Environment Court finds regional councils have power to control GMOs

Federated Farmers of New Zealand v Northland Regional Council [2015] NZEnvC 89

In this decision, the Environment Court held that regional councils have power under the RMA to control the use of genetically-modified organisms (GMOs) via regional planning instruments.

Background

This question of law arose from a set of appeals on the Proposed Regional Policy Statement for Northland (PRPS). One appeal, by Federated Farmers, sought the deletion of provisions relating to GMOs from the PRPS. Federated Farmers argued that regional councils do not have power under the RMA to control the use of GMOs, and that the regulation of GMOs should be undertaken solely pursuant to the Hazardous Substances and New Organisms Act 1996 (HSNO).

The respondents, Northland Regional Council, Whangarei District Council, and various s.274 parties (including GE Free NZ (Northland) Inc and Soil & Health Association of New Zealand Inc) contended that some regulation of GMOs could also be undertaken under the RMA. Many of these parties sought the retention of GMO provisions in the notified version of the PRPS.

A comparative exercise: HSNO and the RMA

The Environment Court did not address the substantive merits of the RPS provisions under appeal. Instead, it considered the relevant provisions from the two statutes (HSNO and RMA), sought to reconcile them wherever possible, then considered which should prevail.

The Environment Court noted that the Acts are both effects-based legislation, and have specific provisions that bear significant similarities. A key difference, however, is that is that cumulative effects are dealt with in greater detail in the RMA.

Environment Judge Newhook noted that the RMA once included a Part XIII which related to hazardous substances, but this never came into force, and was repealed by s149 of HSNO in 2001. Although the RMA does not specifically mention GMOs, the RMA’s provisions relating to plan-making at the regional level continue to include functions that relate to hazardous substances.

The arguments

Counsel for Federated Farmers argued that HSNO represented an “exhaustive” code for the regulation and control of GMOs, and therefore excluded any role for the RMA. This argument was based on the fact that the RMA explicitly refers to control of hazardous substances, but is absent of any reference to GMOs.

Counsel for Whangarei District Council (WDC) provided the primary arguments for the respondents. It was submitted that Federated Farmers had inappropriately focussed only on the RMA provisions relating to hazardous substances, and had failed to compare the purposive sections of the two statutes.  It was argued that the “sustainable management” purpose of the RMA “contains a multitude of considerations, offering an environmental decision-maker considerable leeway for making policy and strategic decisions”.

Further, Counsel for WDC argued that the RMA provided for protection of the social environment and economic development as a key function of regional councils. Therefore, in achieving the Act’s purpose, regional councils must have scope to take the ecological, economic and social effects of GMOs into account.

Decision

Environment Judge Newhook ultimately found that regional planning documents can control GMOs as part of promoting sustainable management under the RMA. HSNO has a more confined role by contrast, which is to govern the granting of approvals to import, develop, field test or release new organisms, as a “one-off” regulatory transaction.

The Court cited Meridian Energy Ltd v Southland District Council [2014] NZHC 3178, which confirmed that all resource use is governed by the RMA, unless expressly exempted. It then went on to search for an express statutory exemption on the control of GMOs under the RMA, but found none. In the absence of such express exemption, the Court found that regional councils may therefore make provision for the control of GMOs in their regional plans and policy statements.

The Court rejected Federated Farmers’ argument that HSNO is a code for GMOs, finding that this would lead to a disparity between the control of new organisms, and all other organisms. That is, once GMOs were approved for release under HSNO, there would be no legislative means to regulate any potential adverse effects. This would “elevate animals and plants containing GMOs into a special category not amenable to regulation under the RMA”- in contrast with all other animals and plants in New Zealand.

Instead, Environment Judge Newhook stated that once GMOs have been approved for import and release in New Zealand under HSNO, regional authorities can provide for their use and protection – together with other resources, in an integrated manner – within planning and policy documents. This allows consideration of particular regional contexts and spatial management needs (such as factoring in climactic conditions and soil types) when considering how best to provide for activities involving GMOs.

Comment

This decision demonstrates that the RMA and HSNO hold complementary, but not overlapping roles. Together, they ensure that GMOs are carefully assessed and managed both prior to and following their release. This provides a comprehensive system of safeguards, and allows regional councils to regulate GMOs within their particular geographical contexts.

Note: ChanceryGreen acts for a party to some of the appeals on the PRPS, but is not involved in the GMO topic, the subject of this appeal.

Posted on September 24, 2015 .