Plea to model GE crop liability on German rule

Germany's approach to setting new liability laws for genetically engineered (GE) organisms provides an important example for New Zealand, says a Wellington lobbyist.

The German Government has sought to explicitly allocate liability for the financial risks from the cultivation of GE crops to protect farmers with conventional crops.

Sustainability Council executive director Simon Terry - who today released a report on the latest German law changes - said the measures were in "sharp contrast" to our law which "leaves major gaps and implicitly allocates risk and costs to innocent parties".

New Zealand law specific to GE organisms imposed strict liability only if an activity was carried out contrary to an approval issued by the Environmental Risk Management Authority, he said.

"There is no statutory liability for damage arising from unexpected effects or inadequate regulatory control of known risks."

Liability law was emerging as a key issue in regulation of GE crops, and that wider recognition of the costs and difficulties involved in keeping GE crops separate from conventional plantings had reinforced the importance of a clear allocation of liability.

Austria and Norway established a strict liability standard for damage arising from GE crops in the mid-1990s, and more recent reviews by Denmark, Switzerland, and Britain had also decided that conventional farmers should not bear the costs of contamination from GE crops.

Germany's revised law required details of GE crops to be publicly registered before planting. A claim for damages could succeed even if the harm had not been foreseeable.

Anja Gerdung, the author of the paper, Germany's Liability Law for GMO Cultivation, said that following good practices - such as setting buffer zones around a GE crop - was not a legal defence by itself.

Neither was an argument that the damage stemmed from an act of God or a third party.

"If the damaged party can show beyond reasonable doubt that genetically modified organisms have caused the damage, it is assumed that the genetically modified trait of that organism caused the damage," she said.

Mr Terry said a second stage of law reform, including the proposed creation of a compensation fund, was scheduled for the Northern Hemisphere summer.

New Zealand's policy on liability allowed a civil liability and civil penalties regime in cases where an activity breached the law.

Only where regulatory approvals were not obtained or were flouted, would people who had been harmed not have to prove negligence to be awarded compensation.

"Common law actions offer little hope of third parties receiving compensation," he said.

- NZPA