A recent decision of the High Court in the relatively niche area of the Wildlife Act has caused major ripples across the construction and infrastructure sectors, and will have significant impacts on the Government's broader agenda for economic growth. This update briefly outlines the High Court's findings, the implications for projects underway and in the pipeline, and how various parties might react.
In a decision released earlier this week, the High Court has set aside an authority granted by the Department of Conservation (DOC) under s 53 of the Wildlife Act 1953 (Act) to NZ Transport Agency Waka Kotahi for its Mount Messenger bypass project in Taranaki (Project). The Project passed through areas of native habitat and proposed extensive ecological mitigation and offsetting. As part of that, various protected species were proposed to be caught and relocated. Authority was also sought to kills protected wildlife during the construction period – this was in the context of it not being possible to trap and relocate every individual of the affected protected species.
The Court found the Authority was unlawful, as it allowed for the killing of protected wildlife (including kiwi, short-tailed and long-tailed bats, and Archey's frogs) for the duration of the Project. The section 53 Authority was considered ultra vires to the extent it authorised protected wildlife to be killed during the construction of the Project.
Case context
The case concerned an application for judicial review brought by the Environmental Law Initiative (ELI) against DOC's decision to grant the Authority to Waka Kotahi for the Project. Waka Kotahi joined the proceedings as it has an interest in the decisions challenged. The third respondent, Te Rūnanga o Ngāti Tama (Ngāti Tama), intervened to ensure their reo (voice) was heard in the review process.
ELI was not opposed to the Project and did not challenge its construction. Rather, ELI challenged incidental decisions concerning wildlife affected by the Project's construction, including:
- a decision by the Director-General of Conservation in December 2021 to grant the section 53 Authority to Waka Kotahi to catch alive and kill wildlife during the construction of the Project. ELI's challenge was limited to the "kill" component of the section 53 Authority. ELI accepted the Director-General was entitled to authorise the catching alive of wildlife under section 53 of the Act; and
- a decision by the Minister of Conservation and the Minister of Transport in August 2023 to grant a consent under section 71 of the Act, authorising the same activities affecting protected wildlife as the Authority purported to do.
Key findings
The Court upheld ELI's first cause of action and declared the section 53 Authority unlawful, setting it aside to the extent it purported to authorise the killing of wildlife. The Court did not examine ELI's second and third causes of action, which were alternatives that only required consideration if the Court did not uphold ELI's first cause of action. ELI's fourth and fifth causes of action regarding the section 71 consent were dismissed.
- Inconsistency with the purpose of the Act
The Court rejected the Crown's submission that the section 53 approval was lawful. The Court followed the Supreme Court's guidance in Shark Experience Ltd v PauaMAC5 Inc [2018] NZSC 121 that one of the Act's principal purposes is the protection of wild animals; and that the Act is the primary legislative mechanism to carry out this protection. The Court found that the section 53 Authority did not provide any protective benefit to the wildlife authorised to be killed, nor did it provide any protective benefit to any other wildlife. Accordingly, regardless of the section 71 consent, the section 53 Authority was inconsistent with the primary purpose of the Act.
The High Court's sought to align itself with the Supreme Court's decision in Environmental Defence Society Inc v King Salmon Company Ltd that avoidance policies (contained in various National Policy Statements) relating to the avoidance of adverse effects on areas of certain indigenous biodiversity and natural character must be interpreted in light of what is sought to be protected, and whether measures can be put in place to avoid harm to those areas.
- Direct nexus required between activities authorised under section 53 and the purpose of the Act
The Court rejected Waka Kotahi's and Ngāti Tama's submissions that the Act's purpose is to be assessed in connection with the overall scope of the Project (including any subsequent conditions posed by the Director-General). Instead, the Court, citing the Court of Appeal in Shark Experience, found that a direct nexus is required between each individual act of authorised killing of wildlife, and consistency with the primary purpose of the Act (being the protection of wildlife). Here, the Court made it clear that any acts undertaken with permission under section 53 require consistency with the purpose of the Act. This creates a significant challenge for projects that notwithstanding ecological offsets or compensation require the killing of any residual individuals that cannot be relocated.
- Protection of wildlife does not need to be the sole purpose of activities under section 53
The Court agreed with the Crown's argument that the purpose of human activity interacting with the wildlife does not need to be solely or primarily aimed at protecting wildlife, so long as each interaction with an animal has a protective purpose. The Court noted that section 53 does not regulate activities but rather focuses on the reason for killing the animal in the first place. While this might be helpful in the context of incidental mortality associated with the relocation process, it does not assist with the killing of any residual individuals across a development site.
So what happens now?
Recent best practice for major projects has involved Wildlife Act approvals being obtained for the relocation of protected species to offset sites, and any incidental killing of individuals that have not been relocated (or during the relocation process). The Court's decision precludes such approvals under section 53. The significance of this for both private developers and the Government are wide-reaching.
Importantly, the Court confirmed the availability of such approvals under section 71 which acts as an "exceptions pathway" by obtaining Ministerial consent to kill protected species. Projects for which the exceptions apply include major roading projects such as Mt Messenger, etc. However, the exceptions do not assist the majority of projects including greenfields developments, mining, quarrying, and forestry.
From a policy perspective, the Court's decision is a real thorn in the side of the coalition Government's agenda to enhance economic development. It unfortunately coincides with the Government's attempts to court investment from local and foreign investors that New Zealand is "open for business". The Court's decision casts serious doubt on the viability of both private and Government-led large-scale infrastructure projects on these fronts, unless there is a prompt Government legislative response.
The Act is over 70 years old, a fact that was apparent to the previous Labour-Greens coalition Government who announced their intention in September 2023 to replace the Wildlife Act with a more modern and fit-for-purpose legislation. We expect the Government's response will be more surgical, given the urgency to fix the issue.
So, what do developers do in the meantime? For projects that have Wildlife Act approvals (including for killing protected species), those approvals remain valid. While they are at risk of challenge, the reality of that risk will no doubt vary from project to project.
For projects seeking or due to seek such Wildlife Act approvals, the situation is quite different. It is not clear at this stage how quickly DOC's processes will be updated to reflect the High Court's decision. However, there is a very real risk that the door will quickly shut on any further approvals being granted for the killing of protected species.
For some developers, if section 71 is not available, it may mean that approvals are only sought for the relocation (without the incidental killing component). That approach leaves residual prosecution risk, given the strict liability for killing protected species, but that may be a risk some are prepared to take.
For others, the Fast-track Approvals Act may become a more attractive option, as the changed decision-making hierarchy could potentially leave the door ajar for such approvals to be granted.
For everyone else, it is a case of waiting for a Government response.