AustLII Home | Databases | WorldLII | Search | Feedback

James Cook University Law Review

James Cook Univeristy Law Review (JCULR)
You are here:  AustLII >> Databases >> James Cook University Law Review >> 2003 >> [2003] JCULawRw 2

Database Search | Name Search | Recent Articles | Noteup | LawCite | Help

Havemann, Paul --- "Genetic Modification, Ecological Good Governance and the Law: New Zealand in the Age of Risk" [2003] JCULawRw 2; (2003) 10 James Cook University Law Review 7


GENETIC MODIFICATION, ECOLOGICAL GOOD GOVERNANCE AND THE LAW: NEW ZEALAND IN THE AGE OF RISK

PAUL HAVEMANN*

* Professor of Law, James Cook University, Townsville, Qld, Australia. This article is substantially based on a paper presented at the 20th Annual Australian Law & Society Conference, Legal Intersections Research Centre, Faculty of Law, University of Wollongong, NSW, Australia, 9 December 2002, while the author was Professor of Law at the University of Waikato, New Zealand.

INTRODUCTION

Three major, interconnected, revolutionary processes of change with an impact unprecedented in its velocity, intensity and extensity have since about the 1980s been effecting the ‘modernisation of modernisation’ — a fundamental rupture with the practices and capacities of pre-modern and simple modern times. These three change processes are:

• globalisation — exemplified by the demise of the Westphalian framework of inter-state relations, the transformation of the state, and the homogenisation and polarisation of polities,[1] the growth of transnational capitalism, the Washington consensus, and global and local economic governance;

• the Information and Communication Technology (ICT) revolution — exemplified by the collapse of space and time and the rise of informational capitalism;[2]

• the new biotechnology revolution — exemplified by the capacity to manufacture life:[3] Genetic Modification/Engineering coupled with bio- informatics and the emergence of genetic commerce.

Elsewhere I have tried to address globalisation in local and global terms,[4] and dimensions of reflexive modernisation, citizenship and human rights in spheres such as the ICT revolution.[5] In this paper the biotechnology revolution and specifically Genetic Modification (GM) is the lens through which the ‘age of risk’ [6] or risk society[7] is appraised. The principal focus of the paper is the context for, and nature of, regulation of GM-related risks such as field trials, by New Zealand’s Environmental Risk Management Authority (ERMA). ERMA operates under the Hazardous Substances and New Organisms Act 1996.[8] This Act was passed 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’.

I THE AGE OF RISK

A Sociological, Actuarial and Legal Discourses of Risk

Risk is understood in this paper in terms of a sociological theoretical discourse which systematically analyses how contemporary late-modern societies reflexively understand and deal with the hazards, uncertainties, actual disasters and possible catastrophes induced and introduced by the revolutionary modernisation of modernisation itself. These themes overlap not only with modern actuarial discourses of risk assessment and risk management and their ‘offspring’ such as cost–benefit analyses, environmental impact assessments and environmental audits, but also with legal discourses of risk which concern the official management of risk.

B Genetic Modification Risk Regulation in New Zealand

The normative architecture of the system to regulate the risks of GM activities in New Zealand was established by the HSNO Act 1996 and ERMA’s rules,[9] and its implementation is conducted principally by ERMA, which has been set up to use a ‘case-by-case’, ‘precautionary approach’ to ‘risk–benefit’ analysis. The sophisticated risk–benefit formula ERMA must employ exemplifies late-modern actuarial risk discourse with a tincture of the precautionary principle enunciated in the 1992 Rio Declaration on Environment and Development Article 15:

ERMA is required to assess release applications in accordance with the purpose of the HSNO Act and the risk assessment and management processes set out in the Act. Applications are considered on a case-by-case basis after an assessment of risks and benefits, and after considering any public submissions. ERMA is required to take a precautionary approach when considering the scientific evidence relating to the application.

Because of the minimum standards in section 36, ERMA must decline a release application if the organism is likely to: a) Cause any significant displacement of any native species within its natural habitat; or b) Cause any significant deterioration of natural habitats; or c) Cause any significant adverse effects on human health or safety; or d) Cause any significant adverse effect to New Zealand’s inherent genetic diversity; or e) Cause disease, be parasitic, or become a vector for human, animal, or plant disease [unless that is the purpose of the application].

Section 38 of the Act states that ERMA can approve an application to import or release a new organism:

• if there is sufficient information available to assess the adverse effects
• if the organism meets the minimum standards, and
• if after considering the ability of the organism to establish an undesirable self-sustaining population (and the ease of eradication if it did so), the positive effects of the organism outweigh the adverse effects.

The ERMA formula and decision path process employ the concept of risk–benefit analysis: ERMA weighs up the benefits of the new organism against the risks. Because ERMA cannot yet put any controls on releases, when weighing up the risks and benefits ERMA must assume that a new organism will spread to all parts of New Zealand.[10]

The HSNO/ ERMA formula aims to factor in and balance a host of variables. Structured into the decision path for determining risk is a Maori advisory committee, Nga Kaihautu Tikanga Taiao, as well as the option for public hearings and submissions from third parties.

ERMA’s decision path for considering applications, for example to field- test genetically modified organisms (GMOs), is as follows:

• Receive valid application
• Review applicant’s assessment of risks
• Evaluate risks Submissions from applicants & interested outside parties

Public hearings before ERMA

Expert scientific review

Input from Maori advisory committee
• Consider if application meets minimum standards
• Evaluate each risk
• Consider all risks combined
• Weigh up whether benefits outweigh costs and risks, and for whom
• Approve or decline application & determine controls

The quest seems to be to reconcile competing and contradictory rationalities of science, economics, and politics (social and cultural values)[11] while privileging science (and economics?).

Clearly, this risk–benefit formula gives plenty of scope for complex and irresolvable legal, cultural, social, ethical, economic and scientific definitional struggles. For instance, what is meant by ‘significant’ under s 36? Who decides, and how? And what is meant by ‘sufficient information’, ‘minimum standards’, and ‘positive’ or ‘adverse’ effects under s 38? Who decides, and how? Similar struggles are inevitable over interpretation of the purposes (ss 5–8) of the HSNO Act 1996:

Section 5. Principles relevant to purpose of 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.

Section 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 their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga;

(e) The economic and related benefits to be derived from the use of a particular hazardous substance or new organism;

(f) New Zealand’s international obligations.

Section 7. Precautionary approach—

All persons exercising functions, powers, and duties under this Act, including but not limited to, functions, powers, and duties under sections [28A,] 29, 32, 38, 45, and 48 of this Act, shall take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects.

The precautionary principle ought to shift the onus of proof of harm from conservationists to developers. The HSNO Act’s section 7 merely specifies a ‘precautionary approach’ rather than the application of the precautionary principle. This wording has been interpreted by a New Zealand Court to restrict ERMA’s task to preventing or managing the adverse effects of new organisms:[12] it seems that ERMA is not expected by the courts to prohibit the release of new organisms on the basis that despite scientific uncertainty it anticipates serious or irreversible damage?

ERMA’s Interpretations and Explanations of Key Concepts (2002) explains neither the precautionary approach nor the precautionary principle. However, the Authority’s attitude to future generations is spelt out: ERMA stipulates that the concept of ‘future generations’ in section 5(b) of the HSNO Act should not be confused with the concept of ‘intergenerational equity’. Although citing Ben Boer’s article on the notion that the present generation ought not to leave the environment in a worse state than it has enjoyed,[13] ERMA suggests a lower standard based on future generations’ reasonably foreseeable needs and the duty/ obligation not to significantly reduce the options of future generations.[14]

Section 8. Treaty of Waitangi—

All persons exercising powers and functions under this Act shall take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi).

The principles of the Treaty, in terms of who defines these and their legal status, have been controversial ever since the Treaty of Waitangi Act 1975 first introduced this interpretive device for determining Treaty issues, and ERMA’s documentation does little to advance understanding. Treaty principles are defined neither in ERMA’s Interpretations and Definitions of Key Concepts (2002) nor in the ERMA guide, Working with Maori under the HSNO Act 1996 (2001).

ERMA’s Maori advisory committee, Nga Kaihautu Tikanga Taiao, has outlined three key principles that inform its advice on applications:

• Principle 1: Tino Rangatiratanga / Kawanatanga / Partnership
• Principle 2: Tino Rangatiratanga: Active protection of Maori Taonga
• Principle 3: Oritanga, Kawanatanga (Equality, Good Governance)[15]

Nga Kaihautu Tikanga Taiao must be consulted along the ERMA decision path. The committee writes its own reports but is an advisory body only, with no power to veto applications.

The HSNO Act and ERMA were conceptualised as a regulatory control regime for disciplining those ‘agents’ handling new organisms or hazardous substances. These agents suffer heavy penalties for breaching these controls:

As of 20 March 2002, ERMA had approved five new organisms (all non- GM) for release, 128 new organisms for import or development in containment, and 13 GMOs for field-testing. No applications for a GMO release had been received.[16]

C The Modern Age, or the ‘Age of Risk’?

The HSNO/ ERMA control regime is constructed out of the assumptions and certainties of modern thought. Virtually no thought is given to liability for damage to third parties or to catastrophic levels of damage that might arise from new GM organisms or hazardous substances.[17]

According to the hegemonic worldview of the age of industrial modernity, nature — perceived as both robust and capricious — is there to be mastered and exploited; natural hazards such as plagues, floods and droughts are explicable in terms of acts of God or nature or chance; and the past is a guide to the future. Science, law, economics and culture provide the epistemic framework for probabilistic calculations[18] and legal and actuarial discourses of risk that enjoy official confidence and popular acceptance, thus giving legitimacy to action and inaction. This worldview still informs assumptions about how hazards are to be determined and their severity is to be calibrated. Hazards are assumed to be manageable through public and private regulatory and liability regimes. Any negative consequences of risk (mis)management can be mitigated or obviated by monetary compensation. Chance, lack of foresight or failure to perform a duty of care explain negative events, and what to do about them. Chance, fault and market forces make labelling and distinguishing between winners and losers — that is, who gets the benefits and who bears the burdens — natural, neutral and therefore legitimate.[19] One’s class position dictates how material burdens and benefits are distributed,[20] and the legitimation and de-legitimation of inequality are the preoccupying issues of politics.[21]

The HSNO/ ERMA regime barely anticipates dealing with the major technological risks (MTRs) of late modernity; yet its business is quintessentially about the modernisation of modernity. In late modern times, humankind dominates nature, for instance by manufacturing life in the form of GMOs, for good or ill — this is the age of risk. The age of risk does not yet differ markedly from the age of industrial modernity in terms of the material conditions, life choices and life courses people experience. It differs in the discourses about risk — where they come from and how to manage them.[22] In particular, as is becoming increasingly evident, the past has lost its power to predict the future and to dictate how we should act.

The contemporary modernisation process is reflexive, in that recognition of this destabilisation of our basis for certainty is increasingly incorporated into action and thought as systems and people adapt, change, invent and reinvent themselves. Thus they endeavour to confront and cope with new, present and future, actual and perceived realities of the age of risk. Reflexive consciousness within science, law, economics and civil society increasingly leads to challenges to technological authoritarianism. At the centre of risk consciousness in the age of risk lie profound questions about whether the modern epistemic framework can generate the knowledge we need about the late-modern world.

Risk positions frequently correspond with class positions in the hierarchies of structured inequality: the oppressions of risk status are simply added to those of class status. In the age of risk, this is a risk-class society.

D Natural Risks and Manufactured (Major Technological) Risks

Natural disasters and catastrophes — fire, famine, earthquakes, cyclones and floods — were typical hazards in pre-modern and modern times. In late modern times this list is augmented by manufactured hazards, the consequences of human activities associated with modernisation.[23]

In the age of risk, environmental degradation has already reached catastrophic proportions. The insurance industry analyses in actuarial terms the costs of catastrophic hazards, defining catastrophes as low- probability events capable of inflicting extremely severe damage to, for instance, human health, bio-diversity and the economy.[24] Major technological risks (MTRs)[25] include hazards from chemical and nuclear pollution, pharmaceutical and medical innovations[26] and GMOs.[27] The hazardous ‘side-effects’ of the modernisation of modernisation include: global warming from greenhouse gases; ozone depletion from CFCs; drought, erosion and social dislocation from the construction of hydro and irrigation dams; leaching of toxic materials from landfills; BSE from unnatural cattle feed compounds; soil degradation; and social dislocation from the ‘green’ revolution. Each manufactured risk stems from our risk- taking with science and technology to overcome natural hazards and overwhelm natural limitations on economic growth and our quality of life. In the age of manufactured risk, humankind now deploys an arsenal of weapons to (try to) create certainty, to combat the adverse material consequences of modernity, and to overcome any curbs on growth, progress, comfort and wealth accumulation.

E Technological-authoritarian and Ecological- democratic Governance

What constitutes ecological good governance is a crucial and pressing question of the contemporary age,[28] but it has to be future, as much as present, focussed. In contrast, the technological-authoritarian governance of industrial modernity relies on the past to inform the present. Under technological authoritarianism the world saw the rise of both the nuclear and biotechnology industries. In the late 1990s the official response to the BSE/ vCJD phenomenon gave us a paradigm case study of this model of governance in action. Reaction against technological authoritarianism is emerging. The New Scientist, for instance, commenting on the Phillips Report on the BSE crisis in the United Kingdom, says that ‘despite the vast scale of the report it contains only one truly important message: secrecy and paternalism make for bad science and bad government’. The New Scientist’s summary stresses Lord Phillips’s findings that public trust relies on frank, objective and open communication, in particular about uncertainty, and that scientists cannot always provide the answers and ought not to be expected to do so, nor purport to be able to do so.[29]

The ideology underpinning technological authoritarianism privileges ‘scientific’ rationality over social rationality or other values and epistemic frameworks. Beck describes the prevailing arrangement as ‘the polygamous marriage between politics, science, business, law and ethics’.[30] This arrangement promotes the life-blind quest for economic growth or power captured in the concept of economic globalisation. Technological authoritarianism endows corporate science with a near- monopoly claim on rationality and hence authority. Ironically, no longer challenging traditional authority as the emancipatory tool of the Enlightenment, scientific inquiry has acquired a neo-feudal authoritarian, rather than authoritative, status of its own that is deemed to be unchallengeable. Wynne warns that concepts like ‘risk’ and ‘environment’ can easily be co-opted[31] into technological-authoritarian discourse, and thus lose the power to contribute to genuinely ecological governance. Such governance would be based on an ecological paradigm, predicated on an holistic epistemic framework, which would inform authentic deliberation by all stakeholders and build in precaution as a principle of intergenerational equity. A British Royal Society report articulates this more inclusive approach, arguing that scientific assessments, and analyses of technology, economics, and risk implementation issues, must inform policy decisions but cannot pre-empt them. Setting a standard or target is a practical judgement which has to be in light of all relevant factors. People’s values must be taken into account throughout, beginning at the stage of defining a problem and framing the questions that need to be addressed.[32]

The technological-authoritarian, non-participative, mode of governance empowers economic, political and technocratic elites to make irreversible mega-scientific/ technological decisions such as the one to go nuclear in the 1940s or, now, to progress with new biotechnological inventions such as GMOs. Such decisions alter the lives of current and future generations through irreversible change that has been coerced through technological authoritarianism, not brought about by informed consent.

Inherent in the process of ecological good governance, by contrast, is ecological democracy — democratic decision-making about competing knowledge claims concerning risks, how risks are defined and how solutions are constructed or ignored. Commitment to an ecological paradigm would lead to rethinking how the GM and GE sector interacts with the public and how the risks posed by that sector are determined.[33]

Key to decision-making are those who control the ‘relations of definition’. Goldblatt[34] identifies Beck’s basic four-cornered framework (see Figure 1) of questions for evaluating the relations of definition in terms of ecological good governance:

Figure 1: Evaluating the Relations of Definition

Who is to determine the harmfulness of products, dangers and risks?

Who determines what is proof of harmfulness?

• Who are the proper arbiters of risk and managers of risk?

• By whom and how should risks be interrogated?

What counts as sufficient proof of harm/ harmlessness?

• How is the knowledge contested — how are probabilities and possibilities calculated?

• What are the grounds for accepting proof of harmfulness/ harmlessness?

Who bears the risk? How should the risks fall?

• Who gets compensated?

• Who determines the amount of compensation?

Beck suggests that controlling and owning the ‘relations of production’ is becoming less important today than controlling the ‘relations of definition’[35] of risk. The class society may be transforming into the risk society, but this does not mean the end of class: rather, another determinant of one’s class position is one’s level of exposure to current and future risks. The struggles for social democracy and for ecological democracy must both be fought against economic and technological authoritarianism.

In an ecological democracy, key social and scientific-technological decisions, for example about managing and preventing risk, are deliberated upon, debated and agreed on in a manner that allows voice for all, including future generations. Ecological democracy keeps choices about our common futures open.[36] The onus of proof that there is no hazard falls on the proponents of risk-taking (polluter proves). The standards of proof of absence of hazard are explicitly precautionary and not based on limited notions of legal and scientific foreseeability. The costs of risks gone wrong fall on the perpetrators of harm(polluter pays), and the community as a whole bears part of the burden, not just the immediate victims. For authoritarian technocracy to be replaced by ecological democracy in defining and managing risk, the focus must shift from ‘bottom line’ preoccupation with profit and risk evasion to a baseline commitment to preserve life in all its forms.

The aspect of ecological good governance with which I am concerned in this paper involves the definition of hazards and management of potential risk arising from the new biotechnology, specifically the field-testing of GMOs. In this context, there are two prime exemplars of the relations of definition in action in New Zealand. These are, first, ERMA under the (HSNO) Hazardous Substances and New Organisms Act 1996 and HSNO

(Genetically Modified Organisms) Amendment Act 2002 and, second, the Royal Commission on Genetic Modification 2000–2001. These are critiqued in terms of their relevance to managing the risks of late modern times. Are the ERMA, HSNO and the RCGM among the best regimes to regulate risks from GMOs and hazardous substances in the ‘developed’ world in the age of risk?

F Theorising Epochal Change: Industrial Modernity and Late Modernity

This article analyses the nature and form of the epochal changes in which contemporary risks are manufactured in terms of the trajectory of two different stages of modernisation. The first wave of modernisation led to the epoch of industrial or simple modernity, which emerged in Western Europe in the 17th century. Its principal drivers were liberalism, capitalism and the technological revolutions associated with industrialisation. Industrial modernity represented a radical political, legal, economic, cultural and technological rupture from pre-modern, pre-industrial feudalism. In industrial modernity the Enlightenment was manifest in a view of knowledge and science that was, and still is, conceptualised and operationalised in terms of ‘either/or’ dichotomies.[37] Official knowledge and science promise truth and certainty because these are calculable, rational and linear, and explain and predict cause and effect. Official knowledge and science are insufficiently reflexive to cope with complexity and social rationality; the ‘either/or’ view is thus easily co-opted as a tool of technological authoritarianism. The either/or view has become embedded in the relations of definition in industrial modernity. The rise of industrial modernisation and the demise of feudal pre-modern times are the core subject matter of classical social and legal theory. Scholars such as Weber, Durkheim and Marx identified socio-structural and legal markers to distinguish the pre-modern from the modern. For Weber and Marx the relations of production were the paramount source of power.

The second wave of modernisation, characterised by reflexive modernisation and the modernisation of modernity reveals an emerging rupture from industrial modernity. This emerging rupture is evident in such revolutionary changes as the re-ordering of the political economy, the network society created by the information and communication technology (ICT) revolution and the Risk society whose presence is amplified by new biotechnology revolution in which the relations of definition become highly significant.

In the epoch of reflexive modernisation as the relations of definition emerge as a core source of power the hegemonic ‘either/or’ view of knowledge and science must compete with a highly reflexive, and hence transgressive, form of Enlightenment thought: an ‘and’ view of knowledge and science. The ‘ and ‘ view of science and knowledge recognises uncertainty, holism, interconnectedness, synergies and complexity.[38] This new reflexivity opens the window to the recognition of a broader repertoire of epistemic frameworks such as traditional environmental knowledge (TEK) and vernacular science and to the adoption of the precautionary principle to manage the emerging uncertainties. The either /or view privileged experts whereas the ‘and’ view encourages the acceptance of participative deliberations between experts, lay people and communities as participants in the relations of definition. This more inclusive approach is a building block of ecological democracy and good governance.

G Modernisation and Reflexive Modernisation[39]

For the purposes of this paper Beck’s theorising of reflexive modernisation and its rupture with industrial modernity is central. Beck explains:

The perspective of reflexive modernisation connects both inquiries; the question of what is breaking up is confronted by the question of what is coming into being, with the question of the contours, principles and prospects of a second, non-linear, global modernity…[40]

These inquiries involve a self-confrontation with the dynamics of modernisation. In the process of reflexive modernisation, action is constantly monitored and critiqued by new knowledge and information, which have substantially replaced traditions as the criteria for assessing legitimacy and validity. Reflexivity involves a continuous challenge to the institutionalised standards and knowledge established by the expert systems that make up the relations of definition in the age of risk. Scientific knowledge (including knowledge about the risks posed by GMOs) is not an unproblematic monolith, of course: it is under continuous scrutiny and challenge from within science itself, based on its disciplinary rationality — even if some official publications gloss over differences within the scientific community and give the impression of a scientific consensus in favour of the officially-preferred view. The interventions of new social movements (NSMs) and civil society have introduced social and cultural rationality into the process of critique, too, so risks and knowledge of risks are also being assessed in terms of value choices and alternative epistemic frameworks. While elaborate regulatory regimes such as ERMA appear still to privilege ‘official’ science and traditional scientific authority, social and cultural rationality now increasingly destabilise and de-legitimate the former monopoly of ‘authority science’ claims.

Beck is in good company in arguing that the effects of reflexive modernisation reflect radical departures from industrial modernity. Other major contemporary social theorists argue along these lines. For instance, Anthony Giddens[41] explores reflexive modernisation in terms of globalisation, detraditionalisation and social reflexivity, while Manuel Castells’s trilogy[42] of major works explains how the ICT revolution, informational capitalism and network society represent a radical rupture from previous epochs.

I avoid the term ‘post-modern’, preferring to classify the present epoch as that of late modernity, advanced modernity or reflexive modernisation. While aspects of the post-modern critique are very productive, it is premature to consider the rupture between modern and post-modern times as a clean break; pretending otherwise often legitimates fatalism, relativism — even nihilism, an absence of engagement with contemporary events. There is insufficient evidence of the end of nature, end of modernity, end of democracy, end of the individual, end of the nation state, end of a belief in truth and justice, end of science, end of the Enlightenment, etc. Instead, this paper argues that Enlightenment thinking, in its ‘either/or’ as well as ‘and’ forms, is very much with us today. This is demonstrated again and again in the way that modern science, modern economic, legal and cultural rationality — and modern Western liberal epistemic frameworks in general — dominate our definition and management of risk, including risks from GMOs. The post-modern take on our times, claims Beck, ‘renounces what the theory of reflexive modernisation recalls, namely, the demands of the Enlightenment especially when it is reflexively turned on itself’,[43] for instance to scientifically illuminate the pathological contours of modernised modernity.

Industrial modernisation has not been sufficiently reflexive to avoid a host of catastrophic processes of its own making. Perhaps because of a pervasive technological authoritarianism, new discoveries and technologies are greeted with high-level optimism, ‘under-guesstimation’ of risk, absence of caution and precaution, and little apparent understanding of their impacts on human health and ecosystems when the new technologies are scaled up. Proponents often promise that new discoveries can be handled by fail-safe technologies, rather than admit ignorance and uncertainty and open themselves to having to prepare for the costly prospect of any failure to be safe.

Hazards that are not technologically manageable[44] in terms of quantifiable risks on the basis of probable accidents often don’t count as ‘risks’ at all in official discourse. If they were counted, and scientific uncertainty was acknowledged, civil society would be alert to the levels of unknown hazard. Market and scientific rationality in assessing risk and benefits would be put head to head with alternative social, cultural and ecological rationalities. A glance back over the scientific and technological ‘advances’ of the 20th and 21st centuries offers some important lessons about ‘progress’ and the risks of modernisation (Figure 2)..[45]

Figure 2: Risks of Modernisation

Modern applications of science and technology

Unanticipated disasters or catastrophes Transport Titanic sinking Oil tankers sinking Mass motoring and urban chaos Global warming Deep vein thrombosis (DVT) Ozone depletion Industrial Asbestos and lead pollution Persistent organic pollutants — PCBs, CFCs, etc.

Plastics Military Radiation from atmospheric testing Agent Orange Gulf War syndrome Medical and Pharmaceutical Thalidomide Antibiotic resistance Synthetic hormone disrupters Agricultural Antibiotics Pesticides such as DDT Transgenic prions — BSE & vCJD Green revolution GM crops/stock

Innumerable unpredictable and less visible side effects of modernisation[46] are now emerging. These include damage from unanticipated, persistent, irreversible, small-volume but high-toxicity, bio-accumulative substances arising from MTRs. Pollution from chemicals like chlorine, PCBs, CFCs and DDT, and genetic damage from nuclear power plants and atmospheric bomb testing have now entered public consciousness, bringing about changes in eating habits and lifestyle choices.

Opposition to GE is growing fast worldwide. Pro-GM states are so concerned by the trend towards declaring moratoria on biotech crops and food, exemplified by the European Union (EU), that they are enlisting the World Trade Organization (WTO) in their fight to open the world up for GM production. The USA has been joined by Argentina, Canada, Chile, Colombia, El Salvador, Mexico, Honduras, Peru, Uruguay and — somewhat surprisingly — New Zealand and Australia in a complaint before the WTO against the EU for its Moratorium on Biotech Crops and Food.[47] New Zealand had a moratorium in place until October 2003[48] and most Australian states — Tasmania, Western Australia, South Australia and New South Wales — are imposing or considering (Victoria) imposing their own moratoria on GM agriculture.[49]

In the famine-racked South, countries like Zambia[50] have refused to take GM food aid and in this are supported by 140 African non-governmental organisations (NGOs). One of these NGOs, the Third World Network, claims that the UN World Food Programme failed to obtain advance informed agreement before delivering GM food and seed, and that this breaches the Cartegena Biosafety Protocol to the UN Convention on Biological Diversity (CBD).[51] Recognition is widespread that we face many present and future hazards that, despite what some experts say, are qualitatively different from those of industrial modernity. At the heart of late modernity — the age of risk — lies this tension between official risk assessment and public perceptions of hazards. Reflexive modernisation describes the modernisation — that is, radicalisation — of modernity, rather than its demise.

Understanding contemporary political, legal, economic, cultural, scientific, environmental and economic developments in terms of reflexive rather than industrial modernisation is profoundly significant to the thesis of this paper. At the nub of the theoretical shift to reflexive modernisation is the recognition that because of the profoundly different nature of the two epochs the future cannot adequately be understood within the economic, scientific, legal or cultural conceptual frameworks of the past or with the prevailing relations of definition.

The stress on the necessity for reflexivity enables an approach to problem solving and policy development that is informed by an ecological paradigm. In this paradigm, evidence is gathered holistically and a precautionary framework is used to minimise false judgments that no hazards exist where in fact they do.[52] Traditional science — knowledge of physics, chemistry, biology, sociology and so on — must be linked to a broad, exploratory, integrative approach which recognises that there is an inherent ‘unknowability’ and unpredictability concerning ecosystems and, especially, concerning human societies and their interaction with nature.[53]

Beck argues that in the reflexive risk society, science’s monopoly on rationality is broken. Old epistemic frameworks such as the relations of definition based on ‘either/or’ Enlightenment scientific rationality, Left or Right economic determinism, and individualised liability based on foresight of the causes and effects of harm are inappropriate. Technological-authoritarian governance is both inappropriate and inadequate for managing risks that threaten life on the planet. For ecological good governance, definitional struggles about where to draw the line between ‘still acceptable’ and ‘no longer acceptable’ exposure to hazards must occur in the social rather than the scientific realm. Risk determinations must develop as a symbiosis of the natural and human sciences and culture, and of expert and everyday rationality. Co-operation, rather than authoritarianism and antagonism, must inform definitional struggles.[54]

H Class Struggle and Definitional Struggles

The links between class struggle, power and the relations of production are well understood, thanks to Marx. Class society is based on structured inequalities among different categories of people classified according to whether they own the means of production, manage these means, produce, consume, or live in poverty excluded from the relations of production. In risk society, purchase on the relations of definition is possibly as significant as one’s class status is in the relations of production. The thesis of this paper is that class society is most definitely still with us, as the global political-economy revolution attests. Risk society has been born out of industrial society. Industrial and reflexively modern ‘societies’ are coterminous and compounding: we now live in a class-risk society. Many and more morbid symptoms are appearing in the overlapping of industrial modernity with advanced modernity creating risk society. Beck has tried to uncover how the relations of definition divide risk society and to draw out the implications of this reconfiguration of power. Exclusion from and participation in defining risk now constitute a new dimension of power struggles in addition to the conventional struggle intrinsic to relations of production in class societies.

I The Legitimacy Crisis of the Safety State

The reflexive nature of definitional struggles, concerning for instance MTRs today, occurs within what Beck identifies as the safety state, organised irresponsibility and the social explosiveness of hazard.[55] The ‘safety state’, at least in the OECD ‘North’, can be seen as the environmental counterpart of the welfare state. Environmental uncertainties conditioned by reflexive modernisation are creating a legitimacy crisis for the safety state[56] similar to that suffered since the 1980s by the Keynesian Welfare State (KWS). Whereas the KWS promised to eradicate grave inequalities and mitigate the adverse effects of modernisation, the safety state promises to mitigate the adverse effects also of the modernisation of modernisation. The safety state attempts to legitimate the prevailing modes of production and definition by promises to ensure wealth accumulation and a hazard-free life of certainty, safety, and protection from natural and manufactured hazards. The legitimacy crisis of the safety state is evident in a host of contexts. These include environmental governance, healthcare, food safety, NIMBY (not in my back yard) protests, and official versus public (community) reactions to MTRs such as nuclear power and GE, as well as in mega-million-dollar corporate activism to combat civil-society-based environmentalism.[57]

A plethora of laws concerning environmental protection and resource management have grown up at the state level, equalled if not surpassed by the number of multilateral environmental agreements (MEAs) and conventions that make up international environmental law. Lack of adequate implementation of these laws, from a citizen’s standpoint, or their overzealous implementation, from the market perspective, contribute to the legitimacy crisis of the safety state.[58]

Beck terms the evasive reaction of the safety state to this crisis ‘organised irresponsibility’. It involves the political and legal systems and official science, intentionally or not, rendering ‘invisible’ or incomprehensible the social origins and consequences of large-scale environmental hazards and so hampering prevention, precaution and control. Uncertainty and insecurity in civil society are engendered by the perception that all is not right in the new runaway world. People’s feelings of insecurity and their cultural awareness of hazards have been increased and accelerated by large-scale ecological disasters such as Chernobyl and the BSE outbreak. Today they have increasingly less faith in the state to have the political will or capacity to respond.

The cultural awareness of hazards, notably regarding MTRs like GM[59] and nuclear energy, has become politicised through NSMs[60] such as the green parties and by the massive growth of environmental NGOs.[61] Beck characterises this politicised cultural awareness as the ‘social explosiveness of hazard’. Awareness about current and future hazards is explosive in democratic societies since it clearly resonates deeply and widely in civil society and thus compels the official definers of risk to accommodate an alternative social-cultural rationality in their determinations to some degree, or at least to appear to do so. This social- cultural rationality challenges the dominance of scientific and economic rationality and thus undermines the legitimacy of the definitional apparatus of the ‘safety state’. The social explosiveness of hazard in the reflexive world of the present is shaking up contemporary risk politics, prompting institutional redesign of risk management processes and altering the shape and form of environmental governance.

Successive New Zealand governments have focussed on the risks and benefits of GM since the early 1990s. GM has become the subject of a rigorous regulatory regime under the Hazardous Substances and New Organisms Act 1996 (HSNO) as amended in 1999 (and subsequently) and enforced by ERMA. Despite this supposedly world-class regime, concerns about GM as an MTR have deepened, rather than been allayed. The Labour–Alliance Coalition Government (1999–2001) in 2000 set up the New Zealand RCGM under pressure from the Green Party and based on Green Party suggestions.[62] The Government, in its role as a safety state, clearly needed some definitive determination about GM to break the tension between the commercial opportunity pro-GM discourse and sceptical green, precautionary, ethical and Maori discourses. The Royal Commission process and outcome 2001 did little, however, to de-escalate the definitional struggle over the ‘riskiness’ of GM. Ninety-two per cent of submissions[63] to the RCGM opposed GMO release. The Royal Commission’s Report (2001) supported leaving economic and scientific opportunities open and proceeding with care. Such disjunctures between official and popular perceptions of hazard signify a legitimacy crisis for the safety state. They also illustrate both organised irresponsibility and the social explosiveness of hazard: everything about GM is now under scrutiny in New Zealand, despite attempts to limit and guide the debate towards a pro-GM consensus, and a series of reviews into HSNO and ERMA have been initiated in 2002.

II DEFINITIONAL STRUGGLES

Environmental governance processes are a site of struggle between prevailing relations of definition — which operate within an epistemic framework that constructs particular scientific, economic, political, ethical, cultural and legal logics as ‘rational’ — and alternative, counter- hegemonic logics and values — from both within and outside these spheres. The following basic matters are contested (Figure 3, next page):

Figure 3: Definitional Contests in Environmental Governance Processes

Who constructs the conceptual vocabulary, the epistemic framework, to make sense of environmental risks such as those posed by GMOs — science, economics, politics, law, culture, ethics?

Who embeds this framework into the structures of power?

What interests are served by it?

Who defines the form and calibrates the severity of these risks?

What interests are served by this?

Who legitimates risks as ‘acceptable’ in terms of the dominant epistemic framework?

How is this determination made?

Who delimits the urgency and form of solution for damage caused by risks gone wrong?

Where do the costs fall?

What form of regulation or liability regime exists to deter risk-taking and to compensate for risks gone wrong?

This paper examines a set of current definitional struggles that illustrate how competing and complementary scientific, cultural, economic, legal and political rationalities vie for hegemony in the risk-class society in the age of risk. Unquestionably dominant in the prevailing relations of definition are economic and scientific rationalities, buttressed by technological-authoritarian tendencies embedded in structures of power. Morbid symptoms of transition between the first and second modernities are clearly evident in these struggles, and in particular the persistent stranglehold of the ‘either/or’ epistemic framework that informed industrial modernity. In the prevailing relations of definition we find only limited reflexivity in the face of contrary evidence, the unknown, the uncertain and community-based opposition.

A Scientific Rationality

Because scientific and technological assumptions about risks and benefits constitute the scientific rationality used by policy makers and the public when confronted with the unknown and uncertain, science conditions definitional struggles in economics, law, politics and culture. The scientific definition of the problem of danger posed by GMOs is profoundly influential: scientific rationality is central to the prevailing relations of definition concerning the risks posed by GMOs. Most corporate science and much public science — two categories that are not mutually exclusive — share assumptions about GMOs grounded in industrial modernity rather than late modernity, and both have a strong vested interest in the advance of the new biotechnology. From their perspective, GMOs appear more beneficial than risky, and whatever hazards GMOs might pose can in any case be countered by better science and better technology.

Human beings have since pre-modern times used ‘old’ biotechnology in selective breeding of elite plants and animals, including hybrids, through controlled sexual reproduction, and in adapting yeast and other bacteria to make beer, bread, cheese and yogurt, for example. But the new biotechnology is radically different: it consists of genetic modification (GM) or genetic engineering (GE),[64] broadly synonymous terms for scientific and technological advances that include gene mapping, DNA sequencing and cloning. Transgenic transfers of genes across species boundaries are possible; in a further step, genes can also be produced synthetically, and such synthetic copies of genes can be transcribed or translated into a variety of other organisms by genetically modifying them. These advances raise basic questions for scientists, government and civil society about ethics and safety and the nature of life as we know it; so much so that they qualify as ‘major technological risks’ — ‘MTRs’ in insurance industry discourse. The official corporate-government-academic science complex has tended to downplay the risks and to promise great benefits for health, agriculture, environmental protection, policing and justice, food and beverage production and other industries.[65]

The new biotechnology provides a paradigm example of the modernisation of modernity, taking shape in revolutionary ways unimagined by previous generations. This laboratory-based technology can be used to manipulate and alter the genetic composition of organisms, even transferring genetic material from one species (say, a frog) into another, unrelated, species (say, a tomato). In contrast to the old biotechnology, these techniques, which bypass the barrier imposed by sexual (let alone asexual) reproduction within species, enable humankind to manufacture new species of organisms that would never — could never — have occurred naturally. The GM debate is about whether human beings should break through this barrier that has existed since time immemorial. The leader of the New Zealand Green Party likens the magnitude of the decision at stake concerning whether New Zealand should be GE-free to the country’s 1984–85 decision to go nuclear-free.[66]

B Economic Rationality

Economic rationality is a key element in the prevailing relations of definition, and economists’ understanding of the nature and seriousness of hazards posed by GMOs is profoundly influential. Their actuarial assumptions about risks and benefits constitute both market rationality and much of the political rationality relied on to evaluate the risks and benefits of GMOs. These assumptions are grounded in industrial, rather than late, modernity. From the economists’ actuarial perspective, GMOs appear to be more beneficial than risky; whatever hazards they might pose can in any case be countered by better risk management and a regime of incentives, both to internalise the costs of risks gone wrong and to take reasonable precautions. The market is a site of definitional struggle conditioned by, and at the same time conditioning, definitional struggles in science, law, politics and culture, to the extent that culture impacts upon market behaviour, as is the case with GMOs. GM foods, for instance, are proving a hard product to market.

The new biotechnology revolution has been building up over the last 30 years. Researchers in the public and increasingly in the private sector have discovered new techniques and new applications, thus making the new biotechnology one of the most volatile sectors of the global economy and one of the most active sectors of science and technology. A R Bellamy’s paper commissioned for the RCGM accessibly summarised the applications of GM. These include a catalogue of benefits from research on complex gene systems and on the identification of DNA profiles, in the form of various medical (diagnostic and therapeutic), forensic and pharmaceutical applications of GM.

In agriculture, beneficial GM applications include the breeding of transgenic animals such as cows and sheep for enriched milk and health products. These include an alpha-antitrypsin for treatment of emphysema and cystic fibrosis; prion-free growth hormones; and relatively unlimited supplies of insulin, interferon, and hepatitis B vaccine. In the environmental sector, there are beneficial GM applications in the bio- remediation of areas affected by heavy metals and other toxins. Bellamy anticipates that developments in the new biotechnology may include the breeding of not only protein-rich vascular plants (wheat, rice, barley, corn, soya beans, cassava, potatoes and bananas) and drought- and salt-tolerant crops but also model animals for biomedical research — even the generation of cells and organs for transplantation.[67] He outlines the science relating to pesticide- and herbicide-resistant crops, notably canola (rapeseed), maize, cotton and soya beans.

GM/GE food and GM agriculture (along with cloning) have become the lightning rods in the GM debate in which scientific, economic and social- cultural rationalities collide. They highlight the contradictions and insecurities of the age of risk.

Transnational corporations (TNCs) such as Monsanto and Novartis in the agribusiness sector are the architects of GM crops. They sell farmers a package: the seeds with a terminator gene in them to make the seed sterile, and the herbicides and pesticides that the crop resists. The promise is that these GM crops will have enhanced yield, will require fewer applications of insecticides and herbicides, and will therefore be more profitable on both counts. The seed is patented. The patents are owned by the agribusiness TNCs. Farmers come back to them for more seed and chemicals.

The MTRs posed by GM are many and varied, and exemplify the characteristics of manufactured risk in the age of risk already identified. The GM agricultural and GE food sector are the site of a definitional struggle about risk as well as a site of classical struggle between classes in the relations of production.

Scientific, health and technological risks to ecosystems arising from agricultural GM applications are manifold:

• GM herbicide-resistant superweeds, insect-resistant superpests, antibiotic-resistant superbugs, and superbeasts such as GM salmon, all capable of destroying natural species
• Loss of plant and animal biodiversity and increased vulnerability to plant and animal disease pandemics
• Soil degradation and water pollution
• Transgenic viruses like prions entering human, animal and plant populations.

Social and political risks of similar magnitude are emerging:

• Promotion of chemical-dependent GM farming
• Destruction of organic farming[68] and transgenic contamination of plants and animals[69]

• Monopoly by TNCs over food-related resources such as seed— perhaps leading to
• Destruction of traditional and ecologically-sustainable agriculture. Economic risks are likely to be the greatest inhibiting factor in the growth of GM agriculture and GE foods. These are looking like bad financial risks because of
• consumer resistance to GE food in traditional export markets such as the EU, as well as new ones such as Japan, Korea and south-east Asia
• decreased yields and increased costs of production[70]
• increased need for costly herbicide and insecticide applications.

In New Zealand, economic rather than scientific rationality is precipitating some re-examination of the ‘risky business’ of GM agriculture and GM foods.[71] The experience in North America is very sobering. The Seeds of Doubt (2002) study by the UK Soil Association concludes that GM agriculture has been disastrous for North American farmers.[72] Ninety-nine per cent of GM farming is done in Canada, the USA, Argentina and China and is restricted to four crops: wheat, maize, canola and soya. Seeds of Doubt reports that, in the USA:

Because of the lack of segregation, the whole food processing and distribution system has become vulnerable to costly and disruptive contamination incidents. In September 2000, just one per cent of unapproved GM maize contaminated almost half the national maize supply and cost the company, Aventis, up to $1 billion.

Within a few years of the introduction of GM crops, almost the entire $300 million annual US maize exports to the EU and the $300 million annual Canadian rape exports to the EU had disappeared, and the US share of the world soya market had decreased.

The lost export trade as a result of GM crops is thought to have caused a fall in farm prices and hence a need for increased government subsidies, estimated at an extra $3–5 billion annually. In total GM crops may have cost the US economy at least $12 billion net from 1999 to 2001.

Following ERMA’s lead, I try in Figure 4[73] (continued on next page) to present a rough balance sheet of benefits and risks of GM. How one allocates and evaluates these is a matter of definition.

Figure 4: Risks and Benefits of GM

Sector Benefits Risks Health Vaccines, eg hepatitis B Gene sequencing diagnostic tests Pharmaceuticals, eg insulin, interferon, anti- HIV drugs Gene therapy Enhanced natural antibiotics Agriculture Vaccines & diagnostic tests Disease resistant crops Herbicide- and pesticide- resistant crops Drought- and salt- tolerant crops Biological control agents for pest control Cloning of elite animals Environment Bio-remediation of pollutants Pest detection Low methane sheep Justice/ police DNA profiling of crime perpetrators DNA databases Known and unknown side effects Superbugs Eugenicist cloning industry Gene rich/ gene poor divide Known and unknown side effects Unanticipated adverse social consequences Superweeds Superpests Superbugs Soil degradation Increased herbicide/pesticide dependency Loss of biodiversity Loss of diversity in agricultural methods Animal and plant pandemics Litigation Unknown side effects Unanticipated adverse social consequences Loss of individual privacy Uninsurable populations Food and beverage Immunity-boosting milk Higher nutritional values DNA tracking of food source Unknown side effects GE food market collapse Loss of non-GE food source diversity Industry and manufacturing Biodegradable plastics Enzyme conservation Unknown side effects

C Cultural Rationality

Maori cultural rationality is symbolically acknowledged in the prevailing relations of definition by s 8 of the HSNO Act, which stipulates that decision-makers like ERMA must ‘take the principles of the Treaty into account’. This is a weak injunction compared to s 5, which stipulates that decision-makers ‘shall recognise and provide for’ another set of principles. ERMA’s Maori advisory committee, Nga Kaihautu Tikanga Taiao, is charged with advising ERMA on how they can honour s 8. Nga Kaihautu Tikanga Taiao has enunciated in detail what they consider to be the principles of the Treaty, for instance:[74]

• Principle 1: Tino Rangatiratanga/ Kawanatanga — Partnership with the Crown.

• Principle 2: Tino Rangatiratanga — Crown’s duty to provide active protection of Maori Taonga by Maori.

• Principle 3: Oritanga, Kawanatanga — Equality status as citizens, and good governance, including participation and consultation.

Bevan Tipene Matua’s background paper for the RCGM identified the following key points:

• Concerns about the impact (and potential impact) of GM on the knowledge and resources of Maori and other indigenous peoples have been raised for the last decade.

• GM adversely impacts on Maori cultural traditions such [as] whakapapa, mauri, and Rangatiratanga
• Maori have raised concerns about the wider socio-economic and environmental impacts of GM that are sometimes similar to the concerns of some non-Maori
• Maori may sometimes be willing to accept GM experiments if they result in medical benefits, although this will depend on the circumstances involved
• Maori have a special and unique relationship with indigenous flora and fauna [recognised in legislation such as the Hazardous Substances and New Organisms (HSNO) Act] that the Crown is obliged to protect under the Treaty of Waitangi
• Maori have called for clear information and time to debate these issues so that informed decisions about GM can be made.[75]

Nga Kaihautu Tikanga Taiao works at the intersection where the cultural rationality of the Maori worldview — Te Ao Maori — sometimes collides with, sometimes complements or corroborates, New Zealand Pakeha society’s legal, scientific, economic and social rationalities. In many ways the projects of the new biotechnology revolution affront and challenge the Maori worldview. Te Ao Maori and its Tikanga (norms, customs and laws) are holistic and socio-centric. A brief and superficial sketch of the constituent elements of Te Ao Maori and Maori Tikanga is needed to explain the collision of rationalities over GM.

The Maori worldview understands relationships in terms of whakapapa. This concept captures the way lineages define the relationships — past, present and future — among people and other living things. The significance of whakapapa derives from respect for mauri (the life principle) and wairua (the spirit of living things). Maori are tangata whenua (people of the land) — they belong to the land — and as such they are kaitiaki (guardians) of the taonga (treasures) of their environment and so are obliged to protect these treasures (animate, inanimate, temporal and spiritual) for future generations. To perform their duties of kaitiakitanga (guardianship), Maori require rangatiratanga, which is the right to control their taonga without disturbance from others who are not kiatiaki.

GM involves a process of raweke (tampering) with things that ought not to be tampered with; GM involves rarangi (disrupting) the networks of individual lineage of species and the tupuna (ancestors) of living things. GM activities are therefore likely to cause spiritual offence and thus adversely affect the well-being of Maori[76] when conducted in defiance of the wishes of the tangata whenua, the Iwi (tribe) or hapu (sub-tribe) kin group whose land and kaitiakitanga are affected. If GM activities go ahead without Maori consent, Maori are denied the right to practise their rangatiratanga as kaitiaki. This denial may constitute an abrogation of Treaty rights under law and an abrogation of Tikanga Maori.[77]

Data were compiled by ERMA from 1998–2000 to disclose the Iwi/hapu response, Nga Kaihautu Tikanga Taiao response, ERMA expert review response and ERMA decision on a series of applications. The data reveal that Iwi/hapu did not invariably object but that even when Iwi/hapu and Nga Kaihautu Tikanga Taiao did object, ERMA invariably approved the application, albeit with conditions.[78] Strong Maori objections were raised to applications to breed GM cattle and sheep.[79]

Maori have a longstanding set of concerns, such as:

• the use of indigenous knowledge by researchers to access flora and fauna that may be useful for developing a biotechnological invention
• the lack of consultation with Maori over the development of these inventions
• the lack of benefits that are likely to accrue to Maori as a result of these inventions (such as monetary benefits, transfer of technology and skills)

• the inability of intellectual property laws to protect Maori knowledge and interests in indigenous flora and fauna, while the same laws provide large transnational biotechnology corporations with the tools to increase their profits
• the potential loss of control over indigenous knowledge, genetic resources, and the future well-being of Maori, to transnational corporations, and the accentuated societal inequities
• objections to a Western market-based ideology that promotes the commodification of biodiversity and results in the loss of genetic diversity
• objections to genetic modification as breaching Tikanga Maori, causing moral or spiritual offence.[80]

Maori objections to GM articulated to or in ERMA have not resulted in the veto of GM activity. Cultural rationality is clearly trumped by scientific rationality despite s 8 of the HSNO Act and a respectable body of jurisprudence exemplified by the statement of Chilwell J in Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR, that:

Maori spiritual and cultural values cannot be excluded from consideration if the evidence established such links to a particular and significant group of Maori. Nor should the benefit of all New Zealanders be given a degree of absolute emphasis so as to exclude Maori spiritual values from a branch of the law which has an with affinity with the Treaty.

Maori Tikanga values appear to be dispensable considerations relative to other imperatives. The principles of the Treaty are taken into account in a manner more symbolic than real. In 2002 the Ministry for the Environment canvassed responses to a suggestion that the Minister’s call-in powers to override ERMA be extended to allow broader contextual, ethical and cultural concerns to be considered. This would, the Ministry suggests, overcome ERMA’s narrower focus arising from the case-by-case approach.[81] The New Organisms and Other Matters Bill given its first reading in May 2003 follows through with these proposals. The Bill does not fully take on all the recommendations of the Maori Reference Group the Government had appointed to review the HSNO Act in the light of the Royal Commission’s findings.[82] Officials agreed with their recommendation that Nga Kaihautu Tikanga Taiao get a formal statutory status and that the concept of kaitiakitanga be included in s 5 of the amended HSNO Act. It is not presently possible — because the Crown claims legal professional privilege to withhold this information — to discover what officials recommended to Cabinet on the Maori Reference Group’s fundamental recommendation, that s 8 ought to be amended to the effect that persons exercising powers under the Act ‘shall give effect to the Treaty’ — not merely that the Treaty be taken into account — and that they give ‘effect to the principles of the Treaty’. A Regulatory Impact Statement alerts Cabinet to the difficulties of anticipating the impact of these changes.[83]

Nga Kaihautu Tikanga Taiao is a long way from having power to suspend for further discussion or veto ERMA decisions. Mechanisms for more authentic accommodation of cultural rationality in terms of Te Ao Maori have been suggested. These at present don’t seem promising vehicles for ensuring meaningful Maori participation.

D Legal Rationality

Law plays a significant part in structuring, empowering, norm setting and enforcing in the prevailing relations of definition. The law is also the normative scheme relied on to determine who bears the costs of hazardous activities, to allocate liability. The understanding of the nature and seriousness of hazards posed by GMOs that is embedded in the law reflects the extent to which the lawmaker or law enforcer is reliant on assumptions grounded in industrial modernity or in late modernity. The law is a site of definitional struggle conditioned by and conditioning definitional struggles in science, economics, politics and culture. There is both a public and a private legal liability regime.[84]

In New Zealand a public legal liability regime provides penalties for non- compliance with its regulatory requirements and has been specifically designed to control activities with GMOs and hazardous substances. This regime is primarily based on the HSNO Act 1996 and ERMA, which became operative in 1998. The regulatory regime is based on assumptions about risks, and how to manage them, that are mainly grounded in industrial modernity but include some late modern insights about participatory deliberation. The HSNO/ ERMA regime nonetheless is primarily reliant on scientific rationality. Other regulatory statutes buttress the HSNO/ ERMA regime; for example, the Biosecurity Act 1993, for dealing with GMO escapes, and the Resource Management Act 1991, for regulating adverse effects on the environment such as biodiversity loss caused by GMOs, and for assigning responsibility for any remediation and mitigation of these adverse effects. The HSNO/ ERMA regime itself contains no provisions for assigning and allocating the costs of harms caused to individuals from GMO escapes and related aberrant behaviour nor any consideration of how to deal with catastrophic GMO-related events.

Alongside the public liability regime is a private law, fault-based liability regime that has been constructed on 19th-century common law torts and provides remedies designed for industrial modernity. These torts have evolved in the common law jurisdictions through the decisions of the courts to provide individuals with remedies against each other for personal injury, property damage, and financial or economic loss. They represent considerable ongoing judicial creativity in the face of new circumstances and new expectations. However, GMO-related harms (and catastrophic ‘MTRs gone wrong’ in general) are not the kind of potential harms anticipated within the principles of the torts scheme. The private remedy regime consists of negligence, nuisance and the tort under the rule in Rylands v Fletcher.[85]

Negligence is based on the premise that the defendant was in breach of a duty of care owed to the plaintiff as a notional ‘neighbour’. The idea of the duty of care assumes the risk of damage was foreseeable.[86] The cause of the damage cannot be too remote from the breach of the duty. In the case of GMOs, these may be very difficult elements of the tort to prove.

The tort of nuisance evolved to provide a remedy to the plaintiff whose neighbour has used their own land to carry out an activity on a continuing or intermittent basis that causes actual harm to or unreasonably interferes with the plaintiff’s enjoyment of their land. The defendant’s liability lies whether or not reasonable precautions were taken; however, the harm caused must have been foreseeable. In the case of GMOs this may be a very difficult element of the tort to prove.

The tort under the rule in Rylands v Fletcher evolved to provide a remedy for damage caused to the plaintiff where something harmful escapes from the defendant’ s non-natural use of their land even in an isolated instance. The escape must have been reasonably foreseeable and it is no defence that the defendant took all reasonable precautions. In the case of GMOs whether the use of the land is ‘non-natural’ or natural may be a point of contention.

The RCGM was set up to create some shared assumptions for ensuing definitional struggles over GM. The Royal Commission, however, appears to have its thinking locked into the epistemic frameworks of industrial modernity. The RCGM concluded in 2001 that:

The common law… is well able to mould new remedies for novel situations…. From a legal liability perspective we have not been persuaded there is anything so radically different in genetic modification as to require new or special remedies.[87]

As some feared, the RCGM has emerged as a device to legitimate the technological authoritarianism of the prevailing relations of definition in the New Zealand safety state.

The RCGM’s analysis of the risks represented by GMOs and the biotechnology revolution is extremely underdeveloped and based on ‘either/or’ positivistic scientific rationality and economic rationalism[88] :

There is clearly a high level of concern about the environmental impacts of genetic modification, not just among the public but also among some members of the scientific community. Much of the evidence we heard about the risks of genetic modification, although properly drawing attention to possible hazards and risk pathways of genetic modification, is however the subject of ongoing debate, and we heard evidence from other witnesses, particularly scientific witnesses, that the risks of adverse impact could be assessed and managed. Some of the claims of possible environmental and health damage were exaggerated or based on inconclusive research data or on unproven hypotheses.[89]

This standpoint does very little to promote the ecological democracy that the massively elaborate consultative processes of the RCGM appear to have been intended to promote, or at least to appear to promote. It received 10,000 (ten thousand) written submissions and held numerous consultations (92 per cent of respondents being opposed to the release of GMOs). Despite the process and the public input, there is little sense that the RCGM saw itself in late modern terms as a custodian of the precautionary principle.

For government and other sectors the question of liability and GM was not resolved by the RCGM report. The matter was referred to the New Zealand Law Commission. The Law Commission and the New Zealand Parliamentary Commissioner for the Environment are much more reflexive and have taken on board the unknowability and uncertainty, as well as catastrophic potential, of GM. The Law Commission produced a lengthy and very through analysis of liability for GM, premised on uncertainty and the fact that formulae for solving problems in the past should not be relied on to construct solutions in the future — even though this is the traditional method of the law. Instead, the Law Commission concluded that:

Our inquiry suggests that the current statute and common law will not ensure that all damage that could potentially be caused by GMOs will be compensated. It is unlikely that any liability regime could guarantee this.[90]

Acknowledging that these may not be unique to GMOs, the Law Commission identified a host of difficulties GMOs pose for liability regimes:

• GMOs pose difficulties of estimating the level of risk and assessing the magnitude of damage.

• GMOs have the potential to create catastrophic levels of harm and irreversible damage.

• GMOs’ negative effects are likely to manifest themselves in the long term and to be diffuse in nature.

• GMOs will pose huge expense and evidentiary problems to establish causation and the extent of damage for plaintiffs alleging harm.

• GMOs are a source of ethical and spiritual concern for which neither public nor private liability regimes provide remedies.

The New Zealand Law Commission’s analysis[91] of issues, problems and options to enable liability regimes to respond better when confronted with GMOs is summarised in Figure 5.

Figure 5: Potential responses of liability regimes to GMOs

Issue Private regime Public regime Harm caused is unforeseeable Remove foreseeability requirement Consider whether foreseeability must be proven Difficult to prove causation Alter burden of proof Consider level of proof required Defendant /polluter has inadequate funds Require compulsory insurance or bond payment to compel internalisation of costs, or create a compensation fund for the socialisation of costs Create a contributory compensation or state- funded contributory fund Defendant/ polluter ceases to exist Damage is widespread or diffuse but compensable Damage is catastrophic or irreversible — harm incompensable Tort ineffective Create a contributory compensation or state- funded contributory fund Tort less effective Create a contributory compensation or state- funded contributory fund Tort ineffective Rely on state compensation fund Accept that the costs lie where they fall — harm incompensable The Law Commission and others have identified a small range of significant changes to the existing public and private liability regimes which, individually or collectively, would go some way to acknowledging the high-risk character of GMOs that the prevailing relations of definition do not address adequately. For instance:

• To overcome the problem of foreseeability, create a new strict liability tort.

• To widen the net and narrow the mesh of liability, impose new public law duties under statute by imposing continuing liabilities on those who develop, supply and use GMOs.

• To compel the biotechnology industry to internalise the costs of their activities and to create incentives for them to take precautionary measures, require them to take out compulsory insurance or to post a bond as a condition for ERMA approval.

• To anticipate the need to socialise the costs of GMO damage, especially of catastrophic proportions, create a compensation fund now, along the lines of the New Zealand Earthquake Commission or indeed the Accident Compensation Corporation (ACC), under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

The proposals of a new strict liability tort and compulsory insurance for GMO developers were made in reaction to the inadequacy of the RCGM report. A law-and-economics-based report entitled Who Bears the Risk: Genetic Modification and Liability was prepared by the (public law specialist) law firm Chen & Palmer, including former Labour Prime Minister Sir Geoffrey Palmer and Simon Terry, now of the NGO, the Sustainability Council.[92] Their report reveals a reflexive critique of the biotechnology revolution and an implicit grasp of the contours of the late- modern age of risk. Who Bears the Risk? was roundly condemned by proponents of a narrow law-and-economics perspective[93] and similarly by the lawyers submitting argument to the RCGM[94] for the pro-GM lobby — BIOTNZ, the New Zealand Life Sciences Network and the universities of Auckland and Otago (illustrating the symbiosis between corporate and academic science).

The Law Commission conclude by arguing that the matter of liability for GMOs is not a technical law reform question for lawyers to resolve; instead, it is a significant policy issue. The Law Commission goes so far as to say that government has to resolve these policy questions in the political process through consensus based on wide debate.[95] The Law Commission suggests that the three key policy questions for government are: 1. How different, in scientific and ethical terms, are the risks posed by GMOs from risks involved in other activities? Should similar risks be treated in similar ways by a new liability regime? 2. Given the likelihood that internalising the costs of damage to the biotechnology sector based on the ‘polluter pays’ model will probably inhibit the growth of the biotechnology industry, how is the risk of that loss to be weighed against the public’s risk of being left vulnerable to uncompensated, possibly incompensable and potentially significant losses? 3. What is the role of government as guarantor of any damage caused by the biotechnology industry’s development, supply or use of GMOs? In a worst- case scenario this would be damage that takes a long time to be discovered, and that is both catastrophic in its magnitude and irreversible.[96]

In 2002 the government held public participatory reviews of the HSNO Act, ERMA and their biotechnology strategy. The review of HSNO opened by saying that no changes are proposed in liability law for adverse effects of GMOs, that requiring all New Zealanders to insure against risks from GMOs would be impractical, and that any changes to liability would have adverse economic effects.[97] The HSNO Act public discussion document appears to place its faith in improving the existing regulatory regime.[98] The timeframes were very tight and the consultation documents mostly relied on leading questions within a restricted compass of issues reflecting the government’s capture by economic rationalism.

In spite of its position in 2002, the government’s New Organisms and Other Matters Bill 2003 incorporates a variation of the Law Commission’s proposal for a strict civil liability rule and civil pecuniary penalties targeted at harms caused by non-complying activities under the ERMA/ HSNO regime. More radical options such as compulsory insurance and remediation funds suggested in Who Bears the Risk? are not favoured. The arguments against the insurance option are that it would be prohibitively expensive and that insurers would be unlikely to be able to monitor precautions taken by insureds or price risk and precaution effectively. The arguments against a remediation fund are that such a fund would reduce the incentives for both those likely to be harmed as well as for ‘injurers’ to take precautions. A narrow economic rationalist paradigm appears to have induced myopic policy and legislative response to the magnitude and complexity of GM risk. Ironically the advice to Cabinet from the Ministries of Justice and Environment that informed their posture on the New Organisms Bill depicts the GM harms as the sort where orthodox civil liability will be less effective.[99]

E Political Rationality

The political economy of the risk-class society conditions and is conditioned by scientific, economic, cultural and legal rationality. The safety state is its major site of definitional struggle. The safety state normally attempts to manage and contain risk by reconciling competing rationalities into risk management regimes such as HSNO/ ERMA. Abnormal risks, such as GM contamination, now pose a major political- economic risk to the GM agriculture and food industry, and so require abnormal interventions. One such intervention is to usurp other elements and processes in the relations of definition — perhaps ignoring science, sidestepping the law and privileging economic rationality over other considerations. The ‘Corngate’ affair in New Zealand illustrates this well.

Despite no sanctioned GM agriculture, GM crop ‘contamination’, at least as defined by some scientists, has already occurred in the New Zealand agricultural sector.[100] In 2000 a definitional struggle began, dubbed the Corngate affair, over the borderline between GM-free/GM-contaminated. The affair forcefully illustrates interrelationships between relations of production and relations of definition, and the safety state in crisis- management mode.

GM-contaminated corn was accidentally imported into New Zealand and unknowingly planted for commercial sale. When this was discovered through routine tests in November 2000 ERMA raised alarm bells that there had been an unauthorised GMO release. There was briefly a consensus in government that the corn was GM-contaminated. An obvious option which first attracted the Prime Minister was to uproot and destroy the rogue crop to sustain New Zealand’s GM-free status, but this option was considered and rejected. Government was apparently under pressure from the GM agribusiness and GE food industry not to adopt such a drastic approach, on the grounds that it was bad for their business and damaging to New Zealand’s future in biotechnology.

Lowering the threshold of tolerance for the presence of GM seed appeared to be the most expedient option.[101] Government intervened and determined a new threshold for a finding of ‘contamination’, deeming the presence of GMOs in seed should be ‘tolerable’ at 0.5% GMOs or less — ‘tolerable’ meaning that the product could be deemed GE-free. This simply moved the goalposts for GE-free status from zero tolerance to 0.5% tolerance by ministerial fiat.

In mid-December 2000, government instructed ERMA to review the evidence of contamination using the new government standard. ERMA reported back that, based on the Government’s 0.5% test, the Novartis sweet corn Lot NC 9114 had less than 0.5% GM contamination and hence, ‘judged by that standard, does not contain a new organism’.[102] Some ERMA members felt that their role had been usurped by government and that the provisions of the HSNO Act had been ignored.[103]

In mid-December 2000, government also asked the Ministry of Agriculture and Fisheries (MAF) for an economic impact report on banning seed imports from possible GM-contaminated sources. MAF concluded this would be very costly at $184 million over two years. Strangely, the MAF report did not examine loss of market for New Zealand produce from consumer perceptions of GM contamination.[104] In late December 2000 Cabinet accepted the principle of ‘tolerable GE contamination’ of crops. Meanwhile, the RCGM that the same government had set up was still underway and was apparently not told the whole story by government.

‘Corngate’ became an election issue in the 2002 general election. The Green Party called for an inquiry. In November 2002 the Local Government and Environment Select Committee of the New Zealand House of Representatives decided to conduct an inquiry focussed on the alleged accidental release of GE sweet corn plants in 2000 and the subsequent actions taken. The terms of reference are as follows:

That the committee inquire into the facts of the alleged accidental release of genetically-engineered sweet corn plants in 2000, and of the decision making processes and the roles of and actions taken by the Government, government agencies and relevant companies, including inquiring into:

• the extent to which biosecurity measures past and present control the risk of GM contamination for imports of sweet corn, and how these controls compare to those of our major trading partners • the scientific evidence on the likelihood of contamination of the Novartis Lot NC 9114 and the adequacy of the testing undertaken at that time
• what processes did government departments and agencies follow on being advised of the suspected contamination
• the scientific evidence relied on during decision making concerning the Novartis Lot NC 9114 seeds
• whether a contamination tolerance level was accepted by Government in 2000 and, if so, what part it played in decision making over the Novartis Lot NC 9114 seeds
• whether the public, other interested parties, cabinet and the Royal Commission on Genetic Modification were adequately informed about the issue at the appropriate time
• the role of the relevant private companies in addressing the issue including the usefulness of information they provided, and any influence that they may have had on decision making or communication of the issue
• the compliance with the Hazardous Substances and New Organisms Act and relevant regulations.

Since ‘Corngate’, imports of sweet corn must be tested for GM using the 0.5% standard. Compulsory testing of maize was introduced in August 2002. GM-contaminated imported maize was found almost immediately, leading to 30 tons being destroyed. The destruction was conducted despite the fact that the level of contamination fell below the 0.5% threshold which would have allowed it to be deemed GM-free.[105] Submissions to the Inquiry into the alleged accidental release of GE sweet corn closed on 31 March 2003.

CONCLUSION

Despite the reflexivity of the Law Commission, the Parliamentary Commissioner for the Environment, and Chen, Palmer and Terry, in New Zealand the market, the safety state, 19 th century law-ways and the mindset of industrial modernity are all ascendant in the definitional struggle over risks posed by GMOs.

There is little insight that definitional struggles over the risks posed by GMOs and new biotechnology more generally are occurring in the context of, in Rifkin’s terms, a new ‘operational matrix’.[106] . The salient dimensions of this matrix relevant to the GM debate are that:

• genes have become a primary raw material for economic exploitation
• genetic material is patented for profit and scientific knowledge becomes commercially sensitive
• global life sciences industry, including GM agriculture and GE food sectors, are gaining unprecedented power to control and commodify the biological resources of the Earth — power to ordain the second Genesis and to reseed the Earth’s biosphere for profit
• bio-informatics fuses the ICT and biotech revolutions to create and accumulate a store of genetic knowledge for commercial exploitation.

In the age of risk, economic logic and scientific logic converge in a new revolutionary form of genetic commerce. Class society has not withered away and is now coterminous with risk society, compounding old dangers and multiplying new risks. Offering great rewards and great dangers, the imperatives of genetic commerce, for instance, challenge the state’s capacity to sustain its promise to be the safety state.

The thesis of this paper has been that the logics and rationalities of the prevailing relations of definition, which evolved from industrial modernity, are ill fitted to guide us in meeting the challenges of late modernity, the age of risk. This is summarised in Figure 6 (continued on next page).

Figure 6: New Considerations for Ecological Good Governance

Logics and rationalities of relations of definition in industrial modernity

Science applied to a natural world

• ‘Either/or’ epistemic and values framework
• Impacts on local, spatially-limited phenomena
• Class society — life chances and life course determined by relations of production

Considerations for ecological good governance in late modernity, the age of risk Science applied to a manufactured world

• ‘And’ epistemic and values framework
• Impacts on complex ecosystems
• Risk (or risk-class) society — life chances and life course constructed by class, gender, ethnicity, place,
• Self-identity embedded in tradition and ascribed by class, gender, ethnic or spatial position

Liability based on:

• Presumption of specific proximate cause and effect
• Fault deterrence and foresight
• Identifiable perpetrators and victims

Natural and manufactured hazards

• Low toxicity, velocity, intensity and extensity
• Impact and origin transparent
• Low contestability of causative explanations

• Perceptible, visible to experts and lay people

Consequences of risk gone wrong

• Limited and local
• Reversible
• Remediable
• Compensable risk position and relations of definition
• Self-identity invented socially and reflexively, as well as in terms of ascribed attributes

Liability without stable basis?

• Side effects as pernicious as direct effects?
• Causation not necessarily proximate
• Fault, foresight difficult to allocate — hence deterrence presumption of limited value?
• Perpetrators of harm not readily identifiable? Victims emerge long after the fact?

Manufactured hazards such as

MTRs

• High toxicity, velocity, intensity and extensity
• Impact and origin opaque
• High contestability of causative explanations
• Imperceptible, invisible except to scientific experts

Consequences of risks gone wrong:

• Catastrophic and global
• Irreversible
• Irremediable
• Incompensable

The prevailing relations of definition are imbued with technological authoritarianism, short-termism, and the privileging of the economic logic of risk-takers. These relations of definition must be replaced by an inclusive ecological democratic paradigm premised on the well-being of all risk-bearers, including future generations.

To create the necessary paradigm shift, from technological authoritarianism in the service of the market to ecological good governance, requires inserting the alternative logics and rationalities of hitherto-excluded stakeholders into the relations of definition at every point. This involves asking questions about how risks and problems are defined now and, implicitly, how they should be in future. (See Figure 3)

Core concepts in this alternative ecological paradigm are that it ought to take a long-term view and be holistic, participatory, precautionary and deliberative. This ecological paradigm must infuse the relations of definition at all points. Social and economic development must henceforth be coupled with risk management regimes that comprise precautionary, ecologically informed regulatory institutions, processes and liability norms.

The organised irresponsibility of the safety state, based on the evasion or obfuscation of uncertainty, must cease. Uncertainty and risk can no longer be accepted as exclusively the ‘business’ of science or the ‘science’ of the market. Uncertainty must be addressed as a socially determined concept based on deliberation informed by a precautionary approach. New stakeholders must inform the deliberations with logics and rationalities including knowledge from the bottom up, such as traditional environmental knowledge (TEK), vernacular, post-normal or citizen science. The convergence of top-down and bottom-up knowledge, logic and rationality will force the relations of definition to become more reflexive and thus capable of responding to the challenges of late-modern times — the age of risk.[107]

The ‘social explosiveness of hazard’ is manifest in a widening chasm of distrust between, on the one hand, those who control the prevailing relations of definition and especially the market, science and the apparatus of the safety state and, on the other, civil society and local communities. A new ecological good governance paradigm is the way to build trust and ensure that uncertainties, as perceived by those who bear the burdens of risk-taking and as perceived by those who accrue the benefits, are balanced — and with the Earth, other species and future generations being represented within this process in an authentically determinative way. With such an approach, who would casually permit GMO agriculture? Both popular logic and, ironically, economic logic are against it — yet the juggernaught powers on!

Acronyms

ACP Africa(n), Caribbean, Pacific BSE bovine spongiform encephalopathy (‘mad cow disease’) CBD (United Nations) Convention on Biological Diversity CFCs chlorofluorocarbons (once widely used as refrigerants, aerosol propellants and solvents, and in the manufacture of rigid packaging foam; still destroying the ozone layer)

DDT dichloro diphenyl trichloroethane (insecticide which, by killing mosquitoes, saved untold millions of lives from malaria; apparently caused disastrous thinning of birds’ shells — and accumulated in human breast milk) ERMA (New Zealand) Environmental Risk Management Authority EU European Union GE genetic engineering GEO Global Environment Outlook GM genetic modification GMO genetically modified organism HSNO Hazardous Substances and New Organisms Act 1996 (New Zealand) ICT information and communication(s) technology KWS Keynesian Welfare State MAF (New Zealand) Ministry of Agriculture and Fisheries MEAs multilateral environmental agreements MRST (New Zealand) Ministry for Research, Science and Technology MTRs major technological risks NGO non-governmental organisation NIMBY ‘not in my back yard!’ NSMs new social movements OECD Organisation for Economic Cooperation and Development PCBs polychlorinated biphenyls (widely used in electrical insulation material; highly toxic suspected carcinogens which accumulate in the food chain) RCGM (New Zealand) Royal Commission on Genetic Modification TNCs transnational corporations UN United Nations UNEP United Nations Environment Programme vCJD variant form of acquired Creutzfeld-Jakob disease (linked to BSE) WSSD World Summit on Sustainable Development WTO World Trade Organization


[1] David Held, Democracy and the Global Order: From Modern State to Cosmopolitan Governance (1995).

[2] Manuel Castells, The Information Age: Economy, Society, Culture Vol. I The Network Society (1997); Vol. II The Power of Identity (1997); Vol. III End of Millennium (1998).

[3] Jeremy Rifkin, The Biotech Century: How Genetic Commerce Will Change the World (1998).

[4] Paul Havemann, ‘The Participation Deficit: Globalisation, Governance and Indigenous Peoples’ (2002) 2(2) Balayi: Culture, Law and Colonialism 9–36;

‘Third Way and Global Human Rights Perspectives on Citizenship’[2001] WkoLawRw 4; , (2001) 9 Waikato Law Review 75–90; ‘Human Rights, Trade, Globalisation and Governance’ in H Whall (ed), Report of Pacific Experts Meeting, Nadi, Fiji, at <http//:www.cpsu.org.uk/projects/fiji_prog.htm>; ‘New Times? Sites of Power, Types of Rights’ (1999) 2 Year Book of New Zealand Jurisprudence 45–70; ‘Re- commodification, the Contract State and Social Citizenship’ in Emilios Christodoulidis (ed), Communitarianism and Citizenship: Political and Legal Perspectives (1998); ‘Modernity, Commodification and Social Citizenship’ (1997) 1 Year Book of New Zealand Jurisprudence 17–58.

[5] Paul Havemann, ‘Internet Governance: Cyber Commons, Knowledge Rights or Social Exclusion’ in A J Buck, J MacLaren and N Wright (eds), Land and Freedom: Law, Property Rights and the British Diaspora (2001); ‘Enmeshed in the Web? Indigenous Peoples and Human Rights Movements’ in Robin Cohen and Shirin Rai (eds), Social Movements and Globalisation (2000).

[6] Ulrich Beck, Ecological Politics in an Age of Risk (1995).

[7] Ulrich Beck, Risk Society: Towards a New Modernity (1992).

[8] Abbreviated to HSNO Act. Note that a list of acronyms is provided at the end of this article.

[9] Hazardous Substances and New Organisms (Methodology) Order, 1998; ERMA, Annotated Methodology: For the Consideration of Applications for Hazardous Substances and New Organisms under the HSNO Act 1996 (1998).

[10] Ministry for the Environment, Public Discussion Paper: Improving the Operation of the HSNO Act for New Organisms — Including Proposals in Response to the RCGM (2002) 20 at <www.mfe.govt.nz>.

[11] ERMA, Technical Guide: Taking Account of Cultural, Ethical and Community Issues — Guidelines in Relation to Work on Genetically Modified Organisms Carried Out under the HSNO Act 1996 (2000); ERMA, Working with Maori under the HSNO Act 1996 (2001); ERMA, ‘Considering Maori Perspectives’ in ERMA, Annotated Methodology (1998) 15–16.

[12] Bleakley v Environmental Risk Management Authority [2001] 3 NZLR (HC) 213, 250.

[13] B Boer, ‘Environmental Law after Rio’, (1994) 1 New Zealand Environmental Law 21, 22.

[14] ERMA, Interpretations and Explanations of Key Concepts (2002) 14–15.

[15] See for instance Ngai Kaihautu Tikanga Taiao Report to ERMA, Nov 1998, GMF 980001, an application to field-test transgenic sheep for the purposes of producing human alpha-1-antritypsin h AAT.

[16] See the ERMA database at <www.ermanz.govt.nz/applications/tableApps.htm>.

For a complete summary of applications and decisions as at 3 October 2002 see Appendix 1 below.

[17] Mai Chen, Geoffrey Palmer and Simon Terry Associates, Who Bears the Risk? Genetic Modification and Liability (2001) 35.

[18] See for example Bjorn Lomborg’s controversial tome, The Skeptical Environmentalist: Measuring the State of the World (2001).

[19] R Levitas, ‘Discourses of Risk and Utopia’, in B Adam, U Beck and J Van Loon (eds), The Risk Society and Beyond: Critical Issues for Social Theory (2000) 200–1.

[20] Beck, Risk Society, above n 7, 24–8.

[21] Levitas, above n 19, 203.

[22] Ibid 204. 23 Beck, Ecological Politics in an Age of Risk, above n 6; UNEP Global Environment Outlook (GEO-3) The State of the Environment Past, Present and Future (2002) at <www.unep.org/GEO/press.htm> (accessed 27 July 2002); WWF International Living Plant Report (2002) at <www.panda.org> (accessed 27 July 2002); David Held et al, ‘Catastrophe in the Making: Globalization and the Environment’, in D Held, A McGrew, D Goldblatt and J Perraton, Global Transformations (1999); P Havemann and H Whall, ‘The Miner’s Canary: Indigenous Peoples and Sustainable Development in the Commonwealth’, Submission to WSSD, Johannesburg, 2002, at <www.cpsu.org.uk>.

[24] Insurance Services Office, Inc., Catastrophes: Insurance Issues surrounding Northridge Earthquake and Other Natural Disasters (1994).

[25] M Boyer and B Sinclair-Desgagne, ‘Corporate Governance in the Presence of Major Technological Risks’, in H Folmer et al (eds), Frontiers of Environmental Economics (2001).

[26] Swiss Re, Risk Handling and Financing in Pharmaceutical Enterprises (1998) at <www.swissre.com>.

[27] Swiss Re, Genetic Engineering and Liability Insurance: The Power of Public Perception (1998) at <www.swissre.com>.

[28] I Kaul, I Gumberg and M Stern (eds), Global Public Goods: International Co- operation in the Twenty-first Century (1999); T Sandler, Global Challenges: An Approach to Environmental, Political and Economic Problems (1997).

[29] Editorial, ‘End of an Era’, New Scientist (4 November 2002) 4–9 at <www.newscientist.com>.

[30] Beck, Risk Society, above n 7, 29–31.

[31] B Wynne, ‘”Risk” and “Environment” As Legitimatory Discourses of Technology: Reflexivity Inside Out’ (2002) 50(3) Current Sociology 459–77.

[32] Royal Society, Genetically Modified Plants for Food and Human Health – An Update, Policy document 4 February 2002, 5 at <www.royalsoc.ac.uk> (accessed 24 June 2003).

[33] J Krebs, ‘GM Foods in the UK between 1996 and 1999: Comments on Genetically Modified Crops: Risks and Promise by Gordon Conway’ (2000) 4(1) Conservation Ecology at <www.consecol.org/vol 4iss1/art 11> quoted by New Zealand Parliamentary Commissioner for the Environment, Lessons from History of Science and Technology: Knowns and Unknowns, Breakthroughs and Cautions (2001) 25.

[34] D Goldblatt, Social Theory and the Environment (1996) 166.

[35] Ulrich Beck, ‘Politics of Risk Society’ in J Franklin (ed), The Politics of the Risk Society (1998) 18–19.

[36] Beck, Ecological Politics in an Age of Risk, above n 6, 181–2.

[37] W Kandinsky, ‘And Some Remarks on Synthetic Art’ (written in 1927) in Kenneth C Lindsay and Peter Vergo (eds), Complete Writings on Art (1994) quoted by Ulrich Beck, The Re-invention of Politics: Rethinking Modernity in the Global Social Order (1997) 1–2.

[38] Ibid.

[39] D Goldblatt, Social Theory and the Environment (1996) ch 5.

[40] Ulrich Beck, Inventing Politics: Rethinking Global Modernity (1997) 11.

[41] Anthony Giddens, The Consequences of Modernity (1990); Modernity and Self-

Identity (1991); Beyond Left and Right (1994).

[42] Castells, The Information Age, above n 2.

[43] Beck, The Re-invention of Politics, above n 37, 1–2.

[44] Beck, Risk Society, above n 7, 29.

[45] Adapted from (New Zealand) Parliamentary Commissioner for the Environment, Key Lessons from the History of Science and Technology: Knowns and Unknowns, Breakthroughs and Cautions (2001).

[46] Ulrich Beck, The Re-invention of Politics: Re-thinking Modernity in the Global Social Order (1997) 14.

[47] Press Conference with Agriculture Secretary Ann M Veneman and US Special Trade Representative, Ambassador Robert T Zoellick, regarding the EU Moratorium on Biotech Crops and Food Transcript 13 May 2003 at <www.usda.gov /news/releases 2003/05/01157> (accessed 24 June 2003).

[48] In September 2003 the New Zealand Government made the decision not to extend the moratorium set in place under s 4 of the HSNO (Genetically Modified Organisms) Act 2002.

[49] D Fickling, ‘Australian Farmers Fear Future without GM Food Ban’ Guardian 20 June 2003.

[50] R Carroll, ‘Zambians Starve As Food Lies Rejected’ Guardian 17 October 2002; Guardian, ‘Food for Thought’ 1 November 2002 at <www.guardian.co.uk/gmdebate/Story/>.

[51] ‘Feature of the Week — The GMO Debate’ E-Civicus 12 September 2002 at <www. civicus.org> (accessed 24 June 2003).

[52] J Thornton, Pandora’s Poison: Chlorine, Health and a New Environmental Strategy (2000).

[53] C S Holling, ‘Two Cultures of Ecology’, (1998) 2(2) Conservation Ecology at <www.consecol.org/vol2/iss2/art4> quoted by the New Zealand Parliamentary Commissioner for the Environment, above n 45, 35.

[54] Beck, Risk Society, above n 7, 29.

[55] Beck, Ecological Politics in an Age of Risk, above n 6.

[56] Ibid 28.

[57] S Beder, Global Spin: The Corporate Assault on Environmentalism (2000).

[58] A Hurrell, ‘A Crisis of Ecological Viability? Global Environmental Change and the Nation State’ (1994) 42 Political Studies.

[59] B Wynne, ‘Creating Public Alienation: Expert Cultures of Risk and Ethics and Genetically Manipulated Organisms’ (2001) 10(1) Science as Culture 445.

[60] Cohen and Rai, above n 5.

[61] See J Meyer et al, ‘The Structuring of the World Environment Regime, 1879–1990’ (1997) 5(4) International Organisations.

[62] J Fitzsimons, ‘The Nuclear-free Issue of the Twenty-first Century’ in R Prebble (ed), Designer Genes: The New Zealand Guide to the Issues, Facts and Theories about Genetic Engineering (2000) 187.

[63] A S Gunn and K A Tudhope, ‘The Report of the Royal Commission on Genetically Modified Organisms: Ethical, Cultural and Spiritual Issues of Field Release’ (2002) Sept/Oct Organic NZ 12.

[64] A R Bellamy, The Current Uses of Genetic Modification, RCGM Background Papers (2000); Prebble, above n 62.

[65] For examples of this pro-GM discourse in New Zealand official sources, see for example Ministry of Research, Science and Technology, New Zealand Biotechnology Strategy (2002); Report of the New Zealand Royal Commission on Genetic Modification (2001).

[66] Fitzsimons, above n 62, 188.

[67] Bellamy, above n 64, 5–8.

[68] New Zealand Herald, ‘ Ideas Sought on Co-existence’ (4 November 2002) D4.

The New Zealand Ministry of Agriculture and Fisheries seeks submissions on a code of conduct to enable organic and GM agriculture to co-exist.

[69] J E Losey, L S Raynor and M E Carter, ‘Transgenic Pollen Harms Monarch Larvae’ (1999) 399 Nature (10 May 1999), 214.

[70] P Stevenson, ‘Pest-proof Crops Hard Work: Plants with Built-in Insect Resistance, such as Bt Potatoes, May Need More Care than Conventional Plants’ New Zealand Herald (23 September 2002) D4 on North America, corroborated locally by D Teulon at <www.hortnet.co.nz/publications /nzpps>.

[71] H Campbell, ‘The Future of New Zealand’s Food Exports’, in Prebble, above n 62; G Hatchard, ‘US Farmers Reap Heavy Penalty for Sewing GM Crops; Misinformation on GM Trends Is Steering NZ down a Dangerous Path’, New Zealand Herald (27 August 2002) A13.

[72] G Meziani and H Warwick, Seeds of Doubt (2002) at <www.greenpeace.org.nz./pdf/ge/SoD.pdf>

[73] Figure ‘Sectors’ and ‘Benefits’ (applications) are adapted from Ministry for Research, Science and Technology (MRST), above n 65, 10–17, and the more cautiously pro-GM Queensland Department of Innovation and Information Economy, Code of Ethical Practice for Biotechnology in Queensland: Advancement through Safe and Ethical Science (2001) 5–6. The MRST consultation document contains few references to ‘risks’. The risk column is drawn from multiple sources.

[74] See for instance Ngai Kaihautu Tikanga Taiao Report to ERMA (Nov 1998)

GMF 980001, an application to field-test transgenic sheep for the purposes of producing human alpha-1-antitrypsin h AAT.

[75] Bevan Tipene Matua, The Maori Aspects of Genetic Modification, RCGM

Background Papers (2000) 1.

[76] Ibid 3–5.

[77] Ibid.

[78] Ibid Appendix 1; Tables outlining information from ERMA applications compiled by M Hemi, Maori Generic Issues Project Part I: Collation and Analysis for the ERMA, RCGM Background Paper (2000) 19–52.

[79] Hemi, Tables (above n 78); and see Appendix 1.

[80] Tipene Matua, above n 75, Appendix 1.

[81] Ministry for the Environment, Public Discussion Paper: Improving the Operation of the HSNO Act including Proposals in Response to the Royal Commission on Genetic Modification (2002) 56–7.

[82] Ministry for the Environment, Government Response to the Royal Commission on Genetic Modification: Legislative Changes for New Organisms, Paper 8: Changes to More Appropriately Reflect the Treaty of Waitangi Relationship under the HSNO Act (2003) at <www.mfe.govt.nz/issues/organisms/legislation/bill- guide-part.html> (accessed 25 June 2003).

[83] Ibid 9–10.

[84] Law Commission, Liability for Loss Resulting from the Development, Supply or Use of Genetically Modified Organisms, Study Paper 14 (2002) at <www.law.govt.nz>.

[85] Rylands v Fletcher [1866] UKLawRpExch 36; (1866) LR 1 Ex 265 (Ex Ch) affirmed (1868) LR 3 HL 330.

[86] CambridgeWater v Eastern Counties Leather [1993] UKHL 12; [1994] 2 AC 264.

[87] RCGM, Report of the Royal Commission on Genetic Modification (2001) 328.

[88] Gunn and Tudhope, above n 63, 12.

[89] RCGM Report, above n 87, 73.

[90] Law Commission, above n 84, 38.

[91] Ibid: Table 1, 2002: 16.

[92] Chen & Palmer and Simon Terry Associates, above n 17.

[93] Charles River Associates, Review of Chen, Palmer & Terry Associates, Who Bears the Risk? (2001).

[94] M Christensen, P Horgan and A L Caudwell, Genetic Modification: The Liability Debate (2001).

[95] Law Commission, above n 84, 39; Justine Thornton, ‘Genetically Modified Organisms: Developing a Liability Regime’ (2001) 6 Environmental Liability 267.

[96] Law Commission, above n. 84.

[97] Ministry for the Environment, Public Discussion Paper, above n 81, iii, 64.

[98] Ibid 64.

[99] Ministry of Justice & Environment Government responses to the Royal Commission on Genetic Modification: Legislative changes for New Organisms – paper 5: Liability Issues for GM (2003) pp 2-5 at www.mfe.govt.govt.nz/organisms/legislation/bill-guide- part 1. html [100] Nicky Hager, Seeds of Distrust: The Story of a GE Cover-up (2002). 101 According to a NZ scientist recently employed by Genetic ID, a leading US

GM tester, the EU and Japan have 0% tolerance for seed imports and an official 1.0% (for the EU) and 5.0% (for Japan) threshold for food labelling as GE-free. Their food industries have had to adopt a zero tolerance threshold. Positive detectable levels of contamination can be conclusively detected at 0.01% threshold, despite suggestions that under 1.0% is impossible to conclusively determine: see Guy Hatchard, ‘US Farmers Reap Heavy Penalty for Sowing GM Crops’ New Zealand Herald 27 August 2002, A13.

[102] This chronicle of events is set out in Hager, above n 99, 59–67.

[103] Nelson/ Sutherland ERMA Memorandum (15 January 2002) on ‘GM Contamination of Seed’, reproduced Ibid 145–9.

[104] MAF Report 2000, ‘National Economic Impact of an Imported Seed Ban’, reproduced in Hager, above n 99, 135–8.

[105] New Zealand Herald, ‘Two Types of GE Contamination in Destroyed Corn Crops’, 03 October 2002 at <www.nzherald.co.nz>.

[106] Rifkin, above n 3.

[107] E Fisher and R Harding, ‘Towards a Deliberative, Transdisciplinary Problem- solving Process’ in S Harding and E Fisher (eds), Perspectives on the Precautionary Principle (1999) 292–3.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/journals/JCULawRw/2003/2.html