Keynote Address To The Second Erma Conference

  • Simon Upton

It gives me great pleasure to set the scene for this the second ERMA Conference. The Environmental Risk Management Authority (ERMA) has been given a demanding job to do in the assessment and control of hazardous substances and new organisms. The Hazardous Substances and New Organisms (HSNO) Act provides that this process is to be done in as transparent and publicly accessible a way as can practicably be achieved. This quite deliberately contrasts with our previous history in dealing with both hazardous substances and new organisms. In the past we and many other jurisdictions, have undertaken these tasks in a way which has made the process and criteria far from visible.

While the HSNO Act and the work of the authority may be seen as groundbreaking, this move towards greater transparency and accessibility of decision making is part of a wider international trend which underlies many aspects of the HSNO reform.

To appreciate both where we have come to as well as what is still needed requires some understanding of our particular past.

With respect to new organisms, New Zealand has, for most of the latter half of this century, been moving towards a clearer understanding of the special and vulnerable nature of our environment.

Even with modern air travel we are three hours flying time from any of our near neighbours. This translates to a large distance and an even larger barrier to the natural movement of different species. This barrier has given New Zealand a unique a set of ecologies which, as we have learned the hard way, is peculiarly vulnerable to the introduction of new organisms. One only has to look at the consequences of the well meaning introduction of plants like gorse and Clematis vitalba (or old man's beard), and the more horrific example of the introduction from Australia of the brush tailed possum, to understand the risks to be managed here.

While we have done better in recent times, we still need to take care. As recently as the last few weeks scientists have expressed fears about the spread of yet another garden plant threatening regenerating native bush here in the Wellington area. This plant, Darwin's barberry, is described as "particularly aggressive" - something which may sound familiar to those trying control old man's beard. This shows that we need to remain vigilant and consider carefully decisions to introduce new species.

No one is suggesting that we should simply keep all such species out. A large chunk of our GDP is generated by introduced species. But many exotic species depend on our isolation for their particular vigour. Many were brought here without the parasites and diseases that afflict them in their home range thereby conferring a competitive advantage on our biological industries. So there are not just conservation reasons but solid economic arguments for keeping out plants and animals that could wreak havoc. This part of the Act has been working since July 1998 and it appears to be working well. The objectives of providing for a careful and transparent consideration of the issues appear, on the limited number of cases to date, to be being met.

The other part of the Act relating to new organisms is that concerned with genetic modification. Here there has been more controversy and more public debate. You would think from the statements of some politicians and media commentators that we've just stumbled on to the issue. Nothing could be further from the truth. Parliament examined the risks for the thick end of two years in a select committee, while the whole HSNO legislative programme involved widespread consultation that took over seven years in total.

I believe that New Zealand is extraordinarily well served by having in place a law which provides for the careful and transparent consideration of genetic modifications before the resulting organisms can be either tried out or released into the environment. Those who claimed, as recently as a few months ago, that this sort of scrutiny was excessively costly might like to consider how robust their arguments against a wholesale moratorium would have been in the absence of this legislation.

It is clear that the wider debate about biotechnology, particularly as it relates to food safety, is far from over. The Government has recognised this and appointed a special body, the Independent Biotechnology Advisory Council, to encourage an informed debate on the issues surrounding biotechnology in general and genetic modifications in particular.

I would contend that New Zealand's scorecard in managing the issues surrounding genetic modification is in better shape than almost every other country in the world. This is as it should be. New Zealand is dependent on its ecology for much of its well-being.

Hazardous Substances.

New Zealand's history in dealing with hazardous substances has been one of piecemeal development in dealing with individual problems. This is not unique, many other countries are facing the same issues. This piecemeal development inevitably led to gaps and inconsistencies and the creeping realisation that these older legal frameworks were inadequate to deal with explosively evolving technologies in a coherent fashion.

To be specific, the Toxic Substances Act appears to have been largely ignored for most of its 13 year life - at least there is little other explanation for the fact that in the first 11 years of the Act there had been only 6,000 notifications of toxic substances, while in the last two years (when the imminent approach of HSNO focussed many minds) the total had leapt to 110,000. It is also clear that the present dangerous goods and explosives regimes are slowly but surely being stretched between technological advances requiring ever larger amounts of expert judgement by their inspectorates on the one hand and the desire for pared-down government organisations on the other.

The development of the HSNO Act began in 1988, originally as part of the Resource Management Law Reform process. The Act was carefully developed and equally carefully considered by a specially appointed Parliamentary select committee. This committee had in practice equal representation from the Government and opposition parties and members with an unusually broad and deep set of skills to deal with the issues raised. The result is a truly bi-partisan piece of law.

For hazardous substances, the HSNO Act has also required the development of a large body of regulations. The existing regulations form a three inch high stack in Government Print eight point type. It should come as no surprise, then, that replacing these regulations is a substantial task. The hard part of this exercise has been simplifying and clarifying what is expected, starting from this great morass of material.

The formulation of new regulations has occurred against the background of an evolving consensus on harmonising the classification of all hazardous substances. This was an objective New Zealand committed to at the Rio Conference on Environment and Development in 1992, but which it has only recently achieved. New Zealand will not be alone in implementing these agreed standards, all of the major OECD members have committed to do so. However, we are unique in have a piece of law "ready to go" to implement the system. Because other countries will take time to change their own laws, we have been accused of being out of step with international practice. This is clearly not the case, although we have recognised the need to find practical ways of matching our trading partners' uptake of the agreements.

Where does all this take us? I am pleased to report that, with the willing (although not of course disinterested) assistance of many industry groups, regulatory agencies here and elsewhere, and public interest groups, we are almost there in the complex task of developing the regulatory tools to make HSNO work in practice for hazardous substances.

As we have approached the start-up of the hazardous substances part of the Act, interest in it has inevitably broadened and deepened. This has led to a number of last minute concerns surfacing. Some time ago I made it plain that I would listen to those concerns, and, if they could be articulated and specified, the Government would put in place steps to deal with them. I have delayed the start-up of the Act to do just this and I consider that we now have both a reasonable definition of those concerns and the means to deal with them. Some will take time to implement, particularly where changes to the Act will be required, others are things that can be done now.

I would like to use this opportunity to announce a $900,000 two-year educational programme, that was provided for in the budget, and will ensure that the end users of the Act have a smooth transition to the new regime. This programme is particularly focused on those who will manage hazardous substances in the day to day sense. Often these people will not have direct contact with the ERMA through the assessment process. Nonetheless, it is these people who are at the end of the day responsible for managing hazardous substances safely. The programme will produce written material, seminars, InterNet and other resources to ensure that the information on how to drive the Act flows through all the way to the thousands of people using hazardous substances in all walks of life.

I'm especially pleased to announce this initiative since it is in stark contrast to the implementation of the Resource Management Act that occurred earlier this decade with very little leadership from a fiscally strapped government. I hope this will provide some reassurance that we learned something from that experience.

With regard to changes to the HSNO Act, I will introduce a set of minor changes to Parliament this year. These are designed to make the Act work in a more streamlined way without compromising its principles or objectives. Some of these proposals come from the lessons of operating the Act for new organisms, while others are to varying degrees addressing projected or even hypothetical problems. In keeping with the bi-partisan way in which the Act has hitherto been handled, any changes would need to enjoy widespread support in Parliament.

I haven't a definitive list of amendments as yet - they are still under consideration. But, I hope to include:

for hazardous substances, the extension of the existing exemption for small scale laboratory experiments to cover research, development and evaluation activity more widely;

and the introduction of a shortened and more efficient process for dealing with routine approvals e.g. those that are low risk or represent minor variations from an existing approval.

These changes will significantly reduce costs for substances which are only of minor significance. This will benefit applicants, but it will also enable the Authority to focus on those substances which are of genuine concern and warrant the full rigour of the Act.

For new organisms, the extension of the rapid assessment provisions of the Act to cover containment applications,

the clarification of the status of existing collections,

and a broadening of the definition of new organism to more adequately accommodate situations such as GMO development experiments, and the importation of hybrids.

We also envisage a number of general process improvements including the removal of the need to regulate application forms and a process where controls need to be altered for technical reasons that is simpler than full reassessment.

Once the extent of the Amendment Bill has been finalised and a date for its introduction ascertained, I will be in the position to announce a start up date for the Hazardous Substances side of the HSNO regime.

The sum of this is that New Zealand will shortly have in place a system for managing the risks from hazardous substances and new organisms which is:

practicable for New Zealand's circumstances

firmly linked to international best practice; and

if used effectively by all parties, cost effective in meeting the community's objectives of maintaining the health and safety of people and the environment.

This conference provides a major opportunity to advance the art and science of risk management. At the beginning of my remarks I pointed out that the HSNO Act sets out to provide for transparent and accessible decision making on hazardous substances and new organisms. This requires a healthy debate on the basis of that decision making. Your programme provides the ingredients for such a debate. It contains perspectives from many if not most of those who will be using the Act and points of view contributing to the evolution of risk management.

Those of us associated with the implementation of law are only too aware that making it work is much more to do with the detail and practice of implementation than it is to do with interpreting legal words. The ERMA itself reinforced this view when it proposed a methodology to the Government, which leaned very heavily on the use of developing precedent. The Government has accepted this approach and this must now be fleshed out. This will happen directly through the decisions of the Authority. The members of the authority have shown themselves willing to listen to informed debate and to take into account the development of the science and theory which must underlie their decision making.

This conference fulfils a vital role in developing those transparent systems and criteria necessary for the best possible decision making. I encourage your full participation in the next two days as a positive contribution towards enabling us to be clear about not only what we decide about hazardous substances and new organisms but how we go about doing it.

I wish you well with your deliberations.