Application of the precautionary principle in New Zealand

The following section outlines how the precautionary principle has been applied in New Zealand. This is considered in each area where the principle has been either explicitly or implicitly adopted.

Absence of guidelines and an integrated risk management approach

While the precautionary principle is being applied in New Zealand in a range of policy areas, this is not within the context of an integrated risk management framework (although regulatory impact statements are required, based on good practice, including standard cost-benefit analysis). Under current legislative provisions, society’s risk tolerance and risk aversion is, arguably, left open to officials and other decision-makers to decide. Application of the precautionary principle is therefore open to wide interpretation, with similar risks being treated differently and cases ending up in litigation as a result.

Support for the inclusion of the precautionary principle in international agreements and domestic law

New Zealand has generally supported the Rio Declaration (principle 15) and the inclusion of the precautionary principle in international agreements and domestic law, although there has been concern that the definition is too broad. There is considerable variation in how the precautionary principle has been applied, with interpretations ranging from weak to moderate and, in some instances, strong. The Fisheries Act 1996 and the Hazardous Substances and New Organisms Act 1996 apply a precautionary approach and there is an indirect reference in the Biosecurity Act 1993. It is implicit in the application of the Resource Management Act 1991. A precautionary approach is proposed as a principle in the Sustainable Development Programme of Action, while precautionary decision-making is an underlying principle in the New Zealand Biodiversity Strategy. There are also implications for trade through the World Trade Organisation Agreement.

Legislation and regulations

Precaution implicit in the Resource Management Act

The Resource Management Act 1991 governs the use and development of land, air and water resources in New Zealand, concentrating on managing the environmental effects of human activities. Although there is no direct preference to precaution, it is implicit in the way the Act is implemented.

“First, novel scientific evidence will be accepted by the [Environment Court] if it is demonstrated after testing, to be more than mere conjecture or hypothesis. Second, the application of a general precautionary principle is within the Court’s discretion when exercising its judgement…Factors influencing the application of caution are the reliability of the scientific evidence and the gravity of the effect the scientific evidence tends to” (Birdsong, 1998).[9]

The Fisheries Act encompasses the precautionary principle.

The Fisheries Act 1996, section 10, specifies four information principles, which encompass the precautionary principle, that must be taken into account in relation to the utilisation of fisheries resources or ensuring sustainability:

• Decisions should be based on the best available information.
• Decision-makers should consider any uncertainty in the information available in any case.
• Decision-makers should be cautious when information is uncertain, unreliable or inadequate.
• The absence of, or any uncertainty in, any information should not be used as a reason for postponing or failing to take any measure to achieve the purpose of this Act.

HSNO Act is akin to precautionary approach.

The Hazardous Substances and New Organisms Act 1996, section 7, has been regarded as akin to the precautionary approach by emphasising the need for caution in managing adverse effects “where there is scientific and technical uncertainty about those effects” (Palmer, 2001).

Palmer has argued that this provision incorporated the precautionary approach into New Zealand domestic law in Bleakley v Environmental Risk Management Authority (ERMA). This involved the decision by ERMA on an application for approval to field test a new organism to genetically modify cows. The Judge, in addressing the argument, said:

“I do not gain assistance from the suggested importation of the (somewhat uncertain) international concept of a “precautionary principle” whether such is expressed in terms of the Rio Declaration or otherwise.”

The Judge then indicated that the section should be construed on its own language in light of the purpose set out in section 4, part of which is to “prevent or manage”the adverse effects of new organisms. This indicated that consideration should be given to managing potentially adverse effects through field testing rather than simply banning a potentially harmful activity.

The Report of the Royal Commission on Genetic Modification (2002) reached the following conclusion:

“Although we heard much discussion of the precautionary principle and the precautionary approach from those who opposed release of genetically modified organisms, there was no consensus on the meaning of either term. The meaning of precaution often rests on the values of the speaker.

...We were not convinced that a single principle could be applied across the board to the issue of genetic modification in New Zealand. Decisions on the use of technology must rest on a range of factors, including the risks and acceptability to the public of the proposed use. They are factors that should inform the process of modifying genetic modification.”

This was essentially arguing for the application of a wider risk management framework involving consideration of a broader range of management options.

Royal Commission on GMOs recommends that a greater range of options  be  considered.

The regulation of genetically modified organisms is currently based on both the weak and strong forms of the precautionary principle. When there are high risks, high irreversibility of impacts, and a high degree of uncertainty about those impacts, the strong form of the precautionary principle is applied and the application is declined. Such an application would be declined regardless of whether the available evidence showed the genetically modified organism to be safe or unsafe, as the impacts associated with getting it wrong would be considered too great. On the other hand, where there are low risks, low irreversibility and a low degree of uncertainty, minimal regulation and monitoring may be applied. Prior to the Report of the Royal Commission (2002), there were two options – field testing and open release (without controls), but nothing in between. The Commission recommended the introduction of a new category, “conditional release”, to provide a greater range of options.

Biosecurity Act allows for a precautionary approach.

The Biosecurity Act 1993 does not refer specifically to the precautionary principle, but it allows for a precautionary approach through an import health standard to manage risks associated with the importation of “risk goods” and the management or eradication of “pests” and “unwanted organisms”. Where there is insufficient information to make a decision in the face of significant potential risks, applying a precautionary approach may mean that additional risks management measures are included in the import health standard or that an import health standard is not issued until adequate information is sought and obtained, which reduces uncertainty.

Government strategies

Biosecurity Strategy

The New Zealand Biosecurity Strategy (2003) includes in its vision that:

“Decisions are founded on good information, based on quality science, taking into account the full range of values at stake with transparent tradeoffs. There is efficient use of the biosecurity budget and biosecurity risk management (from pre-border to pest management) providing an appropriate sustainable level of protection for New Zealand.”

Sustainable Development Programme of Action

The Sustainable Development Programme of Action (2003) has as one of its principles: “addressing risks and uncertainty when making choices and taking a precautionary approach when making decisions that may cause serious or irreversible damage.” This is an overarching framework that could form the basis for future government strategies.

Biodiversity Strategy

The New Zealand Biodiversity Strategy (2000) was a forerunner to the Sustainable Development Programme of Action and Biosecurity Strategy in its approach. Principle 12 (Precautionary Decision Making) states that:

“Management actions to conserve and sustainably use biodiversity should not be postponed because of a lack of knowledge, especially where significant or irreversible damage to ecosystems can occur or indigenous species are at risk of extinction.”

This differs from the Rio Declaration and appears to allow more scope for action to avoid harm.

International trade agreements

WTO Agreement sanctions precautionary measures.

The application of Sanitary and Phytosanitary Measures in the World Trade Organisation Agreement indirectly sanctions the use of precautionary measures (Rose, 2001). The past and current approach in New Zealand has been to support approaches to improve implementation procedures for risk assessment and risk management in the Sanitary and Phytosanitary Measures Agreement. Consideration has also been given to better integration of legitimate environmental concerns with international trade agreements. However, these concerns should not be used to protect against fair competition from developing countries[10]. There has been much international debate on this issue, which is discussed further in the next section on international practice.