On Monday, the High Court upended years of the Department of Conservation’s (DoC) practice in relation to the granting of permits which authorised ‘killing’ under the Wildlife Act 1953 (Act) in Environmental Law Initiative v Director-General of the Department of Conservation & Ors.^[1]

Litigation Partner, Sally McKechnie spoke to Stuff’s political editor yesterday about the wide-reaching ramifications of this decision and the need for this issue to be addressed by Government urgently. Read her interview here.

Previously, DOC has authorised the killing of wildlife in some circumstances and also required a permit where there was a chance of inadvertent killing of wildlife as part of other activities – here, road building. DOC had used a wide interpretation of the Act’s purpose, looking at whether the killings (or associated mitigations) are positive for the wildlife at a project or overall population viability level. This allowed many projects to receive Wildlife Act permits, where they were also providing pest control or mitigations that were, on balance, positive for the wildlife.

With this decision, the High Court ruled this approach was unlawful.  

Now, there must be a direct nexus between “each act of proposed killing of wildlife, viewed in isolation, and the protection of wildlife”. The Court cites an earlier Supreme Court example of scientific research or culling to benefit the larger population. 

The ramifications go far beyond the parties in this case.  

What happened in this case?

Since a Supreme Court decision in 2019, DOC approached applications for wildlife permits under section 53 by looking at whether the project as a whole and whether the viability of a population was maintained or improved through the action or some other unrelated action.

The NZ Transport Agency (Waka Kotahi) was engaged in the building of a new road, Te Ara o te Ata: Mt Messenger Bypass (Road). The Road will connect northern Taranaki with the Waikato. The construction of the Road will result in a range of protected wildlife being disturbed or killed through vegetation clearance. These impacts could occur despite a comprehensive set of requirements in the various consent conditions that would  minimise harm to wildlife (eg capture and relocation). 

Necessarily, Waka Kotahi sought permission to catch or kill 46 species of protected wildlife including North Island brown kiwi, bittern, banded dotterel and long-tailed bats.

The High Court found that any section 53 Wildlife Act authority is ultra vires to the extent that it purports to authorise the killing of protected wildlife, if the primary purpose of the killing does not have a direct nexus to the purpose of the Act. This nexus requirement is key. Killing for the purpose of building a road was not directly connected to protective purpose of the Act.

The High Court did uphold an additional permit sought by Waka Kotahi that was issued under section 71 of the Act. Permits can be granted under section 71 in limited circumstances where the activity is otherwise subject to one of the Acts listed in Schedule 9 of the Wildlife Act. 

Schedule 9 of the Act is woefully out of date, with many of the Acts referred to no longer being operative. However, happily for Waka Kotahi, it does include the Government Roading Powers Act 1989 - which meant Waka Kotahi could obtain a lawful wildlife permit under section 71. However, it does not include legislation that is likely to be relied on by many other persons that need wildlife permits.

Who is affected? 

The impact of this decision will be broad.

The Wildlife Act covers all native birds, bats, frogs, and reptiles, including those that visit New Zealand such as godwits and sea turtles. It also covers some native invertebrates and marine species. In total, it currently covers over 900 native species, including almost 400 birds, 3 species of bats, 3 frogs, 133 reptiles, 44 insects, 3 spiders and 24 snails. It also extends into the marine environment and includes 9 marine fish and about 300 corals.

Given that breadth, the decision will impact on many industries and sectors that necessarily result in the killing (inadvertent or not) of any of these animals. All companies or entities undertaking vegetation clearance, significant earthworks or works in the coastal marine area for development are likely to require a Wildlife Act permit - so this decision will impact on housing developments, electricity generation, infrastructure, ports, quarries and mines. An  example we see often is a permit authorising lizard salvaging operations prior to vegetation clearance, and then authorising the accidental killing of any native lizards that have eluded capture when the clearance begins.

There are also more unexpected areas which will be impacted. For examples, many airports have Wildlife Act permits which allow for the shooting of birds for aircraft safety. It may be that these permits were issued unlawfully following this decision.

What does this mean for you? 

Given the change from DOC’s previous approach, it is likely that many of the Wildlife Act permits granted in recent years could be caught by this decision. There are also many applications sitting in the system waiting to be processed that could be impacted.

Existing permits

As noted at the top of the article, immediately check your permits and take advice on whether your permit suffers from the same defect identified by the High Court and what to do if it does. This would include checking whether you might be eligible for a permit under section 71 - albeit this is unlikely, given the limited and aged list of Acts included in Schedule 9.

Operators that rely on existing wildlife permits that suffer from the problem identified by the High Court are in an unenviable position, especially if they cannot obtain a replacement permit under section 71. Essential activities, such wind generation that relies on a wildlife permit for the inadvertent killing from bird collisions, may now be in a position where they must either knowingly decide to continue their operation in reliance on a permit that may have been issued unlawfully, or cease those activities. That is an unworkable position.

The discomfort of this position is exacerbated by the Court’s decision not to limit its relief to prospective-only relief. The Court found that Waka Kotahi was acting unlawfully during the period in which it relied on the wildlife permit issued under section 53 until the alternative permit was granted under section 71. While the chance of a prosecution being pursued against Waka Kotahi for that period are negligible (at all times Waka Kotahi had applied for and obtained the correct permits based on what was considered at the time to be the correct understanding of the law), this heightens the uncertainty.   

Live applications

The Court’s interpretation will make it very difficult - if not impossible - to secure a Wildlife Act permit under section 53 as part of a development programme where inadvertent killing is a risk and that killing is not for a protective purpose.

Urgent reform is needed

The High Court’s decision reinforces the urgent need for reform of the Wildlife Act, which is over 70 years old and is no longer fit for purpose. 

The Wildlife Act has a blunt effect: it protects wildlife regardless of whether the animal is common or needs special protection because it is at risk from habitat loss or predation. 

The Act does not recognise that effects on wildlife are comprehensively managed under the Resource Management Act 1991 (RMA) and the National Policy Statement for Indigenous Biodiversity which contains a sophisticated and multi-layered system of identifying effects on wildlife and then avoiding or managing those effects in a way that enables communities to provide for their social, economic and cultural wellbeing. The outcomes of RMA processes should not be frustrated by the effect of the archaic Wildlife Act.

We expect that Ministers will be deeply concerned. The decision puts a serious spanner in the economic development agenda of the government. Given that, there is a very real question about what the government will do in response to this decision - and in relation to permits that share the same defect.  

DOC and the wider Crown’s response to this decision will be being assessed by Ministers and Crown Law. What the Crown will do is presently unclear; the appeal window has some time to run and the Minister of Conversation has not yet made any public statements. Given the breadth of potential unintended consequences, the government may consider urgent legislative change is required.

We are watching the Crown’s response very closely and will keep clients updated.

Get in touch

In the meantime, if this affects you, we can assist you in navigating this sea-change in approach.  Please get in touch.