Wildlife Act decision ‘should mean more care for nature, not less’

Wednesday, 19 March 2025

Dr Matthew Hall is the director, research and legal at the Environmental Law Initiative.

OPINION: Last week, the High Court ruled that the Wildlife Act authority issued to Waka Kotahi for the Mt Messenger bypass was unlawful because it allowed the killing of protected wildlife, including kiwi and long-tailed bats.

A few days later, the decision was reported as a major impediment to development in New Zealand.

We - the Environmental Law Initiative - took this case because it was clear to us that any killing authorised under section 53 of the act must be to protect wildlife, for example from disease or over-population. Killing cannot be authorised for the purposes of building a road.

Much of our wildlife is facing severe pressures from development, climate change and invasive species. Our key wildlife protection laws should not be watered down to enable more wildlife to be killed.

From our analysis, it wasn’t just the Mt Messenger project the Department of Conservation has incorrectly authorised the killing of protected wildlife for, it is hundreds of infrastructure projects.

The decision should lead to significant changes in the way that DOC administers section 53 of the Wildlife Act. In our view, developers will need to take reasonable steps to avoid killing wildlife, rather than simply being permitted to kill wildlife.

The Government response has however, offered little engagement with the substance of this decision. Instead, it appears to be proposing knee-jerk changes to our key wildlife protection law to avoid the implications of a High Court decision.

Commercial lawyers Simpson Grierson and Russell McVeagh have also advised clients that infrastructure projects are on notice in Aotearoa due to this High Court decision and that as a result, the law needs to change.

We should be wary of such reactions, seeking to weaken our environmental laws.

In ELI’s view, the High Court’s decision does not necessarily mean that development projects which hold such permits to kill (or which can no longer obtain permits to kill) must stop all activities.

Section 68AB of the Wildlife Act provides that there is a defence to killing protected wildlife where the killing was not intentional and where the person doing it took all reasonable steps to ensure that killing did not occur.

The High Court confirmed that s53 permits allowing the catching alive and moving of wildlife out of the way of infrastructure and other development projects remain lawful.

In October 2022, ELI asked DOC to provide it with all s53 permits that had authorised killing or destruction of wildlife since 2019.

DOC provided ELI with 447 Wildlife Act authorities covering this period. Many private and public development projects were not on the list.

In almost every instance of killing being authorised, the director-general of conservation also authorised the catching alive of wildlife. Many of these projects were accompanied with protocols for catching and moving wildlife from the path of development, which presumably were developed in consultation with DOC.

In ELI’s view, projects that have engaged in this way with DOC are likely to be taking all reasonable steps to avoid killing wildlife.

In such instances, it is very likely that the defence in section 68AB of the Wildlife Act would be made out. It is highly unlikely that DOC, having granted a s53 permit to catch and move wildlife, would deem it in the public interest to prosecute.

It is also the case, despite claims to the contrary, that the High Court’s recent decision will have no bearing on the ability of airports to shoot birds for airline safety. Such powers were not challenged by ELI and remain entirely lawful.

We should again be extremely wary of watering down our key wildlife protection laws based on a fundamental misunderstanding of the law in question.

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.

It is clear however, from our work on this case, that the vast majority of private development projects in New Zealand have not engaged with DOC to secure a Wildlife Act authority to move protected wildlife from the path of development.

In ELI’s view, this is the real issue and we strongly encourage all such projects to engage with DOC in this way to ensure our protected wildlife remains protected and that developments are pursued in a lawfully and environmentally responsible way.

Rather than changing the law to water down protections for wildlife, the Government (and commercial lawyers advising private developers) should focus on ensuring this happens without delay.