Strict Liability is Not Appropriate for GM
“Strict liability is not appropriate for GM”, said the Chairman of the Life Sciences Network, Dr William Rolleston, today.
Dr Rolleston agreed with the finding of the Royal Commission on Genetic Modification that existing laws are capable of dealing with any liability issues that the commercial use of GM technology might raise. Dr Rolleston’s position is supported by Anderson Lloyd Cauldwell’s recent report on the issue, Genetic Modification: The Liability Debate.
Simon Terry, the secretary of the Sustainability Council, and Chen Palmer & Partners, a Wellington law firm, had earlier issued a report on the liability issue. The report, a clear attempt to influence the Law Commission’s consideration of the liability issue, said that strict liability was necessary to prevent innocent third parties from having to bear the risk of GM contamination from GM crops. Strict liability, claimed Chen Palmer, would allow claimants to circumvent problems claimants might have demonstrating causation.
Dr Rolleston says “the Christensen Horgan paper makes it clear there are a number of problems with Chen Palmer’s analysis.
A New Risk?
“Chen Palmer’s report asserts that the use of genetically modified organisms will have ‘effects of a disastrous magnitude’. In doing so, it ignores the Royal Commission’s finding that there is nothing ‘so radically different in genetic modification as to require new or special remedies’.
“New Zealand has a very rigorous approval process for uses of GM. This process will be further enhanced by legislation designed to give regulators the opportunity to impose conditions on releases into the environment.
“One of the reasons why there is a moratorium on commercial release is to allow this legislation to proceed through Parliament. Surely, the time to carefully consider issues of liability is when Parliament has legislative proposals in front of it?
“Mr Terry should bide his time and put his ideas in front of the Select Committee. Then we’ll all be able to see if they have any merit.
“When you have a very rigorous regulatory process which seeks to minimize any risks the question of any liability assumes a new dimension.
“Therefore, the approved use of GM,” said Dr Rolleston, “does not pose any extraordinary new risks to the environment.
“In addition, there are provisions in existing Acts – specifically the Hazardous Substances and New Organisms and Resource Management Acts – aimed at preventing the use of new organisms where they will pose a serious hazard to the environment.
“Both these Acts also contain provisions allowing remedies to be ordered against people who cause damage to others or to the environment.
“Advocating strict liability for GM assumes that the existing statutory protections against harmful GM technologies entering the country are ineffective.
“Where any damage is caused the common law has shown that it is capable of addressing issues posed by contamination by GM organisms.
“The Christensen Horgan paper shows the High Court in Australia recently held that damages in tort could be recovered from the defendant by potato growers affected by contamination from GM seeds.
“These remedies tend to support the Royal Commission’s finding that the common law is able to appropriately regulate new technologies without Parliamentary intervention. In New Zealand general environmental statutes, providing a series of remedies that deal consistently with all environmental risks, have bolstered the common law’s more flexible approach.
“The Commission also thought that the use of strict liability would be a barrier to innovation and progress. Adding strict liability to the swag of remedies already available would make the legal framework to GM more complicated without affording any more effective protections.
“It could seriously impact on New Zealand’s ability to stand at the forefront of GM innovators.
“The Chen Palmer study claims that a strict liability regime would be consistent with the international literature. Their claim does not mention the Royal Commission’s finding that the only major countries with strict liability regimes are Germany and Austria. The report also fails to discuss Professor Lucas Bergkamp’s statement that ‘an increasing number of authors question the wisdom of expanding the domain of strict liability’.
“In conclusion,” said Dr Rolleston, “Chen Palmer and Simon Terry’s report is unpersuasive. It overstates the risks posed by GM, and underestimates the effectiveness of existing legal remedies for people whose interests are damaged by the use of GM technology.”
Report of the Royal Commission on Genetic Modification
The Liability Debate by Mark Christensen and Paul Horgan,
Anderson Lloyd Cauldwell
Who Bears the Risk? Genetic Modification and Liability, Chen Palmer & Partners and Simon Terry Associates
The Commission’s White Paper on Environmental Liability: A Weak Case for an EC Strict Liability Regime (Part 1), Professor Lucas Bergkamp, European Environmental Law Review, September 2000.