The tiny charity saving the planet one court case at a time

Monday, 31 March 2025

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Five court victories — two which saw the government scramble to make law changes — and a winning streak that has made officials and regulators sit up and take notice.

Earlier this month, a High Court decision sent ripples of disturbance across the construction and infrastructure industries, and threatened to stall the Government’s push for economic growth.

The court set aside permission granted by the Department of Conservation which allowed the NZ Transport Agency Waka Kotahi (NZTA) to kill protected wildlife, such as rare kiwi, bats and frogs, as they built the controversial Mt Messenger bypass.

Rattled, major law firms began warning clients the ruling could halt projects like highways, airports, roads, and housing developments and it cast a shadow over the Government’s much-hyped investment summit.

Now officials are working urgently to amend the 72-year-old Wildlife Act in time for May’s Budget.

It was a significant victory, but the lawyers behind the win weren’t working for one of the influential global charities like Greenpeace, or the World Wildlife Fund (WWF).

They were working for the Environmental Law Initiative, a small Christchurch-based charity that launched just over five years ago.

And with just eight staff, ELI is quietly making an impact in the already-crowded, noisy space of environmental non-governmental organisations (eNGOs).

Its success largely lies in tripping up regulators and officials who have failed to correctly apply the law — detailed and studious work that goes unnoticed in a sector that competes for attention, with protests, eye-catching campaigns and sometimes illegal stunts.

Founded by former Forest & Bird and Zealandia manager Mike Britton and low-profile, Nelson-based investor Michael Lookman, the charity says both men want to fly under the radar and didn’t want to be interviewed.

Britton is a seasoned campaginer and fundraiser who also also worked for Fish and Game and Birdlife International.

Lookman is a talented wildlife photographer who sources said wanted to use his wealth to follow a ‘Buddhist do-no-harm ethos.’

At first, the organisation adopted the traditional model of an eNGO, trying to balance campaigns, education and legal work. But after a strategic review, it decided to focus solely on taking litigation for environmental purposes.

Its first win came in late 2022, when the high court found the Government allowed too much crayfish to be caught in Northland waters, ruling that catch limits set over two years were unlawful.

With Te Uri O Hikihiki hapū, it applied for a judicial review arguing crayfish – properly known as rock lobster or kōura – were functionally extinct in the area.

The case centred on kina barren, which were rife around the Northland coastline thanks to the removal of natural predators like crayfish and snapper. The spiny sea creatures go on to decimate kelp forests, which are essential to the health of shallow reefs, and leave only bare rock.

ELI then went on to challenge the 2023 decision on crayfish catch limits by then Minister Stuart Nash — arguing it didn't go far enough to address the problem of kina barrens.

Along with Ngāti Kaharau and Ngāti Hau Hapū ki Hokianga, who argued a lack of consultation, they won that case.

Marine conservationists believe the rulings were significant because it required fisheries officials to place more weight on the health of underwater ecosystems when making decisions about managing fish stocks.

And those now working on conservation of the Hauraki Gulf, under a new plan approved in 2023, say ELI’s arguments on kina barren are now front and centre in decision making.

Last week fisheries minister Shane Jones closed the inner gulf to commercial and recreational spiny rock lobster fishing for three years to allow the area to recover from kina barren.

Buoyed by the success of winning a case that ensured the law should be correctly applied, ELI launched a case to hold polluters and regulators in Canterbury to account.

Since at least the 1980s, community groups, recreational interests and eNGOs had been protesting large-scale irrigation projects, pointing to degraded water quality in lakes and rivers, and nitrate pollution.

Despite this, the total area under irrigation in New Zealand trebled between 1985 and 2007. A hot-button issue in the 2017 election, the Labour government enacted reform and new standards, but large projects on the Canterbury Plains continued to be consented.

While other groups protested, and offered free nitrate testing for drinking water, ELI’s lawyers buckled down with paperwork.

A careful study of resource consents issued by the regional council, and the 1991 Resource Management Act revealed a thread to pull.

ELI recognised that two clauses of the RMA — sections 70 and 107 — were intended as environmental bottom line that barred discharge activities that might cause significant adverse effects on aquatic life.

And they successfully asked for a judicial review of the 2021 decision by Environment Canterbury to grant a resource consent to Ashburton Lyndhurst Irrigation Ltd (ALIL), a large co-operative irrigation scheme.

That permission allowed, over a decade, the use of synthetic nitrogen fertiliser in a 177,000ha area that stretched between the Hakatere/Ashburton and Rakaia rivers.

The Ashburton River flows into the Hakatere hāpua (a lake which forms behind a bank along the beach), a breeding area for vulnerable native fish and birds.

Last March, the High Court ruled ALIL’s consent must be set aside.

“Big Farm” panicked, with agricultural lobby groups appealing to government ministers, and claiming this would create a regulatory roadblock that farmers could not overcome.

The government yielded and urgently changed the legislation.

But undeterred ELI, is taking the issue back to court, challenging a second ECan decision with an argument centring on the threat of nitrogen polluting drinking water supplies.

In February, ELI also got the court to rule Environment Southland breached resource management laws by failing to protect the waterways, leading to the loss of hectares of freshwater wetland.

Department of Conservation staff were also said to be quietly cheering when ELI convinced the High Court that the agency had taken a “hands-off” approach to the protection of seabirds, rare dolphins and turtles.

It ruled DOC acted unlawfully by failing to use its powers to set limits on the accidental deaths of protected wildlife in fishing gear. The fishing industry is appealing that decision.

“Their legal action does have real impact,” one long-serving ocean advocate told The Post. “The interpretation of fisheries legislation [by officials] was being distorted in favour of industry.

“The ELI cases and the Forest & Bird tarakihi case have really rebalanced the interpretation of the Fisheries Act. You can see that in the response from the Fisheries Minister, who is now proposing reforms to send it back to what it was.”

Forest & Bird had challenged a 2019 decision by Nash to set the commercial catch limit, arguing he placed an industry plan ahead of official advice. The courts, including the Supreme Court, agreed.

Last month fisheries minister Jones announced proposed plans to deregulate the sector, that would hand back more control to the industry and remove consultation from some fisheries decisions.

In keeping with its low-key approach, no-one from ELI wanted to be interviewed. A spokesperson explained it prefers to let the legal work do the talking.

On its website, the staff bio features mainly native birds instead of professional headshots.

But ELI’s director of legal and research Matt Hall, a botantist who once worked at Edinburgh’s Royal Botanic Garden, agreed to give The Post a written statement.

He cautioned against governments reacting to a High Court decision by changing the law.

“We should be wary of knee-jerk reactions seeking to weaken our environmental laws, particularly when those seeking such changes may have misunderstood the law in the first place,” Hall said.

“Over the last 30 years, vested interests have successfully pushed their view of the law, and ELI is pushing back,” Hall said.

“We focus our efforts where we see that there is a strong lobby or influence of vested interests, because we believe the public interest needs to be defended.

“Too often it hasn’t been, and we end up with key bottom lines of laws like the RMA and the Fisheries Act not properly enforced.”

Hall believes industry lobbying isn’t serving the public interest.

“When we look into the decisions being made at agencies like DOC, MPI [Ministry for Primary Industries] or Fisheries NZ, our cases often highlight 20 to 30 years of misguided application of the law.

“And so it is incredibly important that we take challenges, so that the law can be clarified and applied correctly.

“They may have been strategically forgotten or obfuscated, and so we’re simply aiming to bring it back to the purpose of those Acts.”

Hall said ELI’s work was now to keep a focus on the purpose of fisheries, marine mammal protection and wildlife laws “and hold DOC and Fisheries NZ accountable to those”.

The charity might become a victim of its own success. This week National MP Joseph Mooney proposed legislation which would outlaw the public from taking climate change litigation.

ELI is part of a greenwashing cash action against Z Energy, alongside Lawyers for Climate Action. They claim the oil company breached the Fair Trading Act with an advertising campaign on saving emissions.

Hall said the member’s bill was a “dangerous attack on legal rights”.

“It’s an attempt to protect the worst climate polluters and we expect there to be a strong response against it,” he said.