A major speedbump for Wildlife Act permits to kill protected species

The High Court decision in Environmental Law Initiative v Director-General of the Department of Conservation & Ors (2025) NZHC 391 (Decision) delivered on 5 March 2025 has significant implications for permits to kill protected fauna granted by the Department of Conservation under the Wildlife Act 1953 (Act). The implications of the Decision have already led the Government to announce proposed changes to the Act in response. This article tells you what you need to know about this recent significant decision on a long-standing but little litigated statute.

New Zealand Transport Agency Waka Kotahi (Waka Kotahi) are building a new road, which alters State Highway 3 to bypass Mt Messenger, connecting Northern Taranaki the Waikato (road). The purpose of the road is to by-pass a pre-existing dangerous stretch of road and replacing it with a newer, safer road. The road construction will result in absolutely or partially protected wildlife under the Act (including North Island brown kiwi, long-tailed bats) being killed or disturbed. That activity is regulated by the Act, which is the mainstay of statutory protection of certain protected animal species in the environment.

The Environmental Law Initiative (ELI) bought a judicial review against (in general terms):

• the Director General of Conservation (DG) authority to catch and kill wildlife during construction of the road under s 53 of the Act; and
• the decision by the Ministers of Transport and Conservation to grant consent under s 71 of the Act, authorising the same activities affecting protected wildlife as the s 53 authority purports to do.

 

Power to “kill” wildlife under s 53

The DG's power under s 53(1) of the Act states:

The DG may…authorise any specified person to catch alive or kill for any purpose approved by the DG any absolutely protected or partially protected wildlife or any other species of wildlife the hunting or killing of which is not for the time being permitted.

In a previous Supreme Court case concerning whether shark cage diving constituted “hunting or killing” under the Act (Shark Experience Ltd v PauaMAC5 Inc (2019) NZSC 111 (Shark experience)), the Court held s 53 was constrained by the purpose of the Act, and it does not give the Minister, or any administrative decision-maker free-reign over what species of wildlife may be “hunted or killed”.

ELI alleged the s 53 authority to “kill for a non-conservation purpose can only be granted under s 71. This is because:

• Section 53 only allows the authorisation of killing if that killing is for the purposes of conservation.
• Section 71 permits killing of protected wildlife in connection with certain non-conservation purpose (namely, the purpose of other Acts which include the Government Roading Powers Act 1989).

 

Findings

McHerron J accepted ELI's submission that to the extent that the s 53 authority purported to authorise Waka Kotahi to kill schedule 5 protected wildlife during construction of the road, it purported to authorise harmful interactions between humans and wildlife. The s 53 authority did not provide any protective benefit to the wildlife it purported to kill. Nor would the killing of that wildlife provide any protective benefit to other wildlife. Therefore, regardless of s 71, the s 53 authority was inconsistent with the primary purpose of wildlife protection in the Act.

Pursuant to previous Supreme Court authority, a direct nexus must be established between each act of proposed killing of wildlife, viewed in insolation, and the protection of wildlife (being the primary purpose of the Act). Examples given in Shark experience include scientific research, capture for removal to a safer environment, or culling of those with diseases who would threaten the larger population over time.

It is each individual activity that is authorised that needs to be consistent with the statutory purpose. Catching animals is intended to avoid animals being killed, which is consistent with the purpose of the Act. However, the underlying purpose of the human activity in respect of which the interaction with wildlife is occurring need not itself aimed at protecting wildlife, so long as each interaction has a protective purpose.

It was held that killing protected wildlife for the purposes of constructing a road is not authorised under s 53, as this does not promote the Act's purpose. The killing of each animal would not be protective of wildlife. There is no required nexus between the authorised activity and the protective purpose of the Act.

In obiter, Judge McHerron made reference to s 54 of the Act, which allows the DG to authorise hunting or killing of wildlife causing damage, which is similar to the purpose of the Act. Therefore, s 53 must have had a different purpose, in allowing for a more holistic approach of assessing the overall protective purpose of an activity, rather than narrowly focusing on the individual animal that is killed.

ELI's first cause of action was therefore successful. The s 53 permit for the killing of protected wildlife during the construction of the road was ruled to be unlawful and ultra vires. The Court did not address ELI's second and third causes of action, which were alternatives. ELI's fourth and fifth causes of action regarding the s 71 consent were dismissed by the Decision. While s 71 provides the “exceptions pathway” to obtaining Ministerial consent to kill protected species this section will not apply to a number of projects.

 

Implications

While the Decision related to the specifics of the permit for the road, it was understood that the approach set out by the High Court was not consistent with the legal basis upon which the DG of Conservation had been granting permits under the Act for years. This potentially exposes those other permits to legal challenge.

The reaction to the Decision has alleged that the ruling could “halt projects and stymie the Governments economic growth agenda”. In response, the Government has announced that it will include reform of the Wildlife Act in the May budget.

At the time of writing, no appeal against the decision had been filed. It may be that the Government prefers to change the Act rather than pursue an appeal. In the meantime, this caselaw will be highly relevant to projects proceeding through the Fast-track Approvals Act process which involve a Wildlife Act permission.