An excavator is helicoptered into a remote area of the SH3 Te Ara o Te Ata: Mt Messenger Bypass project site. Photo / NZTA
An excavator is helicoptered into a remote area of the SH3 Te Ara o Te Ata: Mt Messenger Bypass project site. Photo / NZTA
A recent High Court decision under the Wildlife Act is causing “big headaches” for developers and the Government, law firm Russell McVeagh says.
The decision centres on the Mt Messenger roading project in Taranaki. The Department of Conservation (DoC) issued NZTA with a permit allowing it to inadvertently kill protected species, like kiwi and bats, while clearing vegetation.
However, the High Court has now ruled that this permit was unlawful because it was at odds with the purpose of the act, which is wildlife protection. The Government roading project later obtained a different permit under Section 71, allowing it to continue.
Law firms Russell McVeagh and Simpson Grierson have expressed concern over the impact of the court ruling on infrastructure projects. Conservation Minister Tama Potaka says the Government “will do what’s needed” to ensure the kinds of projects and activities that have been authorised in the past can be undertaken lawfully in the future.
Conservation Minister Tama Potaka and Prime Minister Christopher Luxon. Photo / Mark Mitchell
But the Greens say legislation must protect the needs of the environment over the interests of private companies and it will keep a “watchful eye” on the Government’s response to the ruling.
The High Court decision, published on Monday, ruled the permit was unlawful because the killing of the species under a Section 53 permit required a “direct nexus” to the protection of the wildlife, for example, the culling of diseased animals or to address overpopulation.
In an email to clients, Russell McVeagh said for projects seeking Wildlife Act permits, there was “a very real risk that the door will quickly shut on any further approvals being granted for the killing of protected species”.
The court ruling, which was published days before the Government’s inaugural Infrastructure Investment Summit, will have “significant impacts on the Government’s broader agenda for economic growth”, the law firm said.
“The court’s decision precludes such approvals under section 53. The significance of this for both private developers and the Government is wide-reaching.”
The Rotokare Scenic Reserve Trust has welcomed three skink to its sanctuary, thanks to a partnership between the trust and Te Ara o Te Ata – Mt Messenger Bypass project, in collaboration with the NZ Transport Agency Waka Kotahi, Te Ara o Te Ata project partner Ngāti Tama and local mana whenua Ngāti Tupaia.
From a policy perspective, the court’s decision is a real thorn in the side of the coalition Government’s agenda to enhance economic development, Russell McVeagh said.
“It unfortunately coincides with the Government’s attempts to court investment from local and foreign investors that New Zealand is open for business.”
Russell McVeagh said the court decision cast “serious doubt” on the viability of both private and Government-led large-scale infrastructure projects – unless there is a prompt Government legislative response”.
However, in a statement posted online, the Environmental Law Initiative (ELI), which brought the case to the High Court, said it believed there was “no threat” to the ability of infrastructure and development projects to continue in New Zealand.
“What the judgment means is that developers will need to take reasonable steps to avoid killing wildlife, rather than simply being permitted to kill wildlife.”
Green Party co-leader Marama Davidson said the party shared the concerns of the ELI.
Davidson said there have been a number of projects that had not engaged with DoC to secure a Wildlife Act authority to move protected wildlife.
“This has to change, we must ensure our development is not coming at the cost of endangered wildlife.”
Potaka, the Conservation Minister, said DoC was considering what the court’s decision means for how it manages its Wildlife Act permissions responsibilities.
“The issues this case raises are fixable. They occurred because the Wildlife Act is old, has been amended over time, and some parts more than others are now not fit for purpose.
“That is why I confirmed to my department last year that the review of the Wildlife Act, initiated by the last Government, should continue.”
Law firm Simpson Grierson said the decision would impact on many sectors that resulted in the killing, inadvertent or not, of protected 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.”
Simpson Grierson said the Wildlife Act was no longer fit for purpose and needed to be reformed urgently.
“We expect that ministers will be deeply concerned. The decision puts a serious spanner in the economic development agenda of the Government.”
