NZ wildlife and construction projects at centre of urgent Wildlife Act changes

Environmentalists are furious about changes made under urgency to the Wildlife Act, but the Department of Conservation says the amendments don't change the established practice for protecting wildlife.

DOC said the changes fixed a legal bind it found itself in after a landmark court ruling, and would not water down protections for kiwi, long-tail bats or other vulnerable wildlife.

In March, the High Court found a DOC permit issued to Waka Kotahi allowing it to kill protected species at the Mt Messenger bypass site in Taranaki was at odds with the law because the killing would occur during the construction of a road.

Greenpeace has branded the amended Wildlife Act as the "Kiwi Killing Bill" but the Minister of Conservation Tama Potaka said it still allowed protected New Zealand wildlife to thrive while supporting a strong and growing economy.

How did we get here?

In March, the High Court found that Wildlife Act authorisations issued to Waka Kotahi by the director general of the Department of Conservation, allowing the Transport Agency to kill protected wildlife at the Mt Messenger Bypass construction site in Taranaki - including kiwi and long-tailed bats - was unlawful.

It found the Section 53 authorisations were at odds with the law - essentially any killing of wildlife had to be related to their protection, for example, culling of diseased animals from a population, not for the purpose of building a road or some other development.

Although the Minister subsequently granted approvals at Mt Messenger using a different section of the Act,

The ruling had implications for hundreds of projects where a Section 53 authority had already been granted.

It potentially exposed developers, road builders and even researchers to legal action if they inadvertently killed a protected animal.

The Environmental Law Initiative (ELI), which sought the judicial review, said the High Court was clear that DOC's entire approach to allowing wildlife to be killed was unlawful and it expected the department to look into potential offences.

Instead Tama Potaka, almost immediately signalled the government would look to amend the Act.

What changes have been made?

In the amended Act, Section 53 authorities could now be issued where "the killing of wildlife is incidental to an otherwise lawful activity" such as road building.

That killing was considered incidental if it was "not directly intended but is unavoidable and foreseeable as a consequence of carrying out the lawful activity".

In Section 53, authorities must still be consistent with the protection of wildlife, but the director general could now take into consideration what measures were being taken to minimise or mitigate adverse effects, such as capture and relocation, pest control and habitat restoration.

According to ELI, at Mt Messenger for example, it had been argued as part of Waka Kotahi's application for a Section 53 permit, a huge habitat remediation programme would eventually mean wildlife were in a better position than currently.

The law change was applied retrospectively to all Section 53 authorities already granted.

What conservationists are saying?

Greenpeace wasn't budging from its stance that the amended Act was a Kiwi Killing Bill.

Senior campaigner Gen Toop said the government had a knee-jerk reaction to the court ruling.

"So beforehand the Department of Conservation wasn't allowed to issue permits to kill wildlife. That's what the High Court said.

"Now with the amended Act they can issue permits to kill wildlife. That's why it is the Kiwi Killing Bill."

Toop didn't think developers faced a genuine threat of prosecution under the old law.

"DOC could decide whether or not to prosecute and if they did prosecute there was a defence for those that had unintentionally killed wildlife and that was they had taken all reasonable steps, and if they had jumped through all the hoops, then that was their defence."

She said the amended bill had been rushed through without proper scrutiny resulting in a confusing, muddled piece of legislation.

Environmental Law Initiative (ELI) spokesperson Aaron Packard wasn't happy either.

He said ELI's court victory had exposed DOC's whole approach to granting permits to kill protected species

"Across hundreds of roading and development projects over many years, DOC had likely unlawfully given permits to projects to kill wildlife, not to protect wildlife, so that a road could be built or development happen."

Packard said rather than moving to apply the law correctly, it had been changed.

"In permitting the killing of wildlife, it is a Kiwi Killing Bill for the first time.

"It is now lawful for DOC to issue permits allowing the killing of protected species for activities that do not protect wildlife. We think that is a poor outcome and the focus should be on taking all reasonable steps to avoid killing."

Relief among clients - lawyer

Simpson Grierson and partner Sally McKechnie said the High Court ruling sent shockwaves among clients law firms such as hers represented.

"There were a number of permits that had been genuinely secured by companies which were declared unlawful as a result. So, this [amended] Act validates those permits, which is a very positive thing.

"It gives greater certainty to the holders of those permits who've had the permits in good faith and have been using them and they can continue to do that."

McKechnie said the fact a potential defence existed under the previous law for the unintentional killing of wildlife would have been of little comfort to her clients.

"It's not a commercial solution given the financial investment and reputational investment in these kinds of projects.

"Companies can't go into it thinking that they've got a defence to a prosecution, they need the commercial certainty of a permit. Which is why they were getting the permits in the first place.

"A number of these organisations are under considerable public scrutiny, which they accept and acknowledge, and as a result there is a community expectation and a company expectation that they will act lawfully. And so they seek permits to ensure they can do that."

McKechnie acknowledged the amended Act would permit the killing of kiwi.

But it was never the aim to kill wildlife.

"None of the commercial actors getting these Wildlife Act permits - as far as I'm aware - are seeking to deliberately kill kiwis, but they acknowledge that there may be inadvertent the killing of some wildlife.

"And it's predominantly lizards and geckos and skinks because of the numbers involved."

McKechnie welcomed the Conservation Minister's intention to review the entire Wildlife Act.

Minister's view

Tama Potaka was unavailable for an interview and referred RNZ to a statement released when the amended legislation was passed.

The High Court decision, he said, placed multiple projects which had previously received DOC authorisations, in a state of uncertainty.

They included building new solar and wind farms, plantation forests and powerline maintenance that were essential for supporting New Zealand's growing economy.

He said incidental harm to wildlife, while not desired, sometimes happened when carrying out a lawful activity, such as consented construction works.

"The changes clarify how authorisations can be consistent with protecting wildlife, and that the director-general of the Department of Conservation - Te Papa Atawhai can make authorisations.

"We are restoring the approach that DOC was taking for authorising activities before the Court's decision and providing legal clarity.

"These changes keep safeguards to protect wildlife. It's important Aotearoa New Zealand's wildlife continues to be protected, and that species can thrive as we support a strong and growing economy."

He said under the amended Wildlife Act, authority holders were still expected to avoid and minimise harm to protected species.

Examples included relocating animals before doing any construction work - to protect populations and support the ongoing viability of species.

Now the amendments had been enacted, the government would turn to accelerating a comprehensive review of the Wildlife Act.

The Department of Conservation view

In a Statement DOC said the Wildlife Act needed amending to fix a bind the High Court decision had put it in.

"The Court's decision put at risk the Department of Conservation ability to regulate and manage incidental harm to wildlife caused by activities, including its ability to require those carrying out these activities to minimise this harm."

It could have delayed or halted previously authorised infrastructure and development projects and other projects important to environment and economy including pest control, housing developments, roads and wind farms.

DOC said the amendments would not change current practice for protecting wildlife.

"These changes effectively restore the approach that DOC was already taking to protect wildlife before the High Court's decision and confirm that authorisations already granted under Section 53 of the Wildlife Act before the Court's decision are valid.

"The amendments also enable DOC to continue granting authority for incidentally killing wildlife, and to set conditions as part of these authorisations. This is what DOC was doing before the Court's decision, based on DOC's interpretation of the Wildlife Act."

DOC said the amendments did not water down protection for wildlife.

"They restore the approach that was being taken to regulate and manage incidental killing and to protect wildlife before the Court's decision. They neither lower nor raise the bar for protecting wildlife."

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