1. Members discussed and commented on the draft scenarios on legal liability for GMOs during the July full Commission meeting. The draft scenarios paper is currently being revised by the sub-group in the light of those comments, and of further work by the group. The aim is to issue the scenarios paper for consultation soon, and to have responses well ahead of the next AEBC meeting, to inform further discussions in December.
2. At this, Edinburgh, Commission meeting, there will be an opportunity for Members to take evidence in public from lawyers about environmental liability and the limits of a liability regime, and subsequently to discuss the evidence within the Commission.
3. The Commission will be able to explore a range of practical issues to do with designing an appropriate liability regime. One of the substantial areas it would be useful to explore with the lawyers is the relationship between regulatory and liability regimes. An example is whether conditions imposed under Part C consents for deliberate release could obviate the need for a liability regime, eg making it a condition that growers would take on liability responsibility. A further example is whether compliance with conditions should be a defence to liability claims. Similarly, how much a liability regime would assist with post-commercialisation issues, and whether the courts would end up making policy decisions, as has already happened in decisions on economic loss. Further areas include whether a liability regime is an appropriate response in disputes which might arise between organic, conventional and GM farmers over cross-pollination; and whether a liability regime is appropriate in redressing economic loss which might occur if an organic farmer’s crop or farm became decertified; the practical realities of a liability regime, such as the difficulty of bringing a claim and the costs of doing so.
4. The sub-group and full Commission will soon start coming to tentative conclusions and deciding on further work to be undertaken. The planned timetable is for further discussion at the December AEBC meeting, and for the AEBC report to be published in Spring 2003.
5. The group now has a substantial amount of background information and context and has had wide ranging discussions – within the group, with people giving evidence, and with the full Commission, about the issues a legal liability regime - currently or revised - for GMOs may be able to address, and those it may not. The scenarios consultation will give further pointers about key issues. Some of the key areas for decision may be around whether there are areas where consensus is emerging and whether there are areas where consensus looks unlikely to emerge.
6. One useful starting point for discussion could be to look at the conclusions of the recent New Zealand Law Commission report, and to use that as a springboard for considering similarities and differences in the AEBC’s approach. The New Zealand conclusions are principally descriptive. They are attached at Annex A. They spell out the issues, implications of different approaches, and ways in which a range of systems might work - with advantages and disadvantages. They do not make any recommendations about the way legal liability should apply to GMOs - unlike the task of the AEBC, to make recommendations to Government.
AEBC Secretariat
September 2002
ANNEX A
Law Commission, New Zealand: May 2002.
Liability for loss resulting from the development supply or use of genetically modified organisms: Conclusions.
1. When considering altering the current regime two fundamental issues arise:
Are there any new challenges presented by GMOs that are not adequately dealt with by the existing regime?
Any new regime should treat like with like. If there are gaps in our liability regime, are those gaps specific to GMOs?
2. 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.
3. The main difficulties for any liability regime stem from the social features of GMOs (mindful that these features may not be unique to GMOs). These include the fact that:
It is difficult to estimate the level of risk posed by GMOs;
It is difficult to assess the magnitude of the potential damage that could be caused;
GMOs have the potential to cause catastrophic levels of harm;
GMOs have the potential to cause irreversible damage;
Some of the potential negative effects of GMOs will likely manifest in the long term and be diffuse in nature;
Plaintiffs may face difficulty and expense in establishing causation and proving the extent of any damage; and
GMOs are a source of ethical and spiritual concern for part of society.
4. A range of possible alterations to the existing regime have been identified:
Creating a new strict liability tort;
Creating new public law duties;
Requiring insurance or a bond; and
Creating a compensation fund.
5. The Law Commission suggests that developing a liability regime will require three core policy decisions:
The first is the extent to which GMOs are different from other human activities or technologies, either from a scientific or ethical perspective. Should activities with similar risks be treated in similar ways by any new liability regime?
The second is the extent to which those involved in genetic modification should be held directly accountable for anything that goes wrong. The more onerous the obligation placed upon them the more there will be a curtailment of work in this area and a lessening of the pool of individuals willing to take this risk. Therefore there is a policy decision to betaken: on the one hand weighing the protection of the public against uncompensated and potentially significant losses, on the other hand, considering the damage which may be done to a fledgling industry by the costs of a stringent liability regime.
The third is the government’s possible role as guarantor of any damage caused by the genetic modification industry. None of the possible changes to the current liability regime will effectively deal with damage that takes a long time to be discovered, that is catastrophic in its magnitude, or is irreversible. In such cases, the question will be whether the government, on behalf of the entire community, should be providing compensation for those who suffer damage but are unable to receive compensation through any liability regime.
6. Such decisions should not be taken by lawyers. The ethical and spiritual issues are beyond our mandate. Deciding who should be responsible for any adverse consequences of genetic modification must be widely debated and clearly agreed.
