A Stitch in Time Saves... the Seabed? A Precautionary Approach to Mining in New Zealand's Exclusive Economic Zone

Abstract

Environmental precaution has developed as one of the cornerstones of modern law concerning sustainability. The idea is that where there is uncertainty as to the effects of a proposed activity, such uncertainty should not be used as an excuse for taking no action to address effects. In common parlance, ‘a stitch in time saves nine’. New Zealand’s environmental law has a relatively short — yet rich — history of precautionary thinking. From its origins in European (and, in particular, German) municipal law and its translation into various international instruments, the idea of precaution found formal expression in New Zealand’s resource management legislation from the mid-1990s. New Zealand’s key environmental statute, the Resource Management Act 1991 (NZ) (‘RMA’), does not specifically refer to precaution in its consenting context, yet the courts have seen a precautionary approach as inherent in its provisions in a variety of ways. In contrast, the recently enacted Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (NZ) (‘EEZ Act’) specifically requires decision-makers to favour caution and environmental protection when information is uncertain. However, the exact ways in which this is to occur are unclear.

This article considers the development of precaution as a legal concept in New Zealand environmental law, from its inclusion in the fisheries context to its most recent conceptualisation in the EEZ Act. The latter, the article argues, has drawn on the relatively weak and vague requirements of previous formulations, but has repackaged and strengthened them to produce a strong and directive approach to dealing with risk and uncertainty. It could mark a potential turning of the tide for precautionary thinking in New Zealand. Recent decisions concerning seabed mining have indeed suggested this may be the case.

Keywords: precautionary principle, precautionary approach, EEZ, exclusive economic zone, new zealand, environmental law, RMA, resource management act, mining

JEL Classification: K00, K32