The High Court found the granting of a Section 53 authority under the Wildlife Act was at odds with the purpose of the act.
In the past 12 months, the Department of Conservation has granted 85 similar permits to project applicants.
In total, 315 applications are under way where a Section 53 permit or authority could be granted.
A Department of Conservation permit issued to NZ Transport Authority Waka Kotahi allowing it to kill protected species – including kiwi and long-tailed bats – at the Mt Messenger bypass site in Taranaki has been ruled unlawful.
The High Court found the permission granted under Section 53 of the Wildlife Act was at odds with the law because the killing would occur during the construction of a road.
Director of research and legal Dr Matt Hall said the Department of Conservation (DoC) had misinterpreted the law.
“DoC took a view that it could authorise Waka Kotahi [NZTA] to kill some protected wildlife in the construction of the bypass because the project included wider activities beneficial to the environment.
“DoC’s approach, which allowed animals to be killed in exchange for purported offsets, is unlawful.”
The department and the transport agency have acknowledged the finding and were reviewing how they managed their Wildlife Act responsibilities.
An excavator is helicoptered into a remote area of the SH3 Te Ara o Te Ata-Mt Messenger bypass project site. Photo / NZTA
Ministerial permission to kill wildlife at Mt Messenger had since been granted under Section 71 of the Wildlife Act allowing construction to continue.
NZTA said it welcomed the court’s ruling confirming its section 71 consent at Mt Messenger was valid.
Hall said it was clear the situation at Mt Messenger was not a one-off.
“We knew from an OIA[Official Information Act] request which we made to the department back in December 2022 that there were hundreds of other authorities that have been issued that had authorised killing, destruction or disturbance of wildlife.
“And so we saw a kind of a systemic misunderstanding and misapplication of the law that’s the mainstay of wildlife protection in New Zealand. So we saw this as a very important case.”
Section 53 of the Wildlife Act allowed the director-general of conservation to authorise the taking or killing of wildlife, but only for certain purposes.
The ELI’s challenge pertained to only the permission to kill.
In his decision, Judge Jason McHerron said the taking of animals was acceptable.
“Catching of animals is intended to avoid the animals being killed, which is clearly protective of the individual animal that is saved from the bulldozer or chainsaw.”
But he highlighted killing animals could be permitted in only specific circumstances.
“Section 53 will also authorise the killing of wildlife where (as in the example given by the Court of Appeal), that specific killing promotes the act’s purpose because it protects the population that the animal is part of, for example, in the case of killing a diseased and contagious animal.”
There was no such protective purpose for the killing of wildlife in the construction of the Mt Messenger bypass.
“To the extent it purported to authorise Waka Kotahi to kill protected wildlife during construction of the new road, the Section 53 authority was inconsistent with the protective purpose of the Wildlife Act,” Judge McHerron found.
Hall said the court had been clear that DoC’s entire approach to allowing wildlife to be killed was unlawful.
“This not only impacts the Mt Messenger project, but has serious implications for hundreds of other projects, including roading projects.”
Hall said despite the ELI informing DoC of the permit’s unlawfulness in 2022, the bypass project continued for 10 months without a lawful permit allowing the killing of wildlife.
Eventually, a ministerial consent under Section 71 of the Wildlife Act was issued to the project, allowing it to continue.
Section 71 allowed for the Minister of Conservation and Minister of Transport – as the administrator of the Government Roading Powers Act – to grant permission to kill protected species.
Hall expected DoC to look into possible offences during that 10-month period.
Judge McHerron addressed the oversight, saying “a consequence is that any wildlife killed before commencement of the Section 71 consent would not be covered by that instrument or by the Section 53 authority”.
He dismissed ELI challenges to the Section 71 authority, did not issue any penalties and encouraged “the parties to resolve any question of costs between themselves”.
The Mt Messenger bypass project, which included pest control operations over large areas of adjacent forest and a comprehensive cultural mitigation package negotiated with Ngāti Tama in return for use of its land, is now under construction.
