Purpose and Principles

Purpose

The purpose of the HSNO Act is to protect the environment, and the health and safety of people and communities, by preventing or managing the adverse effects of hazardous substances and new organisms. ²²⁶⁹

Principles

Principles relevant to purpose of Act

The HSNO Act requires persons exercising functions under the Act to recognise and provide for: ²²⁷⁰

• The safeguarding of the life-supporting capacity of air, water, soil, and ecosystems.
• The maintenance and enhancement of the capacity of people and communities to provide for their own economic, social, and cultural well-being and for the reasonably foreseeable needs of future generations.

The obligation to “recognise and provide for” these matters requires the decision-maker to make actual provision for the matters listed. There is no hierarchy between the principles. There are similarities between these principles and the definition of sustainable management in the RMA.

Matters relevant to purpose of Act

The HSNO Act requires persons exercising functions under the Act to take into account:

• The sustainability of all native and valued introduced flora and fauna.
• The intrinsic value of ecosystems. ²²⁷¹
  
• Public health.
• The relationship of Māori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga. ²²⁷²
  
• The economic and related benefits and costs of using a particular hazardous substance or new organism.
• New Zealand’s international obligations.

The obligation to “take into account” these matters requires the decision-maker to considers each relevant matters and weigh it up along with other matters. ²²⁷³  There is no hierarchy between the principles. Some of the matters to be taken into account are also included in sections 6 or 7 of the RMA.

Precautionary approach

The HSNO Act requires a precautionary approach to be adopted: ²²⁷⁴

All persons exercising functions, powers and duties under this Act … shall take into account the need for caution in managing adverse effects where there is scientific and technical uncertainty about those effects.

The HSNO Act has been described as “risk averse but not ‘no risk’”. This recognises that there is always a risk inherent in the approval of any new research endeavour. ²²⁷⁵  In Bleakley v Environmental Risk Management Authority the High Court noted a distinction between the precautionary principle (an international law concept) and the precautionary approach outlined in section 7. The Court also indicated that section 7 does not require the exercise of caution where there is social or ethical uncertainty. ²²⁷⁶

Treaty of Waitangi

The HSNO Act requires decision makers to “take into account the principles of the Treaty of Waitangi (Te Tiriti o Waitangi). ²²⁷⁷  This is similar to section 8 of the RMA.

In Bleakley v Environmental Risk Management Authority the appellant submitted that section 8 had not been properly applied. The Authority had acknowledged that the Treaty imposed a duty of active protection on the Crown in relation to taonga (which includes intangible beliefs) however the only way to protect the intangible beliefs would be to refuse the approval. The Authority decided that other section 6 factors outweighed the duty of active protection. The Court concluded that such a weighting process was open to the Authority. ²²⁷⁸

One mechanism which enables the principles of the Treaty of Waitangi to be taken into account is the Māori Advisory Committee. The Committee comprises four to eight members appointed by the EPA. ²²⁷⁹  The Committee provides advice and assistance to the EPA on matters relating to policy, processes and decisions under a range of Acts, including the HSNO Act, from a Māori perspective. ²²⁸⁰  The HSNO Act contains no requirement for an applicant for an approval to consult Māori. ²²⁸¹

Last updated at 12:22PM on February 25, 2015