Federated Farmers v Northland RC (Jurisdiction Decision)

• Jurisdiction: New Zealand
• Judge: Judge Newhook
• Judgment Date: 12 May 2015
• Neutral Citation: [2015] NZEnvC 89
• Date: 12 May 2015
• Court: Environment Court

In The Matter of an appeal under Clause 14 of the First Schedule to the Resource Management Act 1991 (RMA)

Between

Federated Farmers of New Zealand

Appellant

and

Northland Regional Council

Respondent

Decision No. [2015] NZEnvC 89

judge/s

Judge Newhook

BEFORE THE ENVIRONMENT COURT

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1996 (HSNO) was a code — whether provisions in the RMA relating to control of hazardous substances had been impliedly repealed by HSNO.

Appearances:

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).

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

Introduction and statement of the issue

1 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.

2 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.

3 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.)

4 The argument is a strictly legal one, involving statutory interpretation. It does not address the merits of the RPS provisions under appeal.

5 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”.

6 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 NZ Forest Research Institute Limited v Bay of Plenty Regional Council. 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:

[15] 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.

7 Mr Christensen, counsel for Federated Farmers, placed some emphasis on those findings early in his submissions, but very properly acknowledged that they were obiter dicta 2. 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.

Text, purpose and context

8 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.

9 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.

10 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 exercising powers and functions under the Act to take account of the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

11 The purpose of the RMA is set out in s5 of that Act. It is well known, but I will set it out for the purposes of comparison with the relevant provisions of HSNO:

• 5 Purpose

  • (1) The purpose of this Act is to promote the sustainable management of natural and physical resources;

  • (2) In this act, sustainable management means managing the use, development and protection of natural and physical resources in a way, or at a rate, which enables people and communities to provide for their social, economic and cultural wellbeing and for their health and safety while —

    • (a) sustaining the potential of natural and physical resources (excluding minerals) to meet the reasonably foreseeable needs of future generations; and

    • (b) safeguarding the life-supporting capacity of air, water, soil and ecosystems; and

    • (c) avoiding, remedying, or mitigating any adverse effects of activities on the environment.

12 Section 6 RMA sets out, in some detail, seven matters of national importance which people are to recognise and provide for when exercising functions and powers under the Act, which include (in summary), natural character of the coastal environment and other water bodies; outstanding natural features and landscapes; areas of significant indigenous vegetation and significant habitats of indigenous fauna; public access to and along water bodies; the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga; historic heritage; and protected customary rights.

13 Section 7 sets out other principles at a slightly lower level of importance than those under s6, and they include (in summary), kaitiakitanga; the ethic of stewardship; the efficient use and development of natural and physical resources; the efficient end use of energy; maintenance and enhancement of amenity values; intrinsic values of ecosystems; maintenance and enhancement of the quality of the environment; finite characteristics of natural and physical resources; the protection of the habitat of trout and salmon; the effects of climate change; and benefits to be derived from the use and development of renewable energy.

14 Section 8 RMA concerns the Treaty of Waitangi, and is fairly similar to s8 HSNO, except that it commences with the words “In achieving the purpose of this Act,” a difference which is probably not important for present purposes.

15 Sections 5, 6, 7 and 8 of each Act bear some similarities to each other.

16 The RMA originally included a Part XIII, repealed by the enactment in 1996 of HSNO. Indeed, that Part was never in force, given absence of a required Order in Council. That former Part foreshadowed a Hazards...