Amendment to Wildlife Act ‘unnecessary and muddled’

The Government is making the Wildlife Act even more complicated to administer, in a kneejerk reaction to ELI’s recent High Court win.

The new legal tests added as part of the Government’s amendment to section 53 of the Wildlife Act are complex and potentially difficult to administer or square with the purpose of the Act.

In order to know whether the pre-existing Wildlife Act Authorities that developers have can be assigned retrospective validity, DOC would need to run each of these Authorities through the new legal tests.

“That is a huge burden on everyone involved,” says ELI’s Director, research and legal, Dr Matt Hall.

“Furthermore, the changes appear to be designed to give Waka Kotahi immunity from prosecution for any Wildlife Act offences committed at Mt Messenger.

“I think most New Zealanders would be very uncomfortable with the idea that the Director-General of Conservation is put in the position of having to authorise the killing of endangered wildlife.

“In our view, ELI’s win in the High Court meant that developers need to take reasonable steps to avoid killing wildlife, rather than simply being permitted to kill wildlife. As the Solicitor General’s and DOC’s own prosecution guidelines make clear, there was never any credible risk of developers being prosecuted for incidental killing of wildlife, provided all reasonable steps were taken to prevent that.

“This was not a question of whether development projects could go ahead or not. It was about making sure all reasonable steps are taken to protect what we have left of our wildlife. That is what I think most New Zealanders would expect.

“Yet, it was clear, from our work on the Mt Messenger case, that the vast majority of private development projects have not engaged with DOC to secure a Wildlife Act authority to move protected wildlife from the path of development,” says Dr Hall.

The amendment makes it clear that all developers need to be engaging with DOC to avoid, remedy, and mitigate effects on protected species. And that would mean DOC needs to be investigating potential non-compliance with the Wildlife Act.

ELI will be watching this very closely.