A recent High Court decision in Environmental Law Initiative v Director-General of DoC [2025] NZHC 391 has clarified the limits of issuing permits under section 53 of the Wildlife Act 1953 for the killing of protected wildlife. Such permits are often granted in the context of infrastructure and other major projects.
The case centred on the Mt Messenger bypass (a major roading project connecting northern Taranaki to Waikato) and whether NZTA / Waka Kotahi could lawfully obtain a section 53 permit under the Wildlife Act to kill protected species during construction.
The Court ruled that DoC had unlawfully issued a section 53 permit allowing the killing of protected wildlife. The decision has important implications, including for the obtaining of wildlife permits for future projects, and for current wildlife permit holders.
Background
NZTA / Waka Kotahi obtained wildlife permits under section 53 for its Mt Messenger project. Under section 53, DoC can authorise the capture or killing of protected wildlife. The wildlife permit obtained by NZTA / Waka Kotahi allowed them to capture, relocate, and ultimately, kill affected wildlife during construction. However, environmental group Environmental Law Initiative (“ELI”) challenged the legality of using section 53 for this purpose, arguing that section 53 did not allow killing wildlife for non-conservation reasons.
While ELI did not oppose the project itself, it argued that the correct legal pathway was through section 71, which disapplies Wildlife Act protections if both the Minister of Conservation and the Minister responsible for a listed Act (here, the Minister of Transport under the Government Roading Powers Act) consent (subject to conditions).
After ELI challenged the section 53 wildlife permit, DoC reassessed its position and advised NZTA / Waka Kotahi to seek section 71 consent, which was granted (10 months after construction had begun). ELI continued its challenge, seeking to have the original section 53 and the section 71 authorisations quashed.
Section 53 cannot authorise killing wildlife for construction
The Court ruled that DoC’s reliance on section 53 was unlawful. While on its face section 53 gives DoC broad discretion to authorise the capture or killing of wildlife for any purpose, the Court emphasised that any authorisation is constrained by the Wildlife Act’s overarching purpose – wildlife protection. It cited the Supreme Court in Shark Experience Ltd v PauaMAC5, reaffirming that any act of killing must have a direct protective benefit.
The Court rejected NZTA / Waka Kotahi’s argument that section 53 provides broad authority to kill wildlife for any purpose if the overall population of that species is maintained or improved due to other conservation efforts. Instead, the Court considered that each individual act of killing must serve a protective purpose in itself. For example, killing a diseased animal to protect the population that it is part of.
The Court distinguished sections 53 and 71, stating that the focus of section 53 is narrow in that there must be a direct link between each act of proposed killing of wildlife and the primary purpose of protecting wildlife. In contrast, section 71 provides broader authorisation powers, not constrained by a conservation purpose.
Ultimately, the Court held that, to the extent that the section 53 permit was issued to facilitate road construction (i.e. without a direct conservation justification), it was unlawful and quashed it retrospectively. However, the section 71 authorisation remained valid.
Wider implications
This decision clarifies that those seeking wildlife permits cannot rely on section 53 as a catch-all tool to authorise the killing of wildlife during development projects, even where other conservation efforts maintain or improve overall populations. The decision also creates material question marks for holders of a range of wildlife permits throughout the country in terms of whether those permits have been granted lawfully.
In addition, the decision raises questions about whether legislative reform of the Wildlife Act is needed to provide clarity on how wildlife protections can be reconciled with development for projects that are not covered by section 71. In our view, urgent legislative amendment is required.
For projects seeking wildlife approvals under the Fast-track Approvals Act 2024 (“FTAA”), the different legislative context may provide some insulation from the High Court’s decision.
If you have any questions about this case and its implications, please get in touch with our team.