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Seeds of Doubt NZ Listener July 2002

Genetic engineering takes centre stage in the election campaign with an ascendant Green Party, mainstream support for an extended moratorium on GE crop release, and now allegations that the Labour government knowingly allowed GE-contaminated sweetcorn seed to be planted, harvested and consumed. A matter of science and regulation has now become a matter of trust. By GORDON CAMPBELL

Labour may have started this campaign sweetly positioned as the voice of reason on the GE issue, with the Greens cast in the role of Luddite extremists, but that ground has shifted considerably. The economic, scientific and legal concems raised by the Sustainability Council headed by Sir Peter Elworthy has lent credibility to the Greens' call for a delay in lifting the GE moratorium, while Nicky Hager's book Seeds of Distrust has all but demolished Labour's ovrn credibility as the guardian of public safety on the GE issue. From the outset, Labour and the Greens have been fighting over a relatively abstract point whether the system for the commercial release of GE organisms in New Zealand can be safely launched in late October 2003, even though both sides concede that no applications for release are likely to be on the table by that time. In immediacy, this hardly compares to the problems faced daily by many New Zealanders from the evils of ill-health, violence and poverty. Yet, for better or worse, the GE issue straddles key constituencies for the Clark government: the urban middle-class concemed about the safety of what they and their children may be eating; rural communities concerned about the impact on their livelihood from GE decisions made by Wellington politicians and bureaucrats; Maori concerned about the ethical, spiritual and economic aspects of transgenic research, and the intellectual property rights they involve; and business groups that are treating GE release as a litmus test of the goveniment's attitude to business. Rather than mediate the GE concerns, Labour has been on the campaign trail asking for a mandate to make unilateral decisions about them. It smacks of overkill. The GE moratorium that the Greens want to see retained in place for another three years is similar to one in place throughout the European Union since 1999 which is one reason why liffing our moratorium next year may arguably endanger our exports to key markets in the EU, Japan and elsewhere in Asia. If anything, the EU's ban on the release of ftuther GE organisms is more sweeping than the one in place here. "I'm not aware," Greens co-leader Jeanette Fitzsimons says, "that there are any exemptions [within the EU ban] for vaccines, and their labelling requirements are a lot tighter than what New Zealand has signed up to." ff our GE moratorium was extended, this would not bring GE science here to a screeching halt. The conflict between the Greens and Labour is about only one subset (GE requiring release) of a subset (genetic engineering) of a subset (gene science) of a subset (biotechnology) of biological research. In the EU, biological research contained within the laboratory co-exists with a ban on any commercial releases into the environment. In New Zealand, the Greens support the contribution that GE research can make to our society and economy: "We are positively welcoming and encouraging GE research into biotechnology," says Fitzsimons. "If you're talking plant selection, if you're tamng animal breeding, if you're talking about the genetic engineering of, say, apple trees in the lab ... " Extending the moratorium would not stop genetic research in the lab or within controlled field trials. It would not stop experiments in contained settings such as the GE manipulation of a plant to produce a protein peculiar to possums that could later be used in bait to render possums sterile an example that the Greens have approved, so long as the GE plants involved were then destroyed. Nor would it prevent the use of GE research to guide and accelerate the selection and breeding techniques at which New Zealand agri-science excels. What is at contention here as it is in Europe and Asia is the release of GE organisms outside the lab for conunercial purposes, thus letting them out irreversibly into the environment and the food chain at a time when the scientific dynamics of such releases and the potential effects are still poorly understood. As things stand, all the benefits would accrue to the GE companies concemed, while all the risks would be borne by taxpayers and the environment because despite the govemment's claims to be proceeding with caution no legal liability mechanisms are yet in place. In Scotland and elsewhere, insurance companies will not insure against GE contamination, partly because the risks cannot be quantified. The Royal Commission, for its part, concluded that it should not be made mandatory for GE developers to carry insurance against GE contamination. To do so, the commission felt, would inhibit innovation. (Builders and panelbeaters may be forced to carry insurance, but this is felt to be an intolerable burden for biotech companies.) The commission also noted that insurance companies could well choose to exclude individuals and farmers from claiming GE contamination as grounds for compensation. A Law Commission legal opinion on who should pay if anything goes wrong was delivered two months ago to Attorney-General Margaret Wilson, but it will not be released until after the election. The Royal Commission did not reach definitive conclusions in several other important areas, either. "There are some significant gaps in knowledge on which to base risk assessments for field trials," the commission reported, "or release of genetically modified organisms." Even so, the GE moratorium will lift automatically on October 27, 2003, unless the government gives itself time to enact amending legislation. The current conflict is over whether this timeframe is sufficient for work in three major areas to be completed: scientific research on the possible risks, benefits and mechanisms of GE release, the impacts of GE release on exporting and tourism, and where legal liability should lie. Labour is gambling that we will know enough by October 2003 to enable the Environmental Risk Management Authority (Erma) to safely evaluate each application for release, on a case by case basis. The Greens are urging a ftuffier three-year extension. Professor Garth Cooper, the Auckland University biochemist (and biotechnology entrepreneur) on the Sustainability Council, believes that it will take at least five years before the scientific research can be completed with any certainty let alone to reach a consensus with GE firms and the insurance industry about the liability issues involved.

Ask Helen Clark whether the commercial release of GE organisms poses a threat to New Zealand's clean, green brand image and it strikes her as being a contradiction in terms. "If there was any significant risk, there would be no release. Erma has strict statutory instructions along those lines. In her view, it is far better for a strong regulatory system to be weighing the risks and making the decisions, rather than politicians. Benefits must exist to justify release. "But if there are any significant risks, it [commercial release] can't happen. " Erma, in other words, is our quality and safety guarantee. Yet our potential customers in Europe, Japan and elsewhere in Asia don't seem to want GE food. Despite whatever regulatory safeguards we put in place, couldn't we be jeopardising our current clean, green image for what are still onlv the theoretical gains from GE releases? "Well, my first point in response to that would be: having had a lot to do with companies like Fonterra, I don't think that in a month of Sundays they would endeavour to market food that there is a strong consumer resistance to. There's a kind of naivety about the argument that producers might produce food which people won't buy. Our producers do produce food that people want to buy. That's how thev make their money." Any naivety may cut both ways. However carefully we think we a-re proceeding, isn't it possible that our customers overseas may reach decisions about our produce based on blanket, halo perceptions that we have become a GE-friendlv producer nation? "I don't think that holds water for a moment. For a start, vou have organics in Germany. You also have GE com types grown. It is one of the myths here that in countries where there are GE crops, there are no organics. Absolute rubbish. Our producers make food to sell it profitably. Therefore, yoti don't go into a market with a product that you haven't properly tested beforehand." Fonterra, it seems, knows exactly what it is doing. We cati secure many of the benefits from GE research without removing the organisms from the lab. Why isn't that sufficient? "I mean, who knows if it is or isn't sufficient?" Clark replies. "Because we don't have before us any application to do any of the things being suggested." For similar reasons, she begs off any comment on whether she thinks GE crops can be grov,rn near traditional crops without contamination. In Australia and Europe these so-called "buffer zones" embraced by the Royal Commission have been shown not to work. "I'm certainly not qualified to give an opinion on that ... all I am aware is that there are plenty of countries where you liave people producing organics and people producing GE crops. We are not a great cropping country, so that [concemi seems a little fanciftil as well." As things stand, the GE developers reap the benefits, while the taxpayers bear the risks of any GE release. Is she happy with that situation? "The risks being what?" Any (iamage, I explain, that may be attendant on release. Again, this strikes her as a contradiction in terms. Erma will keep us safe. "But if'there is any significant risk, there can be no release. It was identified [by the Royal Commission] that there should be work on a liability regime. That's an ongoing matter." Maybe so, yet even in the best administered regime set up with the best intent, I suggest, things still slip through the cra(lks. "Don't ask me to sav where liability lies," Clark interrupts. "That's a legal debate that has yet to be resolved." Surely, there is a general policy issue here, involving her ovrn inclinations about a point of principle. Does she think that legal liability should be socialised, or should it be bome by the GE developer? "I'm simply not qualified," Clark replies, "to give you ari opinion on that." So has her govemment been talking to the insurance industry? "Not to the best of my knowledge." Before the moratorium lifts, there is a lot of work still to be done on the scientific processes, on the economic impacts and trade-offs and on the liability regime. If that work isn't completed on time to her satisfaction, would she be willing to introduce legislation to extend the moratorium? "The best advice I have," Clark replies, "is that the work commissioned is on track, and I have no reason to think the moratorium would need to be extended." That being so, any questions on this point strike her as being "totally hypothetical". In fact, asking whether the lifting of the moratorium is conditional is not at all a hypothetical question. If lifting the moratorium is set in concrete, I suggest to her, that is a defensible position. If lifting it is conditional on further work being done, that is also a defensible position. So which one is it? "No one has ever said it was conditional," Clark replies. "And you would have to have some pretty serious reasons for not proceeding as has been outlined." Much debate has been focused on possible GE release from laboratories and field trials. On another front entirely, are our border control measures adequate for any possible GE contamination from imported seeds? "What I can tell you is that there is a whole MAF discussion paper [on their website] about that ... The policy is they do tests on consignments of seed and if they detect a presence, they have a zero tolerance policy and seed consignments are destroyed." So there's never been any threat from fhis region? "There's been seed consignments destroyed. Yep. " Clark replies.

An incomplete answer, given just three days before the release of Nicky AHager's book Seeds of Distrust. Forget zero tolerance. Only 18 months ago, according to Hager's evidence, a large shipment of sweetcorn seeds that the authorities and some government ministers were alerted was GE-contaminated, was planted out and left to pollinate in New Zealand. Thousands of GE plants have almost certainly been grown, harvested and eaten unwittingly by New Zealanders who were not warned when they could have been by the govemment. The handling of the incident is explosive in the context of this election campaign. As the previous exchange with Clark shows, Labour has been urging the public to trust it over the GE issue, and to rely on the Erma regulatory system. Yet, on the one occasion that we now know that the system was put to the test over GE contamination, the public was failed quite comprehensively. By citing cabinet papers and other official documents, Hager shows how an initial impulse to be transparent, to inform the public and to destroy the plants was replaced as weeks passed, and the media remained unaware of the incident by an impulse to cover up and define the problem out of existence. An arbitrary threshold of acceptable contamination was devised to render the transgression allowable, and the public was left entirely in the dark. After all, the Royal Comniission on GE was sitting at the time and the last thing the govemment is likely to have wanted was a GE scandal in the middle of its sensitive deliberations. Ultimately, the spin doctors obscured the contamination incident from serious scrutiny by all those in cabinet, the media and the Royal Commission who might have baulked and triggered a public outcry. The bare facts can easily be outlined. On November 1, 2000, tests showed (they were carried out only because an importer was marketing his goods as GE-free) that a 5.6 tonne US shipment of sweetcom seeds contained GE seeds, at an estimated 0.5 percent average level of contamination. The seeds were being supplied bv the biotech multinational Novartis, and the shipment would comprise about seven percent of our entire sweetcom crop that year. A contaminated shipment would contravene New Zealand law which forbids the importation and posression of unapproved new organisms on pain of heavy fines and possible imprisonment. In recognition of the risk that GE organisms pose to our environment, Erma had earlier demanded strict rules for field trials of GE sweetc:om involving careful bagging of each plant to prevent pollen escaping. By contrast, in the wake of the Novartis shipment, 178 hectares of the seeds were allowed to grow freely in Gisbome, Marlborough and Hawke's, Bay. The importers advised the authorities and reportedly offered to destroy the crops and unplanted seeds from the shipment. When a similar case of seed contamination occurred in Austria, the Austrian Govemment ordered those plants destroyed, and paid compensation to the farmers involved. Here, the govemment backed away from that option, and not only were the crops here not destroyed, but approval was subseqiiently given to plant the remaining seeds from the shipment, regardless of any iuiplications for consumers or for an organic farm in close proximity to the GE plantings. "This means approval was given for the knowing release of thousands of GE com plants, without the approvals required under law," Hager writes, "during a fi-ill moratorium on releases, and in the middle of the Royal Commission." Environment and Biosecurity Minister Marian Hobbs was first notified about the contamination on November 13, 2000. In the first rush of crisis management, regulations were passed giving the necessary powers to authorise destruction of the crops (surprisingly, these powers did not already exist) and a Beehive press conference was scheduled for November 30 to alert and re-assure the public about the steps being taken. Gradually after discussions with biotech lobbyists the govemment came around to adopting US industry claims that such contamination was inevitable, and at an acceptable level. As govemment policy changed, the science seemed to mirror the shift. When the policy intent wa.9 still geared to plant destruction and disclosure, Erma chief Bas Walker told Hobbs on November 24 that "there are already several positive tests for contamination that can hardly be ignored". Subsequently, Erma scientist Donald Hannah was asked to re-evaluate the tests not to re-test as to whether, in his view, the GE contamination was less than the arbitrarily devised 0.5 perc,ent threshold. According to Hannah's careful analysis, it was below that threshold, but detectable contamination averaging 0.04 percent was present. However, the December 8 cabinet paper signed by Hobbs stated: "There is no reliable evidence of GM contamination ... If present at all, there is unlikely to be reliably discoverable GM contamination present in the particular shipment." By December 19, Hobbs's press statement could read: "A detailed evaluation concluded that with a high degree of confidence that, if present at all, the GM material was at levels below that which can be reliably detected." The details of how the cabinet, the media, the Royal Commission and the Green Party a fortnight ago, Fitzsimons told me that she "wished she'd been more active" about this seeds shipment were all misled about the implications of the Novartis shipment are in Hager's book. In this country, Erma has the semi-judicial role to judge the safety of new organisms, and to approve their release, if appropriate. Arguably, the evidence of contamination in the Novartis shipment should have gone straight to Erma and been taken out of the politicians' hands, as Clark has advocated to me, above. Erma should have been left to devise the appropriate remedial action. That is not what happened. To their credit, Erma deputy chair Oliver Sutherland and Erma member Dr Lindie Nelson put in writing their objections about how the GE issues conceming the Novartis shipment were being presented, the decisions being reached and the apparent sidelining of Erma. "We have become increasingly concemed at the fact that some major decisions have been made (leading among other things to the planting of contaminated sweetcorn) which have had no active input from the Authority. It has promoted both of us to look more closely at the issues ... All of this increases our sense of unease at the Authority's lack of active input into policies as they have developed." At the time of writing these words January 2001 Sutherland and Nelson pointed out that the crops were still maturing at known locations and could be destroyed before pollen was shed. "The agreed standard is a de facto decision to allow release of grain with a maximum of 0.5 percent GM content. It is a very significant step. Our calculations suggest that for maize and sweetcorn this would translate to releasing up to 13.3 million GM plants per year throughout the New Zealand planting areas." If 0.5 percent was the contamination level in the Novartis shipment, this could mean some 175,000 plants were being knowingly released into the New Zealand environment. (Even at the lower average estimate made by Hannah, a shipment of this size could still result in some 15,000 GE plants being released into the New Zealand environment.) Sutherland and Nelson also raised in their memo the public's right to know. "Should the public, who we know care about 'genetic pollution', be informed about the whole Novartis sweetcom issue?" Reportedly, Sutherland was asked not to air his concems in public in front of the Royal Commission. The episode goes to the heart of assurances Clark has been issuing about the release of GE organisms. Consistently, Erma has been cited by the government as our safety watchdog on how applications for commercial release of GE organisms will be handled, once the moratorium is lifted. The Erma approval process may well be safe. It may be, as claimed, the best GE regulatory system in the world. Yet, when it really counts when the lobbying gets heavy will the system be allowed to ftmction unimpeded by political concems? Over the GE sweetcom seeds, Erma seems to have been largely sidelined as the politicians called the shots, and the misgivings of two senior Erma members were ignored and suppressed. Looking back at his book, what does Hager think are the lasting lessons from this incident? "To me, the serious lessons arent particularly about genetic engineering. It's about the processes of government. The reason such outrageous decisions were made was because the government was opting for secrecy and political management, and it used public relations to manage the issue out of existence. It is a powerful lesson for why even when it is not convenient for government open government is so important." By the same token in the bit that does pertain to GE Hager also believes that we should be testing every batch of imported seeds. Contaminated seeds, he says, are one of the main ways that genetically engineered organisms are spreading around the world. "So if you're serious about it as New Zealand's govemment says it is then you have really strict border controls. We should keep genetically engineered organisms out of the country with at least the same energy as we put into a poisonous spider or snake."

Out on the firing line, though, public servants regularly find themselves trapped between being loyal to their ministers or to the public. It can play havoc with the imperative to give full, frank and neutral advice in the public interest. Is Fitzsimons concemed and she was replying before the Hager book was released that the officials administering GE approvals may come under pressure in future to collude with business? "I have no doubt at all," Fitzsimons replies, "that the government has been under very intense pressure from the biotech industry, both locally and intemationally." US trade supreme Robert Zoellick's list of impediments to free trade with New Zealand has suggested to her the likely pressure points: "Our food-labelling standards, the lack of access for their GE food crops and seeds, the difficulties for US nationals buying land here, and a whole lot of our phyto-sanitary standards around the import of chicken and pork from places in the US that have diseases that we don't and our food health and environmental standards. They [the Americans] are not interested in selling us stuff. We're too small for that. They want to get rid of the conditions that we impose so they can use that [compliance] in a domino effect against other countries." So, in a climate where standards are readily seen as impediments will our officials be coming under pressure to tailor their monitoring procedures? "Well, that's why we don't have decent biosecurity. Why we don't have 'six-sided' container inspection. It's why we don't have the legal liability for biosecurity intrusions put back onto the importer and the overseas supplier, up the chain. It's because these are seen as impediments to trade. So, we just bite the bullet, and we accept what comes." In launching the first reaction to Hager's book, EnviroDment Minister Marian Hobbs fired a few bullets of her own, some of them into her own foot. After telling the Marlborough Express fhat the seeds "weren't in the ground, sorry ... [they] were on the water", she went on to maintain that if proof had existed that the seeds were contaminated, the plants would have been pulled from the ground. Later, she reportedly asked the Express to hold their story "until we get everyone all together all speaking the same language". Later again, her press release on the subject stated the two themes that have become central to the government response: no contamination occ=ed, and there was no cover-up. "There was no evidence of GM contarnination in the com seed," Hobbs says and, in her view, she had informed the public about the issue at her news conference on December 19, 2000 where she revealed that seed importers had alerted Erma and of the "possibility" that some sweetcorn seeds in the Novartis shipment were contaminated. The Royal Commission was also told she later insisted to RNZ "the full story". Her press statement contains this key sentence: "After further analysis of the imported seed the govenunent was advised that, while there might be minute traces of contaminated material, it could not be reliably detected and nor could it be determined that the contamination was genetic modification ..." Therefore there had been no GE contamination, and no cover-up. Clark has also issued very firm denials. "The govemment states on the record that there was no cover-up, nor is there any evidence of the alleged, quote, large scale accidental release." Later, she told RNZ's Morning Report: "I can state categorically that the tests confirmed there was no evidence that there was any GM contamination." The sampling sheets, she said, did not reveal positive tests in the sense of "positive tests across two gene sequences", which she says did not occur in any test. As this magazine went to press, Clark was offering to make all of the relevant papers and officials available for scrutiny. This account is at variance with the documentation that ' shows some of the key players were saying at the time that there was evidence of contamination, and that this should be acted upon. Recall the sequence. A seed importer detected signs of contamination and therefore alerted MAFs biosecu.rity division, which took away ftirther samples for testing at several laboratories tests already under way when Hobbs was first notified on November 13. These tests on samples from various parts of the shipment showed some positive, some negative results findings that could suggest that the contamination was spread unevenly, not that contamination did not exist. At the time, the tests results inspired the advice given by Erma boss Bas Walker to Hobbs on November 24 that the several positive test results of contamination could not be ignored. For good reason. just as a single bee mite or novel bug detected at the border triggers a destruction order, so the legal implications of zero tolerance are that at any sign of GE contamination in the shipment m6a.ns that the destruction of the entire shipment should ensue. On the existing evidence at time of publication, the govemment chose instead to adopt the US industry standards on such matters namely, to accept that a "threshold" of acceptable contamination was inevitable, a stance that would have the effect of rendering any inadvertent violation legal. This threshold set well above the minimum scientifically detectable levels, but later described in cabinet papers as "a very low but nevertheless explicit level of allowable inadvertent contamination" was never compatible with the Hazardous Substances and New Organisms Act, which forbids any level of contamination at all by new and unauthorised organisms. The "further analysis" to which Hobbs refers in her press statement was done at this time. Note the phrase is "further analysis" and not "further testing". One of the interesting aspects of this entire episode is that the govemment when faced with an apparent GE contamination did not order further tests to reassure itself about the scale of the problem, as a cautious govemment might be expected to do. The crux of the matter is whether any testing was ever done apart from the original November tests and the subsequent reanalysis of those tests by Erma scientist Donald Hannah. Despite Hobbs and Clark talkng generally about "further testing", there is no sign in the available documentation and significantly, no reference in the existing paper trail to any further tests. This seems surprising. If, as the paper trail indicates, some of the key players felt there were signs of contamination that needed to be acted upon, shouldn't someone have authorised finther tests beyond the ones done in November? As mentioned above, Erma scientist Donald Hannah was asked instead to 22 review the original round of tests within a narrow brief he was asked to establish whether, in his view, the average level of contamination present fell below the "threshold" average level that the govemment was choosing to embrace and which, incidentally, it has since scrapped. Today, those "minute traces" that were present in the Novartis shipment and which Hobbs says "could not reliably be detected" fall within the detection standards that our border control sheriffs in @ are now once again being expected to enforce. Hannah's honest and careful analysis served the desired purpose. The average level of contamination present, he concluded, fell below the new threshold "and hence judged by that standard, does not contain a new organism". Largely by applying a semantic sleight of hand to Hannah's findings as in, create a high hurdle to define what constitutes a problem and if it falls below it then bingo, you haven't got a problem any more the govemment could plausibly maintain that no GE contamination was ever present in the Novartis shipment. Could the contamination that was detected have originated from something other than genetic modification, as Clark (perhaps misadvisedly) tried to tell RNZ's Checkpoint on the day the story broke? It seems unlikely. The presence of GE contamination is signalled by a promoter, a fairly decisive gene signature. hi this case, even a briefing by Hobbs's own Environment Ministry advised that some of the tests had shown "the presence of a genetic sequence which is strongly indicative of a genetic modification..." Was the contamination level significant? Yes. As mentioned, even at the minimum average levels that Hannah estimated to pertain, some 14,000 GM plants would still result from a shipment of this size growing freely and shedding pollen over (and perhaps beyond) the 178 hectares involved. To judge the significance of this biosecurity breach, one need only revisit the stringent controls involving the bagging of each plant (to prevent pollen release) required by Erma rules, even in tiny 0.2 hectare field trials. Caution was hardly the byword. While the media has generously described this incident as being an "accidental" GE release, more than half of the Novartis shipment seeds were allowed to be planted out after the government had been alerted that the shipment had low levels of GE contamination. Was there, as Hobbs and Clark also insist, no cover-up? It pays to recall the high standard of open government that Labou.r has set for itself on GE issues in this campaign. On the campaign trail, Hobbs's ministerial colleague Pete Hodgson has been insisting that "GM has a place in New Zealand. We should proceed with caution. Our system must be precautionary, transparent and participatory." Transparent? Participatory? In their dealings with both the public and the Royal Conunission, the government seems to have concealed more than it revealed about the Novartis shipment, and its possible implications. Were the public alerted and told the "full story" by Hobbs at or before her December 19 news conference? Hardly. Neither the public nor the organics industry were brought into the loop as the new testing threshold measure was being discussed and set. The public were reassured on December 19 that a scare had proven groundless and new safeguards adopted this, at a time when zero tolerance was being dismissed as impractical and the Novartis seeds were growing in three locations for later consumption by an unsuspecting public. If the public weren't being told the frill story, the Royal Commission fared little better. it was informed in general and re-assuring terms, and cross examination was possible. Was the Royal Commission being given the full story? Hardly. In an extraordinary episode, Erma's Bas Walker had written a cautionary warning note to the government conceming its briefing documents being prepared for the commission. For Walker, it was particularly worrying that the conunission was being told that the new contamination threshold measures "do not represent any change in policy and are entirely consistent with the Hazardous Substances and New Organisms Act and Biosecuiity Act dealing with risks related to the introduction without prior assessment and approval of new organisms". Not true. "This statement," Walker bluntly pointed out, "could be seen as misleading ... There is no way that the [0.5 percent threshold] can be construed as simply a continuation of existing policy. It presents a shift in policy, which (in my opinion) will probably require legislative change to formalise." This seems to have cut no ice. The government sent the briefing papers off, unchanged. Far from telling the Royal ConuTiission the frill story, this example alone would suggest that the govenunent ignored a warning from the chief of its GE regulatory authority, and thus (arguably) misled the Royal Commission. Much more evidence will Lmdoubtedly emerge in the ensuing days. To date, the political fallout from this episode can only have hurt the credibility of the govemment on GE issues. Conversely, the Greens, who emerge from Hager's book as having been rather sleepy watchdogs of the public interest on this occasion, will ironically benefit from any reinforced feeling among voters that Labour needs someone to keep them honest.

The public can be excused for being confused by and tired of the GE-contamination debate - which is probably what the government wanted. BY GORDON CAMPBELL

The goveernment may have been fortunate not to have ended up in court over the seeds issue. In his now-famous November 24 note to Environment Minister Marian Hobbs, the Environment Risk Manage- ment Authority (Erma) chief executive Bas Walker noted that adopting a new 0.5 percent threshold detection standard for testing imported seeds had the virtue of enabling shipments that met the new test- ing standard to be "deemed" GM-free - even if in absolute terms they may not be. "However, the course of action could be legally risky, and could well be success fully appealed in the court," Walker says. Appealed by whom? The organics industry, which might suffer economic damage as a result? "Yes, I suppose that's right," Walker replies. Not for the last time, Erma's cautions tended to be ignored. The issue was hurtling dovrn the track towards a conclusion, even if some of the relevant officials were still con- fi-ised and in conflict about what should be done. "And the trouble was, it was not only moving at great speed, it was also heading towards a cliff... in the sense that decisions had to be made," he says. Ultimately, some comers were cut elsewhere, too. In February 2001, Walker warned the government that its brief- ing papers to the Royal Commission were (misleadingly) portraying the new threshold policy on imported seeds as being business as usual - when in reality it was a policy change that probably needed new legislation to render it legal. So, was Walker disappointed when the government ipored this letter to Acting Environment Minister Pete Hodgson? "Yes, I have to say I was," Walker says, adding that other interpretations of the situation were possible. Hardly a good look, though, at a time when Erina is being portrayed by the gover=ent as our watchdog on GE issues. Last week's Listener went to press while the controversy was raging over Nicky Hager's book Seeds of Distrust - with the goveniment hotly promising that its decisions were backed by re-testing done subsequently to those tests cited in Hager's book, and all the evidence would be released in full. It has since transpired that no extra tests exist, and the piles of papers that have been released serve - if anything - to strengthen the claims in Hager's book. As TV3 pointed out, Walker had inad- vertently undermined the government case himself Hobbs had stated on tele- vision that "from the testing and re-testing we are able to confidently say there was none [GE-contaminated seed) planted ... None there, full stop, end of story." However, Walker went onto Radio New Zealand's Checkpoint the next day and admitted: "Well, I should make it clear that at no stage have we said categorically there was no contamination." By then, though, the goverdment offensive had served its main purpose. It had confused the public sufficiently about the science and managed (without producing any evi- dence) to redefine the matter as a Greens v Labour skirmish - and not a case study of its own failure to meet the normal standards of open, inclusive government.

CONTANMATION: some commentators, notably scientist Dr Russell Poulter, still strongly dispute whether there is final proof of GE contamination of the Novartis shipment. Auckland University associate professor of physics Peter Wills, on the other hand, points out that "four samples tested positive for the nos terminator found in Btil [GE coml and two of only three samples tested for the CrylA con- str,uct from Btll gave ambiguous results". Given the recognised instability of results of 35S promoter tests, Wills says, failure to find this construct - the so-called "two knobs" evidence - cannot lay the suspicion of GE contamination to rest. During the crisis, low-level contamina- tion was certainly believed to exist. The initial tests had returned a positive, while a round of @er samples tested here and overseas gave a mixture of positive and negative results. By the moming of his November 24 memo to Hobbs, Walker says, he had been told verbally that one of the second round of tests was positive, and this had triggered his memo to the minister. Ultimately - and after a round of consultation with the industry (narrowly defined) that excluded the organics industry and the wider public - a decision call was made. "We looked at the whole mass of test results and looked at the quality of those results," Walker says, and the questions we had about the positives in partic- ular. The call that came out of that was that they simply did not ... give reasonable cause to do anything about that crop." Since Hager's book appeared, debate has raged over whether the signatures of GE contamination were present, and at what level of certainty. And, if present, whether this was due to other agents, such as soil bacteria. Poulter was presented on Linda Clark's Nine to Noon National Radio show on July 11 as being the neutral arbiter that the public had been look- ing for on the contamination evidence. Poulter also heavily informed Russell Brovm's Mediawatch and Hard News handling of the issue, in which Brown berated members of the media (RNZ's Sean Plunket and TV3's John Campbell were special targets) who were taking seriously the issues raised by Hager. Brown's efforts to expose media gulli- bility could have started far closer to home. Poulter had served as an indus- tiy advocate during the events. Erma chief scientist Donald Hannah wrote a memo about a December 1, 2000, meet- ing in which Poulter had dismissed the processes used by Crop & Food Research and Genescan as unreliable, and with- out credence - views that Heinz Wattle wished to use to "revisit" the fate of the crops already planted. Although acknow- ledging that Poulter had made some valid comments about the overall conclusions of the tests, Hannah added: "I consider his summary dismissal of the methods and procedures as being cavalier." The contamination issues may never be finally resolved. Poulter's detailed critique of the contamination evidence can be found on the Scoop website. Whatever the exact position then, the acceptance that low-level contamination had occurred became the basis of the emerging new policy on imported seeds. On November 30 - after the Crop & Food tests refer-red to in Hobbs's letter in this issue (see Letters) - Erma's draft notes on seed contamination for the minister say: "Some of these tests have shown a genetic sequence which is strongly indicative of a genetic modification, this has been confirmed by having some of these actual (sic) show a transgene inserted into the com sequence. Therefore, this transgene, the one which is code for the BT-resistant protein, indicates that there have (sic) been, in some of these samples as indicated on the attached sheet, genetically modified sweetcom present in the line." On December 1, Walker wrote to Hobbs: "As you know, there is now strong prima @e evidence that imports of seeds from overseas locations will be unavoidably contaminated with small quantities of genetically modified material. The issue, has come up in relation to one particular line - Novartis jubilee sweetcom lot NC 9114, but it is likely to be more widespread."

A fax that arrived on December 6 from Genescan - whose sampling was larger than Crop & Food's - is as close to defini- tive as we are ever likely to get. Although noting the "divergent" early results, Genescan said their testing experience led them to believe that the saviples received contained "trace amounts" of GM sweetcorn. Their results showed low levels of the 35S promoter found in Btl 1 GE maize, yet - thanks to a mechani- cal breakdown - the tests were still not conclusive. "Consequently," Genescan continued, "one may draw the conclu- sion that samples received at Genescan Australia do contain trace contaminating levels of Btil." Given the', low contamination levels involved, Genescan advised that obtain- ing (Ipfinitive double negatives or double positives from the samples would be unlikely. "Hence, our standard operating procedures dictate repeat testing to the point of a definitive result." This ftalher testing, of course, was not done. The government - when faced with low-level GE contamination at worst and "inconclusive" evidence at best - chose not to re-test. Surprising, given that in his November 24 memo, Walker had floated re-testing as a compromise option. After all, he pointed out, more than half of the Novartis seeds were still in the ware- house. "One course of action," Walker wrote, "may be to destroy the existing crop, but to allow batches of ' the remain- ing seed to be used if [his emphasis] they pass the testing protocol referred to below ..." So, why didn't the government ever re-test the remaining seeds? The re-testing that seemed feasible on November 24 became problematic in the new prevailing climate. "We were talking about stuff that had been sitting around for a while," Walker now says. "No matter what we did, there would be increas- ing doubt about contamination from other sources." In other words, since the industry could always find wiggle room on low-level contamination results, the government chose to throw in the towel.

MEASUREMENT: in the Letters pages of this issue, Hobbs repeats a familiar theme of the govermnent's obftiscation offensive: that Hager and the Listener have "con- fi-ised" the tolerance levels with measure- ment procedures. According to her, the government always observed the "zero tolerance" required under the law, even as it grappled with the measurement and detection policy issues. This bears little scrutiny. It is indeed very hard to get a sample that has a statistical probability of being perfectly representative of the shipment as a whole. However, the threshold was always something more than just a statistical method of measuring zero. Throughout the paper trail, everyone involved believed that the gover=ent was adopting a 0.5 percent threshold detection standard as its de facto tolerance level of contamina- tion. There is also no example of where Hobbs - or anyone else in gover=ent - seriously tried to make the distinction that she is now promoting, either to the public, or to the seed importers. Quite the contrary. Her own "Key Points for the Minister" (reprinted on page 143 of Hager's book) states that "the interim proposal is 0.5 percent tolerance". All along, this was why Walker was con- cemed that the government could be laying itself open to legal challenge by the organics industry. Furthermore, his memo of January 30, 2001, stands as a sufficient rebuke to the line Hobbs is now peddling: "The 0.5 percent level is a tolerance level. Describing it as anything else is, at best, misleading," he wrote. In addition, Walker expressed this extra concem in the same memo: "We could very readily design the system to pick up a lower level of contamination - just increasing Lhe sample size would move things in that direction. Anyone with any knowledge of stats can calculate that for themselves - and they will!"

TESTING: amazingly, the government had no mandatory testing system in operation for detecting GE seeds. The Novartis case arose only because the importer needed reassurance that his shipment was GE-free. So, there was no automatic, government-mandated test regime in place at the border? "That's absolutely right," Walker says, and it was something that Erma had raised with MAF before the Novartis incident had happened. "It was a very simplistic regime. It relied on someone saying, 'Hey, there might be a problem.' And if no one said, 'Hey, there's a prob- lem', then how do you know," Walker muses, "if there might be a problem?" Hmram. Border-control enforcement was just not Erma's "core business". It was MAF's patch, under the Biosecurity Act. "To be fair to MAF," Walker adds, "this was only one among a huge number of other issues they had to deal with in a biosecurity sense." Too busy looking for bugs and spiders? "That's right." Today, MAF is proposing in its draft protocols to test only one in three batches of imported seed, and is planning to do no tests at all on shipments that origi- nate from countries that do not have GE cultivars. These plans hardly look like a regime that has leamt a great deal from the Novartis episode. Although unwilling to share his views on the proposed protocols until he has discussed them with NMF, Walker indicated to me that some "pretty hard-nosed comments" mav be forthcoming. "I'm darned if I want this sort of thing happening again."

FIELD TRIALS: GE field trials occur within a far more controlled setting than seed imports. However, the monitoring of GE trials does entail the taking of soil samples and testing them for GE contami- nation, within the current limits of our detection capacity. So logically, similar problems could arise. Won't Erma be unable to give any absolute guarantee that GE contamination will not occur in the wake of field trials, either? "Yes," Walker confirms, "the same technical difficulties arise as soon as you start talking about taking samples, and talking about the technical feasibility of testing ... and then interpreting that information." Problems that occur when the moratorium is lifted are one thing. Yet even in the wake of controlled GE field trials, any guarantees against subsequent contamination occur- ring may only be relative. To date, Hager's book has emerged all but unscathed from the attempts to denigrate it, with even Barry Carbon, the new head of the Environment NEnistrv, conceding that Hager's factual informa- tion was accurate - even if Carbon dis- agreed with the conclusions. Similarly, the Greens' call for a delay in lifting the moratorium until we learn how to control the mechanisms we are unleashing - and know how to test reliably for the presence of GE contamination and its effects - also remains a credible objective. Open govenunent has been the big loser. Labour's handling of Seeds of Distrust has closely resembled its behaviour over the Novartis shipment itself. Once again, science has been used to serve its political masters, while the public have been flannelled and distracted by the patentiv false allegations that the Greens mav have been behind it all. The misinformation flow has been chronic. On RNZ's Moming Report, for instance, Walker not only promised to produce further tests that proved not to exist; he also misstated the dates for kev events, repeatedly moving the process for-ward by a month into late December, thereby making the dissenting opinion voiced by Erma members Oliver Suther- land and Lindie Nelson in January 2001 seem more plausible. Was that a deliberate attempt by him to mislead? "it certainly wasn't," Walker replies. "My recollection was bad. That's what it boiled dovrn to." By election day, Labour is gambling that the whole episode will have become just a bad memory - for the entire voting public.