The Incorporation of the Precautionary Principle in the Fisheries Act 1996: a Call for Stronger Legislation Which Achieves Its Purpose

Abstract

The precautionary principle finds its roots in international law. Its purpose is to guide stakeholders as to the manner in which they should manage events which may have an adverse effect on the environment. There are several statements of the precautionary principle in international instruments. Therefore, an array of international agreements and declarations can be consulted for its meaning. That notwithstanding, there is consensus as to what the most widely accepted definitions are. Several academics have considered the meaning, effect and implementation of the precautionary principle. Writing in 2006, Catherine Iorns outlined the manner in which the New Zealand Court of Appeal interpreted s 10 of the Fisheries Act 1996 (the Fisheries Act), in the case of Squid Fishery Management Co Ltd v Minister of Fisheries (Squid Fishery case). The main provision of the Fisheries Act which seeks to reflect the precautionary principle is s 10. Iorns proposed that the New Zealand courts have repeatedly failed to give effect to the provision because they have not given due consideration to its wider purpose. She comments: “Thus applying this clear text without regard to the wider purpose has possibly resulted in the application of s 10 in an unintended manner.” Notwithstanding the above, Iorns also advised that the judiciary's response to s 10 of the Fisheries Act “suggests lessons for anyone considering statutory incorporation of the precautionary principle for the purposes of environmental protection.” The purpose of this paper is to take up the challenge set by Iorns, by attempting redrafts to the Fisheries Act which better capture the spirit of the precautionary approach. It is contended that an amendment to the Fisheries Act which not only introduces the precautionary principle at appropriate points, but also properly presents and explains it, may better assist the courts.