Fishing-Related Mortality, the Precautionary Principle and the Law in New Zealand

Measures to reduce fishing-related mortality of marine animals in New Zealand fisheries may be installed under legislation including the Fisheries Act 1996. Thus, a reserve has been made and a mortality limit has, until very recently, been set each year to protect New Zealand sea lions around their Auckland Islands breeding ground. These sea lions once bred all around the coastline of New Zealand but, decimated by hunting, the species’ range is now restricted to three breeding colonies in the sub-Antarctic Auckland Islands. In recognition of this and an estimated population decline of 50 percent in the last ten years that is probably attributable to the impact of fishing-related mortality, New Zealand sea lion is now classified as a critically endangered species. Similarly, restrictions on inshore trawling and set netting have been introduced at many locations around New Zealand to protect Hector’s dolphin, a threatened endemic species, and its critically endangered sub-species Maui’s dolphin, from the effects of fishing-related mortality. Still, research shows that this species is unlikely to recover without further protection, and that fishing-related mortality is its main threat. It is difficult to avoid the conclusion that overall, the measures that have been installed to protect these animals are too limited and too weak. The same can be said of existing rules that require larger off-shore vessels in some fisheries to fish at night and deploy bird-scaring devices in order to protect seabirds, including endemic species of albatross and petrel. More than 3,000 seabirds still die in New Zealand fisheries each year, even though it has been shown that some of the species inevitably involved are unable to sustain any fishing-related deaths. Though weak, many of the measures installed to protect marine animals from fishing activities have been challenged by the fishing industry in court. For measures under the Fisheries Act (the sea lion mortality limit and the Hector’s dolphin set net and trawling restrictions) much of the legal argument has focussed on section 10 of this Act, which introduced a precautionary approach into the Act: All persons exercising or performing functions, duties, or powers under this Act, in relation to the utilisation of fisheries resources or ensuring sustainability, shall take into account the following information principles: (a) Decisions should be based on the best available information: (b) Decision makers should consider any uncertainty in the information available in any case: (c) Decision makers should be cautious when information is uncertain, unreliable, or inadequate: (d) 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. When s 10 was enacted, paragraph (d) attracted all the attention. However, in the litigation paragraph (a) has been emphasised and ‘precautionary decisions’ made by the Minister have been struck down. This paper reviews the cases and argues that they show how best available information statements like paragraph (a) ‘can actually work against the [precautionary] principle with respect to [its] second application – whether to prohibit or restrict an existing activity before there is conclusive proof of harm.’[1] This is crucial: it is paragraph (d) that captures the raison d\u27être of the idea of precaution, but the structure of s 10 and the way it is being read and applied are effectively denying its potential. [1] Warwick Gullett, ‘The Threshold Test of the Precautionary Principle in Australian Courts and Tribunals: Lessons for Judicial Review’ in E Fisher, J Jones and R von Schomberg (eds), Implementing the Precautionary Principle: Perspectives and Prospects (Edward Elgar, 2006) 182-20