Court wildlife ruling hangs over PM’s investment summit

Thursday, 13 March 2025

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

On the eve of the Government’s Infrastructure Investment Summit, a relatively obscure Wildlife Act ruling by the High Court on Monday now has corporate law firms scrambling to advise clients on a development that could halt projects and stymie the Government’s economic growth agenda.

On Monday the High Court ruled that that the permit NZTA obtained to inadvertently kill bats, kiwi and other native fauna while clearing vegetation for the Mt Messenger Bypass in the upper North Island was unlawful.

There must be a “direct nexus” between anything that is killed and the wellbeing of the species after the Environmental Law Initiative took the Department of Conservation to court over the permit. Broadly speaking, nothing can be killed unless it is diseased or there is overpopulation or something similar. It cannot be moved elsewhere unless DOC is funded to help sustain a species population in another location ‒ making the species better off overall.

Striped skink have been found at the Te Ara o Te Ata Mt Messenger Bypass Project site and are being rehomed at Rotokare Scenic Reserve.

The upshot, corporate lawyers say, is that highways, airports, roads, housing developments and many other activities that currently hold permits may now be unlawful ‒ and it will likely require urgent legislation from the Government to fix.

It comes as the Government is trying to convince local and foreign investors about investment in Government projects and that New Zealand is open for business.

In urgent advice to a wide range of clients seen by The Post, law firm Simpson Grierson has warned clients: “Given the breadth of potential unintended consequences, the Government may consider urgent legislative change is required.”

“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 advice says.

“I’m aware of the recent judgment and understand that the department is considering it currently,” said Minister of Conservation Tama Potaka.

Simpson Grierson partner Sally McKechnie told The Post: “This was unexpected for the Government ‒ they argued against it in court ‒ but now there is an urgent need for the Government to find a solution.”

It is understood that other corporate law firms are coming to grips with the change and offering similar advice to clients on the issue

The problem has emerged just as the Government is trying to convince foreign investors to park their money in New Zealand, but “it would be almost impossible” to get Wildlife Act permits to allow any of the Government’s big infrastructure projects which are being floated at the summit to proceed after the ruling, McKechnie said.

Airports have permits to shoot birds if they fear for airline safety. (file photo)

“Anything that involves vegetation clearance … large property developments, any quarries, any mines, any roads not being built by NZTA, much local council construction, anything on the coast where penguins and the like might be impacted.

“All of those processes will currently require a wildlife permit, and it's very difficult to see how they would get one, or if they have one, how they can continue to use it,” she said.

Minister of Conservation Tama Potaka told The Post through a spokesperson: “I’m aware of the recent judgment and understand that the department is considering it currently. I expect to receive advice on any implications and next steps.“

Simpson Grierson’s advice says: “Operators that rely on existing wildlife permits that suffer from the problem identified by the High Court are in an unenviable position.”

McKechnie described the issue as “urgent” for those who currently have permits to work out it they are operating legally in the case of both inadvertent and deliberate killing.

“So for example, airports have permits to shoot birds if they have to for airline safety. Now, there's a real question mark about whether those permits are now lawful, and whether they can be shooting birds as a result of the airline safety,” she said.

The firm’s advice said the High Court’s decision reinforced the urgent need for reform of the Wildlife Act, “which is over 70 years old and is no longer fit for purpose.”

Correction: An earlier version of this story omitted the word “not” from the sentence, “Anything that involves vegetation clearance … not being built by NZTA, much local council construction, anything on the coast where penguins and the like might be impacted.” March 13, 7.02am