ERMA and Ethical Issues

Nathaniel Centre Staff
Issue 16, August 2005

On 1 July 2011, the Government announced the establishment of the Environmental Protection Authority (EPA) as a Crown agent responsible to the Minister for the Environment, incorporating all of the functions and powers of the Environmental Risk Management Authority (ERMA).

The Environmental Risk Management Agency (ERMA) recently established an Ethics Advisory Panel to assist in dealing with ethical aspects of applications made to ERMA under the Hazardous Substances and New Organisms Act 1996 (HSNO Act).

An ethical framework for use by ERMA in considering applications has been drafted by the Ethics Advisory Panel, and published as the discussion paper "Consideration of Ethical Issues in HSNO Processes". Public comment on the framework was sought by ERMA, with the deadline for submissions being 25 July 2005.

The framework is made up of three elements – ethical principles, procedural standards and operational processes. In making comment on the proposed framework, The Nathaniel Centre chose to focus on the ethical principles and to a lesser extent, on the procedural standards.

Organisation of the Ethical Principles

The Ethical Principles in the framework are described as 'fundamental principles' and 'derived principles' (which flow from the fundamental principles). Two fundamental principles are named: respect for persons, and respect for the natural environment.

The principles listed as derived from respect for persons are: autonomy, co-operation, cultural identity/pluralism, human rights, human dignity, justice and equality, well-being and non-harm. The principles listed as derived from respect for the natural environment are: animal welfare, sustainability, and well-being/non-harm.

In its comments on the Ethical Principles, The Nathaniel Centre noted that, while the draft framework draws on early versions of UNESCO's Draft Universal Declaration of Bioethics and Human Rights, the drafting committee for this document has since moved away from distinguishing between fundamental and derived principles. This was done in order to avoid any suggestion of a hierarchy of principles.

The Nathaniel Centre believes that the distinction between fundamental and derived principles should be removed from ERMA's draft framework for the same reasons that it was dropped from the UNESCO document. Several principles may apply in making a decision in a particular situation, and the weight given to any one principle will vary according to the situation. Any ordering of the principles which implies a hierarchy among them will be misleading when the principles are applied.

The drafters of the Universal Declaration also offered an alternative way of organizing the principles, in their explanation of how the principles are organized in later drafts of the UNESCO Draft Declaration:

"The declaration makes a distinction between (1) the principles directly related to human dignity such as respect for human rights and fundamental freedoms, benefit and harm, autonomy, consent and confidentiality; (2) the principles concerning the relationships between human beings such as solidarity, cooperation, social responsibility, equity, justice, cultural diversity; and (3) the principles governing the relationship between human beings and other forms of life and the biosphere, such as responsibility towards the biosphere. The order of principles in the declaration therefore follows a particular rationale and endures a systemic approach. The rationale followed in the draft declaration is to present principles in the following way: they determine gradually widening obligations and responsibilities in relation to the individual human being itself; to another human being; to human communities; to humankind as a whole; and towards all living beings and their environment." [1]

The Nathaniel Centre recommended that ERMA also adopt this organization of the principles. Because this approach is based on relationships, it provides insight into the inter-connectedness that is integral to the cultural, spiritual and ethical aspects of biotechnology. It also highlights the "gradually widening obligations and responsibilities" of human beings in relation to self, others and the environment.

The recognition of relationship as the basis for the organization of principles enunciated by the UNESCO committee in its later drafts is similar to that articulated by Pope John Paul II and the Orthodox Ecumenical Patriarch Bartholomew I in their "Common Declaration on Environmental Ethics", signed in Venice in 2002 (sometimes called the Venice Declaration):

"A new approach and a new culture are needed, based on the centrality of the human person within creation and inspired by environmentally ethical behavior stemming from our triple relationship to God, to self and to creation. Such an ethics fosters interdependence and stresses the principles of universal solidarity, social justice and responsibility, in order to promote a true culture of life." [2]

Relationship, with its sense of responsibility and obligation, is a more comprehensive and dynamic basis for the framework than simply "respect for persons" and "respect for the environment". Respect does not necessarily imply responsibility or obligation.

Human Dignity

In its submission The Nathaniel Centre pointed out that 'human dignity' is not a derived principle. Respect for persons flows from human dignity, rather than human dignity being derived from respect for persons. The inherent dignity of the human person is the starting point for a moral vision for society, and the foundation for all Catholic social teaching.

The Universal Declaration of Human Rights is also based on this approach, as stated in its preamble:

"Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."

Respect is only one aspect of the response which human dignity demands, as the Universal Declaration makes clear. The Centre strongly recommended that "respect for persons" be replaced with the principle of human dignity.

Ministerial call-in

In ERMA's discussion paper there is reference to the framework being used to provide alerts to a possible need for Ministerial call-in of an application. Section 68 (1)(a) of the HSNO Act states the effects that might indicate the need for Ministerial call-in:

"...if the Minister considers that the decision on the application will have (a) significant cultural, economic, environmental, ethical, health, international, or spiritual effects; ..."

The Nathaniel Centre recommended that cultural, ethical and spiritual effects should all be covered equally by the framework if it is to be an adequate tool for providing alerts for ministerial call-in in these areas.

The Royal Commission on Genetic Modification identified ethical, cultural and spiritual factors as all being important to New Zealanders in making decisions about biotechnology. The HSNO Act refers to all three aspects.

In the draft framework 'cultural' appears as a 'derived' principle under the major heading "Ethical Principles", which significantly reduces the status of cultural effects in the framework. Nga Kaihautu Tikanga Taiao (ERMA's Māori advisory committee) has a prominent place in addressing Māori cultural issues, but Pakeha New Zealanders (and other ethnic groups in New Zealand) also have a culture. There are perceptions in the community that, for ERMA, culture means Māori culture, and that most other New Zealanders identify with the western scientific culture. The framework as drafted will do little to change that perception.

Non-Māori have an equal right to have their cultural issues adequately addressed within ERMA's processes in a way which gives them some status. In this respect, the UNESCO committee's organization of the principles according to "gradually widening obligations and responsibilities in relation to the individual human being itself; to another human being; to human communities; to humankind as a whole; and towards all living beings and their environment", provides a better template for addressing non-Māori cultural issues than does the draft framework.

There is no mention of spiritual factors or effects in the framework. The Centre acknowledges that 'spiritual effects' are difficult to define for many people and are not confined to the viewpoints of various religions. However 'spiritual effects' are included in Section 68 of the HSNO Act and unless ERMA intends instituting a separate framework to identify them, they will need to be part of this framework if it is to operate as a tool for identifying possible Ministerial call-ins.

The draft framework appears to be constructed primarily to ensure that ERMA acts in an ethical manner when making decisions. It is essentially an organizational Code of Ethics. As such, The Nathaniel Centre considers that it is not adequate for identifying and weighing the ethical, cultural and spiritual aspects of proposals put before ERMA. In this respect it does not do what Chairperson Neil Walter says in the Foreword of the discussion paper, that is, allow ERMA to understand "the ethical issues and implications of proposals: essentially, the values and beliefs that people hold about the consequences of new organisms and hazardous substances...' ".

Procedural standards

The procedural standards set out in the discussion paper relate to the ethical dimensions of the processes that ERMA uses to make decisions. The procedural standards listed are: honesty and integrity, transparency and openness, scientific and rational methods, community and expert consultation, fair decision-making processes.

'Scientific and rational methods' is an inappropriate procedural standard to apply to cultural and spiritual issues in particular. They are by their nature outside any scientific analysis, and what is "rational" in one world view may not be so in another.

The Nathaniel Centre asked for the removal of 'scientific and rational methods' from the procedural standards. If ERMA is to take adequate account of "the values and beliefs that people hold", then 'scientific and rational methods' should only apply to the assessment of scientific and risk factors.

An alternative approach

The Nathaniel Centre urged ERMA to revisit the fundamental purpose and structure of the framework. It has to be a tool for identifying and evaluating the significance of ethical, cultural and spiritual aspects of proposals put before ERMA. As such, it must identify the cultural, ethical and spiritual values and principles that matter to New Zealanders, and build the framework and its processes on these.

The discussion paper notes that there are "no readily available models of relevant ethical frameworks on which ERMA New Zealand can draw". This is an opportunity, not a deficiency. ERMA has the opportunity to create a framework which is uniquely ours. The HSNO Act, the report of the Royal Commission on Genetic Modification, the Bioethics Council's report on Human Genes and Other Organisms all contain material which could be used to construct a framework which is tailored to the ethical, cultural and spiritual values and principles espoused by New Zealanders.

In constructing a specifically New Zealand framework it would be possible to take a matrix approach, with ethical, cultural and spiritual aspects considered in each of the areas of "gradually widening obligations and responsibilities"; namely, human dignity, the relationships between human beings, and the relationship between human beings and other forms of life and the biosphere. The Nathaniel Centre strongly recommended that the drafters consider such an approach.

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[1] Intergovernmental Meeting of Experts Aimed at Finalizing a Draft Declaration on Universal Norms on Bioethics. (April and June 2005). Explanatory Memorandum on the Elaboration of the Preliminary Draft Declaration on Universal Norms on Bioethics

[2] Common Declaration of Pope John Paul II and the Ecumenical Patriarch Bartholomew I, Rome-Venice, 10 June 2002.

The Environmental Protection Authority receives and processes applications for proposals of national significance under the Resource Management Act 1991 and regulates the introduction and use of hazardous substances and new organisms under the Hazardous Substances and New Organisms (HSNO) Act.

It will also administer the Emissions Trading Scheme and New Zealand Emission Registry under the Climate Change Response Act from January 2012 and has been identified as the proposed consenting authority for activities taking place within New Zealand's Exclusive Economic Zone.