The Precautionary Principle

in the NZ Fisheries Act 1996:

Whose Side is it on?

Catherine Iorns MagallanesVUW, School of Law

Outline:• Precautionary principle

– International law & marine environment

– Incorporation in s.10 Fisheries Act• Application & interpretation of s.10

– Roaring Forties– Squid Fisheries, Antons Trawling, etc.

• A better interpretation• Amendment?

Rio declaration formulation:

• “In order to protect the environment , the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” (Principle 15)

FAO Responsible Fisheries Code

• States should apply the precautionary approach widely to conservation, management and exploitation of living aquatic resources in order to protect them and preserve the aquatic environment. The absence of adequate scientific information should not be used as a reason for postponing or failing to take conservation and management measures.

NZ Fisheries Act:“This Act shall be interpreted…in a

manner consistent with- (a) NZ’s international obligations relating to fishing” (s.5)

“The purpose of this Act is to provide for the utilisation of fisheries resources while also ensuring sustainability” (s8)

s.10 “Information Principles”

[All persons shall take into account the principles]

(a) Decisions should be based on the best available information:

(b) Decision makers should consider any uncertainty in the information available in any case:

(c) Decision makers should be cautious when information is uncertain, unreliable, or inadequate:

(d) The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.

Application of s.10:• Roaring Forties (1997):“There was information available to

the Minister, it was the best available. There was no other. The uncertainty of that information was considered. The Minister was aware of the need for caution because of the uncertainty and inadequacy … the Minister in these circumstances acted to achieve the purpose of the Act to provide for utilisation while ensuring sustainability.”

Application of s.10, cont:Application of s.10, cont: Northern Inshore FisheriesNorthern Inshore Fisheries (2002): (2002): Squid FisherySquid Fishery (2003 & 2004): (2003 & 2004): Antons TrawlingAntons Trawling (2008): (2008):

‘‘Best available information’Best available information’

S.10(a) S.10(a) Decisions should be based on the best available information

S.2(1) “the best information that, in S.2(1) “the best information that, in the particular circumstances, is the particular circumstances, is available without unreasonable cost, available without unreasonable cost, effort, or time” effort, or time”

s.10(d) – for what purpose?s.10(d) – for what purpose? (d) The absence of, or any uncertainty (d) The absence of, or any uncertainty

in, any information should not be in, any information should not be used as a reason for postponing or used as a reason for postponing or failing to take any measure to achieve failing to take any measure to achieve the purpose of this Act.the purpose of this Act.

ORH1ORH1: purpose incl’s utilisation: purpose incl’s utilisation

Proposed amended s10(a) Decisions should be based on the best

available information:(b) Decision makers should consider any

uncertainty in the information available:(c) if information is absent or is uncertain,

unreliable, or inadequate, decision makers—

• “(i) should be cautious; and• “(ii) should not use any of those factors

as a reason for postponing or failing to take measures to ensure sustainability.”

Where are we now?