Protecting Mount Messenger wildlife
ELI v Director General of the Department of Conservation and Others
We challenged the Department of Conservation’s decision to authorise the killing of wildlife during the Mt Messenger bypass project, and we won.
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 March 2025, Judge Jason McHerron released his decision, saying “I do not accept the Crown’s submission that s 53 can authorise the killing of wildlife for any purpose merely if the viability of populations of wildlife that any animals killed belong to are otherwise being maintained or improved through some other related or unrelated action.”
He went on to say that “the s 53 Authority was inconsistent with the primary purpose of wildlife protection in the Wildlife Act.”
Justice McHerron highlighted that s53 permits can only be issued if their purpose is to protect wildlife. In a previous case, the Court of Appeal suggested one such purpose could be culling of some individuals to prevent the spread of disease to a wider population.
There was no such protective purpose for the killing of wildlife in the construction of the Mt Messenger bypass.
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. As the judgment found, this was unlawful.
We want DOC to fulfil its statutory mandate to protect wildlife in Aotearoa.
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.
March 2025 - High Court judgment announced.
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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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