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The Royal Commission on Genetic Modification - submissionsWai 262 ClaimantsSTRATEGIC ISSUES & OPTIONSSubmission The Wai 262 claimants made various calls for a moratorium of genetic modification (GM) research. Hema Nui A Tawhaki Witana (Del Wihongi) of Te Rarawa recommended a moratorium be placed on GM research until all issues have been worked through between the partners to Te Tiriti o Waitangi. Dr Peter Wills stated that would be desirable for New Zealand to declare itself to be "GE-free" and disallow the release of any genetically modified organisms (GMOs) into the environment. Such a declaration should also establish a "GM-free" food supply, banning the use of genetically engineered organisms, their parts, products and processes. In the interim, the current moratorium should be extended for a reasonable period, of the order of a half-decade.
LAW & LEGISLATIONSubmission Regulation It was submitted that the rules for the disposal of GM material from laboratories should be reviewed. Regulations need to ensure DNA cannot find its way into wild microbial flora. This would not be incompatible with a reduction in the form-filling required of researchers. Institutional Biosafety Committees (IBSCs) should be reformed to make them more independent of the researchers who apply to them. Furthermore, greater weight must be given to concerns of a non-technical nature that members of the public express about applications of GM. In the opinion of Dr Wills the current provisions of the Hazardous Substances and New Organisms (HSNO) Act 1996 Act have been interpreted in favour of the interests of applicants, not those of the affected public. It was also recommended that New Zealand should leave the Australia New Zealand Food Authority (ANZFA) unless it is reformed to function in a manner that takes account of expressions of public concern. The doctrine of "substantial equivalence" of different foods should also be reviewed to prevent determinations in the interests of multinational corporations.
It was also Dr Wills contention that the Crown should initiate a process of dialogue to address the intertwined issues of Maori rangitiratanga as guaranteed by the Treaty of Waitangi and intellectual property rights, especially the ownership of organisms or genetic sequences as "inventions". Procedures of bodies such as ERMA should be reformed to give decisive weight to considerations of whakapapa, mauri, tapu and other Maori precepts. Legislation is also required to exclude military applications of GM technology.
Liability Dr Wills noted that liability issues arise in respect of all of the risks associated with GM technology but the public have not been given any protection beyond the legal requirement of due diligence being exercised by regulatory authorities. in his opinion, the potential hazards cannot be assessed let alone quantified making liability a difficult issue.
Intellectual property Dr Wills highlighted that intellectual property law has been developed using a set of concepts and precedents which do not take account of the cultural constructs of all New Zealanders. It also cannot rightly be applied to living organisms or genes. It was submitted that allowing the patenting of genetic sequences and whole organisms enables those who conduct research involving GM to take illegitimate control of Nature.
it was then noted that according to traditional lore, matauranga, or knowledge, associated with living organisms, in particular native flora and fauna of particular importance to Maori, resides in the whanau and hapu who are kaitiaki of that matauranga, and these sacred restrictions of tapu associated with those kaitiaki obligations are more often than not in conflict with existing intellectual property rights regimes. Furthermore, it is the opinion of the Wai 262 claimants that where existing intellectual property rights holders are protected by legislative schemes from being accountable for the infringement of indigenous rights, the abuse of issues in relation to access to resources, benefit sharing, reproduction without consent, and general lack of consultation, continue unabated.
The Wai 262 claimants outlined the Draft Declaration on the Rights of Indigenous. In particular, the right of "self-determination" is expressed in Article 3. Article 29 states: Indigenous peoples are entitled to the recognition of the full ownership, control, and protection of the cultural and intellectual property. They have the right to special measures to control, develop, and protect their sciences, technologies, and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of flora and fauna, oral traditions, literatures, designs, and visual and performing arts. The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples signed at Whakatane in 1993 also recognises the importance of self-determination to enabling indigenous peoples to protect their culture, customs and intellectual property rights.
It was submitted that the challenge confronting Maori is to devise a framework or mechanism(s) that will protect their cultural heritage rights. in their opinion, any framework of protection for Maori customary and intellectual heritage rights would need to:
Furthermore, interim measures are needed to protect the knowledge and resources of Maori until such legislation is in place. In the case of intellectual property, where such fundamental differences are discernible between the western and customary legal systems, the Tribunal process has the potential to evolve a solution which is practical, and durable. It is the submission of the Wai 262 claimants, therefore, that the Commission await the findings of the Tribunal on how such a solution may work in practice.
RISKS & BENEFITSSubmission Dr Peter Wills made a submission in respect to the uncertainties surrounding GM research. In his opinion, GM entails an extremely high degree of inherent uncertainty, especially in respect of its overall consequences for the environment. This is because ecological and evolutionary processes are themselves uncontrollable. The release GMOs into the environment has the potential to be even more destructive than the consequences of other human interference in biological processes. This precludes, therefore, the introduction of GMOs into the environment. However, if it can be guaranteed that there are not general side effects from individuals seeking cures to medical problems of genetic origin, the contained use of GM technology in medical research and production should proceed. As in other submissions, it was argued that the benefits of GM technology mainly accrue to biotechnology companies, research institutions, and governmental agencies. the risks however, are almost completely socialised.
SOCIAL, CULTURAL & ETHICAL ISSUESSubmission Del Wihongi noted that legal counsel has been instructed to seek interim recommendations from the Waitangi Tribunal to preserve the claimant’s position. In her opinion, this is necessary because the Crown continues with legislative and policy programmes in relation to New Zealand biodiversity that fail to take into account the processes of Maori decision making and Maori values. She then pointed out that the claimants do not have the resources to place all the evidence on this issue in front of both the Commission and the Waitangi tribunal. She recommended, therefore, that the Commission liaise with the claimants in the future on how to best incorporate this evidence.
it was submitted that concern from the point of view of the Wai 262 claimants can be categorised into two main areas:
Essentially, the submission of the Wai 262 claimants in this forum is the same as that advocated before the Waitangi Tribunal; that until tikanga Maori forms the basis of decision making of these issues, it is not appropriate for any consent to be given to technologies for processes which further the disruption of the Maori world view, and the dislocation of tangata whenua from their kaitiaki responsibilities.
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