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7. Altering the public regime

97 THE PRIVATE TORT REGIME will not provide remedies against all damage. As noted by Professor Stephen Todd in his report to the Royal Commission:

Some forms of “environmental” damage are not, or not easily, remediable through a regime of individual liability. For a tort action to lie there needs to be an identifiable defendant (or defendants), quantifiable damage, and a causal connection between the defendant and the damage. Where damage is widespread and diffuse and the possible sources and their contribution to the damage uncertain, finding a remedy is no longer a matter for disputation between citizens.[88]

98 In such situations a public law regime can be more effective at establishing regulatory control and in responding to widespread damage. In New Zealand the principle statutes that regulate GMOs are the Hazardous Substances and New Organisms Act 1996, the Biosecurity Act 1993 and the Resource Management Act 1991 (see paragraphs 50–56). The Hazardous Substances and New Organisms Act and the Biosecurity Act impose restrictions on the introduction and creation of GMOs in New Zealand. The Hazardous Substances and New Organisms Act provides no ongoing controls over a GMO once it has been approved for general release, but the Biosecurity Act does provide a mechanism to eradicate or control a GMO if it escapes containment or if, after release, it is found to be likely to cause harm. In addition, recourse to the RMA may also be possible if environmental damage is caused. Therefore, there is a structure to deal with GMOs during their creation and containment and to deal with any adverse effects after their release. How effective the statutes will be in practice at dealing with GMO damage is not clear. The Ministry for the Environment is currently co-ordinating and implementing the government’s response to the Royal Commission report, including consideration of possible statutory amendments.

99 The current statutes do not focus on compensating individuals for damage suffered. Instead, their focus is providing an effective regulatory regime with powers to rectify any damage caused. The statutes could be amended to change this focus if it was felt necessary for the public regime to deal with compensation. Other possible public law remedies that could be considered to address this issue include the creation of a compensation fund (discussed below) or the backstop of the state guaranteeing to compensate persons for damage caused by the GMO industry.

100 In Europe it is common for liability regimes to distinguish between “traditional” damage (personal injury and property damage) and “environmental” damage (contaminated sites and biodiversity damage). Environmental damage is largely addressed by public law with strict liability. Traditional damage tends to be addressed by the private law, with a mix of fault-based and strict liability.[89]

101 An example of such an approach is the proposal from the European Commission for a Directive on Environmental Liability.[90] Under the Directive, operators would be held strictly liable for environmental damage caused by designated activities.[91] Such activities include any contained use, including transport, of GMOs and their deliberate release into the environment.[92]

102 Under the proposed Directive:[93]

• The competent authority may require an operator to take necessary preventive measures or shall itself take such measures to avoid environmental damage.[94]

• The competent authority may require the operator to take restorative measures, financed directly by the operator, or can complete the restoration itself and recover costs from the liable operator.[95]

• Operators are jointly and severally liable for costs.[96]

• If no operator can be held liable, or the operator has insufficient funds, Member States must adopt all necessary measures to ensure preventive or restorative measures are financed.[97]

• Member states are to encourage the use by operators of appropriate insurance.[98]

103 The proposal does not cover “traditional” (private) damage because it was considered that this could continue to be regulated through civil liability.[99] The proposed Directive covers environmental damage in general, and not only damage caused by genetic modification.

Conclusion

104 It is a policy decision as to what damage should be covered by the private regime, or the public regime, or both. As discussed, the public regime will often be most effective in cases of widespread damage, or damage that requires a co-ordinated approach to rectify. Again, the issue of treating like with like is relevant. Government will need to consider whether new public law liability for GMO damage is justified or whether GMO damage should be addressed along with other types of damage of a similar kind, as is the approach to environmental damage under the proposal from the European Commission for a Directive on Environmental Liability.