JORDAN WILLIAMS: National embedding more co-governance

The following is an edited version of an email distributed by the Taxpayer's Union today, 13 October:

I have been putting off sending this email as it’s not an easy one. It touches two ‘red hot’ issues that in the ideal world, the Taxpayers’ Union wouldn’t have to touch: genetic engineering and race.

But it's too important to ignore. The National Party – despite all the talk about not wanting more co-governance – are embedding yet another race-based doozy that turns something that ought to be science-based into, well, race-based rent seeking.

First and foremost, let me say the Taxpayers’ Union does not have a position on GE.

Reasonable minds can (and do) differ among our loyal supporters.

So why then is the Taxpayers’ Union taking a position on the Gene Technology Bill? We took a stand against Three Waters and co-governance because it created a whole regime that would have resulted in inflated costs to taxpayers, and reduced accountability.

This issue is similar – but being waved through by a Government that claims to stand against it.

The Gene Technology Bill

The Gene Technology Bill is the Government’s attempt to “modernise" New Zealand’s laws around gene editing and genetically modified organisms (GMOs). It introduces what the Government describes as a "risk-based" regulatory framework that allows low-risk gene technologies to be exempt from cumbersome red tape, while still tightly controlling high-risk applications. 

The Government claims the Bill will unlock innovations in agriculture, health, and conservation – such as GE pine trees for forestry, methane-reducing crops, or gene therapies for rare diseases. 

Basically, it would align our rules more closely with key trading partners like Australia and the UK, so New Zealand isn’t left behind. From an economic perspective, the likes of the Federated Farmers say it is urgently needed.

The most extraordinary co-governance regime seen yet?

If the Government’s aim is to get regulation out of the way of science and economic development, agri-science, and gene tech, this Bill won’t do it. 

The Bill centralises regulation and establishes a Māori Advisory Committee to uphold Treaty obligations.  

Yes, you read that right, the Treaty of Waitangi, of course, applies to genetic engineering. 

Science equal with "kaitiaki relationships"?

The new regime sets up a new regulator to take various decisions on classifying and regulating genetically engineered organisms and research.

The regulator will be obliged to refer various matters to a 'Technical Advisory Committee' (i.e. on the science) and also a 'Māori Advisory Committee'. The latter is to advise on cultural, spiritual, historic, customary, and ecological values associated with kaitiaki relationships, and to propose mitigations or conditions.

Now, maybe it could be argued that iwi have a place in safeguarding environmental wellbeing, or having a guaranteed seat at the table for important policy decisions.

But the National Party propose to go much further…

The Bill doesn't just give rights to iwi and hapū to object, individual Māori can assert a special "kaitiaki" relationship with a native species (that non-Māori cannot)

The Bill doesn’t just recognise a ‘treaty partner’, iwi, or hapū. It is quite literally race-based: recognising that only individual Māori can have a special relationship with indigenous plants and genomes.

How does it work?

1. If someone wants a licence that involves using a native species (or doing something that may affect Māori relationships with that species), the regulator must refer that application to the Māori Advisory Committee (Clause 126).

2. The Māori Committee then studies the proposal, considering how Māori guardianship (kaitiaki) with that species might be harmed, considering spiritual, customary, ecological, historical values, and then proposes conditions or mitigation (Clause 127).

3. As part of that, the Māori Committee must assess any iwi, Māori entity or Māori individual who asserts that they "have a kaitiaki relationship with an indigenous species that would be, or has been, used as a host organism" (Clause 128).

4. The regulator must consider with equal weighting the Māori Committee’s advice in making its decision in the same way it considers the advice from the scientific advice from the Technical Advisory Group (Clause 123).

5. The Māori Committee also helps set guidelines for how applicants must engage with Māori and gives advice to Māori or submitters on the process (Clause 122).

That last one is more important than it sounds. Applicants to use/research gene technology will be legally obliged to "act in good faith" in dealing with anyone (including just an individual, or a set of individuals) who asserts a kaitiaki relationship.

How "kaitiaki" can be overcome: a recipe for rent seeking?

Clause 131 states that where the Māori Advisory Committee is satisfied that there is a kaitiaki relationship (although that is inherently subjective, in and of itself) and that it is "materially affected" by the application (again, subjective), the Committee must advise the Regulator not to proceed with the application or proposal.

Remember, the "kaitiaki" relationship isn't scientific. It includes cultural and spiritual connections that any iwi, hapū, Māori entity, or Māori individual asserts.

So how then can these objections/kaitiaki relationships be overcome?

From a Taxpayers' Union perspective, this is the most objectionable feature of the whole regime. The only way for an applicant to "resolve" someone asserting a special relationship is to come to an agreement to mitigate the effect.

The agreements are not compensatory in the same way a court might award damages. They have no oversight and are not required to be fully disclosed (refer Clause 21). It appears to deliberately encourage money to change hands for (in effect) the issues to go away.

So, in summary, the whole Bill sets up a classic regime for what economists politely call "rent seeking".

There are no appeal rights for what the Māori Advisory Committee determine. If they accept an iwi, hapū or individual has a special relationship, the law will require it to recommend that the activity not proceed.

So much for removing red tape!

So the only way to save the application is to negotiate directly with those asserting the relationship with the particular plant or host organism being researched or used.

This is the last thing we'd expect from a Government elected to end co-governance.

While Select Committee submissions have already closed, and the Select Committee's report is imminent, there is still time for the Government to make changes to the Bill before it is passed into law.

I am reliably informed that ACT and NZ First have deep concerns.

The key decision maker is the Minister of Science, Innovation and Technology, Dr Shane Reti. Like any politician, Dr Reti will likely take the path of least resistance.  And we know he is under huge pressure from vested interests to keep these race-based provisions.

In politics, the squeaky wheel gets the oil, and so far this issue hasn't had the media coverage or public attention it deserves.

Upholding the Treaty cannot possibly mean that the spiritual relationships that individual Māori may feel they have with a plant should be given the same consideration as science in environmental regulation.

Whether you support GE or not, surely we agree that we shouldn't have a regulatory regime based on race and rent seeking.

As it stands, the Bill is a recipe for expensive rent seeking from those who will see it as an opportunity to hold up or 'tax' applications for gene and crop technology. If New Zealand is to remain a science-based first world economy, we have to say enough-is-enough and hold National to their promises to end co-governance.

Jordan Williams is the Executive Director of Taxpayers' Union