(CNS): The decision by the National Conservation Council to grant the Mosquito Research and Control Unit a permit approving the release of millions of genetically modified mosquitoes as part of a pilot project in West Bay was flawed and should be quashed, a lawyer representing local activists argued Tuesday. Stephen Tromans QC told the court that the absence of an independent risk assessment, a lack of transparency around the decision and an inadequate public consultation process, among other issues, left too many unanswered questions about the dangers posed to humans and the environment by the bio-engineered bugs.
Local activists, who have serious concerns about the proposed project aimed at the invasive Aedes aegypti by using insects that have been genetically sterilized, managed to achieve a last-minute stay on the planned release last week as they sought intervention from the courts via a judicial review.
The case, brought by Dwene Ebanks who has been leading the activist group, was heard by Justice Ingrid Mangatal, who is not required to judge the controversial science behind the bio-technology developed by the UK firm, Oxitec, but whether or not the government authorities involved in the decision to allow the release did so in accordance with the law. Following a full day of argument, the judge said she would deliver her decision Monday 25 July and extended the stay until then.
Justice Mangatal will decide whether or not the requirements of the National Conservation Law and the Cayman Islands Constitution were met when the Department of Environment, on behalf of the NCC, issued the MRCU with a permit to import the eggs, then breed and release the mutant mosquitoes.
Tromans argued that the judge should quash the “flawed” decision. He said there were numerous uncertainties and safety issues surrounding the release because there had been no genuine risk assessment and proper consideration was not given to the dangers when the decision was made.
He said the lack of a bio-technology regime or guidelines in Cayman, because the conservation law is still in its infancy, also created problems. But the fundamental argument focused on the failure of the local authorities to conduct an independent site and time specific risk assessment of the hazards posed by what is still a novel and controversial science.
The only risk assessment considered during the process, Tromans said, was a very short report based on the field studies conducted by Oxitec during the 2009 East End trial, which the bio-tech company wrote itself. He argued that there should have been a full risk assessment for this project before a decision to release 22 million mosquitos, some seven years later in a different place, was made.
The only information that the NCC were given to consider that did not come directly from Oxitec was the US report from the FDA and the WHO report. But Tromans said that neither of these reports could be interpreted as giving the release a green light or alleviating all the safety concerns.
As well as having little independent information on which to base the decision to approve the project, he argued that there were problems with the public consultation process, which was insufficient and came a week after the licence had already been issued and only a matter of two weeks before the release had originally been scheduled to start.
Tromans said the approval came some time after the contract between Oxitec and the MRCU had already been signed, which may have influenced the NCC or at best gave the appearance that it might have played a part.
Outlining a number of concerns that the government had not been entirely transparent, the lawyer said that decision may have made with “good intentions” but there were fundamental problems with the legality of the process.
Tromans’ colleague, human rights barrister Deok Joo Rhee, also argued that the Cayman Islands Bill of Rights was relevant to the case, as was the European Convention on Human Rights, which applies in this jurisdiction. She argued that given the failure to conduct a proper risk assessment into a controversial and as yet unproven science, the obligations of the MRCU to suppress mosquitoes could not override due process. She said the constitution requires the authorities to adopt measures to protect the environment and in this case there was “a complete failure to do so”.
Representing the various government stakeholders, Solicitor General Jacqueline Wilson relied heavily on affidavits provided by the MRCU director and the NCC chair.
Wilson argued that the application for judicial review was “flimsy” and that there was no evidence to support their theories that there was any danger to the public. She said there was evidence of public consultation and that the NCC had made the decision in a transparent way. Wilson argued that the NCC chair had followed due process and conducted the necessary research and analysis to justify the decision that was made.
However, although the decision was made by the NCC, at a public meeting on 18 May there was very little discussion at that meeting about how the NCC had arrived at their decision to approve the application from the MRCU. It was made clear the process had included various non-public meetings with the MRCU, Oxitec and the members of the committee but the details were not revealed.