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

35 Pages Posted: 1 Feb 2016 Last revised: 10 Feb 2016

See all articles by Catherine J. Iorns Magallanes

Catherine J. Iorns Magallanes

Victoria University of Wellington, Te Herenga Waka - Faculty of Law

Gregory Severinsen

Victoria University of Wellington, Te Herenga Waka - 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. 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.

Keywords: Environmental law, sustainability, New Zealand, resource management

JEL Classification: K00, K30, K32

Suggested Citation

Iorns, Catherine and Severinsen, Gregory, Diving in the Deep End: Precaution and Seabed Mining in New Zealand's Exclusive Economic Zone (2015). (2015) 13 NZJPIL , Victoria University of Wellington Legal Research Paper No. 9/2016, Available at SSRN: https://ssrn.com/abstract=2724883

Catherine Iorns (Contact Author)

Victoria University of Wellington, Te Herenga Waka - Faculty of Law ( email )

PO Box 600
Wellington, 6140
New Zealand

Gregory Severinsen

Victoria University of Wellington, Te Herenga Waka - Faculty of Law, Student/Alumni ( email )

PO Box 600
Wellington
New Zealand

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