Application of the precautionary principle during consenting processes in New Zealand: Addressing past errors, obtaining a normative fix and developing a structured and operationalised approach
The precautionary principle is increasingly being adopted as a legal risk management tool in international environmental law and regulation, especially in the marine context. In fact, over the last 35 years it has been included, often as a central feature, in the vast majority of international law instruments relating to protection and management of the environment. This rise to prominence is largely driven by widespread recognition that the ability of environmental law to successfully avert long term and significant harm is very much contingent on the successful implementation and application of the precautionary principle (specifically, the decision-making and planning measures it advocates). Owing to the above, it is unsurprising that like many other countries New Zealand has incorporated the precautionary principle expressly and implicitly into domestic law and policy over the last 25 years. The most recent and arguably most notable instance of the incorporation of the precautionary principle in New Zealand law is in the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (“EEZ Act”). Indeed, for reasons explained in this paper, the success of the EEZ Act will in large part depend on the successful application of the precautionary principle contained in the Act. Unfortunately, New Zealand’s incorporation and application of the precautionary principle to date has been problematic, with confusion and a variety of approaches taken to its core concepts, and arguably outright misapplication of it. For this reason, this paper seeks to take comprehensive stock of the precautionary principle, first to identify what is the likely cause of such confusion and misapplication, and second, to provide a foundational understanding to assist policy makers and the courts with the task of operationalising and applying it during legislative consenting processes. In doing so, this paper focuses on its operation in the marine setting, with a view to assisting with its interpretation and application under the EEZ Act. It argues that in order to secure consistent and proper application of the precautionary principle, significant work needs to be done to clarify definitional ambiguities embedded within the principle. It then argues that further work needs to be done to properly operationalise the New Zealand formulations of the precautionary principle (i.e. unpack the substantive content of the principle and pin down what such content requires of decision-makers in practice) so they can be consistently and correctly applied under New Zealand’s environmental risk management regimes.