Federated Farmers v Northland RC (Jurisdiction Decision)
Decision No.  NZEnvC 89
BEFORE THE ENVIRONMENT COURT
In The Matter of an appeal under Clause 14 of the First Schedule to the Resource Management Act 1991 (RMA)
MR Christensen and R Gardner for the appellant
JA Burns for the respondent
GJ Mathias for Whangarei District Council
RA Malcgill for Soil & Health Association ofNZ Inc, GE Free
NZ (Northland) Inc (and the other parties under s274, numbers of whom had written to the Court expressly opposing the Federated Farmers' position).
Appeal in respect of submissions on a proposed Regional Policy Statement — the question before the Court was whether there was power under the Resource Management Act 1991 (RMA) for regional councils to make provision for control of use of genetically modified organism (GMOs) through regional policy statements and plans — whether the Hazardous Substances and New Organisms Act 1996 (HSNO) was a code — whether provisions in the RMA relating to control of hazardous substances had been impliedly repealed by HSNO.
The High Court in ruled that in general terms, all resource use was amenable to the RMA's framework, unless expressly exempted from consideration. As the RMA did not expressly exempt controls related to GMOs, the RMA could address control of GMOs. Meridian was authority for the proposition that a statutory interpretation exercise of the present kind should not be confined to assessment of whether express exemption occurred under the RMA, because express exemption might be found in the other legislation. The exercise should be to endeavour to identify whether either of the RMA or HSNO demonstrated express exemption from consideration of new organisms under the RMA.
If HSNO was the exclusive code for control of GMOs, there would be a disparity under the RMA between control of new organisms on the one hand and all other organisms on the other. This could be thought to be contrary to the broad regulatory approach under the RMA described in the Meridian decision. There would be no requirement to regulate the potential adverse effects of GMOs beyond the act of approving them for release, thereby elevating animals and plants containing GMOs into a special category not amenable to regulation under the RMA, unlike animals and plants already present in New Zealand.
Section 142 HSNO focused on the issue of hazardous substances. It did not deal with GMOs. There was no express exemption for consideration of control of new organisms under the RMA in either the RMA or HSNO. This factor pointed to HSNO not being an exclusive code for regulatory control of GMOs in New Zealand.
There was nothing in the scheme of either Act, or the two read together, to call for an interpretative limitation to be placed on the definition of natural and physical resources. There was nothing in either Act 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. The RMA and HSNO offered significantly different functional approaches to the regulation of GMOs.
It was widely accepted that the doctrine of implied repeal was one of last resort, to be applied only where all attempts at reconciliation had failed “(which was not the case here). The purposes and regulatory functions in each Act did overlap”, certainly not to the extent that there had been an implied repeal of the general RMA provisions by HSNO provisions. Given the absence of complete overlap, even if regulatory provisions of HSNO were more precise in some respects than the broad provisions in the RMA, there was no context for taking this quite extreme approach.
There was power under the RMA for regional councils to make provision for control of the use of GMOs through regional policy statements and plans.
A. There is jurisdiction under the RMA for regional councils to make provision for control of the use of GMOs through regional policy statements and plans.
B. Costs reserved.
DECISION OF THE ENVIRONMENT COURT ON JURISDICTION UNDER THE RMA FOR POLICY STATEMENTS AND PLANS TO MAKE PROVISION FOR CONTROL OF GENETICALLY MODIFIED ORGANISMS (“GMOs”)
REASONS FOR DECISION
The current argument arises in one of a set of appeals concerning decisions on submissions about the proposed Regional Policy Statement for Northland. Almost all points in the appeals have been quickly settled in mediation, and the Court is in the process of considering draft consent orders on those. The subject matter of the present decision follows a hearing about what is almost the sole point remaining before final resolution of the appeals.
The question before the Court is as to whether there is power under the RMA for regional councils to make provision for control of use of GMOs through regional policy statements and plans. Some parties endeavoured to extend the question by analogy to the promulgation of district plans as well. I have maintained the focus on regional instruments in this decision, because the appeal concerns a regional policy statement.
Subject to the detail that follows, the argument is whether the regulation of GMOs in New Zealand is undertaken solely under the Hazardous Substances and New Organisms Act 1996(“HSNO”), or whether some level of regulation may also be undertaken under the RMA. (No party sought to argue that the RMA in any way takes precedence over HSNO.)
The argument is a strictly legal one, involving statutory interpretation. It does not address the merits of the RPS provisions under appeal.
My approach, having heard the lengthy submissions on behalf of the parties, will be as follows:
(a) The task should commence with consideration of the text of relevant sections of the two statutes, informed to the extent necessary by the purpose and context of them.
(b) It is appropriate in taking that first step, to seek to reconcile the enactments if possible, and if it is not, then to consider which of the enactments should prevail.
(c) There are various approaches available should it be necessary to consider which of the enactments should prevail, including “express repeal”, “express exclusion”, and in the last resort, “implied repeal”.
One final introductory matter is that the relationship in question between the RMA and HSNO has been discussed in an Environment Court Decision on one occasion previously. That case was . 1 Having noted that s30 RMA makes no reference to “genetically modified organisms”, but only to “hazardous substances”, and noting the absence of a definition of a “genetically modified organism” in the RMA; also that HSNO is silent on any relationship between the two Acts concerning GMOs, the Court observed:
 Taken that far, the inclusion of hazardous substances in both pieces of legislation, and the complete absence of genetically modified organisms in the RMA, might be thought of some significance, perhaps leading to the conclusion that the omission is deliberate, and thus the RMA has no place in the management of GMOs.
Mr Christensen, counsel for Federated Farmers, placed some emphasis on those findings early in his submissions, but very properly acknowledged that they were obiter dicta2. I observe that I have the distinct sense that the point was not nearly as thoroughly argued as it was in the case before me, where in contrast it was the very subject matter of the argument I heard.
The term “genetically modified organism” is not defined in the RMA, but is defined in s2 of HSNO in the following terms:
Genetically modified organism means, unless expressly provided otherwise by regulation, any organism in which any of the genes or other genetic material —
(a) have been modified by in vitro techniques; or
(b) are inherited or otherwise derived, through any number of replications, from any genes or other genetic material which has been modified by in vitro techniques.
The purpose, principles and matters relevant to the purpose of HSNO are set out in its sections 4, 5 and 6. They are as follows:
4 Purpose of Act
The purpose of this act is to protect the environment, and the health and
safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms.
5 Principles relevant to the purpose of the Act
All persons exercising functions, powers, and duties under this Act shall, to achieve the purpose of this Act, recognise and provide for the following principles:
(a) the safeguarding of the life-supporting capacity of air, water, soil and ecosystems;
(b) the maintenance and enhancement of the capacity of people and communities to provide for their own economic, social and cultural wellbeing and for the reasonably foreseeable needs of future generations.
6 Matters relevant to purpose of Act
All persons exercising functions, powers, and duties under this Act shall,
to achieve the purpose of this Act, take into account the following matters:
(a) the sustainability of all native and valued introduced flora and fauna;
(b) the intrinsic value of ecosystems;
(c) public health;
(d) the relationship of Maori and their culture and traditions with the ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga;
(e) the economic and related benefits and costs of using particular hazardous substance or new organism;
(f) New Zealand's international obligations.
Section 7 of that Act sets out a requirement for a precautionary approach to be taken where there is scientific and technical uncertainty about adverse effects. Section 8 requires all persons...
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