Environment Minister Dr Nick Smith looks set to move against a High Court ruling this week allowing regional councils to control the release of genetically modified organisms (GMOs) under the Resource Management Act.
He says that the Government would review the appropriateness of councils being able to regulate GMOs in their areas.
He cited a liver cancer vaccine trial taking place in Auckland Hospital which he said would be banned under the Auckland Unitary Plan, along with future treatments involving GMOs.
"It does not make sense for local councils to duplicate the role of the Environmental Protection Authority (EPA) in regulating the use of GMOs in New Zealand," he said.
Smith said councils did not have the technical expertise, resulting in regulations that had unintended consequences.
"The further problem is that there are no biosecurity controls between councils, so having different rules on what organisms are allowed in different districts becomes a nonsense," he said.
Smith appear to have some early support from Labour and New Zealand First in the view that councils should not regulate the release of GMOs.
Smith also dismissed a claim by Dr Kerry Grundy, who convenes and inter-council group on GMOs including Auckland Council and the Northland Regional Council, that the Auckland Unitary Plan and other councils' planning documents would not affect medical applications at present or in the future.
The new Auckland Unitary Plan, subject to appeals by 15 September, contains a provision banning the general release of GMOs for outdoor use.
Other councils proposing to have or that already have a prohibition on GMOs in their resource management plans are the Northland Regional Council, the Far North District Council, the Whangarei District Council and the Hastings District Council.
Grundy told the Science Media Centre today that the plan provisions applied only to GMOs released to the environment or outdoor field trials of GMOs.
"They do not apply to indoor use in contained facilities, laboratories, hospitals or to medical applications or most veterinary applications," Grundy said.
But Smith said he had received legal advice from the Ministry for the Environment and Crown Law about the Auckland Unitary Plan's meaning of outdoor use and containment.
"When a patient receives the liver cancer treatment and the genetically modified organism is used to treat it, when they leave the hospital that is going beyond 'containment,'" Smith said.
"So the advice is, if the patient was held within the contained facility, they would be [legally] okay but the way the trial is run, the patients quite clearly are not in a certified containment.
"It is 'release' and that is why the legal advice I have received is that there is a problem with the Auckland Unitary Plan."
Smith said he was seeking advice from the Ministry for the Environment on possible solutions.
Options included changes in the law or regulations to clarify that approvals and controls on GMOs should be determined by the EPA and not councils. Any changes would involve public consultation.
What we need is an across-the-board national standard, hopefully one that originates from serious scientific research rather than blind prejudice on either side.
The EPA regulates GMOs under the Hazardous Substances and New Organisms Act (HSNO). Smith said EPA had taken a very cautious approach, approving only two GMOs in 20 years - an equine flu vaccine and the Pexa-Vec cancer treatment trial taking place in Auckland.
The High Court this week ruled councils with a GMO prohibition in their resource management plan have jurisdiction under the Resource Management Act (RMA) to regulate their use.
Smith said that had been questioned because GMOs were regulated under the Hazardous Substances and New Organisms Act (HSNO).
An appeal was taken to the High Court by Federated Farmers after the Northland District Council made a number of statements about GMOs in its 2013 regional policy statement, which was upheld by the Environment Court.
Labour environment spokesman David Parker told the Herald: "It's wrong that councils should control whether you have a release of a GMO. They don't have the expertise to consider whether you should have a live GMO as a treatment for liver cancer for example."
And Winston Peters said that while New Zealand First was all for local democracy on things like fluoride, there was a problem with the release of GMOs if one council said Yes and a neighbouring council said No.
"What we need is an across-the-board national standard, hopefully one that originates from serious scientific research rather than blind prejudice on either side."