The High Court’s recent decision in Environmental Law Initiative v Director-General of Conservation that an authority under the Wildlife Act 1953 (Act) authorising the killing of protected wildlife was unlawful may have major flow on effects across the infrastructure and development sector.
The High Court set aside the “killing” aspect of Waka Kotahi’s s 53 wildlife authority associated with the development of the Mount Messenger Bypass in Taranaki (Project) on the basis that it was unlawful and should not have been granted by the Director General of Conservation in the first instance. The Project was located in various areas of native habitat and ecological mitigation and offsetting was proposed which included relocation of protected wildlife species. Authority was also sought by (and granted to) Waka Kotahi to kill protected wildlife during the construction of the Project as it was considered impossible to capture and relocate every individual of the various protected species from the Project’s footprint.
Background:
Waka Kotahi obtained an authority under s 53 of the Act to capture and kill 46 protected species during construction of the Project (s 53 Authority). The s 53 Authority was granted in December 2021 and construction began in October 2022. That same month the Environmental Law Initiative (ELI) queried the lawfulness of the killing authorised by the s 53 Authority which prompted Waka Kotahi to then apply under s 71 of the Act for an authority (s 71 Authority) to undertake the same capture, relocation and killing authorised under the s 53 Authority. The s 71 Authority was granted in August 2023 on the same conditions (with some additional reporting requirements) as the s 53 Authority.
ELI did not oppose the Project, nor did it challenge the granting of the s 53 Authority to the extent that it authorised the capture of protected wildlife. Rather its two challenges related to:
- The Director-General of Conservation’s decision to grant the s 53 Authority to kill protected wildlife (ELI accepted that the capturing component was lawfully authorised); and
- The Minster for Conservation’s and the Minister for Transport’s decision to grant the s 71 Authority which authorises the same capture and killing activities as the s 53 Authority.
Te Runanga o Ngāti Tama also joined the proceedings as an interested party to ensure that their reo was heard.
Decision:
The High Court found the s 53 Authority to be ultra vires and unlawful as it allowed the killing of protected species for the duration of construction of the Project with the individual killings not having a protective element. The s 53 Authority was set aside to the extent of the killing aspect. The reasons for the Court’s decision were as follows:
- Inconsistent with Act’s purpose – In upholding the first cause of action, the Court followed the Supreme Court’s direction in Shark Experience Ltd v PauaMAC5 Inc [2018] NZSC121 that the principal purpose of the Act is the protection of wildlife. The killing aspect of the s 53 Authority did not provide a protective benefit to wildlife that it authorised to be killed and was ultimately held to be inconsistent with the purpose of the Act.
- Nexus between Act’s purpose and the killing activity – The Court rejected Waka Kotahi’s and Ngāti Tama’s submission that the Act’s purpose is to be assessed in connection with the overall scope of the Project and instead held that a direct nexus is required between each individual act of killing authorised by the s 53 Authority and the purpose of the Act, being protection of wildlife (in doing so the Court considered it was following the decision in Shark Experience Ltd).
The Court held that the interaction with wildlife authorised by s 53 authorities need not solely or primarily be aimed at protecting wildlife and a wildlife authority can have other purposes so long as each individual interaction with wildlife has a protective purpose.
The Court upheld the s 71 Authority granted to Waka Kotahi as authorities under this section can be obtained in limited circumstances where the activity is otherwise subject to one of the pieces of legislation listed in Schedule 9 of the Act. The Government Road Building Powers Act 1989 is one of those Acts which meant that Waka Kotahi could obtain a lawful wildlife authority under this section.
Result:
DOC has since confirmed that it is considering the High Court’s decision and what this means for how it manages its responsibilities for wildlife authorities (its press release is here). Its advice to operators that currently hold authorities involving the incidental killing of wildlife is to continue to undertake activities consistent with the conditions of their wildlife authorisations and to take all reasonable steps to ensure wildlife is not harmed.
Depending on the circumstances DOC (and ELI) have confirmed there might be a possible defence to such unlawful killing under s 68AB of the Act where the killing was not intentional and where the person doing the act resulting in the killing took all reasonable steps to ensure that killing did not occur.
Nonetheless, operators may want to undertake careful review of existing wildlife authorities that purport to authorise the killing of protected wildlife to ascertain whether any issues arise.
Holland Beckett is experienced in providing advice to clients on authorities under the Wildlife Act 1953. If you have any questions about what this case may mean for you, please do not hesitate to contact a member of our resource management team.
Vanessa Hamm
Tauranga
Cory Lipinski
Tauranga
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