The Environment Court has upheld the right of the Bay of Plenty Regional Council to take a precautionary approach to growing genetically modified crops in the region.
The NZ Forest Research Institute (Scion) took the Bay of Plenty Regional Council to court over statements in the regional policy statement.
The decision upholds the right of the Bay of Plenty Regional Council, in its Regional Policy statement, to place wording for a precautionary approach to be taken on the growing of genetically modified (GMO) crops in the region.
The landmark decision also gives councils the right, after the appropriate processes have been fulfilled, to place policies and rules around the GMO land use activities if they are deemed to be of regional significance by the community.
The decision is being welcomed by GE Free NZ, which was a party to the court case.
“It is fundamental to democracy that farmers and residents all over the country are able to have a say on land-use issues in their region, especially when livelihoods and economic wellbeing are under threat from unknown risks of new technologies like GMOs,” says president of GE-Free NZ, Claire Bleakley.
“We believe that it was unprincipled for the Crown Research Institute to use the taxpayer's money to try and shut down the community voice in this way. There were two attempts at mediation, but Scion refused to accept the wording put forward.”
Councils can now identify emerging issues that require a precautionary approach to protect people, local environment and economic wellbeing.
Scion, which is developing genetically engineered pine trees with altered reproductive traits and resistance to herbicide applications, sought to remove any reference to GMO's in the preamble of the BOP Regional Council's Regional Policy statement.
No consensus was achieved after two rounds of mediation. The case against the Bay of Plenty Regional Council and five other parties went to a one day hearing in the Environment Court in Tauranga.
GE Free NZ was one of the parties which presented witness statements on behalf of its members in the region.
“Minister for the Environment Amy Adams has said she will change the Resource Management Act to disallow any ruling on genetically modified organisms by councils, arguing that such a ruling is the place of the central government under the Hazardous Substance and New Organisms Act,” says Claire.
“The Environment Court has noted that it was a recommendation of the Royal Commission on Genetic Modification that councils, through the RMA can place land-use designations for genetically modified organisms.”
In the policy statement preamble the regional council noted the existence of GMOs in the environment has created community concern, and urged the promotion of a precautionary approach to the release, control and use of genetically modified organisms within the region.
The council sees the precautionary approach as a necessary response to unresolved issues relating to potential environmental risks, economic costs, and cultural and social effects of GMOs.
Scion didn't accept alternate wording arguing it will be read by district councils as a direction to include objectives policies and rules into district plans, and that it singles out GMOs for the application of a precautionary approach.
It sees the precaution as a contradictory and misplaced direction to territorial authorities to regulate GMO activities.
Scion believes that would have serious and significant effects on New Zealand's capacity and capability to maintain or develop GMO technology.
Environment Court Judge Craig Thompson says the compromise reached does not link the GMO issue to language in the Regional Policy Statement which might be seen as directive.
“But which still flags GMOs as an issue that may require, or at least repay, consideration in a further, and specifically focussed, plan or policy statement revision.”
The precautionary approach, as set out in the revised wording, is intended to de-couple the GMO issue from the precautionary approach and defuse Scion's suggestion of policy by stealth through GMO issues being imported, intentionally or not, into the main part of the RPS by virtue of policy.
It is: “The existence of genetically modified organisms in the environment has generated community concern. Of particular concern is the placement and location of trial and containment facilities.
"The Hazardous Substances and New Organisms Act 1996 contains specific legislation for managing genetically modified organisms. These legislative functions are carried out by the Environmental Protection Authority. If this emerging issue is assessed to be of regional significance in the future, objectives and policies may be proposed using the process in Schedule 1 of the Act."
The law requiring the court to have regard to the council's decision does not create a presumption that the council's decision is correct, nor does it impose an onus on an appellant to demonstrate that it is wrong, says the Judge.
“In this instance we had the council supporting a post-mediation version of the provisions somewhat different from that originally decided upon, and that in turn was further modified over the course of the hearing,” says the Judge.
“For the reasons we have attempted to set out, we think that the overall intention of the council can be achieved, and without causing the concerns expressed by Scion, in the formula we have settled upon.”
In papers presented to the court, Scion said it brought the appeal to meet its statutory duty to benefit New Zealand, to meet Scion's mandate to protect and advance forestry in NZ and to ensure future options regarding GMOs are preserved.
It appealed the regional policy statement saying it is “fundamentally anti-science and absurd.”
It also claimed the council was making politically convenient moves is response to activity by a small, but organised band of proponents from outside the region, apparently aided by the personal viewpoints of individuals within the council.