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SELECT COMMITTEE ON LAND AND ENVIRONMENTAL AFFAIRS
19 June 2006
GENETICALLY MODIFIED ORGANISMS BILL: BRIEFING
Acting Chairperson: Rev P Moatshe (ANC)
Documents handed out:
Department of Agriculture R. No. 1420 Genetically Modified Organisms Act 15 of 1997
Genetically Modified Organisms Act 15 of 1997 [SAPL4] [Assented to 20 May 1997] [Date of Commencement: 1 December 1999]
Portfolio Committee Amendments to Genetically Modified Organisms Amendment Bill [B34A- 2005]
Genetically Modified Organisms Amendment Bill [B34B-2005]
The Department of Agriculture met with the Committee for an informal briefing on the Genetically Modified Organisms Amendment Bill. The meeting encompassed issues on the Bill that were discussed from a previous meeting between the two parties on 19 January 2006.
Members agreed that the Bill would not be passed at this stage. The issues raised by the Committee regarding the Bill were: (1) The definition of the word “user” in the Bill was too wide, there are many players in the chain which made it difficult to identify who the user was in terms of the definition; (2) Users were the only people liable for damages and it was not clear whether other parties such as polluters would be liable for damages; (3) The recovery of costs under Section 17 only encompassed direct costs and did not take into consideration indirect costs; and (4) the Council was not obliged to include public input in its assessment process but rather it could include the public in its decision-making process on specific matters.
Committee members were also concerned with issues facing the small farmer who was not protected by the Bill and the fact that GMO seeds would be the only seeds on the market. They raised the following questions: (1) What would happen to natural seeds that could be used by in the future? (2) Why should GMO seeds be the only seeds on the market? (3) Were GMO’s harmful? (4) Who stood to benefit from the Bill? (5) How did the Department intend to address the plight of the small farmer?
Mr Jafta attempted to respond to the Committee but the Committee felt that his answers to the questions were unconvincing. The Chair suggested that the Departmental delegation do further research on the issues raised at the meeting so that the Department was in a better position when they met again.
Briefing by Department of Agriculture
Dr J Jafta (Senior Manger: Genetic Resources Management) explained that the presentation was an informal briefing which dealt with the Genetically Modified Organisms Act 15 of 1997. He spoke about the provisions in the Act and highlighted that:
- The definition of “user” in Section 1 of the Act requires further discussion because liability provisions dealt with users.
- Council makes final decisions on whether a GMO will be made. The powers and duties of Council had been separated into two categories: discretionary powers and obligatory powers. One of the discretionary powers that Council may consider public input where there will be a direct impact on the public.
- In the previous meeting a concern was raised regarding the situation where Council does not reach consensus in terms of Section 7 of the Act, which states that a lack of consensus could result in Council making no final decision on matters before it. To address this it was proposed in the Bill that when Council makes a decision and does not reach consensus the result was that the provision was denied.
The Chair welcomed the Department of Agriculture to the meeting. He commented that the Bill had been forwarded to the Committee, who were currently familiarising themselves with the Bill.
Mr L Van Rooyen (ANC) stated that the Bill was not conducive to the growth of small farmers. He drew the Departments attention to Section 17 of the Act which holds the user liable for all costs if something goes wrong, and remarked that the presenter had stated that the user was anyone in the value chain, which included the farmer. Mr Van Rooyen added that he failed to see how a small farmer who was forced to use GMO seeds (because such a farmer would not be able to use his own) would be held liable for the scientific consequences of GMO seeds. He was also thrown by the idea that the actual risk-taker, the big companies that manufactured GMO seeds, could shift responsibility to small farmers. He remarked that the Bill only protected big companies and asked how the Department addressed the plight of small farmers.
He added that he had a problem with Section 17 which stipulated that they may recover costs, and that there were two types of costs namely direct and indirect costs. The section did not take indirect costs into consideration where for example an impact was only felt 4 or 5 years down the line. He asked how one would recover costs in such a situation.
The Chair said that the legislation before them was a difficult one to deal with. He asked the presenter a series of questions. Firstly, what would happen to natural seeds that could be used by anyone in the future. Secondly, he inquired on how emerging farmers would be helped. Thirdly, he asked whether the Bill was being proposed for the sake of international protocol that would in the end control everything through out the world. Finally, he referred to the Registrar who issued permits and entries for the ‘nitty-gritty’ activities, and asked about the Registrars role and whether the Bill will benefit emerging farmers.
Dr Jafta responded that the Department did have concern for the small scale farmer, and that it was not expected that all small scale farmers would be obliged to use GM technology. He explained that the Bill did not restrict the access farmers had to conventional seeds, and that farmers with access to conventional seeds could use them but must use them according to plant right protection (which allows farmers to replant safe seeds). Mr Jafta reported that only 10% of farmers use maize hybrid and 90% did not, the other 90% usually opted for other types of hybrids, such as the farm saved hybrid. The department had a programme for collecting and saving traditional seeds.
Dr Jafta added that the Bill aimed to give effect to all activities, which extended to things other than GMO seeds.
Ms K Nagiah (Department of Agriculture) responded to the issue of liability under Section 17 which had been raised by Mr Van Rooyen. She explained that to be held liable, an individual had to take steps to commit a harmful act. The alleged act of the accused would be tested in a court of law. Thus any accused would have the right to challenge allegations made against them and this would constitute another leg to determine liability.
Dr Jafta responded to the Chair’s inquiry on the Registrar. He stated that there would be specific guidelines stipulating how the Registrar would carry out his/her functions and Council would compose a list of criteria on activities so that if the Registrar made an error, an appeal could be made on that error with reference to the list.
Mr Van Rooyen remarked that he was not satisfied with the answers given by the Department‘s delegation. The 10% figure that Mr Jafta had given to the Committee was a worrying one because eventually conventional seeds would be pulled off the market. He explained that the result of this was that (1) they would be playing into the hands of big farmers and (2) the impact on land redistribution would be that the emerging farmer would be held at ransom because he/she could only buy seeds at one time.
Mr R Tau (ANC) stated that the legislation had huge implications. He remarked that the Department did not clearly state who stood to benefit from the Bill. He asked how the poor benefited from the Bill, and stated that the presenters put him in a position where he could not stand up in front of his constituency and say that he represented them to the best of his ability because they had not addressed these issues.
Dr Jafta responded to the 10% figure that Mr Van Rooyen had commented on. Mr Jafta explained that it was incorrect t say that 10% of small farmers use hybrid GMO seeds, because GMO seeds and conventional seeds can both be hybrids.
Dr Jafta said that there are reports on the advantages of GMO seeds over conventional seeds and that an example of such an advantage would be the increase of yield grain up to 40% and lower costs for all other inputs.
The Chair communicated that the members were sensitive to the presentation, and that they might regret making a decision to use GMOs in the future. He explained that members experienced a problem with Mr Jafta‘s answers because he was not convincing. He asked the delegation the following questions: (1) If both GMO seeds and conventional seeds were hybrids and GMO seeds did not automatically supersede conventional seeds, why should GMO seeds be the only seeds on the commercial market? (2) Were GMOs harmful? Conventional seeds did not seem to be harmful, and GMO seeds did because it was only when one spoke about GMO seeds that Environmental Impact Assessments (EIAs) and soil that needs to be protected became an issue; it seemed as though GMOs were alien seeds to the soil. (3) Who determined the EIA in the process where the soil is contaminated with GMOs? (4) The Chair enquired about the relevance of Mr Jafta‘s comment that the fact that South Africa had a GMO Act put South Africa in a better position than countries that did not have a GMO Act.
Mr Van Rooyen questioned whether the Department had the capacity to manage damage control when an accident occurred. He stated that the definition of ‘user’ in the Bill was too wide, and added that there were many players in the chain which made it difficult to say who the user was. It was not clear in the Bill whether a polluter would have to pay as the Bill only refered to users.
Dr Jafta responded to the Chair by saying that South Africa was better placed with the GMO Act than countries that had not ratified the Act because it served as a piece of legislation which South Africa could use to ‘implement’ GMOs. He explained that both GMO seeds and conventional seeds had an impact on the environment, but different kinds of input were required with the two seed types. Conventional seeds for example might include fertilisers and insecticides, which could also be utilised with GMOs but with GMOs there was a reduced application for them.
Dr Jafta differentiated between scientists and Council. He explained that scientists formed up a committee that made scientific assessments and looked purely at GMOs. Council was the senior governing official that had knowledge of GMOs and made decisions regarding GMOs.
Mr Tau asked Mr Jafta if the committee reports to Council on its issues.
Dr Jafta explained that the committee made an assessment and recommendations to Council which then took into account socio-economic and public input in its decisions.
Dr Jafta remarked that if a person was liable under a particular provision, the Department was of the view that they must pay.
Ms Nagiah added that a user caused damage before being held liable. And that a user was given an opportunity to take steps before a Court held them liable for their actions. Linked to this there are other steps where the alleged user could join other parties to court proceedings if they believed the other person was liable for damage.
The Chair asked the delegation to give an example of damage.
Dr Jafta responded that an example of damage would be where a person used yogurt which contained micro-organisms and GMOs and sold the yogurt as part of a business. Such a person would be using the yogurt in an incorrect way which might lead to damage.
Mr Tau communicated that he would like to revisit issues concerning the composition of the Council and its objectives as they were contained in the Act. He wondered why members of the public did not sit on the Council and articulated that he did not see why they should not sit on the Council. He asked for the Committee to have more time with the Act and the Bill so that members could apply their minds to the matters before them.
Dr Jafta replied that he had explained that Council may in terms of Section 3(2)(c) consider including the public in its decisions. He added that the numbers of public interest groups were countless; he asked the Committee to consider the impact of administering this and then asked how the Committee would determine who could adequately represent all of the public interests.
Mr Tau remarked that one representative did not necessarily represent all of civil society, and that there were means of attaining representation for example public consultation and active public participation. He added that he had a problem with the fact that Council was not obliged to consider the public in its decision making process but may consider the public positions on a particular matter. He added that he did not want to get into a debate at the meeting because members needed time to look at the matters and said that he would like for them to come back and discuss the matter once members were given a chance to have more time with the pieces of legislation.
Dr Jafta asked the Committee for guidance on how the Department could consult the local community on the Bill.
The Chair pronounced that the committee should go back and regroup. He reiterated that Dr Jafta‘s answers to the questions posed at the meeting were not convincing and suggested that the delegation do further research on the issues raised at the meeting so that the Department would be in a better position when they meet again.
Dr Jafta communicated that he believed the issues that the Department should address within the Bill were (1) liability (2) recovery of cost and (3) representation of civil society. He asked for the Committee‘s guidance on how the Department could attain a wide scope of public representation. Finally, he said that the impact of GMOs was another issue that the Department should address.
The Chair responded to Dr Jafta‘s inquiry on the public by informing him that the matter before them was a Section 75 issue and not a Section 76 (as relating to the Constitution) public hearing issue which was done via the provinces. He expressed that they could not go to the people if the committee had to pass the legislation, which was a difficult one to deal with, as members had their reservations on it.
The meeting was adjourned.
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