WIN: High court rules DOC’s permit for Mt Messenger bypass failed to protect wildlife and was unlawful

The High Court has set aside the Department of Conservation authority issued to Waka Kotahi for the Mount Messenger bypass, ruling it unlawful because it allowed the killing of protected wildlife, including kiwi and long-tailed bats, in the construction of the road. 

The Environmental Law Initiative, who took the case, says the decision reinforces the   Wildlife Act’s core purpose, which is to protect wildlife.  

“DOC took a view that it could authorise Waka Kotahi to kill some protected wildlife in the construction of the bypass because the project included wider activities beneficial to the environment.  

“DOC's approach, which allowed animals to be killed in exchange for purported offsets, is unlawful,” says ELI’s Director of Research and Legal, Dr Matt Hall.   

ELI challenged the authority which was issued by DOC under section 53 of the Wildlife Act. Section 53 allows the Director-General of Conservation to authorise taking or killing of wildlife for only certain purposes.  

In the decision, Judge Jason McHerron said “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.  

"The Court has been clear that DOC's entire approach to allowing wildlife to be killed is unlawful.  

“This not only impacts the Mt Messenger project, but has serious implications for hundreds of other projects, including roading projects,” says Dr Hall. 

Despite ELI informing DOC of the permit’s unlawfulness in 2022, the bypass project continued for 10 months without a lawful permit allowing the killing of wildlife. Eventually, a Ministerial consent under section 71 of the Wildlife Act was issued to the project, allowing it to continue. 

Dr Hall says this was a serious misstep by DOC, and that he expects the Department to look into possible offences during that period.  

Judge McHerron addressed the oversight, saying “a consequence is that any wildlife killed before commencement of the s 71 Consent would not be covered by that instrument or by the s 53 Authority. Those responsible for any such killings who are prosecuted may seek to rely on the defence in s 68AB(3) of the Wildlife Act.” 

The Mt Messenger bypass project is now under construction, and the project includes pest control operations over large areas of adjacent forest, and a comprehensive cultural mitigation package to Ngāti Tama in return for use of the land for the bypass.