Protecting Mount Messenger wildlife
ELI v Director General of the Department of Conservation and Others
We are challenging DOC’s decisions to grant a permit and a consent authorising the incidental killing of wildlife during the Mt Messenger bypass project.
We want the Department of Conservation to fulfil its statutory mandate to protect wildlife in Aotearoa.
In July 2023, ELI filed for a judicial review of the Department of Conservation (DOC) decision to grant Wildlife Act Authority to Waka Kotahi for the works at the Mt Messenger bypass project.
The Mt Messenger Bypass Project involves the construction of a new section of State Highway 3 in North Taranaki. Construction on the Project began in 2024.
The permit and consent provided to Waka Kotahi authorises them to kill an unlimited number of animals from a list of 46 species of protected wildlife during the bypass construction. In ELI’s view this Authority is contrary to the Wildlife Act's protective purpose, making it beyond DOC’s powers to grant. We also view the almost complete lack of conditions attached to the authority and the use of environmental offsetting in the decision making to be unlawful.
Why did we take this case?
The Department of Conservation should be putting the interests of wildlife first.
In our view, DOC has failed to protect wildlife. DOC has also justified the killing of endangered birds, bats and other wildlife on an ‘overall protective benefit’ basis.
DOC has therefore permitted wildlife to be killed in return for protecting other areas of land. We allege that DOC’s decision is unlawful under the Wildlife Act.
We want DOC to fulfil its statutory mandate to protect wildlife in Aotearoa. We’re asking the High Court to quash the permit and consent and to rule on the extent of DOCs powers under the Wildlife Act.
Case timeline
July 2023 — ELI filed proceedings for judicial review
August 2023 — DOC briefs Ministers of Conservation and Transport informing them of the need for a section 71 Wildlife Act consent to be retrospectively made for the Mt Messenger project to proceed.
November 2023 — DOC notifies ELI about the new consent.
December 2023 — ELI submits our amended Statement of Claim, which includes reference to the new s71 consent.
August 2024 — case heard in the Wellington High Court.
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Prior to filing the claim in July 2023, ELI had attempted to engage with DOC on this issue for close to a year with little result.
After ELI had filed its case, in August 2023, DOC provided a briefing to the Ministers of Conservation and Transport (in conjunction with the Ministry of Transport) which advised that “It has subsequently transpired that the joint consent of the Minister of Conservation and the Minister of Transport is required under s 71 of the Wildlife Act in place of the authority under s 53.” In the view of the Ministry of Transport and of DOC, without this s 71 consent, the Project cannot proceed.
Despite our ongoing litigation, DOC only told ELI about the new consent in November 2023.
After a review of the section 71 consent and supporting material, ELI amended its statement of claim to also challenge the issuing of this consent. ELI argued, that the s 71 consent is unlawful, in part, on the basis that:
the consent was not issued prior to the Project commencement (despite clear statutory wording on “prior consent”)
the supporting briefing to Ministers provides misleading advice on the route selection and protection of Wildlife.
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