GMO – Soil and Health Association of NZ

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GE-FREE ZONES UNDER THREAT FROM RMA AMENDMENT

15 March 2017/in GE

The Government seems hell-bent on denying the rights of communities to have GE-free zones, which are under threat from a ‘dictator clause’, says the Soil & Health Association.

“We are continuing to stand by all the communities around New Zealand who, quite rightly, want to have control over what happens with GMOs in their regions,” said Marion Thomson, chair of Soil & Health.

Yesterday Parliament heard the second reading of the Resource Legislation Amendment Bill, which contains proposals that would allow Minister for the Environment Nick Smith to strip councils of their ability to create GE-Free food producing zones.

The Local Government and Environment Select Committee report on the Bill was released last week with the controversial section 360D still in the Bill.

Section 360D – known as ‘the dictator’ or ‘Henry VIII’ clause – would allow the Minister to bypass parliament and make fundamental changes to the law if he deems council plans duplicate or deal with the same subject matter as central Government laws.

Of further concern to the Soil & Health Association is the introduction of a new section – 43A(3A) – that would give the Minister another avenue to strike out local GE-free zones.

This new amendment was introduced at the select committee stage, meaning it wasn’t made available for public consultation.

“This latest move runs firmly against principles of natural justice and the democratic right of the public to have their say on matters that affect them,” said Marion Thomson.

The environment minister is looking to the Maori Party for the votes needed to get these anti-democratic provisions through.

However, during the reading yesterday Maori Party co-leader Marama Fox declared that they support achieving a GE Free New Zealand and that this has always been their policy.

In a letter to the Minister in December last year the Maori Party stated that it does not support changes to the RMA “if they extend to allowing the Minister to overrule a provision in a plan, for example, to have a GMO Free Zone.”

The Far North and Whangarei District Councils as well as Auckland Council have all prohibited the outdoor release of GMOs via their local plans, creating a GE-Free northern peninsula from the Bombay Hills to Cape Reinga.

“These council decisions have been driven by local communities and the mana whenua and iwi authorities in the regions. The Maori Party has made firm promises to stand by communities that want their territories to be GMO Free. We are confident that they will not go back on their word and that they will vote against the 360D and 43A clauses,” says Thomson.

Note to editors:
Nick Smith’s view that the EPA, not local councils, can control the release of GMOs has been found wrong by both the Environment Court and the High Court which have ruled that there is jurisdiction under the Resource Management Act for local councils to control the outdoor use of GMOs via regional policy instruments. The EPA approves, approves with controls, or turns down applications for genetically engineered organisms under the Hazardous Substances and New Organisms Act. Councils can control, restrict or ban GMOs within their territories, under the RMA.

Contact: Marion Thomson
Chair, Soil & Health Association
027 555 4014

Photo credit: Nick Holmes

Submission on Draft Regional Plan for Northland

23 September 2016/in Submissions

23 September 2016

Northland Regional Council

Private Bag 9021

Whangarei Mail Centre

Whangarei 0148

Submission on Draft Regional Plan for Northland

Submission

1. The Soil & Health Association of New Zealand Inc. (“Soil & Health”) makes this submission on the Draft Regional Plan for Northland (“Draft Plan”) requesting that it include policies and provisions relating to the management of genetically modified organisms (“GMOs”), as allowed under the Resource Management Act 1991 and pursuant to the ruling in Federated Farmers of New Zealand v Northland Regional Council.[1] This submission relates to the Coastal Marine Area, Soil & Water and tangata whenua sections of the Draft Plan.

Reasons

The Law

Soil & Health was a party to Federated Farmers of New Zealand v Northland Regional Council.
That decision ruled that local councils have the power under the Resource Management Act 1991 (“RMA”) to control the use of GMOs via their regional planning instruments.
That decision has recently been upheld by the High Court.[2]
Soil & Health therefore considers that there is jurisdiction for Northland Regional Council (“the Council”) to make provision for objectives, policies, rules and other planning tools in relation to GMOs under the Draft Plan.

Integrated Management

GMO proposals require approval from the Environmental Protection Authority (“EPA”) under the Hazardous Substances and New Organisms Act 1996 (“HSNO Act”).
The HSNO Act consenting process gives particular attention to the technical aspects of managing individual proposals. However, it does not involve:

consideration of the geographic distribution of GMO projects;
consideration of the need to geographically protect areas of particular value from GMO activities, such as sensitive farming practices (e.g. organic farming);
consideration of the preferences of a community; or
integration of the management of natural and physical resources, and the effects of GMO activities on natural and physical resources, on a geographic basis.

The HSNO Act does not, therefore, provide a planning framework through which GMOs can be geographically / spatially managed in an integrated manner.
The RMA establishes a regime whereby local authorities are called upon to prepare policy and plans to implement sustainable management on a geographic basis through the use of integrated management of natural and physical resources at a regional level, and integrated management of effects on the environment at a district level.
Consideration of the location and distribution of proposals involving GMOs on a district basis, together with protection of rural resources for organic or biodynamic farming, are important resource management matters for consideration by territorial authorities in carrying out their functions under the RMA.

Potential Adverse Effects

The outdoor use of GMOs has a potential to cause significant adverse effects on the environment. Adverse effects could include (inter alia):

biological or ecosystem harm;
harm to other existing or potential forms of land use including:
organic farming (including organic certification and the requirement to be GMO free); and
agricultural activities dependent on an uncontaminated environmental brand.

GMOs have the potential to adversely affect ecological, economic, and resource management values, and the social and cultural well being of people, communities and tangata whenua.
Application of integrated management and a precautionary approach to GMOs under the RMA is the best available technique for managing the potential adverse effects posed by GMOs within the region.

Sustainable Management and Part II

It is consistent with the sustainable management purpose and Part II of the RMA to establish regional plan provisions (e.g. issues, objectives, policies, rules and methods) that manage the release, location and management of GMOs where they have the potential to adversely affect other land use activities.

Decision Sought

The decision Soil & Health seeks from the Council is that the Draft Plan be amended to include the following policies:
To include GMO provisions in the ‘Tangata whenua’ section of the Draft Plan.

To include GMO provisions in the ‘Coastal space’ and ‘Coastal works’ sections of the Draft Plan that are the same as in the Auckland Unitary Plan, that being to adopt a precautionary approach to the management of GMOs by:
prohibiting the outdoor release of a GMO in the Coastal space
making outdoor field-testing a discretionary activity in the Coastal space; and

including performance standards in regard to liability and the posting of bonds.

To include GMO provisions in the ‘Land & water’ and the ‘Discharges to land and water’ sections of the Draft Plan that avoids toxic discharges to land & water from GMOs, thereby avoiding transgenic contamination of soils & waterways.

To adopt a resource management framework for the management of GMOs that is Regional specific taking into account environmental, economic and social well-being considerations.

Soil & Health considers that it is important that there is consistency between the Auckland Unitary Plan and the Regional Plan for Northland, thereby eliminating cross boundary issues.

Soil & Health wishes to be heard in support of our submission.

Yours sincerely

Name: Mischa Davis

Position: Policy Advisor

The Soil & Health Association

PO Box 340002

Birkenhead

Auckland 0746

Phone: 06 8775534

Mobile: 0212667754

Email: advocacy@organicnz.org.nz

Website: www.organicnz.org.nz

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

[2] Federated Farmers of New Zealand v Northland Regional Council [2016] NZHC 2036.

Submission in opposition to clause 105 of the Resource Legislation Amendment Bill 2015

14 March 2016/in Submissions

14 March 2016

The Committee Secretariat

Local Government and Environment Select Committee

Parliament Buildings

Wellington

Submission in opposition to clause 105 of the Resource Legislation Amendment Bill 2015

Introduction

The Soil & Health Association of New Zealand Inc. (Soil & Health) was incorporated under the Incorporated Societies Act 1908 on 4 December 1942. Soil & Health’s objectives broadly include soil health and the promotion of organic gardening and farming. It has approximately 3000 members, chiefly composed of organic agriculturalists (incl. farming and horticulture), secondary producers, retailers, restauranteurs, and enthusiasts. Its age and membership make it both the oldest and largest representative organic organisation in New Zealand.

Soil & Health welcomes the opportunity to comment on the Resource Legislation Amendment Bill 2015 (the Bill), which seeks to amend the Resource Management Act 1991 (RMA). This submission concerns clause 105 of the Bill, which proposes to include new ministerial regulation-making powers under section 360D into the RMA.

Soil & Health opposes proposed section 360D on the grounds that ministerial regulations would override the power of local authorities to control land uses under the RMA, and the participatory and evidentially based decision-making process under the Act, and require the removal of provisions in RMA plans which conflicted with such regulations.

Detailed submissions

Clause 105 of the Bill proposes to insert section 360D, which would give the Minister for the Environment (Minister) the power to issue regulations to prevent, or remove, rules in council planning documents that in his or her opinion duplicate, overlap with, or deal with the same subject matter in other legislation.

Section 360D risks ministerial regulations that override planning decisions designed to address particular local needs and conditions. In particular, it would override participatory and evidentially based decisions under the RMA concerning the:

objectives, policies and the rules designed to achieve integrated management of resources and land-use:
environmental effects which are appropriate when use and development occurs; and
adverse effects which cannot be appropriately avoided, mitigated or remedied.

Genetically Modified Organisms

Soil & Health is particularly concerned that proposed section 360D would likely be employed by the Minister to overrule RMA planning documents which seek to regulate genetically modified organisms (GMOs) on the basis that they duplicate central government regulation of GMOs under the Hazardous Substances and New Organisms Act 1996 (HSNO).

Such an approach would be contrary to Principal Environment Court Judge Newhook’s decision in Federated Farmers of New Zealand Ltd v Northland Regional Council [2015] NZRMA 217.

Judge Newhook’s decision makes it clear that HSNO is limited to making decisions about the import and release of new organisms (including GMOs) into New Zealand. The RMA, on the other hand, is concerned with planning for the integrated management of resources and land-use in light of unique regional/district needs and conditions.

Accordingly, Judge Newhook states at paragraphs [48] to [49] of his decision that:

[48] … I find that there is nothing present in these pieces of legislation to prevent the establishment of objectives, policies and methods to achieve integrated management of natural and physical resources in the broad terms directed by the RMA.

[49] I consider that there is a readily identifiable policy reason for that in these pieces of legislation, read together. Once having been approved for import and release into New Zealand under HSNO, regional authorities can provide for use and protection of them together with other resources in a fully integrated fashion, taking account of regional needs for spatial management that might differ around the country for many reasons, not the least of which might include climatic conditions, temperatures, soils, and other factors that might drive differing rates of growth of new organisms and/or of other organisms, as just a few of perhaps many examples. I agree with the opposition parties that the RMA and HSNO offer significantly different functional approaches to the regulation of GMOs.

Soil & Health acknowledge that Judge Newhook’s decision was appealed by Federated Farmers. The appeal was heard in early February of this year, and it is anticipated that a decision will be available for the Select Committee at the time public submissions on the Bill are to be heard.

Soil & Health does not consider Federated Farmers was able to raise any points of law in support of its appeal, and fully expects that the High Court will uphold the Environment Court’s decision and dismiss the appeal.

Conclusion

The Soil & Health Association strongly opposes the proposed insertion of section 360D into the RMA on the grounds that it will enable the Minister to override regional and district plans that have been implemented in order to achieve integrated management of local resources and land uses.

It is clear that the Minister could use section 360D to pursue the incumbent National Government’s policy of limiting GMO decision making to central government bodies (i.e. the Environmental Protection Agency).

However, the use of ministerial a regulatory power to override RMA plans concerning the use of GMOs would be highly inappropriate in light of the Environment Court’s ruling that the RMA is the only statutory instrument through which GMO use can be managed so as to address the unique needs and conditions to different regions and districts.