Simon Terry: GM safety net has too many holes

COMMENT

For the past four years, a moratorium has provided a clear assurance for food exporters and their customers that New Zealand products are GM-free.

The case for maintaining a restriction on the growing of genetically modified foods for the next five years remains a strong one in light of the extraordinary level of consumer resistance and an absence of GM varieties suitable for our conditions.

The Government's plan to, instead, allow the Environmental Risk Management Authority to assess GM release proposals case by case is critically dependent on food producers and the community having confidence in that assessment process.

But important principles have been compromised in the design of the new safety net.

The authority is able to hold the net in such a way that many of the holes are covered. Yet there is no requirement for it to do so, and the overall result is that the rules for assessing GM applications are skewed in favour of release.

At the same time, the absence of key bottom lines to measure decisions against greatly reduces accountability under the law to be passed by Parliament this week.

The first principle at stake is financial accountability. Those who release GM organisms should bear the cost of any damage that may result. This is to ensure GM developers have the incentive to take due care and to provide compensation.

Yet under the new law, GM developers will not be liable so long as the release is approved by the authority and any conditions are adhered to. In particular, there will be no requirement to pay compensation for any damage the authority fails to foresee.

Unlike an airline that faces safety checks before its planes can take off, GM developers will not be held financially accountable if something goes wrong, unless they break the law.

Having exempted GM developers, the Government has also ducked. In spite of a Law Commission suggestion that it at least provide backstop cover, neither the authority nor the Crown will be liable.

Costs are instead being left to lie where they fall - with ordinary citizens and businesses. Compensation could still be sought under common law, but this involves daunting costs and ill-suited law.

There are no requirements for the authority to assess the financial fitness of an applicant to meet any claims for damages. The Government considered requiring the authority to assess whether at least a bond should be taken, but rejected this option.

A second principle to be compromised is local government autonomy. A number of local bodies asked Parliament for a formal role in decision-making over GM release so that if a council were not satisfied the release would be of benefit, it could block a release in its territory. This was to ensure local government had rights consistent with its responsibilities under local government and resource management acts.

Many councils believe a GM release would affect the image of a region and its products. Others are undecided, but still want provisions allowing for local control.

They seek the right to manage such impacts at a regional level, just as each Australian state has the right to manage local economic effects.

A particular concern is that while local government has extensive obligations to maintain the environment, the weak liability provisions leave them exposed. Should a release cause damage, the clean-up bill could fall to the council.

The third principle at stake is precaution. The precautionary principle provides that if the risks to the environment are serious, and understanding of those risks is inadequate, steps should be taken to prevent harm.

The Government has stressed it expects the authority to take a strongly precautionary approach in assessing applications for GM release. But the law simply requires the authority to "consider the need for caution".

The authority's own interpretation of the law is that "the wording in the act is very permissive, such that the authority would be acting lawfully in deciding that caution was not warranted".

In other words, precaution is ultimately at the authority's discretion, as are several other important elements of the law governing how applications are assessed.

The authority does, indeed, have the flexibility to adopt the strongest of tests in scrutinising an application to release a GM organism. But there are remarkably few legal requirements that would compel it to hold such standards, and thus no effective check on its decisions if it does not. Accountability is the ultimate casualty.

Framing the law to provide discretion to the authority, rather than stating clear principles that set bottom lines, means the new regulatory regime in many respects comes down to "trust us".

As the Government has the power to "call in" applications, this also involves trust in government. Yet, as the biggest investor in New Zealand research geared to GM release, the Government is inherently conflicted.

Crown research institutes have accounted for more than half the GM field trials to date. "Trust us" is a poor substitute for legally binding accountability.

The Sustainability Council advocates a restraint on growing GM food for the next five years as a simple and effective means of protecting our clean green brand and guarding against other uncertainties at a time of overwhelming consumer rejection of GM food.

The proposed measures for case-by-case assessment are not an adequate substitute.

* Simon Terry is executive director of the Sustainability Council.