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

Australasian Journal of Natural Resources Law and Policy, Vol. 18, No. 1, 2015: 1-21

Victoria University of Wellington Legal Research Paper No. 95/2020

17 Pages Posted: 30 Nov 2020

See all articles by Catherine J. Iorns Magallanes

Catherine J. Iorns Magallanes

Victoria University of Wellington - Faculty of Law

Gregory Severinsen

Victoria University of Wellington, Faculty of Law, Student/Alumni

Date Written: 2015

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

Suggested Citation

Iorns, Catherine and Severinsen, Gregory, A Stitch in Time Saves... the Seabed? A Precautionary Approach to Mining in New Zealand's Exclusive Economic Zone (2015). Australasian Journal of Natural Resources Law and Policy, Vol. 18, No. 1, 2015: 1-21, Victoria University of Wellington Legal Research Paper No. 95/2020, Available at SSRN: https://ssrn.com/abstract=3737865 or http://dx.doi.org/10.2139/ssrn.3737865

Catherine Iorns (Contact Author)

Victoria University of Wellington - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Gregory Severinsen

Victoria University of Wellington, Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington
New Zealand

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