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9-Misc: Biowatch/South Africa fights for right to information onGMO applications

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                                  PART I
-------------------------------- GENET-news -------------------------------

TITLE:  Battle over modified crops data takes root
SOURCE: Business Day, South Africa, by Tamar Kahn
DATE:   Jul 8, 2003

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Battle over modified crops data takes root

TWO local seed companies are considering entering the legal fray over
local nongovernmental organisation Biowatch's longrunning battle to get
government's information on genetically modified crops. Biowatch launched
a high court application last September to compel government to give it a
list of all the genetically modified crops grown in SA, the locations of
field trials, and information on the risk assessments on the basis of
which government had granted permits for the crops. The two firms, Panaar
and D&PL SA, could come out in support of Monsanto Corporation, which has
already joined government in its opposition to Biowatch's application.
The case centres on the balance between the public's constitutional right
to information and a company's right to protect commercially sensitive
information, said Biowatch lawyer Cormac Cullinan. In its court papers,
Biowatch concedes genetic engineering may have potential benefits. But it
argues that specific releases of genetically modified crops have been
harmful, and says it is concerned that government regulation is
inadequate. Cullinan said Biowatch's requests for information prior to
the high court application were made before the Promotion of Access to
Information Act came into effect, and so the legal case rested primarily
on the applicant's constitutional right to information. 

                                  PART II
-------------------------------- GENET-news -------------------------------

SOURCE: Biowatch, South Africa,
DATE:   2003

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of the


Dear friends,

South Africa has been growing genetically engineered (GE) crops for the
past six years. As far as we know there has not been a single risk
assessment or EIA of these crops. In interest of civil society, Biowatch
SA has therefore on a number of occasions over the past two years
requested access to documents and records under the control of the
national Department of Agriculture regarding the use and release of
genetically modified organisms (GMOs) in South Africa. These requests
- Copies of applications for permits under the GMO Act and other
legislation regulating GMOs (including risk assessments);
- Copies of permits granted in relation to the import, use, release and
export of GMOs;
- Details of public participation measures adopted and implemented in
relation to the regulation of GMOs;
- Locations of field trials of genetically engineered crops; and
- Minutes, memoranda and other documents relating to GMOs in the
possession of the Department of Agriculture.

The Department of Agriculture has failed to provide us with this
information and has not responded to letters from us or our legal
representatives. We have therefore made an application to the High Court
in Pretoria for an order compelling the Registrar of Genetic Resources,
the Executive Council for GMOs, and the Minister of Agriculture to make
the information requested available to us. In this application we
outlined the risks to human health, the environment and food security
which the use and release of GMOs may have.

In response, the government has stated that they cannot release the
information as they need to protect 'third party interests'. Monsanto SA,
has now intervened in this court case clearly concerned that the release
of this information will not be in their interest.

We are now writing to you as friends of Biowatch and members of civil
society that are also concerned about the way in which GMOs are
introduced in this country and continent.

We call on you to support this case as it will make us stronger to have
the support of key civil society groups and as many members of the public
as possible. Biowatch South Africa STATUS REPORT - BIOWATCH LEGAL CASE
For access to information held by the Department of Agriculture in terms
of the Constitution, Section 32 (1)

Biosafety takes a back seat to commercial interests in South Africa The
first genetically engineered (GE) crops were commercially released in
South Africa in 1997; at this time no legal framework to ensure biosafety
was in place. When the GMO Act came into force in December 1999, Biowatch
decided to have a critical look at the Act that regulates GMOs in South

We asked Mariam Mayet, an environmental lawyer who was involved in the
Biosafety Protocol negotiations, to review the GMO Act and its
Regulations. She found grave inadequacies and irregularities in terms of
the international agreement on biosafety - the Cartagena Protocol, as
well as the Constitution and NEMA (our National Environmental Management Act).

As a result, two legal strategy workshops were organised with NGOs and a
group of environmental and human rights lawyers in February and November
2000. In the workshops we analysed the Act and developed options for
civil society to take action on the Act and its Regulations.

The workshops concluded that the GMO Act is a conceptually flawed piece
of legislation which shows a "cynical disregard" for best biosafety
practice. It was also concluded that the GMO Act pays lip service to risk
assessments, disregards the precautionary principle, and does not provide
for adequate public participation. Corporate interests are clearly
protected over public interests, e.g. liability for harm caused by GMOs
is placed on the "end user", meaning farmers and consumers, rather than
those who develop the technology. The Act shows complete disregard for
the "polluter pays" principle enshrined in NEMA.

Biowatch takes action to protect public interests Action was needed; GMOs
are being released into the environment at a rapid rate with inadequate
biosafety measures. The lawyers felt that legal action should be taken in
terms of NEMA because the risk assessments required by NEMA had not been
carried out. The National Department of Agriculture (NDA) did not respond
to our concerns, disagreed with the critique of the GMO Act and
vigorously defended the Act.

Instead of taking legal action at that time, we decided to first request
more information from the NDA regarding risk analysis. Also, as part of
our ongoing monitoring of the release of GMO permits, we continued to
request information from the Registrar of GMOs and over time requested
the following information:
- Access to a selection of risk assessments
- Information on legislation governing granting of field trial licenses
prior to the GMO Act
- An update on licenses granted
- Permission to peruse and inspect licenses granted
- Permission to inspect records regarding compliance with the public
participation provisions of the GMO Act
- Details of pending applications, exact co-ordinates of the field trials
and crops approved for commercial release.

To date the NDA has not released any information regarding risk
assessments or environmental impact assessments or most of the other
information requested. We received information regarding licenses
granted, but in some cases this was incorrect or incomplete. We feel that
the public has a right to this vital information on how a very
controversial technology is being managed.

A legal firm was appointed to advise us regarding our rights to access
the information held by the NDA. The lawyers recommended that we would
generally have access in terms of the Promotion of Access to Information
Act (PAIA), which was not yet in force. We would also have the right to
access the information in terms of a provision in the Constitution,
section 32(1); this is the route we went. Papers were served on the NDA
on 23 August 2002.

The NDA opposed several issues in the Biowatch affidavit, most
importantly that the PAIA should apply, implying that we did not get the
information we requested because we did not follow the procedures of the PAIA.

Whose interests count? A court date was provisionally set for mid March,
but this was postponed when Monsanto, the multinational responsible for
the majority of genetically engineered crops worldwide, decided to
intervene in the proceedings and become a player in the case. We are yet
to receive the details of the role they will play in the court case.

The court date is now set for 6 May 2003 in the Pretoria High Court.
Biowatch is represented by the legal firm, Winstanley, Smith and Cullinan
and Advocate John Butler.

Organisations and individuals are urged to support this case and to do
this, please send a letter of support to


European NGO Network on Genetic Engineering

Hartmut MEYER (Mr)
Kleine Wiese 6
D - 38116 Braunschweig

phone:  +49-531-5168746
fax:    +49-531-5168747
mobile: +49-162-1054755
email:  genetnl(at)