Wildlife Act looks set to be changed by May Budget

Friday, 14 March 2025

Te Ara o Te Ata – Mt Messenger Bypass earthworks.

The Government has given a clear sign that it will move to make changes to the Wildlife Act, after corporate law firm Simpson Grierson - and others - warned clients with permits to kill animals that they may be acting unlawfully.

Meanwhile, in surprise advice by the Department of Conservation, the Government department - and Wildlife Act regulator - has told permit users to continue business as usual despite a High Court ruling that was interpreted by the law firm as meaning that the permits to kill wildlife under the act were now potentially unlawful.

“The decision does not mean that operators currently holding Wildlife Act authorisations for projects involving the incidental killing of wildlife need to cease activities,” Ruth Isaac, deputy director-general policy and regulatory services said in a statement.

“Existing authorisation holders should continue to undertake their activities consistent with the conditions of their authorisations and take all reasonable steps to ensure wildlife is not harmed.

“Depending on the situation, the defence in s68AB of the Act may be applicable. We are working quickly to give authority holders certainty about what this means for their operations,” she said.

Meanwhile, at the Government’s Infrastructure and Investment Summit this week, Minster for Regional Development and Associate Minister for Finance Shane Jones said the ruling, which the High Court handed down on Monday, would be part of Cabinet discussions.

“I’ve asked [Ministry for Business, Innovation and Employment] to work urgently with [Department of Conservation] to give us options so that we can take them forward to Cabinet to effect changes to the Wildlife Act as a part of Budget discussions.

“I campaigned along with the other members that the Wildlife Act needs a monstrous set of changes, because it is going to hobble infrastructure development,” Jones said.

Resources Minister Shane Jones speaks at the Infrastructure Investment Summit in Auckland on Thursday.

“The outcome of the Mt Messenger legal decision has been bubbling along for a long period of time.”

Another senior Government source told The Post that the issue had been on the Government’s radar for some time and that would be sorted out as a part of the May Budget. Finance Minister Nicola Willis will hand her second Budget down on May 22.

However, the organisation that bought the Mt Messenger case against NZTA, says that the ruling’s implications have been overstated.

“The judgment announced on Monday does not lead to a situation as described by Simpson Grierson,” director, research and legal at Environmental Law Initiative, Dr Matt Hall said in a lengthy statement to The Post.

The organisation which took the case against NZTA on the Mt Messenger Bypass - Environmental Law Initiative - says it is not trying to stop all development and just wants the law applied properly.

“In our view, any existing s53 permits that purport to authorise killing or destruction of wildlife have been granted unlawfully. However, this does not necessarily mean that projects which hold such permits to kill (or which can no longer obtain permits to kill) must stop all activities.”

“What the judgement means is that developers will need to take reasonable steps to avoid killing wildlife, rather than simply being permitted to kill wildlife,” Hall said.

Hall said that ELI was of the view that projects that had secured “a Wildlife Act authority to catch protected wildlife alive and to move it out of the path of development 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,” Hall said.

Meanwhile -along with its advice, DOC is also considering the implications of the ruling.

Lawyer Sally McKechnie said ELI’s proposal is “unworkable and rather naive”.

“DOC has received the court's decision and is considering what this means for how it manages its Wildlife Act permissions responsibilities,” Isaac said.

The ELI is a registered charity, funded by grants and donations which seeks to ensure that current environmental laws are not being ignored or not properly applied.

Simpson Grierson’s Sally McKechnie said she stood by the advice the firm is giving to clients around the legal risks involved.

“The proposal from ELI is unworkable and rather naive. No project of any significance would risk prosecution, on the chance that they could defend themselves, no matter how scrupulously they had in fact behaved,” she said.

When asked at the Summit what his view was of the ruling, another associate finance minister, this time David Seymour, said the decision should be examined.

“In principle … if Parliament passes a law, if a court doesn't interpret it the way that Parliament meant, then Parliament has a right to go back and re-legislate and yes, while it's at an early stage … I certainly would support looking at that.”

However, Seymour would not be drawn on whether it was a Budget night measure - claiming he was in a rhetorical bind.

“Well, we've either decided to do it, in which case, I can't talk about it, but we haven't, in which case, I can't say that it's going to happen yet.”