The precautionary principle in fisheries:
assessment benchmarks.

Jon Nevill 8 July 2008.

1. Abstract:

The precautionary principle plays an important role in the management of fisheries against a background of uncertainty. Its significance to the management of renewable resources, and its adoption in Australian ocean management policy and programs, is discussed at some length in an appendix to the thesis. The purpose of the present discussion is to (a) briefly introduce the principle, (b) to outline its adoption in both international and national policy frameworks, (c) discuss the development of guidelines on the application of the principle to fisheries management, and finally (d) to develop six benchmarks by which the adoption of the principle within management programs may be judged.

2. Introduction: the precautionary principle:

There are many definitions of the precautionary principle. A basic definition is:

Where the possibility exists of serious or irreversible harm, lack of scientific certainty should not preclude cautious action by decision-makers to prevent or mitigate such harm.

Precaution is caution in advance, or more correctly ‘caution practised in the context of uncertainty’. All definitions of the precautionary principle have two key elements.

  • an expression of a need by decision-makers to anticipate harm before it occurs.Within this element lies an implicit reversal of the burden of proof: Under the precautionary principle it is the responsibility of an activity proponent (eg: someone wishing to harvest fish) to establish that the proposed activity will not (or is very unlikely to) result in significant harm[1].
  • the establishment of an obligation, if the level of harm may be high, for action to prevent or minimise such harm even when the absence of scientific evidence makes it difficult to predict the likelihood of harm occurring, or the level of harm should it occur. The need for precautionary control measures increases with both the level of possible harm and the degree of uncertainty.

A distinction exists between the precautionary principle and the precautionary approach. Principle 15 of the Rio Declaration[2] states that: “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 cost-effective measures to prevent environmental degradation.” As Garcia (1995) pointed out, “the wording [of the approach], largely similar to that of the principle, is subtly different in that: (1) it recognizes that there may be differences in local capabilities to apply the approach, and (2) it calls for cost-effectiveness in applying the approach, e.g., taking economic and social costs into account.” The ‘approach’ is generally considered a softening of the ‘principle’.

Precaution in international law:

According to Cooney (2004) “the precautionary principle is widely recognised as emerging from the Vorsorgeprinzip (directly translated as “fore-caring” or “foresight” principle) of German domestic law, although it has earlier antecedents in Swedish law”. The precautionary principle is in some ways an expansion of the English common law concept of ‘duty of care’ originating in the decisions of the judge Lord Esher in the late 1800s. According to Lord Esher: “Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think, would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger or injury to the person, or property of the other, a duty arises to use ordinary care and skill to avoid such danger” (Wikipedia 23/6/08). This statement clearly contains elements of foresight and responsibility, but does not refer to a lack of certainty, as the word “would” is used rather than “might”, or “could”. A second important difference is that the duty of care applies only to people and property, not to the environment.

The precautionary principle has been current in international agreements and statements, and various national strategies and policies, for over 25 years. For example, it appears in Article 11 of the World Charter for Nature 1982, a resolution of the General Assembly of the United Nations, endorsed by the Australian Government. The Charter places a non-binding obligation on both States and individual persons within those States to apply the Charter’s measures, including the precautionary principle (amongst other matters).

The Convention for the Conservation of Antarctic Living Resources 1980 was written two years before the World Charter, and did not specifically encompass the precautionary principle – an omission continued by the UN Convention on the Law of the Sea 1982. However, amongst regional fishery management organisations, the Commission on the Conservation of Antarctic Marine Living Resources (CCAMLR) is often viewed as being among the most precautionary (Parkes 2000, Mace and Gabriel, 1999). While precaution is not explicitly specified in the convention[3], since at least the early 1990s it has been understood that in the case of uncertainty, CCAMLR Conservation Measures should be consistent with a precautionary approach (CCAMLR 1993), although in practice this is sometimes subject to dispute (TAP 2001). CCAMLR adopts an ecosystem-level approach to conservation and management, widely understood as necessitating, or at least being consistent with a precautionary approach.

The UN Fish Stocks Agreement

The 1995 United Nations Fish Stocks Agreement (FSA)[4]marks a significant shift of emphasis and approach, and remains probably the most important of the many international fisheries agreements. The FSA establishes obligations for signatory States that affect both management within national waters of straddling or highly migratory stocks, and management of high seas stocks by international and regional fishing organizations. Within these constraints, the FSA provides a legal basis for the application of several of the most important provisions of the United Nations Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries 1995 – see below).

Environmental considerations are strongly highlighted in the preambular language of the FSA, and given effect throughout the operative provisions. The FSA is the first global fisheries agreement requiring a precautionary approach to fisheries management – a precedent-setting and highly influential development. Article 6 requires that to preserve the marine environment as well as protect marine living resources, the precautionary approach should be applied to conservation, management and exploitation measures. It includes requirements that States apply a prescribed methodology for precautionary measures (set out in Annex II), implement improved techniques for dealing with risk and uncertainty, take into account both ecological and socio-economic uncertainties, and develop research and monitoring programs and plans aimed at conserving non-target and dependent species (Article 6(3)). Annex II sets out guidelines for precautionary measures based on the establishment of reference points, and actions to be taken when such points are approached and exceeded. Reference to Maximum Sustainable Yield (MSY) is retained in the Annex II guidelines, but as a limit reference point, constraining harvest, rather than as (the old-fashioned) target for management.

The FAO Code of Conduct for Responsible Fisheries 1995

The voluntary FAO Code of Conduct for Responsible Fisheries, also concluded in 1995, includes an exhortation to apply the precautionary approach widely in the conservation, management and utilization of living aquatic resources, directed at States, sub-regional and regional fisheries management organisations and arrangements (see Article 6.5 and 7.5). While the code of conduct is voluntary, it is widely supported (see chapter xx above) including by Australia. While most fishing nations have ‘signed up’ to the code, progress at implementation has been slow (FAO 2005). The Code, together with the FSA, remain the two most influential of existing international fisheries agreements.

Technical guidance for implementation of the precautionary approach has been developed by the FAO (FAO 1996a,b). These guidelines represent probably the most detailed treatments of the operational meaning of precaution in a natural resource management or conservation arena, and offer valuable lessons for other sectors. The FAO guidance first characterizes the general concept of the precautionary approach, setting out that the precautionary approach requires, inter alia:

  • avoidance of irreversible changes;
  • prior identification of undesirable outcomes;
  • initiation of corrective measures without delay;
  • priority given to conserving the productive capacity of the resource;
  • harvesting and processing capacity commensurate with estimated sustainable levels of the resource;
  • that all fishing activities have prior management authorization and are subject to periodic review;
  • legal and institutional frameworks for fishery management, with management plans implementing the above for each fishery; and
  • appropriate placement of the burden of proof through meeting these requirements (para. 6(a)-(h)).

Detailed guidance is then developed for the implementation of the precautionary approach in relation to fisheries management, research, technology development/transfer, and species introductions, including, for example, management planning and design, monitoring, stock assessment methods, review and evaluation of new technologies, and cooperation and information systems on invasive species.

It is not clear that this broad and far-reaching understanding of the precautionary approach is widely reflected in legal and policy developments within nations supporting the Code, or more importantly within fisheries program implementation (Mooney-Seus & Rosenberg 2007, FAO 2005).

Within the Fish Stocks Agreement, guidance on the precautionary approach focuses on target and limit biological reference points, rather than including the more “systemic” changes set out in the FAO guidance. It has been argued that this narrow understanding of the precautionary approach characterizes current efforts in this area, at the expense of the broader management implications (Mace & Gabriel 1999).

The FAO continues to actively develop the precautionary approach, developing guidance across a range of fisheries (eg, FAO 2001b, Caddy 1998, Caddy and Mahon 1995). The precautionary approach has also been endorsed by and incorporated into ongoing work under FAO auspices on developing guidance for the ecosystem approach to fisheries (FAO 2003).

Precaution in Australian oceans policy and fisheries law:

The Australian (Commonwealth) Government has direct control of many fisheries in Australia’s 200 nm Exclusive Economic Zone (EEZ). Although the resource management responsibilities of the Commonwealth are limited by the Australian Constitution (which provides States with resource management responsibilities in areas under State jurisdiction) Commonwealth controls over fisheries are extended by the Commonwealth Environment Protection and Biodiversity Conservation Act 1999, which requires (amongst other matters) that all fisheries requiring export permits be managed in a sustainable and precautionary way. The precautionary principle is a central feature of the EPBC Act(Kriwoken et al. 2001) although the Act contains a curious anomaly in this respect – see the detailed discussion of the EPBC Act in the thesis appendix on precaution).

The precautionary principle is also a central principle of Australia’s Oceans Policy (Commonwealth of Australia 1998:19). In addition, the Policy lists another principle closely connected with precaution: “If the potential impact of an action is of concern, priority should be given to maintaining ecosystem health and integrity”. The Ocean’s Policy stresses the need to ‘err on the safe side’ – an approach all to often neglected in fisheries management (see the earlier chapter on uncertainty).

The Commonwealth ‘blueprint’ for Australia’s marine protected area network, the Strategic Plan of Action for the National Representative System of Marine Protected Areas (ANZECC 1999:16) lists the precautionary principle amongst its guiding principles.

Within the Australian context, fisheries are managed either by:

  • the Commonwealth (Australian) government where the fishery is primarily in offshore waters[5], or
  • by the governments of the States and Territories[6] where the fishery is primarily within coastal waters, or
  • jointly or cooperatively by the Commonwealth in conjunction with the States under the Australian Offshore Constitutional Settlement[7].

The Commonwealth’s Fisheries Administration Act 1991 establishes the Australian Fisheries Management Authority, and lists as an objective of the Authority (s.6(b)):

…ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on nontarget species and the long term sustainability of the marine environment (emphasis added).

The Commonwealth’s Fisheries Management Act 1991 section 3 states:

The following objectives must be pursued by the Minister in the administration of this Act and by the Australian Fisheries Management Authority in the performance of its functions:

a)implementing efficient and costeffective fisheries management on behalf of the Commonwealth; and

b)ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development and the exercise of the precautionary principle, in particular the need to have regard to the impact of fishing activities on nontarget species and the long term sustainability of the marine environment… (emphasis added).

The precautionary approach has also been incorporated into Australian State fisheries legislation, as follows:

  • Australian Capital Territory – Fisheries Act 2000 – incorporated by reference to the application of “the principles of ecologically sustainable development mentioned in the Environment Protection Act 1997”. This latter Act lists and defines the precautionary principle[8], and includes an obligation to pursue “conservation of biological diversity and ecological integrity”. It is also noteworthy that s.3 of the Fisheries Act 2000 (Objects of the Act) first lists “to conserve native fish species and their habitats”.
  • New South Wales – Fisheries Management Act 1994 – s.3 (Objects of the Act) includes “to promote ecologically sustainable development, including the conservation of biodiversity.” The Act creates a “TAC Committee” which (s.30) “is to have regard to the precautionary principle” in making determinations. As NSW endorsed the National Strategy for Ecologically Sustainable Development (Commonwealth of Australia 1992) which embodies the precautionary principle, it appears implicit that precaution must be applied within activities sanctioned under the Fisheries Management Act;
  • Northern Territory – Fisheries Act 1988 – not specifically incorporated, although s.2A (Objects of the Act) includes “to manage the aquatic resources of the Territory in accordance with the principles of ecologically sustainable development…” As the NT endorsed the National Strategy for Ecologically Sustainable Development (Commonwealth of Australia 1992) which embodies the precautionary principle, it appears implicit that precaution must be applied within activities sanctioned under the Fisheries Act;
  • Queensland – Fisheries Act 1994 – s.3(5) “apply and balance the principles of ecologically sustainable development” which are interpreted as including the precautionary principle. It is also work noting that the Great Barrier Reef Marine Park Act 1975 (Cwth) requires the Great Barrier Reef Marine Park Authority to “be informed by the precautionary principle in the preparation of management plans” (s.39Z).
  • South Australia – Fisheries Management Act 2007 – explicitly incorporated. Section 7 (Objects of the Act) emphasizes “proper conservation” and the need to for actions to be “consistent with ecologically sustainable development” – defined as “taking into account” the precautionary principle. In addition South Australian endorsed the National Strategy for Ecologically Sustainable Development (Commonwealth of Australia 1992) which embodies the precautionary principle. It appears that precaution must be applied within activities sanctioned under the Fisheries Management Act;
  • Tasmania – Living Marine Resources Management Act 1995 – not incorporated; however s.310 of the Act references the “objectives of the resource management and planning system of Tasmania” which include: “to promote the sustainable development of natural and physical resources and the maintenance of ecological processes and genetic diversity”. As Tasmania endorsed the National Strategy for Ecologically Sustainable Development (Commonwealth of Australia 1992) which embodies the precautionary principle, it appears implicit that precaution must be applied within activities sanctioned under the Living Marine Resources Management Act;
  • Victoria – Fisheries Act 1995 – not incorporated, although s.3 (Objects of the Act) states that the Act should “provide for the management, development and use” of resources in an “ecologically sustainable manner”. S3(b) incudes an objective “to protect and conserve fisheries resources, habitats and ecosystems including the maintenance of aquatic ecological processes and genetic diversity”. As Victoria endorsed the National Strategy for Ecologically Sustainable Development (Commonwealth of Australia 1992) which embodies the precautionary principle, it appears implicit that precaution must be applied within activities sanctioned under the Fisheries Act;
  • Western Australia – Fish Resources Management Act 1994 – not incorporated; although s.3 (Objects of the Act) lists as the first two objectives: “(a) to conserve fish and protect their environment, and (b) to ensure that the exploitation of fish resources is carried out in a sustainable manner.” As Western Australian endorsed the National Strategy for Ecologically Sustainable Development (Commonwealth of Australia 1992) which embodies the precautionary principle, it appears implicit that precaution must be applied within activities sanctioned under the Fish Resources Management Act.

In New Zealand, the Fisheries Act 1996 specifically requires management to take account of responsibilities following New Zealand’s ratification of the UN FSA. The FSA is printed as an attachment to this Act, including Annex II dealing with precaution.

Section 8 (Purpose of the Act) requires “(a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and (b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment.”

Section 9 of the NZ Act lists three “Environmental Principles” which do not include the precautionary principle – in spite of the Act’s reference later to the precautionary obligations of the FSA. The listed principles are more relevant to the ecosystem approach rather than the precautionary approach: “(a) associated or dependent species should be maintained above a level that ensures their long-term viability: (b) biological diversity of the aquatic environment should be maintained: (c) habitat of particular significance for fisheries management should be protected.