A striped skink found at the Mt Messenger Bypass construction site. Photo: Supplied / NZTA
The government is signalling changes to the Wildlife Act to prevent delays to infrastructure projects.
The High Court recently decided it was unlawful for the Director General of the Department of Conservation to authorise the Transport Agency under section 53 of the Wildlife Act to harm and potentially kill protected wildlife species while building the Mt Messenger bypass in Taranaki.
It ruled the incidental killing of protected species could only be permitted in the process of trying to protect it, for example, the culling of a diseased animal.
Conservation Minister Tama Potaka said improvements to the Wildlife Act would ensure infrastructure developments and important conservation work could continue while also protecting New Zealand's precious wildlife.
"The court's decision has impacts on how developers and even the Crown and NZTA can operate under the Wildlife Act. There's significant concern particularly about the impacts on the economy because developers and infrastructure providers could now be taken to court if their projects kill any protected wildlife."
Te Ara o Te Ata - Mt Messenger Bypass project construction in February 2025. Photo: NZTA / Waka Kotahi
Aaron Packard, spokesperson for the Environmental Lawyers Initiative, which sought the judicial review, said it was alarming that the government's reaction to the court decision was to simply change the law.
"We are very concerned that this is the reaction to a High Court case. We've seen this a couple of times now. The government immediately reacts by saying they'll just change the law.
"And that's concerning when the law has been misunderstood in the first place. We shouldn't be rushing to change the law."
Potaka said although permission was granted under section 71 of the Wildlife Act to allow construction of the Mt Messenger Bypass on State Highway 3 to continue - and the ruling would not affect Fast Track projects - there was potential for it to affect other developments.
"The decision could delay other projects DOC has given permission for or are still coming through the pipeline under section 53 of the Act - such as building new solar and wind farms, plantation forests, and powerline maintenance that are essential for supporting our growing economy. It also affects other important conservation work, like pest control."
Conservation Minister Tama Potaka. Photo: RNZ / Samuel Rillstone
The section 71 authority was approved by the Conservation Minister, and in the case of Mt Messenger the Transport Minister - as the person responsible for the Roading Powers Act - rather than the DOC Director General.
Potaka said section 71 authorities required more compliance and applied particularly to transport project but not to all the kinds of developments previously approved under section 53 of the Wildlife Act.
"The government intends to promptly change the law to enable these important activities to go ahead lawfully, including the building of houses and roads for example, as they have in the past with safeguards for wildlife."
Potaka said the law change would not amount to a free pass for developers to kill protected species.
"I'm not worried about that because I'm confident this is an appropriate response in this instance. We've operated in the past on the basis that there can be incidental killing of wildlife to enable these projects, but people still have to take the appropriate actions to protect wildlife in the mahi that they do with developments and provision of infrastructure."
Potaka could offer little detail about the specific amendments but said they would provide certainty for existing and future projects.
"While developers are absolutely expected to make the best possible effort to protect our precious wildlife when getting on with their mahi, they should have confidence they won't be prosecuted if their projects incidentally kill protected wildlife despite having previous authorisation and complying with the conditions set."
Packard said ELI was still very much in the dark as to what any changes would mean specifically.
"The minister's made the announcement but as yet there's not any detail about what the exact changes are, so it's hard to comment or respond fully until there is more detail."
He said what was more important was that DOC was following up with all the projects it had given section 53 Wildlife Acts authorities incorrectly.
"That really is the work the department should be doing at the moment."
Potaka, meanwhile, said important Aotearoa New Zealand's wildlife would continue to be protected so that species could thrive while the government supported the economy.
"The government still expects responsible developers to seek permission for the activities they undertake - for example, seeking to relocate animals before doing any construction work - to protect populations and support the ongoing viability of species."
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