The Precautionary Principle in the New Zealand Fisheries Act : Challenges in the New Zealand Court of Appeal

The New Zealand Fisheries Act 1996 was enacted with the express purpose of protecting the marine environment. Notably, it incorporates the concept of precaution. In 2002-2004 NZ courts decided three cases on the section that incorporates precaution. All these cases struck down decisions where the Minister of Fisheries purported to rely on precaution to support measures protecting marine mammals from the effects of commercial fishing activities.This paper considers the 2004 Court of Appeal decision and assesses its implication for the use of the precautionary principle. The paper first outlines the precautionary principle in international law, and then in New Zealand law. It next describes its incorporation in the Fisheries Act, before focusing on the Court of Appeal decision. The paper concludes with observations that the section incorporating precaution is effectively being used contrary to its intended purpose. This suggests lessons for anyone considering statutory incorporation of the precautionary principle for purposes of environmental protection and is relevant to the regulation of the commercial use of any natural resources.This paper was first written in 2005, presented as a conference paper in 2006, and is the basis for another paper (work in progress) on developments in this area 2010-2012