Diving in the Deep End : Precaution and Seabed Mining in New Zealand's Exclusive Economic Zone

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. While New Zealand's key environmental statute, the Resource Management Act 1991 (RMA), does not specifically refer to precaution in its consenting context, the courts have seen a precautionary approach as inherent in its provisions in a variety of ways. The Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZ Act), in contrast, specifically requires decision makers to favour caution and environmental protection in s 61(2) when information is uncertain. However, the exact ways in which this is to occur are unclear. The EEZ Act closely mirrors the structures of the Resource Management Act, and the ways in which precaution has been recognised in the latter might also be recognised in the former without the need to refer to s 61(2). It is therefore helpful to consider what that section will add to a regime into which precaution can already be read. This article explores the merits of various ways in which precaution could be implemented under s 61(2). It also investigates the way in which precaution has been treated by the Environmental Protection Authority in the context of deep seabed mining in the first two consenting decisions made under the Act. It concludes that, despite some comments that s 61(2) is vague and weak, the most persuasive interpretation is one that has at least the potential to be relatively liberal and strongly precautionary