Moth spray may be illegal, says Palmer

By WAYNE THOMPSON

Lawyer Sir Geoffrey Palmer says research may well demonstrate that the Government's $90 million aerial blitz of West Auckland is "scientific experimentation" - without the consent of the affected residents.

This went against the Bill of Rights Act, Sir Geoffrey said in a preliminary legal opinion to groups opposed to the aerial spraying for the painted apple moth.

Spraying over the homes of 200,000 people in infested areas of Waitakere, Auckland and North Shore cities began in October . .

The programme resumed yesterday.

Sir Geoffrey said the act stated that "every person has the right not to be subjected to medical or scientific experimentation without that person's consent."

Use of the chemical Btk in the spray over a large area and population was described by Sir Geoffrey as "extraordinary".

"The growing number of health problems that people on the ground are experiencing, and which are being documented, certainly gives rise to serious and reasonably based concerns, in my opinion."

The Government's failure to make available the chemical contents of the spray so independent assessments could be carried out on the risks, and 200,000 people could know what it is they are being exposed to, would help in arguments raised in court.

Sir Geoffrey said the authors of the Government's report on health risks found the level of chemicals in the spray was acceptable. But there were serious questions raised about the methodology of the report.

One of those was about the consequences of breathing the chemicals in the spray.

He said there were a number of reasons the Government should look again at the health risks of aerial spraying, or face a successful court challenge.

He also said the Health Act imposed strict duties on local authorities to protect public health.

If they were not satisfied with the safety of aerial spraying, they were empowered to take all steps to secure the abatement of the nuisance.

The Government's use of the powers of the Biosecurity Act to bring in aerial spraying did not override the Health Act.

Biosecurity Minister Jim Sutton was in Washington yesterday but a spokeswoman Cathie Bell said the Government would carefully consider Sir Geoffrey's legal opinion.

She said the Ministry of Agriculture and Forestry had engaged medical and scientific specialists who believed the evidence showed the spray was safe.

The manufacturer wanted its contents kept secret from competitors.

The Government was not ignoring people's concerns, because it was providing a significant amount of money for medical services.

Sue Berman of Stop Aerial Spraying said the legal opinion confirmed the validity of community concerns.

"Even more heartening is the fact that our petition to Waitakere City Council asking it to exercise its statutory obligations to protect its citizens under the Health Act was absolutely correct."

Auckland City and North Shore City councils shared the obligation.

Hana Blackmore, of the Painted Apple Moth Community Coalition, said the opinion confirmed that it was in the public interest to disclose all the spray's contents, so that an independent health assessment of them could be made.

Last month the Waitakere City Council voted to pay $10,000 towards the anti-spray campaign.

The chairwoman of the council's environmental committee, Penny Hulse, said yesterday that the council's lawyers had looked at the same issues as Sir Geoffrey and agreed.

"But having a course of action open to you is not the same as having a case that will be successful."

Ms Hulse said the council was gathering evidence and council officers would decide whether it was enough to exercise the regulatory duty to "require MAF to abate the nuisance".

Meanwhile, the council was working with the ministry to improve health services and to encourage it to find other ways to wipe out the moth.

North Shore Mayor George Wood said the council's environment committee hoped to discuss issues raised by Sir Geoffrey at a public meeting with MAF officials on February 11.

An Auckland City Council spokesman said it respected the independence of MAF and its ability to make the best decisions in the national interest.

Herald feature: Environment