Statement regarding the repercussions of the Mt Messenger Wildlife Act Authority High Court decision

We were rather surprised at some of the claims in today’s front-page article of The Post “Court wildlife ruling hangs over PM’s investment summit”.

Earlier this week we announced our High Court win against DOC, who were found to have unlawfully issued an authority for the Mt Messenger bypass allowing the killing of protected wildlife.

The Post’s coverage today quotes commercial lawyers Simpson Grierson advising their clients that infrastructure projects are on notice in Aotearoa due to this High Court decision.

We feel it is important to correct the record and provide clarification as to what we believe are the actual repercussions from the Court’s Judgment.

Statement from ELI regarding the Mt Messenger Wildlife Act Authority High Court decision

In ELI’s view, the Judgment announced on Monday does not lead to a situation as described by Simpson Grierson in today’s The Post. Simpson Grierson said s 53 authority holders “must either knowingly decide to continue their operation in reliance on a permit that may have been issued unlawfully, or cease those activities.”

The High Court has been clear that the Director-General of Conservation does not have the power to grant a s53 Wildlife Act Authority where there is no nexus between the activity authorised and the protective purpose of the Act.

In our view, any existing s 53 permits that purport to authorise killing or destruction of wildlife have been granted unlawfully.

However, this does not necessarily mean that projects which hold such permits to kill (or which can no longer obtain permits to kill) must stop all activities.

Section 68AB of the Wildlife Act provides that there is a defence to killing protected wildlife 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.

The High Court confirmed that s 53 permits allowing the catching alive and moving of wildlife out of the way of infrastructure and other development projects remain lawful.

In October 2022, ELI asked DOC to provide it with all s 53 permits that have authorised killing or destruction of wildlife since the Supreme Court’s decision in PauaMac5 (which was relied upon by the High Court in agreeing with ELI that s 53 “kill” permits were unlawful).

DOC provided ELI with 447 Wildlife Act authorities.

ELI analysed those authorities and found that in almost every instance of killing being authorised, the Director-General of Conservation had also authorised the catching alive of wildlife.  Many of these projects were accompanied with protocols for catching and moving wildlife from the path of development, which presumably were developed in consultation with DOC. This protective activity is and remains entirely lawful as was not challenged in the recent Court case.

In ELI’s view, projects that have engaged in this way with DOC to secure a Wildlife Act authority to catch protected wildlife alive and to move it out of the path of development are likely to be taking all reasonable steps to avoid killing wildlife.

In such instances, it is very likely that the defence in section 68AB of the Wildlife Act would be made out. It is highly unlikely that DOC, having granted a s53 permit to catch and move wildlife would deem it in the public interest to prosecute.

The Post article states that “airports have permits to shoot birds if they have to for airline safety. Now, there's a real question mark about whether those permits are now lawful.” In ELI’s view there is no such question mark as the Director General of DOC has the power to issue an authority to kill wildlife where it presents a threat of injury or damage to any person or to any land. Such authorities have and continue to be issued under s 54 of the Wildlife Act and these were not under challenge in ELI’s recent court case, nor will the judgment in that case affect the lawfulness of such authorities.

As such, as long as infrastructure and development projects are taking all reasonable steps to engage with DOC and develop protocols for the catching alive and relocation of wildlife, wherever practicable, to avoid killing that wildlife then we see no reason why those projects should not continue.

And so, despite the headlines, we see no threat to the Prime Minister’s investment summit or the ability for infrastructure and development projects to continue in New Zealand.

What the judgment means is that developers will need to take reasonable steps to avoid killing wildlife, rather than simply being permitted to kill wildlife.   

It is clear however, from our work on this case, that there are many development projects which have not engaged with DOC to secure a Wildlife Act authority to move protected wildlife from the path of development. In ELI’s view, this is the real issue and we strongly encourage all such projects to engage with DOC in this way to ensure our protected wildlife remains protected and that developments are pursued in a lawfully and environmentally responsible way.