GMOs: Councils Consider Prohibiting Commercial Outdoor Uses
4 February 2013
Councils To Consider Prohibiting Commercial Outdoor Uses of GMOs in Northland and Auckland And Requiring Consents For Outdoor Field Trials
An inter-council working party, representing all local authorities in Northland and Auckland, has recommended to member councils that they consider regulating the outdoor use of GMOs under the Resource Management Act (RMA) through provisions in their planning documents.
This would involve inserting objectives, policies and rules in existing district plans in Northland and in Auckland Council’s new Unitary Plan prohibiting the release of genetically modified organisms (GMOs) to the environment and making field trialing of GMOs a discretionary activity, subject to strict liability conditions for any environmental or economic harm that may eventuate.
The Inter-council Working Party on GMO Risk Evaluation and Management Options comprises the Far North, Kaipara and Whangarei District Councils and Auckland Council. Northland Regional Council is a member but did not participate in the project. The Working Party has produced draft planning provisions, a section 32 evaluation supporting those provisions, and a legal opinion from Dr Royden Somerville QC.
The section 32 evaluation is a requirement under the RMA to show why the proposed provisions are necessary to achieve the purpose of the Act and that they are the most appropriate, efficient and effective to achieve that purpose. The evaluation is also required to take into account the costs and benefits of the proposed provisions and the risk of acting or not acting if there is uncertain or insufficient information about the subject matter.
The Working Party has carried out a thorough evaluation of the necessity for regulation of GMOs at a district and/or regional level, in addition to national regulation under the Hazardous Substances and New Organisms Act (HSNO), over an extended period of 10 years.
This evaluation has confirmed there are potentially significant risks to local government and their communities from outdoor use of GMOs, including environmental, economic and socio-cultural risks. There is also considerable uncertainty (including scientific uncertainty) and lack of information about those risks. There is a lack of scientific agreement on the long term effects of releasing GMOs into the environment and a lack of information on long term environmental consequences. There is uncertainty and disagreement as to the short and long term economic benefits and dis-benefits from GMO crops and animals. And there are different cultural views as to the appropriateness of GM technology and GMOs, particularly from Maori.
In addition, the potential adverse effects of releasing GMOs into the environment could be significant – including possible major (and long term) harm. Moreover, these effects could be irreversible. Once released to the environment it is, in most instances, impossible to eradicate such organisms. They are, in effect, there for ever, whatever the consequences.
Against these risks, significant deficiencies in the national level regulation of GMOs have been identified. A key gap is that there is no liability under HSNO for damage arising as a result of an activity carried out in accordance with an approval from the national regulatory body, the Environmental Protection Authority (EPA). Nor is there any requirement under HSNO for applicants to prove financial fitness or provide bonds in order to recover costs should damage occur.
Thus, affected parties, including existing primary producers and councils, will tend to bear any costs arising from unexpected events and ineffective regulation of GMOs. Given the experience overseas of widespread contamination of non-GMO crops and rapid development of herbicide resistant pests and weeds, these costs could be considerable.
In response to the risks and associated uncertainties, along with community preferences for a precautionary approach expressed in the Colmar Brunton survey commissioned by the Working Party in 2009 and in public submissions to, and lobbying of, councils in Northland/Auckland, the section 32 evaluation has concluded that a strong precautionary approach to the release of GMOs to the environment is warranted. Such an approach is legitimised by, and indeed inherent to, the RMA. However, at the national level, HSNO makes the exercise of precaution a matter for the EPA’s discretion. The EPA is required only to consider the necessity for caution.
In accord with a strong precautionary approach, the section 32 evaluation supports the prohibition of releases of GMOs to the environment and the requirement for consent as a discretionary activity for GMO field trials. The section 32 analysis also supports provisions that set strict liability rules for potential economic and environmental harm, to the extent possible, and the requirement for bonds and proof of financial fitness.
However, the section 32 evaluation acknowledges the desirability of keeping future options open, and thus supports an adaptive risk management approach that would enable on-going review of prohibiting the release of GMOs, and the change of activity status to discretionary should new information come available, or scientific consensus be achieved, that shows that the benefits of releasing a particular GMO, or class of GMOs, outweigh the risks for the Northland/Auckland region.
Such a precautionary approach to risk management is supported by the courts. In particular, Coromandel Watchdog of Hauraki Inc v Chief Executive of the Ministry of Economic Development (CA285/05 2007) examined the appropriate use of the prohibited activity status in planning documents. In this case the Court of Appeal held that prohibiting an activity could be appropriate when a planning authority has insufficient information about an activity and wishes to take a precautionary approach, even though it does not rule out the possibility of that activity being permitted in the future when further information may become available.
The draft plan provisions are in the form of a plan change to councils’ RMA planning documents. The provisions are in a generic form that can be adapted to each council’s particular plan should it choose to undertake such a plan change. The provisions apply to land uses and to use of coastal waters. The plan provisions relate only to outdoor uses of GMOs, either releases to the environment or outdoor field trials. They do not include the use of GMOs in contained facilities, such as hospitals, universities, or research institutions, nor to medicines or food products that do not contain viable GMOs.
The documentation will now be referred to member councils on the Working Party for decisions on how to proceed from here. Should a decision be made to include provisions in council’s planning documents, further consultation is required prior to publically notifying any changes.
Dr Kerry Grundy, convener of the Working Party, states:
“The collaborative approach to the issue of GMOs in the environment undertaken by local authorities in the Northland and Auckland regions has been a cautious yet responsible way to proceed with this contentious and complex issue. It is an excellent example of local government working together to address common concerns raised by their respective communities.
“The comprehensive evaluation that has been undertaken over a long period of time, and the documentation produced as a result of that evaluation, provides a robust and comprehensive examination of the issue of GMOs in the environment, including both the risks arising from the outdoor use of GMOs and options to manage those risks.
“The documentation provides councils on the Inter-council Working Party on GMO Risk Evaluation and Management Options with sufficient information to make an informed decision over management options for outdoor uses of GMOs and sufficient analysis and support to proceed with a change to district and/or unitary plans to manage GMOs should councils decide to undertake such an approach”.