18 September 2001 at 12:18:31
Background
This commission was concerned with genetically modified organisms (GMOs) or
"genetic engineering which includes altering genes within an organism and the
transfer and alteration of genes between organisms (hybridisation and cloning
were not therefore included in the inquiry).
The commission consulted widely with Mäori groups (including 28 workshops and
10 regional hui) and heard many expressions of concern about current approaches
to GMOs. A national hui called for an immediate moratorium on all activities
relating to GMOs. Mäori views did not differ to any significant extent from
non Mäori views in a public opinion survey undertaken by the commission. That
is, GMOs were not a "top of mind" issue for those Mäori surveyed, few felt themselves
to be very informed about the issue, GMOs in the area of medical research were
generally approved of, but most Mäori surveyed disapproved of GMOs involving
foods, farm animals and crops.
The major conclusion of the inquiry was that the appropriate strategic approach
for NZ should be to preserve opportunities and allow the co-existence of agriculture
using GMOs alongside existing uses, including organic uses. The current system
for assessing risks under the Hazardous Substances and New Organisms Act 1996
(HSNO) was regarded as sufficient, with modifications required in some areas.
The most significant of these recommended by the commission were:
*Amend the HSNO Act 1996 to allow for the "conditional release" of GMOs where
appropriate ie a release into the general environment, but subject to certain
restrictions such as the number of GMOs released, and their location. This could
include a requirement for buffer distances from existing organic crops or the
exclusion from particular districts.
*Where a release into the general environment is contemplated, allow the Environmental
Risk Management Authority (ERMA) to assess the economic impact the release might
have on the national strategy which the commission had recommended of preserving
opportunities and the co-existence of genetically modified and unmodified agriculture.
*Where the first open or controlled release of a genetically modified crop
into the general environment is contemplated, require the Minister for the Environment
to make the decision under the HSNO Act, after considering the likely overall
economic and environmental impact of that first release on the strategy of preserving
opportunities.
The commission considered a number of matters relating specifically to Mäori
and those considerations were a major part of the report.
Maori values
The commission sought to identify the common set of values held by New Zealanders
which might inform debate and decisions about GMOs. It identified Te Ao Mäori,
or the "traditional Mäori world view" as one set of values. The key features
noted were:
* The unique nature of Mäori values in NZ, underpinned by the Treaty of Waitangi.
* A holistic or ecological approach of which kaitiakitanga or "obligated stewardship"
is an important element.
* A belief that there are direct spiritual costs associated with environmental
degredation which can lead to physical harm.
* The notion that groups hold manawhenua or primacy over particular areas of
land.
The commission compared Mäori and Pakeha decision-making processes and values
in relation to the issue of transgenic animals (introducing genes from one animal
into another).
The commission noted that many considered that the current case-by-case approach
to decision making on GMOs was inadequate for dealing with the larger ethical
issues. It recommended that the government establish a specialist body, Toi
te Taiao: the Bioethics Council, to act as an advisory body on ethical, social
and cultural matters in the use of biotechnology and to assess and provide guidelines
on biotechnological issues involving significant social, ethical and cultural
dimensions.
Toi te Taiao would encourage public participation and address broad policy
concerns with new processes, leaving it to ERMA to continue to make decisions
on a case by case basis. The council would issue non-binding guidelines. "In
establishing guidelines the Council would need to be familiar with the facts
of specific situations, but in addition would consider the issues raised in
a much broader framework. It would, for example, consult with Mäori nationwide,
while leaving ERMA to take into account the views of local Mäori on a specific
application. …. The Council would regularly consult with ethicists, and at times
with religious leaders on spiritual issues."
The commission recommended that the council produce guidelines on xenotransplantation
and gene therapy and the ethical issues surrounding the patenting biotechnology
advances.
In response to concerns raised by both Mäori and non-Mäori submitters about
the monitoring of GMO developments, the commission also recommended the establishment
of a Parliamentary Commissioner on Biotechnology "to undertake futurewatch,
audit and educational functions with regard to the development and use of biotechnology
in New Zealand." Among other matters, the parliamentary commissioner would work
to ensure that tangata whenua were informed about, and could properly participate
in, decisions about the new bio-technologies.
The commission also recommended that Institutional Biological Safety Committees,
which have delegated authority to approve low risk research on GMOs in laboratories,
should include at least one Mäori member, appointed on the nomination of the
hapü or iwi with manawhenua in the locality affected by an application.
Intellectual property issues
The commission examined issues relating to intellectual property rights (IPR)
ie the ability to register and prevent others using new, non-obvious, inventive
and useful ideas which were the product of human ingenuity. This included copyright,
industrial patents and patents over new plant types (plant variety rights).
Mäori concerns were that the system of intellectual property rights was in
conflict with Mäori values such as kaitiakitanga, tapu, mana, and communal ownership,
and international agreements limited the ability to provide a particular regime
for indigenous people. There was also a concern that Mäori control over genetic
resources, particularly native flora and fauna, was lost in the IPR regime.
The patent regime was said to be in conflict with Mäori values because:
* Traditional knowledge of a group developed over generations was not patentable
because it was not novel or a new creation of an individual or group.
* Even if traditional knowledge could be patented, patents expired after 20
years, after which time the knowledge was open to use by anyone, regardless
of the effect on mana and tapu.
* Full public disclosure was required before any patent could be issued. This
conflicted with traditions of ritual and prayer surrounding important traditional
knowledge.
The commission noted that the Intellectual Property Office (IPONZ) now required
evidence of consultation with the appropriate Mäori community when contentious
applications were received.
The commission recommended that a formal Mäori Consultative Committee be established
by IPONZ to "develop procedures for assessing applications, and to facilitate
consultation with the Mäori community where appropriate."
While international agreements allow countries to refuse patent applications
which might offend public order or morality, it was unclear if this would include
applications which were culturally offensive - for example - an application
"to patent a process to extract and modify genes from tuatara for a product
to promote longevity." The commission noted that the 1993 Mataatua Declaration
demonstrated that NZ was a world leader in the promotion of indigenous rights
to intellectual property internationally.
International agreements also failed to consider that intellectual property
rights might be collective. This was in contrast to the Convention on Biological
Diversity which had been ratified by NZ which required signatories to:
"... respect, preserve and maintain knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles relevant for
the conservation and sustainable use of biological diversity ..."
Accordingly, the commission recommended that New Zealand should be proactive
in pursuing cultural and intellectual property rights for indigenous peoples
internationally. This should include seeking an amendment to the World Trade
Organization Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) to include a reference to the avoidance of cultural offence as a specific
ground for exclusion or reservation.
The commission noted concerns over the ownership and control of native flora
and fauna and arguments about whether the Treaty of Waitangi provided particular
protection for Mäori. International agreements did not currently allow NZ to
discriminate in favour of Mäori groups. The issue was currently being heard
by the Waitangi Tribunal, and the commission recommended that parties to those
claims (WAI 262 and WAI 740) should work to complete that hearing and report
as soon as possible.
Treaty of Waitangi
The commission was specifically asked to comment on "the Crown's obligations
under the Treaty of Waitangi in relation to genetic modification, genetically
modified organisms, and products".
The commission noted that the Treaty principles of consultation, active protection
of Mäori interests and partnership were the most relevant to issues raised by
GMOs, along with a requirement for "reasonableness and cooperation" between
the parties.
Mäori submitters complained that consultation about GMOs had been inadequate.
The commission endorsed a model of a successful consultation which included
several key elements:
* Tangata whenua were identified with the assistance, where possible, of the
consent authority eg ERMA.
* There was prior agreement with tangata whenua on the consultation process,
including outcomes, time frames and costs.
* Consultation is carried out before the application was lodged with the decision
making body.
* If an "ongoing relationship" was to be maintained, a memorandum of understanding
was developed with the tangata whenua group.
In addition, consultation with the group claiming mana whenua of the area in
which testing of trials would be carried out was important.
The commission suggested that Toi te Taiao, its proposed Bioethics Council
would draw up a framework of principles for dealing with tangata whenua concerns,
including a "best practice" guide to consultation. The Mäori advisory arm of
ERMA and the proposed Mäori representatives on IBSCs would also be important.
The HSNO Act provided that decision makers must "take into account" the relationship
of Mäori and their culture and traditions with their and valued flora and fauna,
as well as the principles of the Treaty of Waitangi. The High Court in the Bleakley
v ERMA case (see Mäori LR April 2001 p2) considered that Mäori cultural and
spiritual values not specifically linked to physical or tangible features were
included in the matters which must be taken into account. Mäori submitters argued
that the requirement in the HSNO Act should be to "recognise and provide" for
those matters. They were disappointed that the High Court in Bleakley observed
that:
"the obligation "to take into account" in s6 was not intended to be higher
than an obligation to consider the factor concerned in the course of making
a decision - to weigh it up along with other factors - with the ability to give
it considerable, moderate, little, or no weight at all as in the end in all
the circumstances seemed appropriate."
The commission noted that the High Court had made it clear that purely intangible
concerns raised by Mäori could on their own be sufficient to halt an application,
if they had sufficient weight, regardless of the health or research benefits
of the application. On the particular facts of the Bleakley case, the court
did not accept the evidence had sufficient weight to reach that conclusion.
If there had been a requirement to "give effect to" Mäori concerns then the
mere existence of Mäori concerns which conflicted with the application would
have required ERMA to decline it.
The commission thought that it would be "contrary to the spirit and the principles
of the Treaty were the spiritual and cultural values of either Treaty partner
given pre-emptive standing." The appropriate framework for the consideration
of applications under HSNO was that "the spiritual and cultural values of all
New Zealanders ought to be taken into account". This was currently provided
by s5(b) which required ERMA to recognise and provide for: "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."
However, the commission recommended that the requirement to "take into account"
the principles of the Treaty of Waitangi should be amended:
"We do not see why legislation seeking to incorporate such fundamental concepts
need be half-hearted or ambiguous. In our view the principles should be incorporated
in plain terms, and not left in the potentially token state of being "taken
into account". We would favour amendment of section 8 so that, on the precedent
of the Conservation Act, it is clear that effect is to be given to the principles
of the Treaty. We note the High Court has said that, since the Treaty was designed
to have general application, such general application "must colour all matters
to which it has relevance" (Barton-Prescott v Director-General of Social Welfare
[1997] 3 NZLR 179, 184) so it may be that what we are proposing goes no further
than what, in many cases, would be regarded as the appropriate legal interpretation."
The commission also recommended that the ability for the Minister for the Environment
to "call-in" particular applications (s68 HSNO Act) should include situations
where significant cultural, ethical and spiritual issues were raised by the
application.
Commentary: the recommendation to amend s8 of the HSNO Act will
no doubt give rise to an interesting debate. Should s8 of the Resource Management
Act 1991 also be amended for consistency? In a recent article, "The Treaty of
Waitangi in Legislation" (NZLJ June 2001 p207) Professor Matthew Palmer has
suggested that, in future, references to the Treaty of Waitangi in legislation
should consist of a "generic symbolic legislative mihi to the Treaty of Waitangi,
without general legal effect" combined with "specific legislative provisions
that achieve Parliament's specific policy purposes". The relevant provisions
in the NZ Public Health and Disability Act 2000 are held up as an example. The
recommendation from the commission seems to go beyond a "generic symbolic legislative
mihi" without general legal effect. But the commission report also makes it
clear that "giving effect" to the principles of the Treaty should not lead to
any greater general weight being placed on Mäori values than they currently
enjoy under the ERMA regime.
The government is considering its response to the commission report. In the
meantime, a Trade Marks Bill has been introduced which deals with some of the
concerns about the consideration of cultural values when trade marks are produced
for registration (the Bill will be reviewed in the next issue).
Sir Thomas Eichelbaum (chair)
