Ministry for the Environment advice to the Local Government and Environment Select Committee on the EEZ Bill

Transcription

1 Ministry for the Environment advice to the Local Government and Environment Select Committee on the EEZ Bill Request On 9 February 2012, the Local Government and Environment Committee requested: Response An explanation of the decision to use favour caution rather than precautionary approach, and a list of countries which do or do not use the precautionary approach We have interpreted this question to mean: 1. Why the precautionary approach is not stated explicitly in the Bill and the words favour caution are used instead. 2. Provide a list of other countries with legislation governing environmental effects in the EEZ and whether or not they use the precautionary approach in their legislation. Why the precautionary approach is not stated explicitly in the Bill and the words favour caution are used instead Key points A precautionary approach requires caution to be exercised in the event of uncertain information. The use of the term precautionary approach or precautionary principle will not aid interpretation or offer certainty in the EEZ bill. A precautionary approach is taken to decision making in the EEZ Bill. The approach manifests through various management techniques, including in the ways stated in cl 13. Courts have accepted a precautionary approach will apply even though the statute may use different language terms such as cautious or take into account the need for caution. Throughout this advice, the precautionary approach and the precautionary principle have been used interchangeably. This is consistent with the New Zealand Law Society s submission on the Bill that there is no substantive distinction between the two. We do note however that some academics consider that the term principle is stronger than the term approach. The precautionary approach is a risk management principle to deal with scientific uncertainty. There are differing opinions as to what exactly is required by a precautionary approach. Despite its relatively common-place usage, the definition of the precautionary approach remains very controversial, as it is widely open to interpretation as to what it actually means and when and how it should be applied. For example, one of the more popular definitions of the precautionary approach is the Rio 1992 definition: 1

2 In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing costeffective measures to prevent environmental degradation. (Emphasis added). This definition sets threats of serious or irreversible damage as the triggering factor for utilising the precautionary principle. This term threats remains ill-defined, leaving regulators to decide what cost-effective measures to take on a case-by-case basis. It is these costeffective measures, or management techniques, that give the precautionary approach its strength, providing the legislative tools to give effect to the precautionary approach. The EEZ Bill provides regulators certainty by providing these management techniques, detailed in the table below, without the ambiguity of the principle under which they sit. Management technique Clause in the EEZ Bill Default classification of activities as 37(1)(c) discretionary Allows for regulations to include qualitative 27(2)(a) measures to be taken into account Mandatory impact assessments 40 Obligation to consider potential effects 6(1)(e) and (f) Consider alternatives 40(1)(g) Conditions on consents 62 Use adaptive management 13(3), 4(1) Monitoring of consent conditions 21(b) Review processes for consents Liability regime 126, 127 Can require compulsory insurance 62(2)(b) Bonds 63, 62(2)(a) Enforcement, including prosecution 125 In terms of New Zealand s regulatory context, the EEZ Bill is not unique in using management techniques to give effect to the precautionary approach without stating it explicitly. The Resource Management Act 1991 and the Fisheries Act 1996 both deal with the marine environment and have influenced the drafting of the EEZ Bill. Neither of these pieces of legislation specifically refers to the precautionary approach, however, both these Acts have been interpreted by courts and academic commentators as allowing scope for its incorporation as detailed in Appendix 1. We note that the Hazardous Substances and New Organisms Act 1996 (HSNO) does expressly refer to the precautionary approach, although only in the marginal note of section 7. In Bleakley v ERMA the High Court when considering s 7 of HSNO, said that it did 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. Please refer to Appendix 2 for further analysis of the precautionary approach in HSNO. The policy intent of the Bill is to take a cautious approach to risk management in situations of scientific uncertainty such as when information is uncertain, unreliable or inadequate. Rather than merely noting the term precautionary principle or precautionary approach, the EEZ Bill aims to provide more meaning as to what the concept entails for regulators, the EPA and those applying for, and objecting to, marine consent applications. Similar to s 10 of the Fisheries Act (as discussed further in Appendix 1), the EEZ bill requires caution where information is uncertain or inadequate. This is just one method of allowing for care and a cautious approach when information about an activity and its effects is uncertain. The EEZ 2

3 Bill also provides for other ways in which caution can be exercised, as set out in the table above. Thus, like other New Zealand environmental management regimes governing the ocean, the EEZ Bill is consistent with the precautionary approach without explicitly stating it. Provide a list of other countries with legislation governing environmental effects in the EEZ and whether or not they use the precautionary approach in their legislation The following table lists other countries with existing legislation covering their EEZ and whether they incorporate the precautionary approach. It is important to understand the different regulatory contexts in which the following legislation operates. The following Acts are overarching legislation (not gap-filling), and apply to spaces and activities beyond the EEZ and ECS that forms the scope of the EEZ Bill. While several of the legislative frameworks give effect to the precautionary approach, they do not copy the Rio Declaration definition verbatim. Each jurisdiction has adapted the precautionary approach to meet its own legislative requirements, which is consistent with the EEZ Bill. Country Environmental assessment legislation Whether it incorporates the precautionary approach Australia Environment Protection and Biodiversity Conservation Act 1999 Canada Canadian Environmental Assessment Act 1992 Under s391 the precautionary principle is a mandatory consideration for some decisions. S391 states, that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. Part of the purpose of the Act. However it is not defined and is used in a different context from the Rio Declaration. Norway Pollution Control Act 1981 Not mentioned in the English summary of the Act. United Kingdom United States Marine and Coastal Access Act 2009 National Environmental Policy Act 1969 No, a high level of information is required in an environmental statement and any lack of knowledge must be identified. Further information can be requested if the information is not sufficient. No, a responsible department must take a hard look at all the effects including cumulative effects. 3

4 Appendix 1: Examples of how the Resource Management Act 1991 and the Fisheries Act 1996 have been interpreted by courts and academic commentators as allowing scope for the incorporation of the precautionary principle. Section 10 of the Fisheries Act 1996 ( Information Principles ) requires decision makers to be cautious when information is uncertain, unreliable or inadequate. That section has been interpreted as reflective of a precautionary approach where species information is uncertain (see for example Environmental and Resource Management Law, Nolan ed, 2nd ed, 2011, para 2.32). The commentary in Brooker s Fisheries Law notes that it is the combination of the provisions of ss 5, 8, 9 and 10 (dealing with purpose and principles) in the Fisheries Act that give statutory effect to the precautionary principle. Similarly, the Court of Appeal has held that in balancing risk against utilisation advantages, a precautionary approach is open to the Minister (Squid Fishery Management Company Ltd v Minister of Fisheries (CA, 13/07/04). The RMA has been regarded as implicitly precautionary (see Brooker s Environmental Law at para IN7.01). Section 32(4)(b) for example allows for an application of the precautionary approach in the development of policy and planning instruments. 1 Moreover, in various Environment Court and High Court cases, the courts have noted that a precautionary approach to an application could be appropriate where there was scientific uncertainty or ignorance about the nature or scope of the environmental harm. In Kemp & Billoud v Queenstown Lakes District Council [2000] NZRMA 289 for example, one submitter referred to the precautionary principle as a reason for not granting resource consent. At para 84 of the judgement, the Environment Court said: We share the difficulties the Environment Court had in Shirley Primary School v Telecom Mobile Communications Ltd with the concept of a precautionary principle. If we use the version - the precautionary approach - in the Rio Declaration'" principle then as our discussion of effects shows, on the evidence given to us we are not convinced that there are threats of serious or irreversible damage. The Court finally used the precautionary approach in that case to require monitoring of the activity in issue so that knowledge of potential adverse effects could be improved (paras 67, 93 and 103). In Sea-Tow Ltd v Auckland Regional Council (EnvC A066/06) the Environment Court stated: The Resource Management Act does not expressly prescribe adoption of a precautionary approach. However the combination of the direction that consent authorities have regard to potential effects on the environment and the inclusion in the meaning of the term effect of any potential effect of low probability which has a high potential impact, is precautionary in substance. 1 That section states: For the purposes of the examinations referred to in subsections (3) and (3A), an evaluation must take into account (a) the benefits and costs of policies, rules, or other methods; and (b) the risk of acting or not acting if there is uncertain or insufficient information about the subject matter of the policies, rules, or other methods. 4

5 Appendix 2: The precautionary approach in the Hazardous Substances and New Organisms Act 1996 Section 7 of the Hazardous Substances and New Organisms Act 1996 (HSNO) reads in full as follows: 7 Precautionary approach All persons exercising functions, powers, and duties under this Act, including but not limited to, functions, powers, and duties under sections [28A,] 29, 32, 38, 45, and 48 of this Act, shall take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects. In Bleakley v ERMA the High Court when considering s 7 of HSNO, said that it did 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 Court took a plain reading of s 7 in light of the relevant purpose of the Act (preventing or managing adverse effects of new organisms). Section 7 simply required the decision-maker to take into account the need for caution in managing adverse effects where there was scientific and technical uncertainty about those effects. Similarly, the High Court in Mothers Against Genetic Engineering Inc v Minister for the Environment (7 July 2003, Potter J, HC Auckland CIV ) stated that s 7 is concerned with exercising caution in managing identified known or possible adverse effects in situations of scientific and technical uncertainty (at p 77). The fact that the section refers to the need for caution in managing adverse effects recognises that there will, or may, be adverse effects and that these effects need to be managed where there is scientific and technical uncertainty about them. The section is not directed at prevention of adverse effects. The commentary on s 7 of HSNO in Brooker s Resource Management Law, also offers useful insights into how caution is exercised in terms of HSNO decision-making: [i]n practice there will be a threshold or yardstick applied by [the EPA] in applying this precautionary approach. Current scientific knowledge of ecosystems and the effects of introducing hazardous substances or new organisms on the complex interrelationships within ecosystems is incomplete. On an extreme view, this uncertainty may result in all applications for approvals being refused through caution. Such an approach would ignore other factors relevant to achieving the purpose of the Act, i.e. those listed in ss 6 and 8, thereby placing too much weight on the need for caution. The level of potential damage to the environment or public health at which the precautionary approach will operate to restrict the importation or manufacture of a substance or organism will be decided by [the EPA]. 5