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Interface between the HSNO Act and the RMA and LGA - crown law opinion

8 August 2003

Interface between the Hazardous Substances and New Organisms Act 1996 and the Resource Management Act 1991 and the Local Government Act 2002 - Genetically Modified Organisms
Our Ref: ENV006/139

1. I refer to your letter dated 31 July 2003 in which you sought advice about the interface between the Hazardous Substances and New Organisms Act 1996 (HSNO Act), the Resource Management Act 1991 (RMA), and the Local Government Act 2002 (LGA) as they relate to genetically modified organisms (GMOs).

2. You enclosed a legal opinion from Cooney Lees Morgan relating to the role of the RMA in controlling genetically modified organisms. I have read that opinion and generally agree with its contents. If you require a more detailed analysis of that opinion please advise.

3. As a result of that opinion and other submissions to the Education and Science Select Committee on the New Organisms and Other Matters Bill, you have asked a series of questions being:

3.1 Can local authorities utilise mechanisms under the RMA and/or LGA to prohibit genetically modified activity in any area?

3.2 If mechanisms such as rules or a community plan are put in place under the RMA and/or LGA, is the Environmental Risk Management Authority (ERMA) required to take those rules or that community plan into consideration when it assesses an application for the release of a new organism (with or without controls) or an application to field test a new organism?

3.3 Can a local authority include rules in plans or conditions on consents in order to control for RMA purposes a particular organism solely because it is a genetically modified organism?

3.4 Do the controls applied by ERMA to a new organism apply to the whole organism or just to the “GM aspects”?

3.5 Can a GMO meet the definition of a contaminant under the RMA?

3.6 Any other brief comments as to who would be responsible for any environmental damage arising from an ERMA approved GM crop?

Summary of Advice

4. In response to the above questions the answers, briefly are:

4.1 A local authority (but more likely a territorial authority) could prohibit GMO activity through a rule in a district plan under the RMA, but could not introduce prohibitions under a long-term community plan under the LGA. Bylaws may possibly prohibit GMOs. The difficulty would be confirming that any prohibitions were within the terms of the primary Acts.

4.2 ERMA would not be required to take any controls by local authorities into account.

4.3 A local authority could include conditions through a plan or a resource consent to control GMOs, but the vires of such conditions would be questionable.

4.4 ERMA’s controls on a GMO relate to the GMO aspect, and not adverse effects of the organism generally.

4.5 A specific GMO may be a contaminant but the variables within the definition mean it is not possible to provide a blanket answer.

4.6 As there are no specific statutory provisions, the common law relating to tort and damages will apply if there is environmental damage arising from GMOs – approved or otherwise.

Question One

5. A local authority can include rules in its plans to prohibit an activity (see s 77B(7) RMA). The reason that rules are included in the plans is for the purpose of carrying out the functions of the regional council or territorial authority under the RMA and achieving the objectives and policies of the plan.

6. The functions of regional councils are set out in s 30. Section 30(1)(c) includes the control of the use of land, although that is for specific purposes which would not normally be applicable to GMOs. Section 30(1)(b) only provides for the preparation of objectives and policies but not methods. As rules are methods it would not be possible to have a rule in relation to any actual or potential effects of the use, development or protection of land which are of regional significance. It would, therefore, be necessary for a regional council to bring any control under s 30(1)(a) which allows for the establishment, implementation, and review of objectives, policies, and methods to achieve integrated management of the natural and physical resources of the region. The only other alternative may be if GMOs were contaminants, which is discussed below. It is difficult to ascertain what function a regional council would be giving effect to if it sought to prohibit GMO activities.

7. As far as territorial authorities are concerned, s 31 does provide for the control of any actual or potential effects of the use, development, or protection of land. It seems more likely, therefore, that if a territorial authority was going to include rules prohibiting genetically modified organisms it would be better able to relate it to one of its functions. It would be seeking to control the actual or potential effects of the use of land by a genetically modified organism. The meaning of “effect” is very broad and includes potential effect of low probability which has a high potential impact. Given some of the concerns expressed about GMOs it may be that it is possible to argue that such an effect exists.

8. Any such rules prohibiting GMOs would of course have to pass the s 32 test. This includes at s 32(3)(b) an evaluation which has to have regard to the efficiency and effectiveness of the rules and whether they are the most appropriate for achieving the objectives. The failure to carry out an evaluation does have limited effects, as is noted in s 32A of the RMA. The real difficulty will be showing that it is efficient and effective to prohibit GMOs when ERMA, under the HSNO legislation, has agreed to their field testing or release. Given that the Government has set up a specialised body under the HSNO Act it is likely to be difficult to show that there is a real risk of adverse effects as opposed to a perceived risk or fear.

9. There are numerous cases where the Environment Court has held that it will not deal with a perceived fear if there is no substantial evidence to support that fear. I refer, for example to S L Beadle and Others v Minister of Corrections A74/2002 which relates to the Northland Prison. At paragraph 274 the Environment Court said:

“In this jurisdiction it is well established that claims about people’s attitudes and fears, however genuinely held, have to be assessed objectively, and if unsubstantiated by factors properly cognisable under the Act, should not influence the decision. If it is found on probative evidence that there would be no adverse actual or potential effect on the environment of allowing the activity, then the fact that some people remain fearful and unconvinced by the weight of evidence is not a relevant matter to be taken into account. Fears can only be given weight if they are reasonably based on real risk.”

10. Therefore, although it is possible for local authorities to utilise mechanisms under the RMA to prohibit genetically modified organism activity in any area, if the scientific evidence is not soundly based it is likely that, if the rule was challenged, such provisions would not be upheld by the Environment Court.

11. The second part of your first question related to the LGA and the long term council community plan. Such a plan is provided for under s 93 of the Act and s 93(6) sets out the purposes. The main purposes are to describe the activities of the local authority and describe the community outcomes of the local authority’s district or region. The plan’s focus is on what the local authority will do, and not what will be controlled by that authority. As a planning document it does not include rules or prohibitions. Any “controls” will relate to the activities of the local authority, and not the members of the community. In my opinion, therefore, it would not be possible for a long term council community plan to include prohibitions on GM activity.

12. Part 8 of the LGA provides for the making of bylaws and it may be possible to argue that under the general bylaw making power for territorial authorities set out in s 145 that a territorial authority could make a bylaw for the purpose of protecting the public from a nuisance or maintaining public health and safety. How those measures could be related to GMOs is not clear, when the GMOs have been approved for release by ERMA which will already have considered evidence about the adverse effects of the GMO on public health and safety. As bylaws have to be made in accordance with the primary Act it is likely that they would be ultra vires.

13. In my opinion, therefore, there is no obvious ability under the LGA for a local authority to prohibit GM activity in its area.

Question Two

14. If controls through rules or a community plan (the latter of which is doubted) were provided, then you have asked whether ERMA is required to take those rules into consideration when assessing an application for the release of new organism or an application to field test a new organism. The answer, in my opinion, is no. ERMA is not required to take those matters into consideration. The matters that ERMA is required to consider are set out in the HSNO Act and they do not include controls imposed by local authorities. Any controls may provide background information and could be raised in submissions but they are not something ERMA is required to consider.

15. If there were rules that did not allow for the growing of a genetically modified crop in a certain district, for example, ERMA’s approval would not override any such rule. A person that has an approval from ERMA under HSNO would still require the approval of the district council if there were rules in the district plan. If those rules prohibited GMO activity completely then the person with the ERMA consent could not use that district for their GMO activity. This is no different from a number of circumstances where more than one consent is required - for example a consent required under the RMA for bulk and location of a house as well as a building consent under the Building Act 1991; a consent required under the RMA for occupation of coastal space and erection of structures and an approval from the Minister of Fisheries for marine farming; a consent under the RMA for a tavern as well as a liquor licence. Requiring at least two approvals under different legislation for the same activity is a common occurrence.

16. The same would be true if any controls could be made under the LGA. As noted above I do not believe that that could be done through a community plan, although it may be technically possible to make bylaws. Again, ERMA would not be required to consider any such secondary legislation.

Question Three

17. Your third question relates to the possibility of a local authority including rules in a plan or conditions on a consent that control a particular organism solely because it is genetically modified. This assumes that a genetically modified activity is provided for in the plan but that certain controls may be imposed on it. I suppose, as an example, a plan may allow for genetically modified crops to be planted provided that appropriate fencing around the crop meant that pollen would not escape from the property.

18. Again we return to the s 32 test. It is difficult to see what the justification of such rules would be for RMA purposes. It would probably have to relate to the social, economic and, perhaps, cultural well-being of people and communities as opposed to being concerned about the “bottom lines” expressed in s 5(2)(a)-(c). For a genetically modified organism to be present it would have had to have passed the ERMA approvals and would, therefore, be subject to whatever conditions ERMA may have considered appropriate. ERMA would not agree to such organisms being present in a community without being satisfied about the human health and safety aspects as well as the environmental aspects.

19. In my opinion, therefore, although it would be possible for a local authority to impose conditions on an organism because it is a GMO, the difficulty will be to justify it in terms of the purpose of the RMA. A consent authority is a creature of statute and any conditions imposed have to be for an RMA purpose (Newbury District Council v Secretary of State for the Environment [1980] 1 All ER 731 applied in Application for Declaration by Christchurch International Airport Limited 4 NZPTD 81).

20. If the condition was really a matter of picking winners, for example trying to protect an organics industry, then the proposed conditions would be open to challenge as being ultra vires. The controls would need to be for more than the financial viability of the neighbouring land use. When acting pursuant to statute, local authorities have to appreciate that their powers are limited by that legislation they are acting under at the time.

Question Four

21. The controls imposed by ERMA on a new organism will apply to the whole of the organism as it is not possible just to control those parts of the organism which have been genetically modified. The controls, however, should only relate to the adverse effects which occur or may occur from the genetic modification. It is, therefore, appropriate that ERMA can place controls requiring the cleanup of sites used for genetically modified crops as part of a field test or the disposal of the carcass of genetically modified animals if the reason for the control is to ensure that the genetically modified material does not escape into the environment. If ERMA was imposing controls on the disposal of cattle carcasses because it was concerned that rotting flesh resulted in contamination of water then ERMA would be stepping outside of its authority as provided for under the HSNO Act.

Question Five

22. Your fifth question is whether a GMO meets the definition of a contaminant under the RMA. The definition of contaminant is set out in s 2 of the RMA and is:


“ includes any substance (including gases, liquids, solids, and micro-organisms) or energy (excluding noise) or heat, that either by itself or in combination with the same, similar, or other substances, energy, or heat—

(a) When discharged into water, changes or is likely to change the physical, chemical, or biological condition of water; or

(b) When discharged onto or into land or into air, changes or is likely to change the physical, chemical, or biological condition of the land or air onto or into which it is discharged”.

23. The first question is whether a GMO is a substance. I am not sure from your question whether you mean the genetically modified gene or the organisms itself. It is noted, however, that the description of substance in this definition includes a micro-organism which is defined as “any of various microscopic organisms, including algae, bacteria, fungi, protozoa, and viruses” (Concise Oxford Dictionary).

24. Given the very wide definition of substance within the definition of contaminant it would be hard to argue that a GMO was not a substance. The next question therefore is whether by itself or in combination it has the effect proposed in either (a) or (b). If a GMO is discharged into water or onto or into land or air the possibility of it changing the physical, chemical, or biological condition of the water, land, or air is a question of fact in a particular situation. It is not, therefore, possible to provide a generic answer about whether the condition of the water, land or air is altered.

25. It is also noted that it has to be “discharged”. The definition of discharge in s 2 of the RMA is “includes emit, deposit, and allow to escape”. Whether in fact there is a discharge in any particular situation relating to a GMO will also be a matter of fact. If a genetically modified cow is allowed to escape from a field it could be classified as a discharge but it is doubtful whether the cow itself would change the physical, chemical or biological condition of water, land or air. If someone deposited the genetically modified milk from that cow into the water then the milk will itself alter the chemical and biological condition of the water, but not because it is genetically modified.

26. In my opinion it is not possible to answer the question of whether a GMO is a contaminant or not. It will depend on the GMO and what the effects of the GMO are when they are discharged to air, land or water. That assumes that the GMO is discharged.

Question Six

27. You have asked whether I have any brief comments on who would be responsible for any environmental damage arising from an ERMA approved GM crop. If there are no specific statutory provisions that relate to this issue then the normal common law relating to tort will apply. If a person is claiming for environmental damage they will need to show nuisance, negligence or the Rylands v Fletcher situation. They will also need to show that there was damage which can be quantified in terms of financial loss.

28. If the crop was ERMA approved and the person complied with all the conditions imposed by ERMA then it is unlikely that a claim in negligence would succeed. That would be the most significant difference between an ERMA approved or not approved crop as far as obtaining damages is concerned. A claim in nuisance may be successful as may a claim in Rylands v Fletcher. Even if such claims could be proved then it would also need to be shown that there was environmental damage. If that damage was in the form of cross-pollination with a non-GMO crop there would still have to be shown that a loss did occur. If that cross pollination was with a native plant which was not commercially farmed then there would be no damage as far as the common law is concerned even though there may be “environmental damage” in that the genetic make-up of a particular species is altered.

29. I note that this question arises out of a concern that local authorities may be responsible. As local authorities would not be financially responsible for spray drift from one person’s private property to another or any other escape of a nuisance from one private property to another I have some difficulties in understanding why local authorities would consider that they are responsible. This would only occur if they were negligent or created the nuisance. The only possible scenario that one could consider is one where the conditions imposed by a local authority were not enforced.

Conclusion

30. I trust that the above comments address the questions asked. If you require any further clarification please do not hesitate to contact me.


Yours sincerely

 

Bronwyn Arthur
Crown Counsel

Last updated: 17 September 2007