Taking a "precautionary approach": Fisheries management in New Zealand

Environmental and Planning Law Journal

Volumn 14, Issue 1, 1997, Pages 70-79

  Mascher, Sharon ^a  

^a UNIVERSITY OF WESTERN AUSTRALIA   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84883498198     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (68)

1. Unreportcd, High Court of New Zealand, CP 492/93, 27 November 1995.
2. Fisheries Management Act 1991 (Cth), s 3(1)(b). A joint authority is also required to pursue this objective in the performance of its functions (s 78(3)(b).
3. Fisheries Management Act 1994 (NSW), s 30(2)(c). Other State fisheries legislation is less particular, eg, s 3(2)(b) of the Fish Resource Management Act 1994 (WA) states that one of the objects of the Act is to "ensure that the exploitation of fish resources is carried out in a sustainable manner" which arguably can be interpreted to extend to include the principles of sustainable management.
4. For a comprehensive review of the evolution of the fisheries in New Zealand (Aotearoa) from pre-European contact through to present sec: Report of the Waitangi Tribunal on the Muriwhenua Fishing Claim 1988 (Wai 22) and Report of the Waitangi Tribunal on the Ngai Tahu Sea Fisheries 1992 (Wai 27).
5. New Zealand became a signatory to this Convention on 10 December 1982. The Convention came into effect in November 1994 but at the time of the Greenpeace decision New Zealand had not yet ratified it.
6. UNCLOS, Art 56.
7. Territorial Sea and Exclusive Economic Zone Act 1977, s 11.
8. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
9. Territorial Sea and Exclusive Economic Zone Act 1977, s 30.
10. Long title. Fisheries Act 1983.
11. Fisheries Act 1983, ss 4-12. These provisions were repealed by s 9 of the Fisheries Act Amendment Act 1995, as they were incompatible with QMS system.
12. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
13. Prior to this amendment, the Fisheries Act 1983 had authorised the making of regulations prescribing quota or total allowable catch for any fish or fishery (s 89(1). Through these provisions, quota for seven deep water species had been issued for a period of 10 years. These species were brought into the QMS following the 1986 amendment.
14. P H Pearse, Building on Progress: Fisheries Policy Development in New Zealand (A Report Prepared for the Minister of Fisheries, Wellington, July 1991), p 5.
15. Fisheries Act 1983, s 25b.
16. The Minister's power to introduce further species of fish into the QMS was constrained by several proceedings commenced in 1987 by aggrieved Maori groups. They argued that the QMS breached Maori fishing rights as protected by s 88(2) of the Fisheries Act 1983 and that the Crown was acting unlawfully by seeking to further implement the system. The claims were based on breach of fiduciary duty, Aboriginal title and the Treaty of Waitangi, as articulated by the High Court in Te Wee hi v Regional Fisheries Officer [1986] 1 NZLR 682. Several decisions of the High Court and the Court of Appeal between 1987-1990 granted interim relief and restrained the introduction of further species of fish into the QMS. This led to negotiations and settlement of Maori fisheries claims. Interim settlement was reached through the Maori Fisheries Act 1989, which took the first step towards recognising Maori commercial fishing rights within the QMS framework by transferring 10 per cent of existing quota to the Maori Fisheries Commission and providing a further $10 million grant to establish Maori fishers in the commercial fishing industry. Final settlement was reached with the passing of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 which provided for the purchase, in joint venture with Bricrly Investments Ltd, of a fishing company holding 22 per cent of the existing fishing quota in New Zealand, and also entitles Maori to 20 per cent of all ITQ for future species brought into the QMS. Section 9 of the Settlement Act 1992 extinguishes and abrogates all Maori commercial fishing claims, deeming them to be finally settled and non-justiciablc before the courts and tribunals of New Zealand. While not without controversy and on-going challenges, particularly from those tribes and sub-tribes who did not sign the Deed of Settlement, the 1992 legislation cleared the way to bring the remainder of commercially viable fish into the QMS. For a full discussion of the settlement of Maori commercial and customary fisheries claims see: Te Runanga o Wharekauri Inc v Attorney General [1993] 2 NZLR 301 (NZC A).
17. Caren Wickliffe, "The Co-Management of Living Resources and Maori Customary Fishing Rights, " The Indigenous Land Use Agreements Conference (Darwin, 1995); and Justine Munro, "The Treaty of Waitangi and the Sealord Deal" (1994) 24 VUWLR 389.
18. Fisheries Act 1983, s 28f.
19. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
20. Commercial fishers still require fishing permits and must register their vessel prior to fishing.
21. Fisheries Act, s 28d.
22. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
23. Sustainable Management of the Chatham Rise Orange Roughy Fishery (Office of the Parliamentary Commissioner for the Environment Te Kaitiaki Taiao a Te Whare Paremata, December 1992), p 5.
24. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
25. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
26. The Minister for Fisheries recently announced that SNZ14.5 million would be spent on fisheries research projects during the 1996/1997 fishing year, which research includes development work on deep water acoustic stock assessment equipment to provide better information on decpwater species, which equipment will be used to carry out a complete survey of the Chatham Rise orange roughy (New Zealand Government News Release, 5 July 1996).
27. Unreported, High Court of New Zealand, CP 492/93, 27 November 1995, p 2.
28. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
29. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
30. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
31. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
32. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
33. (1993)81 LGERA 270.
34. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
35. Unrcported, High Court of New Zealand, CP 492/93, 27 November 1995, p 32.
36. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
37. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
38. Greenpeace Report, No 72 (New Zealand, December 1995), P 4
39. Bill Hasting, "International Environmental Treaties and Law, " Handbook of Environmental Law (Royal Forest and Bird Protection Society of New Zealand, Wellington, 1992), p 276.
40. T McDorman, "The Entry into Force of the Sea Convention and South East Asia" in K Matics and T McDorman (eds), Selected Papers in Commemoration of the Entry into Force of the UN Convention on the Law of the Sea (Seapol, Bangkok, 1994), pp 5-fi.
41. The environmental and economic factors are slated to include the economic needs of coastal fishing communities and the special requirements of developing States (UNCLOS Art 61(3).
42. Rio Declaration on Environment and Development (June 1992), Principle 15.
43. Unreportcd, High Court of New Zealand, CP 492/93, 27 November 1995, p 32.
44. Stein J's decision in Leatch v National Parks and Wildlife Service supports this proposition.
45. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.
46. G Bales, Environmental Law in Australia (4th çd, Bułterworths, Sydney, 1995), p 33.
47. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
48. See B Elling, "Research on SEA in Denmark" in S Morel, R Verheem and N Lee (eds), EIA Methodology and Research: Third EU Workshop on EIA, Delphi 1994 (European Commission, 1994), p 61.
49. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
50. Nichotls v Director-General of National Parks and Wildlife (1993) 84 LGERA 397 at 419.
51. (1993) 81 LGERA 270 at 282.
52. Unreportcd, High Court of New Zealand, CP 492/93, 27 November 1995, p 32.
53. R Allen (ed). The Concise Oxford Dictionary (8th cd, Clarendon Press, Oxford, 1990).
54. A Dclbridgc (cd), The Macquarie Dictionary (2nd cd, Macquarie Library Pty Ltd, Sydney, 1988).
55. (1994) 86 LGERA 143.
56. Fisheries Act 1996. s 1(2). Transitional provisions relating to the registration of vessels will come into force 1 March 1997 (s 1(3).
57. Fisheries Act 1996, s 8(1). The wording of this provision attracted a significant amount of controversy for not falling into line with the wording of the purpose in the Resource Management Act 1991 which is focused on "sustainable management" rather than "sustainable utilisation. " "Utilisation" has been broadly defined which should go some way to addressing these concerns.
58. Fisheries Act 1996, s 8(2).
59. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
60. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
61. Associated Picture Houses Ltd v Wednesbury Corp [1848] 1 KB 223.
62. Section 10(d) can be described as a stronger formulation of the precautionary approach because the measures to be taken arc not qualified by the words "cost effective" and the approach applies to the "utilisation" of fisheries resources while ensuring sustainability, rather than being limited to situations where there is the threat of serious or irreversible environmental damage.
63. It is not suggested that these provisions are included in the Act as a result of the Greenpeace decision. It is interesting to note, however, the earlier formulation of these provisions in the Fisheries Bill 1994 which read as follows: "In achieving the purpose of this Act, all persons exercising or performing functions, duties or powers under this Part of this Act shall have regard to the following information principle: (a) Decisions should be based on the best available information: (b) That where-(i) There is any threat of serious or irreversible damage to any fisheries resources or the aquatic environment from fishing; and (ii) Scientific information on the matter is inonclusive,-inconclusive scientific information is not a valid reason for not taking any action. "
64. R v CD [1976] 1 NZLR 436 (CA).
65. Haddon v Auckland Regional Council [1994] NZRMA 49 at 61 (PT).
66. Resource Management Act 1991, s 8.
67. Report of the Waitangi Tribunal on the Ngawha Geothermal Resource 1993, p 145.
68. See R Costanza and L Cornwell, "The 4P Approach to Dealing with Scientific Uncertainty" (1992) 14 Environment 12.