The biotechnology industry is racing ahead with the support of both the government and taxpayers' dollars. Biotechnology now gives humans the ability to manipulate genetic information in plants, animals and humans. Yet several fundamental issues have not been addressed, such as whether or not we want or need genetically altered food, how we should decide which plants, animals and humans require altering, and who should own the genetic information.

There is no mechanism in place for provinces or the community at large to participate in drug approval decisions within the Ministry of Health. This has caused nationwide concern about recombinant bovine somatotropin (rBST) - also known as recombinant bovine growth hormone - a genetically engineered hormone used to increase milk production by up to 25% which is currently being considered for approval by the Ministry of Health.

However, many concerns about this drug have been raised. Monsanto is one of the companies applying to the Ministry of Health for a notice of compliance to sell rBST in Canada. It is one of world's largest producers of agricultural pesticides. Monsanto's rBST label warns that cows may experience increases in mastitis, an inflammation of the cow's mammary glands, immune system deficiencies, and possible decreased fertility. To combat these problems, the cows require more antibiotics. This could lead to further problems as new strains of bacteria develop resistance to the antibiotics used and larger and stronger doses of antibiotics are needed.

Despite US approval of rBST, human health risks from antibiotics are only one of the many unresolved health concerns surrounding rBST. rBST releases insulin-like growth factor #1, or IGF #1. The factor is biologically active in humans and has been implicated in cancers of the colon, smooth muscles, and breast. Studies have shown increased levels of IGF #1 in rBST milk. Local groups like the BC Nutrition Council insist that the long term safety of the milk and meat from rBST-treated cows has not been proven. The EU and other countries have placed moratoriums on the use of rBST.

The submission process is only concerned with scientific data that addresses human or animal health risks. The Ministry of Health director who will decide whether or not to approve rBST in Canada confirmed that neither public or industry pressure, or pressure from other ministries, will affect the decision unless there is scientific data which shows a human or animal health risk. The director, the Ministry of Health and the Ministry of Agriculture and Agri-Food insist that the safety and efficacy of a drug cannot be jeopardized by political and social issues.

Furthermore, these ministries see no need to separate rBST milk from rBST-free milk: once a drug is approved, then the drug is considered safe for Canadians and it is for the marketplace to deal with its socio-economic and environmental effects. In other words, the approval process is based on the submissions of a multi-national company, but there is no mechanism for public or intergovernmental input into the decision to approve or reject rBST in Canada.

The government's position seems alarmingly similar to that of the US FDA. A FDA commissioner opposed giving consumers a choice to buy rBST-free milk by labeling the products. He said, "[t]he public can be confident that milk and meat from BST treated cows is safe to consume."

Despite the FDA's opposition, rBST-free milk may be sold in the US. But the labels must contain the statement that "the Federal Food and Drug Administration has determined that there is no significant difference in milk from rBST treated and untreated cows". There were two reasons for the FDA position, both of which could easily in apply in Canada:

1. Labeling would require indicating who is - or is not - using rBST. This would require a paper trail beginning with the farmer, and ending with the grocer. This would be an expensive and complicated process. As well, in Canada there would likely be a dispute as to which level of government controls the process.
2. Currently there is no analytical technique available in North America to distinguish rBST milk from milk that has naturally occurring BST. Therefore, producers can argue that labeling rBST-free products is a false claim. Monsanto successfully used this argument in 1994 when it sued two processors in the US that labeled milk as free of the hormone.

If the drug is approved, the only choice remaining to Canadians could be whether or not to consume milk, or to pay a premium for rBST-free products. This is not satisfactory, for while the product would be safe according to the Ministry of Health, it does not address the fact that some Canadians may not want the product for environmental or socio-economic reasons. Farmers and processors nation-wide agree that the Canadian market does not need more milk. This, coupled with increased costs of the drug and the antibiotics, may put small local farmers out of business, and is not sustainable agriculture.

What, then, are the public benefits of the product? The only benefits seem to be for Monsanto and the food and pharmaceutical industries. When the drug was regulated in 1994, Monsanto stood to make $300-500 million annually in the US, and $1 billion each year worldwide. This is only one genetically engineered product. Last year there were over 60 of these products scheduled for FDA approval. Past experience indicates that many of these products will be coming our way!

While the Ministry of Health's safety approval process provides no official mechanism for inter-governmental or public interest input, pressure from local groups such as the Citizens Association to Save the Environment has caused the government to consider socio-economic and environmental issues surrounding rBST. The Citizens Association to Save the Environment gathered support of educational institutions, and dairy and health associations. These actions played a role in achieving the year-long moratorium on the drug - which expired July 1, 1995.

Furthermore, as part of the moratorium, a task force was established to answer the government's questions concerning issues that are not addressed by the Minister of Health's mandate in the approval process. The task force report is not consultative. Instead, it contains facts about the issues surrounding rBST. The report flagged broader issues such as consumer demand for labeling, the lack of information available to the consumer, and trade implications. The report was submitted to the Minister of Agriculture and Agri-Foods Canada in May 1995, and has been passed on to the federal Cabinet.

Parliamentary action may be required, since a further moratorium world require Monsanto's cooperation. According to media sources, Monsanto has spent over $300 million since 1984 developing rBST. This does not include the millions spent for approval in Canada. They are reportedly eager to have the process concluded, and therefore, their voluntary cooperation is unlikely.

Continual pressure is needed on the government and associations that address consumer demand, such as the Dairy Farmers of Canada (DFC), the National Dairy Council of Canada, milk marketing boards, and processors. Consumer needs and concerns must be presented. Such pressure could lead to support for a further moratorium, which the DFC supports, and eventually persuade Cabinet to intervene should rBST be approved in Canada.

The Ministry of Health and the Ministry of Agriculture and Agri-Food Canada maintain that critical interests, including those from industry, government or public interest groups, cannot undermine the regulatory process. But, as the multi-billion dollar biotechnology industry rapidly expands, drugs such as rBST have planetary ramifications. Can we really afford to leave these critical interests out of the regulatory process?

- Lisa McBain

Core Update - Phase II

Stephen Owen, the Commissioner for the Commission on Resources and Environment (CORE), is set to become Deputy Attorney General of the province on August 1st, 1995. Owen has indicated that he is pleased with the results of the first phase of CORE which resulted in the development of a provincial land use (sustainability) strategy and the development of four major land use plans for Vancouver Island, the Cariboo/Chilcotin and the West and East Kootenays. The second phase of the Commission's work has been approved by Cabinet, and over the next year the Commission will publish three more volumes of strategy:

• a sustainability reporting system to be followed in 1996 by the first sustainability report to Legislature;
• the promotion of Private Land Conservation to address urban sustainability issues; and
• a Public Participation Guide to assist direct democracy in public interest negotiations and strategic land use decision- making for sustainability.

The second phase of the Commission's work will also include facilitating First Nations' involvement in resource and environmental planning.

Stream Stewardship

The promotion of stream stewardship has recently been enhanced with two new Department of Fisheries and Oceans projects under the Fraser River Action Plan - The Lost Streams of the Lower Fraser River Map and Developing Fish Habitat Signage brochure.

The Lost Streams of the Lower Fraser River Map illustrates some of the streams which have been lost through urban, agriculture and industrial land development. The map shows history and old photos of waterways including those which have been culverted and others which have been restored, and also explains how interested parties can become involved in the stewardship of local streams.

The Developing Fish Habitat Signage brochure explains how community groups and individuals can increase the awareness of stream and wetland habitats through the use of signs.

For more information regarding stream and wetland protection, contact Linda Nowlan at WCELA.

Contaminated Sites

New fees, effective July 1st, 1995, will be payable by those requesting services from the Ministry of Environment in relation to contaminated sites. The fees will be used to offset costs of reviewing site investigation and remediation reports, and providing approval certificates and information. The fees are being implemented prior to the substantial amendments to the contaminated sites section of the Waste Management Act. The date for the coming into force of the contaminated sites amendments (Bill 26) has not yet been announced.

The Ministry has not issued certificates of compliance in the past, but has commented on site investigation and remediation reports. It is expected that in order to allow the Ministry to now issue certificates of compliance, criteria for defining a contaminated site will be established pursuant to section 20.1 of the Act. The information on the criteria is expected to be released in the near future.

The fees which will be implemented will vary for different types of services. The fees will range depending on the size and complexity of the issues associated with the site and will be payable at the time the request is made.

The Regional BC Environment Managers can waive fees where the request is in relation to a small, simple site and where the manager considers that the fee would be an unmanageable financial burden. It is hoped that where a nonprofit group requests information, it will be provided free of charge. Groups requesting information which would otherwise require the payment of fees under this system are encouraged to contact Patricia Houlihan at WCELA for assistance if a request for a fee waiver is declined.

Air Quality and Automobile Emissions

A report released June 15, 1995, by the provincial government concludes that pollution from vehicle exhaust and wood smoke contributes significantly to health problems in BC The damage to health is related to the fine particulates in the air.

On releasing the report, the government reiterated a commitment to enact the toughest automobile emissions standards in Canada. West Coast lawyers continue to work on this issue, encouraging the government to take immediate action to address air quality problems.

A recent BC Court of Appeal decision confirms that local governments do have the power to meet environmental objectives through land use decisions. When MacMillan Bloedel (MB) challenged by-laws of the Galiano Islands Trust which would have inhibited MB's ability to sell off forest lands for residential development, a BC Supreme Court judge found that the by-laws were illegal. This month, the BC Court of Appeal overturned this lower court decision. Madame Justice Southin concluded that the by-laws "were enacted for the health and welfare of the inhabitants of Galiano Island... [and] therefore had a lawful purpose."

In 1951 MacMillan Bloedel purchased over one half of Galiano Island. For taxation purposes this private land was classified as "managed forest land" under the Assessment Act, so that in 1990 the assessed value of the lands was only about ten to fifteen per cent of their market value.

In the late 1980's there was growing resistance to MB's clear-cut logging on the island. In the words of Justice Southin, "Galiano Island became a microcosm of the clash of interests occurring on the wider stage of the Province itself." When MacMillan Bloedel presented its 1991 logging plan to the community, it received an extremely negative reaction. A letter from the community with an extensive list of demands for more environmentally sensitive logging practices played a role in MB's decision to sell its lands, not as managed forest lands, but for residential development.

The Galiano Conservancy, a community organization with about 400 members, had hoped to buy the land, but was unable to pay the market value. In 1991, the Islands Trust passed a series of by-laws which amended the Official Community Plan for the island. Residential dwellings were removed as a permitted use of land in the "Forest Zone" of the island. The minimum parcel size for a single one-family dwelling was increased from 20 acres to 20 hectares. MB claimed that the by-laws "unfairly discriminated against it as a landowner," were unreasonable, and that the purpose of the by-laws was improper and illegal.

The Court of Appeal did not accept these arguments. It held that MB had "failed to establish...that the amendments to the Official Community Plan did not have the broad support of the consensus of the citizens." Furthermore, the trial judge had erred "because he did not found his analysis on the broad express powers conferred in the Municipal Act and the broad legislative intent expressed in s. 3 of the Islands Trust Act." Section 3 reads "the object of the trust is to preserve and protect the trust area and its unique amenities and the environment for the benefit of the residents of the trust area and of the Province generally."

In the words of Justice Southin, MB's claim that the Islands Trust "has no power to pass a by-law which rezones half the land in its geographical authority if that half belongs to a single land owner. In my opinion, when one combines s. 3 of the Islands Trust Act and s.963(1) of the Municipal Act, that assertion is unfounded." Congratulations to the Islands Trust and the Galiano Conservancy Association for pursuing the case!

- Jessica Clogg

WCELRF Newsletter (ISSN #0715-4275), copyright 1995, is published by the West Coast Environmental Law Research Foundation and represents the work of the West Coast Environmental Law Groups. West Coast Environmental Law Research Foundation (WCELRF) does research and education and maintains an environmental law library. West Coast Environmental Law Association (WCELA) provides legal representation and promotes law reform. The West Coast Environmental Dispute Resolution Fund Society (WCEDRFS) provides assistance and funding to citizens to help solve environmental problems in their communities. The mission of the West Coast Environmental Law groups is to provide legal services to protect the environment and to foster public participation in environmental decision-making. We are grateful to the Law Foundation of British Columbia for core funding of the West Coast Environmental Law groups. Donations to West Coast Environmental Law Research Foundation and West Coast Environmental Dispute Resolution Fund Society are tax creditable. This issue was produced by Bill Andrews, Morgan Ashbridge, Jessica Clogg, Chris Heald, Ann Hillyer, Patricia Houlihan, Catherine Ludgate, Lisa McBain, Alexandra Melnyk, and Linda Nowlan.