Permit to kill wildlife for new road ruled unlawful

Monday, 10 March 2025

The permit allowed for the deaths of wildlife, including North Island brown kiwi, short-tailed and long-tailed bats and Archey's frog, over the duration of construction of the bypass.

The Department of Conservation (DOC) breached the law by granting a permit allowing the death of rare kiwi, bats and frogs during a controversial road build, the High Court has ruled.

The Environmental Law Initiative (ELI) challenged the decision to grant the New Zealand Transport Agency Waka Kotahi (NZTA) authority to kill 46 species of wildlife — including North Island brown kiwi, short-tailed and long-tailed bats and Archey’s frog — as it constructed the Mt Messenger bypass in north Taranaki.

The advocacy group argued DOC was only able to grant permits to capture or kill wildlife if it furthered the purpose of the act, which is wildlife protection.

The Mt Messenger Bypass is a new 6km route that avoids the existing steep, narrow and winding route over Mt Messenger on State Highway 3 in North Taranaki.

Judge Jason McHerron agreed. In the decision published last week, he said: “I do not accept the Crown’s submission that [the legislation] can authorise the killing of wildlife for any purpose merely if the viability of populations of wildlife that any animals killed belong to are otherwise being maintained or improved through some other related or unrelated action.”

He said the permit, issued in 2021, was “inconsistent with the primary purpose of wildlife protection in the Wildlife Act” and could only be issued if their purpose is to protect wildlife.

Ruth Isaac, DOC's deputy director general of policy and regulatory services, said officials were now considering what the decision meant for the agency and how it managed its permissions responsibilities under the Wildlife Act.

A review published in 2023 recommended repealing and replacing the legislation.

Archey’s frogs are bad at jumping, and they don’t croak. The species is clinging to survival.

The case centred on the legality of two authorisations under the Wildlife Act: a Section 53 Authority granted by the Director-General of Conservation and a Section 71 Consent granted by the Ministers of Conservation and Transport.

ELI successfully argued the Section 53 Authority was unlawful but failed in its claim about the Section 71.

Matt Hall, ELI’s director of research and legal, said his organisation informed DOC of the permit’s unlawfulness in 2022, but the bypass project continued for 10 months without a lawful permit allowing the killing of wildlife.

Eventually, ministerial consent was issued, allowing it to continue.

The long-tailed bat, pekapeka-tou-roa, in flight.

Hall said DOC needed to look at possible offences committed during that period.

McHerron said “a consequence is that any wildlife killed before commencement of the s 71 Consent would not be covered by that instrument or by the S53 Authority”.

“The court has been clear that DOC’s entire approach to allowing wildlife to be killed is unlawful,” Hall said.

“This not only impacts the Mt Messenger project, but has serious implications for hundreds of other projects, including roading projects.”

It is the second legal triumph for ELI over DOC in recent months. In December, the High Court found DOC acted unlawfully with policies that failed to to stop the deaths of protected seabirds, dolphins and sea lions in nets and lines.

The commercial fishing industry is appealing that decision.

Tunnelling on the 6km, $280m road began last month. It is scheduled to be completed in 2027.