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The clash between science and silence

A case of a rare beetle, a university and a contract clause is emblematic of a wider issue where commercial contracts can clash with public interest and academic freedom of speech.

Lincoln University was silenced for over two months due to a clause in a research contract with South Island iwi Ngāi Tahu which forced it to seek written permission before speaking publicly.

Repeated attempts by journalists to discover the fate of an endangered beetle could not be answered by scientists working in the only location they have been found.

The issue relates to the Eyrewell forest in Canterbury, returned to Ngāi Tahu as part of a treaty settlement in 2000. Since its return it’s been stripped of the plantation pine a rare beetle lived in and converted to intensive dairying by Ngāi Tahu Farming. When the conversion is complete the former pine forest will be home to around 14,000 cows.

Only 10 specimens of the Eyrewell beetle have ever been found, all in that forest, but none since 2005. It is on the list of the Department of Conservation's top 150 threatened species, and is classed as a conservation priority.

DoC cannot intervene in what happens on private land and the beetle is not protected under the Wildlife Act.

In 2013, a partnership between Ngāi Tahu* and Lincoln University was announced. Its goal was a programme of environmental, biodiversity and resource monitoring. It’s a commercial contract which contains a clause which silences the university unless Ngāi Tahu gives it written permission to speak.

Since the partnership was launched, articles have appeared on Ngāi Tahu’s website with titles like Ngāi Tahu Farming – enhancing biodiversity quoting Lincoln University staff: "If we can convince other farmers through the Ngāi Tahu Farming example, we are one step closer to restoring the native biodiversity to the Canterbury Plains.”.

Ngāi Tahu Farming chief executive Andrew Priest said the contract clause regarding confidentiality was standard.

"The clause seeks to protect intellectual property and private information. In the current situation the clause simply means Lincoln University and Ngāi Tahu Farming discuss information requests to ensure what is provided is factually correct.”

Over two months Newsroom made six attempts to contact staff and students at Lincoln University to ask if beetles had been found, and whether any pine trees remain in locations where beetles had previously been trapped.

Eyrewell Forest. The red dots show approximate locations where Eyrewell beetles were most recently found. Yellow dots are probable locations of previously found beetles. Image: Google Maps

None of the messages received a response.

Behind the scenes though there was a flurry of more than 30 emails between Lincoln staff and Ngāi Tahu. These emails were released to Newsroom under the Official Information Act.

Initially Ngāi Tahu, who had also been contacted by Newsroom about the beetle, suggested internally there was no need to respond to questions:

“I don't think we need to offer a spokesperson or even respond if we don't want to, but all the same it would be useful to have some messaging on this if it is available.”

Lincoln staff were not so blasé. An exchange between two staff members following an email from Newsroom follows:

"This makes me a little nervous - do you think I should contact them?"

And the response:

"I think this would need to be discussed with Ngai Tahu & Lincoln University media teams as national media do a great job spinning a story."

Between November and February, Lincoln staff were asked by Ngāi Tahu to assist with a statement about the beetle three times. Each time they did as asked.

Emails show an increasing level of unease from Lincoln people about Newsroom's attempts to find out whether there was any hope for the beetle.

One said: “They’re on my trail again! What’s your feeling on whether I should contact them?”

Another staff member replies:

“Perhaps we should invite her to Lincoln formally and lay it on a bit thick to show we are on top of this and mean business?”

As more journalists contact the university to try and learn of the beetles' fate, the frustration expressed to Ngāi Tahu grows.

“This is the 4th journalist who has contacted me over the last month! What would you like me to do this time? I feel I should respond to them rather than ignoring them all the time!”

When Lincoln staff ask Ngāi Tahu if any of the statements they have helped with have been sent to media, Ngāi Tahu’s response is that the statements are for internal purposes, "just to have something up our sleeves”.

By the time Newsroom publishes its second story on the beetle’s fate the university makes its frustration clear to Ngai Tahu.

“Clearly this doesn’t put Lincoln University and our work in good light, and we really would like to provide a more circumspect viewpoint. We would also like the opportunity to correct some of the factual inaccuracies that are arising in the popular press.

“At your request we have not responded to press requests but have referred them to you, but I think the time has come for you to give them the opportunity to actually speak with us.

“On the same topic we would like to suggest you get at least one of your reserves looking very presentable, so that visitors don’t overlook the good work we are doing (and subsequently post photos like the one in the article).”

Ngāi Tahu reply: "Please go ahead."

The photograph published in the February article. Photo: Mike Dickison

Eventually, Newsroom managed to speak to a Lincoln staffer after being referred by Ngai Tahu.

That person invited Newsroom to visit the farm and said no Eyrewell beetles had been found since 2005. All the areas where they were most recently found have been cleared of pine. The search for the beetles will cease in 2020.

He pointed out a factual inaccuracy. Newsroom’s article had said the beetles used to live in kānuka scrub before making plantation pine their home. This is only presumed by scientists, no beetles were ever found in kānuka.

He also made a suggestion the beetle might not be a distinct species which had migrated from kānuka to pine. There was a possibility it could have been brought in from the North Island on the plantation pine.

The staff member told Newsroom DNA work was hoped to be undertaken to discover whether the Eyrewell beetle is in fact a distinct species. It wasn’t made clear why DNA work had not been completed prior to media attention.

Newsroom will seek the results of any DNA work done.

The details here are to illustrate the long delays and difficulties in obtaining straightforward comment on a matter which is within a university's expertise to comment on but is restricted by a commercial deal.

Commercial interest versus public interest

University of Auckland associate professor Nicola Gaston is a former president of the New Zealand Association of Scientists. She says there are times when contract clauses which limit what a university can share about research are justified.

“If there’s a clear commercial interest in the outcome of the research and if there is no public interest then it’s fair to say the commercial interest is absolute.”

She gave a hypothetical example of research done to improve a component of a car engine for a car company. The public interest in this would be low.

“Where the public interest is very low in the details of the research then I suppose commercial interest could be seen to just be only thing to be considered.”

There can be issues when iwi is involved, explained Gaston.

“I think this is something the scientific community has to be very cautious about partly because there is a history of this not having been done well and scientists having walked over and exploited the knowledge of indigenous communities. There are lots of examples of that internationally as well as in New Zealand.

“I sort-of feel like there's definitely a justification there for some agreement like this to have been written. Whether it's worked in practice, perhaps that's the other question.”

The funding struggle

University of Auckland physics professor and author of Silencing Science Shaun Hendy says universities working with commercial entities is not a new thing.

“I think what is new is some of the financial pressures coming that are coming on universities and the need to chase external income. As academics we are probably under more pressure to take contracts like this, but they don’t always sit well with our critic and conscience role.”

The 2017 annual report for the Lincoln University Group shows research contracts contributed more than $30 million - 27 percent - and the largest single source of the group's revenue for the year.

Data Source: Lincoln University 2017 Annual Report

Hendy believes scientists should think carefully about any contract which has a non-disclosure agreement, “or restricts our ability to talk to the media”.

“I think it's really important that universities be open and transparent. Universities provide a store of expertise that should be available to the public and to the media for dealing with critical issues.”

He thinks universities should have set policies about what they are willing, and not willing, to sign.

“Universities need to very carefully scrutinise something which is being signed, and I would suggest something like this, where the corporate has first right of refusal, is probably taking things too far.”

John McDermott, executive director of non-profit economic and public policy research agency Motu, says Motu's research is sometimes funded by external parties.

“What’s important is the integrity of the research and results. Any contract we design will have the clause; we’ll publish everything. We’re upfront about that, we’re no hired guns, we’re not consultants; we do research.”

McDermott says privacy comes into play at times where confidentiality is important, for example where personally identifiable information was included.

However, in the case of a contract where Motu would need to get permission in writing before sharing anything publicly, McDermott was clear:

“We would just never sign that contract.”

The state of contracts

Lincoln University says its contract with Ngāi Tahu is a standard university contract, similar to contracts it has with other third parties.

Newsroom contacted other universities about their contracts but only Massey, the University of Auckland and Victoria University of Wellington responded.

Massey has a similar contract clause around publicity which says neither party will comment about the contract without the agreement of the other.

The University of Auckland said normally it liaises with the relevant third party to agree on any joint statements. Deputy Vice Chancellor (Research) professor Jim Metson said there are confidentiality agreements in place where research is commercially sensitive but the default position is that the university wants work to be published in open literature.

"That is especially where students are involved in research, we have an obligation to allow them to publish much of the work they do. Unless that is clearly defined before they get into it. The default position is that we want this work to be published, we want it to be out in the open literature."

Victoria Professor Margaret Hyland, the university's Vice-Provost (Research), said confidentiality clauses are common for projects where intellectual property is involved.

“Confidentiality clauses are also sometimes included in other research contracts, whether there is a commercial partner or not, if there is the potential to produce commercially valuable IP. There is usually a short notification period (commonly 10 working days) allowing parties to assess the information to be released and whether it will affect the IP.”

She said contracts were written on a case-by-case basis to suit the work undertaken.

Newsroom has sent a number of questions to Lincoln about the contract, whether there has been any discussion around the clause which silenced its staff for so long and if it felt Ngāi Tahu had treated the university fairly after media inquiries.

There has been no response.

*The Eyrewell farm is run by Ngāi Tahu Farming which is a subsidiary of Ngāi Tahu Holdings, however, the Lincoln University clause mentions "Ngāi Tahu". Emails to Lincoln University released under the Official Information Act appear to have come from both Ngāi Tahu Farming and Ngāi Tahu.

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