Genetic modification (GM) and local government
In New Zealand genetically modified organisms (GMOs) are strictly controlled by national legislation, the Hazardous Substances and New Organisms (HSNO) Act 1996.
However, in some cases local authorities may be considering whether they should introduce controls on GMOs in their area through the Resource Management Act 1991 (RMA) or the Local Government Act 2002 (LGA).
How are environmental effects of GMOs controlled?
The HSNO Act requires that before any GMO can be imported into the country, developed in containment, tested in the field or released into the environment (with or without conditions), approval must be obtained from the Environmental Risk Management Authority (ERMA).
When considering an application, ERMA must assess the environmental risks. It must examine issues such as the risk of an organism escaping from a laboratory or the risk of contamination of surrounding plants by pollen from GMOs. In the case of field tests, ERMA must require that they are carried out under strict conditions to reduce any potential risk to the environment. It must also ensure that genetic material is not released outside the field test site and that this material is destroyed once the test is finished. As well, ERMA can impose a wide range of controls under the new conditional release category. These might include limiting the proximity of the GMO to other organisms.
ERMA must undertake a thorough risk, costs, and benefits assessment where the overall benefits are balanced against the potential risks. This covers not only environmental assessments but also the magnitude, likelihood and distribution of any costs and benefits of an application both to the applicant and to New Zealand as a whole. The fact that ERMA considers both the direct and indirect impacts of an application ensures that the wider economic consequences for New Zealand and the indirect effects on other industries are taken into account on a case-by-case basis.
It is possible that a council could try to control genetic modification through the RMA or LGA. However, the fact that there is a national specialist body set up specifically by parliament to make decisions on GM may mean it would be difficult for councils to do this. The issues surrounding genetic modification are also highly technical, meaning that councils are unlikely to have the skills to deal with these issues.
How can local government participate in decision-making?
Any person or organization (and that includes local authorities) can make submissions on notified applications under the HSNO Act. Recent legislative changes have strengthened the 'voice' of local government by requiring ERMA to notify any local authority directly if it might be interested in an application.
GMOs and the Resource Management Act 1991 (RMA)
The RMA requires local government to promote sustainable management of natural and physical resources. The definition of natural and physical resources includes all plants and animals. There is no specific exclusion for genetically modified plants or animals. The scope of a council's functions under the RMA could, therefore, theoretically include addressing the environmental risks arising from the development of GMOs in its region, whether before or after ERMA has had applications.
There is no requirement or obligation on a council under the RMA to manage the environmental effects of GMOs. If councils wanted to introduce controls on GMOs through either regional policy statements, or through rules in regional or district plans they would be required by section 32 of the RMA to evaluate why the controls - having regard to their efficiency and effectiveness - are the most appropriate to achieve the purpose of the RMA. Any controls would need to be consistent with the purpose of the RMA - ie, to promote the sustainable management of natural and physical resources. Further, councils would need to provide sufficient evidence to support such controls as an appropriate planning tool. It is expected that a council may find it difficult to provide such evidence given ERMA's responsibilities in approving GMOs.
GM and the Local Government Act 2002 (LGA)
The purpose of the LGA is broad. It provides a framework for local authority activity and lays out a broad role for them in promoting the social, economic, environmental and cultural well-being of their communities, in the present and for the future, taking a sustainable development approach. Local authorities must identify community outcomes in their long term council community plan and these might include a response to GMO issues. However these plans have no regulatory power – rather they are integrated plans of how all of the things that councils do fit together.
Local authorities can also make bylaws. Before making a bylaw a local authority must determine it is the most appropriate way of addressing the perceived problem. Bylaws must be made in accordance with the purpose of the LGA and within the powers set out in ss145 and 146. Given the special purpose HSNO legislation and the responsibilities of ERMA, a council is unlikely to consider it appropriate to create a bylaw to regulate GMOs.
Liability of Local Authorities
As there is no requirement or obligation on a council under the RMA or LGA to manage the environmental effects of GMOs, a council would not be liable for any environmental damage arising from a GMO. However, a council could be found liable if it had controls on GMOs, but failed to enforce them.
A council has an obligation to enforce rules in its plan. If a plan includes rules controlling GMOs and a GMO operator complies with those rules, but causes adverse effects which are not controlled by those rules, the council cannot be held liable for any resulting damage. Legal advice is that Parliament could not have intended a council to be liable for any damage which occurs outside of any compliance of its rules - to do so would lead to unlimited liability for the council. However, if a plan includes rules controlling GMOs and damages result from a GMO operation being in breach of those rules, there is potential for liability in negligence against the council, if the council had failed to enforce those rules.
General liability for damage from GMOs
Anyone suffering harm when a complying activity causes damage has the right to take proceedings under 'common law', relying on grounds such as negligence or nuisance.
The October 2003 legislative changes provide for a strict civil liability rule and a civil penalty regime to be imposed on those who breach the HSNO Act. While the civil penalty regime is available to the state, the strict civil liability rule enables individuals to seek compensation for harm caused by activities involving new organisms that breach the HSNO controls without needing to prove negligence.
The Ministry of Agriculture and Forestry is the enforcement agency responsible for ensuring compliance with HSNO controls on all new organisms.
For further information see Liability for genetically modified organisms.
Have any councils introduced controls on GMOs through their regional or district plans or bylaws?
So far councils have not sought to impose controls on GMOs, though several councils have held initial discussions on the issue and in some cases have declared themselves to be "GE Free". Without the corresponding regulatory changes, however, such declarations are symbolic only.
Where can I find more information?
A crown law opinion was initially obtained in 2003 as part of the consideration of the role of local government in the regulation of genetically modified organisms.
Interface between the HSNO Act and the RMA and LGA - crown law opinion
A second crown law opinion has now been obtained, which considers this role further.
Advice on potential liability arising from rules controlling GMOs - crown law opinion.
Information on ERMA is available on the ERMA website.
Research programmes looking at the effects of GMOs are addressing issues such as the coexistence of GM and non-GM agriculture.
For more about the HSNO approval process see the topics How genetic modification is regulated in New Zealand and Genetically modified organisms: how you can have a say.
For more about the relationship between HSNO and the RMA, see the Frequently asked questions on the HSNO Act and RMA on the Quality Planning website.
For more on wider RMA processes see the Quality Planning website.
Last updated: 17 September 2007
