On June 27, 2023, Justice Tolmay handed down her judgment on the African Centre for Biodiversity (ACB)’s application to review the decisions of South Africa’s Executive Council (EC): Genetically Modified Organisms (GMO) Act, the GMO Appeal Board, and the Minister of Agriculture, Forestry and Fisheries, which approved Monsanto/Bayer’s genetically modified (GM) drought-tolerant (DT) maize variety MON 86470 for commercial cultivation in South Africa (SA).
According to the ACB, these decision-making bodies merely rubber-stamped Monsanto’s application for authorisation, uncritically accepting its evidence that the GMO poses no threat to human health or the environment and ignoring the contrary expert evidence tendered by ACB’s experts.
In this regard, the ACB contends that the EC had failed to evaluate and engage critically with the lack of evidence of claimed drought tolerance, as well as the information furnished by Monsanto, and conduct a rigorous scientific assessment when it was under a legal duty to do so. The ACB had also asked the court to find that the failure to require an Environment Impact Assessment (EIA) and a socioeconomic assessment was irregular.
In her judgment, Justice Tolmay rejected the ACB’s concerns that the EC failed to conduct a rigorous scientific assessment and evaluate and engage critically with the paucity of information furnished by Monsanto, particularly about unsubstantiated claims of drought tolerance, to satisfy itself that the general release of MON87460 ought to have been approved.
Further, the judge also rejected the ACB’s arguments regarding procedural fairness in the process, claiming that it was fair, and refused to refer the matter back to the Executive Council to reconsider this decision, and potentially decide to ask for an EIA and socio-economic assessment. From there, a proper determination of the risk posed by the GM maize in question could have been made to safeguard the constitutional right to an environment that is not detrimental to health and well-being.
These calls from the ACB were based on the precautionary principle, which states that, for activities that may significantly affect the environment, decision-makers must apply a risk-averse and cautious approach that considers the limits of current knowledge about the consequences of decisions and actions.
According to Mariam Mayet, Executive Director of the ACB, “the court failed to grasp the precautionary principle and the judgment shows little deference to the constitutional order in which we live in, with its commitment to ensuring that environmental decisions do not result in activities being authorised that pose a threat to human health and environment. Instead, the court preferred an ultra-conservative interpretation from Australia of principles enacted to protect our environment, when Australia does not even have a Bill of Rights or fundamental rights to the environment. The court was thus obliged to interpret Australian environmental laws differently from those of the South African courts.”
Judge Tolmay did not comment on the ACB’s argument that an EIA was called for, without specifying why. It appears that the court leaned in favour of the argument by the State that MON 87480 did not require an EIA because it is not listed under the National Environmental Management Act (NEMA). This interpretation reportedly misreads the legislation and renders section 5(1)(a) of the GMO Act, dealing with EIAs, redundant – a legal absurdity.
The issue was said to be deliberately confused by Monsanto, who argued that an EIA would only be necessary in a case of significant potential impact, and it was up to the ACB to prove this. The court appeared to have accepted this patently fallacious argument. This conclusion cannot be justified by virtue of the precautionary principle. By the time the Appeal Board was seized with the appeal, there were two mutually exclusive versions for it to consider regarding the risk of release of the MON87480 GM maize seeds.
The Appeal Board had before it the report of Monsanto, which stated that the seeds posed no risk to human health and the environment, and the uncontested expert evidence of the ACB disputing this. In short, there was uncertainty as to the potential consequences of the release of the GM maize in question.
According to Mayet: “The precautionary principle was therefore triggered at the very least at the appeal stage, and the Appeal Board should have taken a risk-averse and cautious approach. The only way provided for in the legislation for it to do so was to either call for an independent impact assessment or overturn the authorisation. It did neither.”
GMOs pose a potentially significant impact on the environment. There was no need to prove this, contrary to what Monsanto contended. Why else would so many laws have been enacted that refer to this risk? The Cartagena Protocol on Biosafety was established to address the risk posed by GMOs and to provide protection from their potential adverse impacts on biodiversity and human health. Domestic biosafety and related environmental legislation have also been enacted all around the world to address the risk, including in South Africa.
It appears that the court accepted the argument of Monsanto that it was up to the ACB to prove that the MON 87480 GM maize poses a significant threat to the environment and human health, an approach that would render the precautionary approach meaningless. However, even though this was drawn to the court’s attention, it appears that it favoured Monsanto’s approach.
The court also did not find any fault that the EC failed to determine whether an independent socio-economic assessment should be undertaken.
This is, however, not the end of this long-running saga. The ACB, supported by Legal Aid, will seek leave to appeal against the decision and, if granted, will take the matter on appeal to a full bench or the Supreme Court of Appeals.
