Author(s)

Trevor DAYA-WINTERBOTTOM, Gay MORGAN, Roshni BAVA, Mark CALDERWOOD, Michelle CHEN, Natalie FOSTER, Ben HANSARD, Sarah THOMSON, Jaime-Anne TULLOCH

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For a country that has a significant economic focus on primary production and tourism, developing a coherent body of sound environmental law for New Zealand is an important foundation for future growth and prosperity. This research project considered the precautionary principle in relation to protecting endangered marine mammals to determine whether current New Zealand law provides for sustainable outcomes.

New Zealand’s economy is export and tourism reliant, and having a pristine ecologically sound physical environment is a major tourism draw. The thinking was that because this topic is perceived to be and is in fact economically important to New Zealand, it is also sensitive to reputational issues. It would be in this area, if in any areas, that the team would find effective integration of conservation principles into natural resource governance.

To evaluate this hypothesis an examination of the legal regime to protect a ‘tourist attractive’ and critically endangered species marine mammal species endemic to New Zealand was undertaken. The Maui dolphins are the rarest and smallest cetacean within New Zealand waters, with 15 remaining breeding females over one year of age, out of a population of 55.

Legislation and regulations that specifically integrates the precautionary principle, has been developed to protect the dolphins. The protective legal umbrella sheltering the dolphins includes statutory regimes regulating in fishing, vessel movements and marine mining. The efficacy of the operation of the precautionary principal in the protective statutory framework is drawn into question by the decisions of regulatory bodies acting under the relevant legislation, as well as by the exclusion of issues of dolphin protection from the regulation of resources on adjacent coastal land. This lack of regulatory effectiveness is further evidenced by the successful proposal to open up parts of the sanctuary where the dolphins live for marine mineral exploration, with associated known and unknown risks to the dolphins, and the continued permitting of a ‘shortened’ form of long driftnet fishing in the Maui dolphin sanctuary, despite this being a known cause of Maui dolphin mortality. Further evidence of the inefficacity of the statutory inclusion of the precautionary principle are court and regulatory decisions which hold that tangible economic benefits take precedence over unquantifiable risks of increased dolphin mortality.

The methodology used to evaluate whether the principle was effectively implemented was first to search for it in relevant statutes, then to determine with the relevant parts of the statutes had effective enforcement mechanisms and whether those mechanisms were actually used. Finally, the study examined whether the decisions resulting from the use of the enforcement mechanisms complied with those expected from decision makers applying the relevant principle. Secondary sources were also used for their content and effective legal implementation of the principles considered. Surveys of relevant stakeholders and actors as to the role and effectiveness of the legal implementation of the principles are also underway.

The case study confirmed that to objectively evaluate the effectiveness of the implementation of legal principles, the essential considerations are the law in action rather than the law in the books. The latter may or may not be necessary, but it is certainly not sufficient. The effectiveness of the law in action depends not only on adequately supported enforcement, but with its ‘fit’ with other statutory regimes and with the economic, normative and cultural concerns of both the implementing bodies and those who must cooperatively comply.

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