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• What Are The Special Features Of Genetically Modified Organisms That Affect Liability?
• Treating Like With Like

3. Why focus on genetic modification?

16 THERE ARE TWO BASIC ISSUES when considering liability for GMOs. First, any change to the existing regime requires good reasons, that is, new challenges that cannot be met by the adaptive nature of the common law but can be dealt with by legislative change. The bulk of this paper focuses on the questions which arise from that starting point.

17 Secondly, any liability regime should treat like with like. This is a fundamental premise of our legal system. This has led us to examine the question of whether a regime should be developed specifically for GMOs. What is it, if anything, about GMOs that is unlike any other potentially hazardous human activity or technology, and thus would justify a separate legal regime? If there are gaps in our liability regime, are those gaps specific to GMOs?

18 These questions appear to be a critical preliminary issue for government, preceding any consideration of whether a new legal regime is needed and, if so, what it might look like. The answer will determine whether it is a GMO-specific regime that is needed, or a regime to encompass all human activities or technologies posing similar potential dangers.

What are the special features of genetically modified organisms that affect liability?

19 The alteration of the current liability regime will only be necessary or desirable if GMOs have particular features that cannot adequately be dealt with under the existing framework. Features of GMOs relevant to liability that suggest a new regime may be needed include:

• It is difficult to estimate the level of risk posed by GMOs because they are a new technology. This has a significant impact on the possibility of insuring against such risks, as will be discussed below.

• The magnitude of the potential damage is difficult to assess. Unlike a toxic spill, for example, which involves a defined amount of a particular substance in a limited location, GMOs may have the ability to replicate without limit.[8] In addition, there is the possibility of gene transfer from one species to another. Therefore, “GMOs pose a level of potential clean up cost that is not readily subject to pre-estimation”.[9] Dr David Suzuki, a Canadian ecologist, summarised the danger in his evidence to the Royal Commission:

The difference with this technology is that once the genie is out of the bottle, it will be very difficult or impossible to stuff it back. If we stop using DDT and CFCs, nature may be able to undo most of the damage – even nuclear waste decays over time. But GM plants are living organisms. Once these new life forms have become established in our surroundings, they can replicate, change and spread, so there may be no turning back.[10]

• The limits of any liability regime must be acknowledged. Genetically modified organisms have the potential to create catastrophic levels of harm. In the face of such loss most liability regimes will be ineffective. Similarly, there may be some damage that would be, for all practical purposes, impossible to compensate or rectify such as the loss of biodiversity or the spiritual pollution of traditional foods.[11]

• Although the potential dangers posed by GMOs are difficult to predict, it is likely that some of the potential negative effects will manifest in the long term and be diffuse in nature.[12] This result could mean that potential defendants no longer exist when the damage is discovered.

• A potential plaintiff may well face difficulty and expense in establishing causation and proving the extent of any damage.[13] This is because of the possible time lapse before damage is discovered and the scientific evidence that would be required to prove causation.

20 In summary, any liability regime for GMOs will need to address the following difficulties:

• unknown level of risk;

• unknown magnitude of potential damage;

• the possibility of catastrophic, irreversible and/or incompensable damage;

• the possible time lapse before damage is discovered; and

• the need to prove causation.

Public concern for safety

21 In addition, there is also a level of public unease about the safety of the new technology. Such public concern becomes a factor if government wants to permit the development of genetic modification. It is important that the public is well informed about the true nature of the possible risks. A new liability regime can play a role in this process.

Ethical and spiritual issues

22 There are also ethical issues raised by genetic modification.[14] For some people genetic modification is not just another scientific technique – it is a significant and irreversible step in human intervention into nature. Such concerns go beyond worries about whether the technology is safe or whether the outcomes are predictable (although such concerns are keenly felt). Rather, these people question whether there should be any involvement in such fundamental human manipulation of nature.[15]

23 Concerns have also been raised by Mäori, which arise from a different belief structure. Although the basis for many of the Mäori cultural objections[16] to genetic modification vary among iwi, they are usually based around impacts on whakapapa, mauri, kaitiakitanga, and rangatiratanga.[17] The traditional Mäori worldview considers all parts of the natural world to be related through whakapapa. Genetic modification risks interfering with such relationships, and threatens the sanctity of mauri (life principle) and wairua (spirit) of living things. In this way, genetic modification may affect the ability of Mäori to be kaitiaki (guardians) of their taonga and, particularly, their ability to care for valued flora and fauna.[18]

24 No liability regime will be able to address ethical and spiritual concerns. However, there are legal obligations to consider Mäori concerns, both in specific situations under statute and more generally when government is considering whether and in what ways to allow for the development of genetic modification. Both the Hazardous Substances and New Organisms Act 1996 (HSNO) and the Resource Management Act 1991 (RMA) require that persons exercising powers and functions under the Act take into account the principles of the Treaty of Waitangi.[19] In addition, section 6(d) of HSNO requires decision makers to take into account “the relationship of Mäori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga”.[20] If genetic modification offends against fundamental cultural beliefs of Mäori or the principles of the Treaty, dialogue with Mäori will be needed.

25 In the WAI 262 claim currently before the Waitangi Tribunal the claimants argue that the Crown has failed to protect the rangatiratanga of Mäori over their genetic resources and the cultural knowledge linked to those resources. The claim deals with wide-ranging issues including intellectual property, biodiversity, movable cultural taonga, and genetic modification.[21]

26 We have not given detailed consideration to these potential legal and ethical issues.

Treating like with like

27 We now return to the fundamental question of whether any new liability regime should be restricted to GMOs. The perimeter of any new regime is of pivotal importance. A liability regime specific to GMOs will only cover those activities encompassed by the definition of genetic modification used. It will not address techniques falling outside the definition even if such techniques also carry with them unpredictable risks similar to those of GMOs.

28 There is no general agreement as to which techniques should be included in the term “genetic modification”. The definition of genetic modification specified for the Royal Commission did not include all techniques of modern biotechnology and explicitly excluded some techniques whereby genes are modified.

29 The Royal Commission report and the European Directive on the release of GMOs both exclude mutagenesis (the mutation of genes by deliberate use of a virus, chemical or radiation) and cloning.[22] However, the Draft Animals and Biotechnology Report of the Agriculture and Environment Biotechnology Commission (UK)[23] includes such techniques in its definition of “GM animals” reasoning that all these are techniques of modern biotechnology and should therefore be included.[24]

30 As discussed, no matter how this perimeter is drawn, GMOs raise ethical and spiritual issues that, for some people, place them in a class separate from any other potentially hazardous human activity or technology. They might well argue that separate regulation is required for this reason, even if the scientific assessment of the potential dangers is similar.

31 If a policy decision is taken that these ethical and spiritual concerns do not mandate separate regulation for GMOs, then the concept of treating like with like suggests that human activities or technologies should only be treated differently when they poses new or greater dangers and not simply because they wear the label “genetically modified”. For example:

• One of the fears relating to GMOs is the possibility of creating “superweeds” by the transfer of herbicide resistant genes from genetically modified crops to weedy relatives. However, using canola as an example, there are commercial herbicide tolerant canola varieties that have been developed using both genetic engineering (glyphosate or glufosinate ammonium tolerant) and traditional plant breeding tools (imidazolinone or atrazine tolerant).[25] If the environmental impact of gene flow from each of these varieties is the same it would be inconsistent to subject some varieties to a new liability regime but not the others.[26] In this regard, what is important is not the fact that the crops have or have not been genetically modified but whether they have similar environmental impact.

• The introduction of a new organism into New Zealand can have devastating effects on the ecosystem. These effects can be equally damaging regardless of whether the organism is new (in the sense that it has been produced by human intervention via genetic modification) or simply new to New Zealand (as was, for example, the possum). The unpredictable impact that such introduction can have is not dependent on whether or not an organism has been genetically modified.

• There has been an application by Diatranz Limited to undertake a clinical trial involving the insertion of encapsulated living pig cells into the abdomen of patients with type I insulin dependent diabetes. There are fears that the process could result in porcine endogenous retrovirus being transmitted into human cells.[27] This procedure does not involve genetic modification.

32 These examples demonstrate that there is a wide range of activities that could be covered by any new liability regime. It may be productive to investigate carefully whether genetic modification per se poses greater risks than other activities.

33 We suggest that any new liability regime should treat human activities or technologies that pose similar dangers in the same way, rather than treating them differently on the basis of the particular technology used.[28] This approach is adopted by Canada under its regulations for novel food where the focus is on the properties of the final product rather than the process by which it was made.[29] Similarly, the approach of the Proposal for a Directive of the European Parliament on Environmental Liability was to encompass a range of listed activities that posed the possibility of causing environmental damage, rather than only addressing one activity (such as genetic modification).[30] In New Zealand, the existing relevant statutes tend to treat GMOs as only one type of new organism,[31] new food,[32] or new medicine³³ with no exclusive legal requirements for genetic modification.

34 The Law Commission is not suggesting that the risks posed by GMOs and those posed by other potentially hazardous human activities or technologies are the same. Nor are we saying that there is no difference between genetic modification and standard breeding techniques. We do not have expertise in these areas. However, such differences need to be investigated and considered. It is important to avoid creating different liability regimes for human activities or technologies that involve different processes but have the same possibility of hypothetical problems.[34]

35 There are four broad possibilities:

1(a) GMOs are substantially different – the process by which GMOs are created means they are more likely to cause unexpected and damaging results. However, the existing liability regime is adequate to deal with the risks posed by this new technology.

1(b) GMOs are substantially different – the process by which GMOs are created means they are more likely to cause unexpected and damaging results. The existing regime is inadequate to deal with the risks posed by this new technology.

2(a) GMOs are no different from other potentially hazardous human activities or technologies. No change is required to the current regime.

2(b) GMOs are no different from other potentially hazardous human activities or technologies. However, the current regime does not deal adequately with liability for damage caused by all such activities and should be changed for all (and not just genetic modification).

36 Although the remainder of this review focuses on GMOs in accordance with our terms of reference, the preliminary questions suggest a broader investigation with a more scientific focus might be considered.