New genetic improvement technologies and the law's challenge to keep up
The High Court decision last month to quash the Environmental Protection Authority’s (EPA) ruling that two new genetic improvement techniques do not create transgenic organisms does not affect Scion’s current research programme to assess genetic modification technologies in the forest industry. However the ruling means that without change to the current Hazardous Substances and New Organisms (HSNO) Act, it will be much more difficult and expensive to use these technologies for research purposes and even more challenging to obtain commercial release. New Zealand industry and research leaders are no doubt actively reflecting on the strategic implications of this reduced access to productivity enhancing and biosecurity protection technology.
Scion asked the EPA to rule on new tools for genetic improvement – collectively called New Breeding Technologies – because international trends indicate they will be widely used in place of current genetic engineering approaches. This is because they do not require the introduction of foreign DNA and are more precise. As Barry Scott, Professor of Molecular Genetics at Massey University, noted, “The High Court decision will force the EPA to channel all applications involving new genetic technologies through the standard GMO application process even if the organisms being developed do not contain foreign DNA. The only route for exclusion of these technologies would be to change the regulations.”
Dr Tony O’Connor, AgResearch Forage Improvement Science Group Leader observed, "The High Court has determined that newly developed methods for producing targeted mutations result in GMOs. These methods alter the existing genetic code of an organism without inserting DNA into the genome of a cell. The approach is more precise and scientifically predictable than the mutations induced by chemicals or radiation, commonly used in traditional plant breeding for over 60 years….. the High Court decision highlights that New Zealand's regulatory system on genetic modification is broken. Changes need to be made urgently; otherwise further innovation in New Zealand's genetic research will be severely stifled."
The decision seems likely to set New Zealand primary industry back. The HSNO Act was enacted in 1996 and changes in science since then have been enormous. Great strides have been made around the world in increasing the rate and precision of genetic improvement.
This situation contrasts with that in Australia where GM cotton and canola are increasingly popular amongst farmers. On 28 May, the West Australian Supreme Court ruled in a landmark decision that a farmer growing a lawful crop of GM canola had not contaminated a neighbouring organic certified farm. Indeed the Judge found that the decision of the Australian organic certifying bodies to decertify the organic farm had no legitimate contractual basis and had precipitated the farmer’s loss of crop earnings. Meanwhile, a week earlier Federal Minister of Agriculture Barnaby Joyce publically criticised the South Australian Minister of Agriculture for participating in an anti-Monsanto protest march noting the GM debate had to move from the ‘religious’ to science evidence. He has endorsed the importance of GM technology to the future of Australian agriculture in several other fora.
This debate is very important because genetic improvement is critical to meeting the challenges of feeding 9 billion people with fewer land and water resources than today, adapting to climate change, and protecting plants from diseases and pests without the need for harmful chemicals. New Zealand examples of the latter include breeding kauri that are tolerant to dieback and reducing the wilding pine problem through sterile trees. These big challenges seem rarely to be considered by opponents of genetic improvement technologies despite most of them benefiting from GE food ingredients, textiles and medicines.
Rapid technological change is not limited to genetic technologies. Nanotechnology, assisted reproduction, cyber technology, predictive disease tests and stem cells for generating transplant organs come to mind. Each poses ethical dilemmas, requires public engagement and an understanding of their benefits and risks.
Legislation’s inability to keep pace with technology is not new as was witnessed with, for example, the first steam locomotives and cars. Given technological innovation is accelerating, the ‘legislation’ gap can be expected to widen further unless we change the way laws are written. The solution according to some legal scholars is to craft legislation that is technology neutral and able to accommodate new science innovation fairly and effectively as it develops.
Forestry is fortunate it has leaders who publicly support the importance of undertaking field trials in containment in order to assess the benefits and risks of GM technology under tightly controlled conditions. They appreciate local trials (and associated visual evidence) will provide them the evidence for making a responsible decision on whether to apply to grow trees with, for example herbicide resistance or improved processing yields and product quality, in plantation forests.
The High Court ruling is not simply a declined right to use two improved non-transgenic breeding technologies – it gets to the heart of where New Zealand stands on technology that could profoundly improve the competitiveness and environmental performance of our primary industries.
Your thoughts on this matter or any other topic in this edition of Scion Connections will, as always, be most welcome.
Dr Warren Parker