

The first GM crops were grown in South Africa in 1997. But it took another two years before the government introduced the Genetically Modified Organism (GMO) Act to address this new, risky technology. And it was only after a five-year battle that Biowatch South Africa has been able to gain access to information about GM crops coming into South Africa or being grown here.

The Pretoria High Court has ordered the initial respondents in the case, the Department of Agriculture’s Registrar of Genetic Resources, its executive council for GMOs, to release this information to Biowatch by April 30. The judge reaffirmed that Biowatch has a constitutional right to the information, that access to this information is in the public interest, and that Biowatch was forced to go to court to exercise this right. He said granting access to the information was a necessary part of the proper administration of the GMO Act.

On paper, the Act ought to have given the public some idea of how the agriculture department makes decisions about GM crops. But a string of letters to the department to obtain access to risk assessments done for GM crops — information that is publicly available in most other countries growing these crops — met with no response.

Records of decisions to authorise more than 1 000 applications to grow GM crops in South Africa were not available, nor were the minutes of meetings at which these decisions were taken. There was no response to queries to the department about how it was addressing public concerns in permit approvals.

Now, in terms of the court’s order, Biowatch will have access to the minutes of meetings of the decision-making bodies on GM crops in the department, such as the executive council on GMOs and its advisory committee. Copies of all permits, approvals, applications and risk assessments will be made available. All records relating to the areas where GM crops are being grown in field trials and for commercial release will be made available, although not the exact coordinates.

For the first time, it will be possible to perform a comprehensive and transparent analysis of the ways in which environmental, health and social impacts have been assessed for GM crops in South Africa.

Biowatch commissioned an independent analysis last year of a risk assessment conducted by Syngenta SeedCo for the release of GM maize in South Africa. The analysis revealed that the risk assessment, which was used as the basis for granting Syngenta a permit to grow GM maize, was desk-based, contained incorrect information and was based entirely on experiments conducted abroad, mainly by Syngenta scientists, on species that did not occur in South Africa.

The ruling is a victory because it opens the way for public scrutiny of decision-making about GM crops. But it has become a costly victory now that the judge has ordered Biowatch to pay the legal costs of Monsanto South Africa. While all respondents demanded costs initially, these were dropped during the court hearing when Biowatch’s rights to access information became clear. Only Monsanto pursued its costs order to the end.

The decision is contrary to the precedent for costs not to be awarded against a party acting in the public interest in order to uphold constitutional or environmental rights, and it could have grave implications. Not only could it thwart Biowatch’s ability to process the information it receives, it will also have a chilling effect on other organisations seeking information in the public interest on constitutional or environmental matters.

Monsanto South Africa is a local subsidiary of the United States-based chemical and crop empire that dominates the world seed industry and GM seeds in particular. Along with two distributors of its products — Stoneville Pedigreed Seed Company and D & PL South Africa — Monsanto voluntarily joined the action to oppose access to the information sought by Biowatch, acting to ensure its rights to commercial confidentiality were not infringed.

Long before the court application, Monsanto had refused Biowatch access to information of any kind. This was in contrast to local maize seed company Pannar, which came to an agreement with Biowatch about what information it could have. Pannar did not join in opposing Biowatch’s application.

Rachel Wynberg is a Biowatch South Africa trustee