The Wildlife Act Authorisation process is an important component of any project that may impact absolutely protected wildlife, such as native lizards, birds, or bats and some invertebrates. Often allowing for the survey and salvage activities to occur ahead of construction, the Wildlife Act Authorisation process was aimed to ensure, as far as possible, wildlife is not injured or killed.
Two recent court cases regarding shark diving may lead to significant changes to how wildlife is managed during construction and development.
PauaMAC5 (an organisation representing kina and paua commercial fishing interests) vs the Director General of Conservation (2017 & Appeal 2018) has led to decisions regarding what can, and cannot, be authorised under the Wildlife Act (1953). The decisions conclude there is a relatively narrow legislative framework for authorisations, compared to the authorisation process for managing wildlife for construction and development applied by the Department of Conservation (DOC) in the last few decades. This significantly complicates the framework, under which authorisations for activities that involve surveying, salvaging, and incidentally killing of absolutely protected wildlife, may be granted. This includes most projects where clearance of vegetation (even non-native vegetation), debris, or even long grass (which can be used by some native birds for nesting as well as native lizards) is involved. Activities which are commonplace in most infrastructure and construction projects.
In light of these decisions, it has become clear that the Wildlife Act was never intended to be a mechanism of wildlife management, beyond protection. The Wildlife Act was enacted in 1953, to provide absolute protection for wildlife from hunting and killing. The Act has had many revisions, amendments, and orders that have morphed it into something that attempts to be fit-for-purpose. However, the Act remains woefully out of date and unsuitable for modern wildlife management.
Recent PauaMAC5 court decisions have exposed the Act’s shortcomings for wildlife management in this respect. An issue that is, we think, unlikely to be resolved anytime soon. DOC has previously taken a wider, and perhaps more pragmatic, approach to Wildlife Act Authorisations to achieve better outcomes. Now, DOC is left with no ability to authorise activities that, while being best practice for managing the wildlife involved, do not fall within the narrow legal definitions of what can be authorised.
DOC has by-and-large put the processing of Wildlife Act Authorities on hold until the implications of the court cases have been worked through. Therefore, this leaves the question what legal pathway exists through legislation to manage wildlife in a development and construction context?
A revision of the Act may be required. Or, perhaps more appropriately, a complete replacement of the Act with a modern wildlife management act that enables total protection, while ensuring best practice management can be legally authorised.
There is now uncertainty around how to approach wildlife management in projects. In our view, it is more important than ever that robust survey and risk assessment for wildlife is carried out as part of project planning to assist in altering the trend of declining native biodiversity. It is also important that consultation with DOC is early, consistent, and collaborative throughout the project stages so that the complications of these recent court findings, wildlife management requirements of projects, and legal compliance with the Wildlife Act can be worked through to ensure the best outcome.
Boffa Miskell’s ecologists have been engaging with DOC and our clients on the Wildlife Act Authority process. We understand in light of these events the information being received from DOC can be confusing and messages from multiple sources are sometimes contradictory about how to proceed. We recommend the best approach is to seek advice from legal advisors and from DOC, either directly or via an experienced ecologist. We are aware of the recent court findings and understand their implications for wildlife management, and can assist with consulting DOC.
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For further information please contact Andrew Blayney
9 July 2019