By Keith Woodley
1953 was an eventful year. Ed Hillary and Tenzing Norgay reached the summit of Everest, immediately prior to the coronation of Queen Elizabeth II. There was a worker uprising in East Germany. Dwight Eisenhower was sworn in as 34th president of the United States, Stalin, Hank Williams, and Dylan Thomas died, and Xi Jinping was born. The US and North Korea signed an armistice to end the Korean war. British physicist Francis Crick and American biologist James Watson discovered the double-helix structure of human DNA. The first transistor radio was developed.
In New Zealand, Godfrey Bowen managed 456 full-wool ewes in nine hours to set a world sheep-shearing record. The Queen arrived for a royal tour, the day before the Tangiwai railway disaster. Vice-President Richard Nixon became the most senior United States leader to have visited New Zealand. Auckland became the first city in New Zealand to introduce parking meters. And the New Zealand parliament passed the Wildlife Act.
|Schedules to the Wildlife Act include:|
|Schedule 1: lists wildlife that are declared game (e.g. pheasant, quail, black swan, pūkeko, partridge and more controversially shoveler, paradise shelduck (putangitangi) and the critically endangered grey duck (parera). Fish and Game regional councils set the conditions, notifications, and seasons for hunting these species under Part 2 of the Act.|
|Schedule 2: lists partially protected wildlife (e.g., silvereye, little owl and brown skua). These animals may be hunted or killed by occupiers of land where they cause injury or damage to land and property (section 5).|
|Schedule 3: lists wildlife that can be hunted or killed subject to conditions (e.g. pheasant, quail, mallard duck, but also species such as sooty shearwater and weka in certain locations).|
|Schedule 5: lists wildlife that is not protected (e.g. possum, cats, ferrets, hedgehogs, rats, wallaby, blackbird etc)|
|Schedule 6: lists animals declared to be “wild animals” under the Wild Animal Control Act (e.g. deer, chamois, goat, tahr and pigs).|
|Schedule 7 and 7A: list invertebrates and marine species declared to be animals for purposes of protection.|
Seventy years on the Act is really showing its age. But so is more recent legislation such as the 1987 Conservation Act. In fact, there is a whole raft of legislation that has become increasingly problematic to conservation managers. In a 2019 discussion document on proposals for a biodiversity strategy for Aotearoa New Zealand, the Department of Conservation described the legislative framework for conservation as “overlapping, contradictory, contested, ineffective”, “slow” and “outdated”, and the legislative regimes as being “not able to adapt well to the current and future pressures they need to respond to”.
The Wildlife Act 1953 (the Act) is the core species-focused piece of legislation in Aotearoa New Zealand. It deals with the protection and control of wild animals and birds (including indigenous and introduced species) and the management of game. The Act determines which species are classed as wildlife and regulates many human interactions with these species. Wildlife, as defined in the Act, includes both native and introduced species of mammals, birds, reptiles, and amphibians. There are also some marine species (such as corals, sharks, and fish) that are declared to be ‘animals’ for the purposes of the Act.
The level of protection afforded to a specific species can vary. The default setting is absolute protection, with variations to this set out within schedules to the Act. The Act creates a tiered system with different levels of protection for different species. Most wildlife is absolutely protected, which means that it may not be hunted, killed, harassed, or possessed without specific authorisation, and may not be sold. Some species are partially protected (protected but not absolutely). These species are listed in Schedules 1–4 of the Act. They may be hunted or killed in certain circumstances. In addition, species in Schedule 5 are not protected. (see above)
The Act asserts that the Crown owns all wildlife, except unprotected species, including their feathers, bones, eggs etc. It provides for game bird hunting, which is managed by Fish and Game councils. Game birds include 13 species listed in Schedule 1 of the Act. The Councils produce a notice each year setting out the season and associated conditions that hunters must comply with. The Act also provides for the establishment and management of wildlife sanctuaries, wildlife refuges, and wildlife management reserves.
The Act was very much a product of its time. According to Hansard, most of the Parliamentary debate on the Wildlife Bill was centred around how ‘game’ species were to be managed and protected. It was described as ‘An Act to consolidate and amend the law relating to the protection and control of wild animals and birds, the regulation of game shooting seasons, and the constitution and powers of acclimatisation societies.’ The societies called for more powers to ensure people paid their hunting licenses, and that farmers could not profit from providing access. A more highly regulated system would generate income for the societies.
In 2021 The Environmental Defence Society published Conserving Nature; a conservation reform issues paper. Funded by the Department of Conservation the report examines the entire conservation system. This includes the key statutes, policy and planning documents, and the system of granting concessions.
Aotearoa New Zealand is a world leader in threatened species management, and applies substantial effort to conservation, yet our biodiversity continues to decline. The Department of Conservation, in its 2019 report to the United Nations Convention on Biological Diversity, states 4,000 species are threatened or at risk of extinction.
The EDS reports that ‘political and legal inertia, delays in implementing protection, conflict between stakeholders, limited coordination amongst agencies and lengthy legal procedures are exacerbating the already complex management of species’. As one study concluded, if we are to address this continued decline ‘the next 30 years of conservation (will) require new tools.’
EDS interviewed a wide range of people who have engaged with the system including those from Conservation Boards, the Conservation Authority, the Game Animal Council, Fish and Game councils, iwi/hapū, environmental NGOs and local councils, as well as academics and broader stakeholders. Of all the conservation legislation currently in place, the Wildlife Act was almost universally identified by interviewees as the most problematic, the least fit for purpose and the most difficult to integrate within a modern conservation management approach.
Recent court decisions have underlined deficiencies in the Act. For example, in 2019 the Supreme Court overturned a Court of Appeal decision relating to shark cage diving on Rakiura Stewart Island, and whether it constituted disturbance of wildlife. The lack of clarity in the case arose largely due to a mismatch of wording between two sections of the Act, as ‘frequent amendment of the Act has caused it to lose some coherence’. DOC has noted that the court’s definition of ‘disturbing’ will have wider implications for the types of activities that can and cannot be authorised under the Act.
So, a review of all conservation legislation is to be welcomed. Although it will not be straight forward.
According to the EDS report: ‘Almost all the key areas of conflict in conservation management revolve around the problem of values. And these issues are political issues. All the legislation and policies in place were developed at a time when we had quite different values as a nation. They were developed at a time when there was a focus on incentivising land use for primary production. But as values change, we need to move and assist to incentivise those changes.’
Little mention was made of the need to protect indigenous species, other than to note that historically the “primary objective” under the Animals Protection and Game Bird Act 1921 had been the protection of game birds, but that there was growing public opinion over the ‘importance of the protection of native bird life’.
The principal advocate for increased protection of native species during this era was Forest and Bird. Hansard records some of Forest and Bird’s reservations about the legislation, including the treatment of different species within the schedules to the Act, in particular the lowered protection accorded some native species (under schedule 5) and higher degree of protection accorded introduced species. They were disappointed that the offences section in the legislation grouped together the hunting or killing of ‘absolutely protected wildlife or any game’ to provide the same penalty, thereby making no distinction between the unauthorised killing of rare native species and common game.
Management of threatened species is another area where concerns have been raised. Under its Threat Classification System, DOC assesses the threat status of taxa, using a set of criteria to rank each from Nationally Critical and Nationally Endangered to Nationally Vulnerable and Recovering. These then inform policy and the setting of management priorities. However, the EDS report notes that these classifications are ‘non-statutory and are not referred to in primary conservation legislation. Neither is the threat classification system incorporated into the Conservation General Policy which simply refers to threatened indigenous species in a general sense and states that management objectives ‘should’ be incorporated into Conservation Management Strategies and conservation management plans ‘where necessary.’
‘New Zealand remains significantly out of step with international practice for threatened species protection in having no dedicated threatened species legislation. Although species are classified according to their threat level, there is no formal listing process, and no statute that elevates the protection needs of listed species. There is also no legal requirement to develop a management or recovery plan for threatened species (or their habitat) or for ongoing monitoring. In turn, there has been little funding provision to enable these processes to occur.’– environmental defence society, conserving nature. 2021
For her PhD thesis in 2014, PMNT member Dr Pip Wallace investigated the state of New Zealand birds and analysed the response of New Zealand law to the agents of decline. A particular focus was the degree of care that is applied to protecting birds through the law and related planning instruments. She found that ‘although at times strongly beneficial, …the arrangements made by the law are wanting.’ Deficiencies could be separated into three classes: the problem of standard, the problem of consistency and integration, and the problem of implementation.
‘These problems constrain the protective force of the law. Fragmentation and lack of a strong and consistent protective standard limit protection of birds against competing social, economic, and cultural factors. The law requires revision. Species protection calls for particular attention.’ Her research demonstrates how the Wildlife Act standard of absolute protection of birds, is in many ways compromised by ‘statutory exception, statutory defenses, lack of clarity as to the definition of hunting and killing and habitat modification, lack of clarity surrounding incidental take, lack of implementation (particularly of authorisation of take pursuant to section 53), being outdated and an associated lack of process, being overshadowed by the RMA, a weak regulatory community and being partnered by policy and plans which do not provide consistent and strongly protective policy guidance.
Greater strategic planning and integration is required, particularly regarding human development. Interrelationships between the statutes, including that between the Wildlife Act 1953 and the RMA 1991, require addressing. Inadequate implementation of existing law compounds these matters, and the research identifies a range of aspects where gains for species could be made. It concludes with a series of recommendations directed at the identified problems.
Pip Wallace presents a clear vision of what needs to happen.
‘A choice to strengthen the law to protect birds undoubtedly means loss of some opportunity to humans. In recognising this problem, the recommendations suggest the use of exceptions set to a high threshold. In addition, they urge stronger planning methods reliant upon robust evidence bases, capable of capturing cumulative effects throughout the range of birds, to enable landscape level planning for co-existence. Where these are unavailable, the law should resort to strong, precautious, and protective standards in the interim.’– Pip wallace
The review process: What happens next?
According to DOC a ‘first principles’ approach is being taken.
‘This means that we are not looking at quick fixes to improve the Act but are instead focusing on the fundamental problems. Once we know what the big picture problems are, and the aspirations New Zealanders have for our species, we can then work out how to address them. The review will be progressed over the next 12 months. During this time, we will be looking at:
- • The challenges people are experiencing with the Act
- • What outcomes we want our species legislation to deliver
- • How we get from where we are now, to where we want to go.
In 2023 we will report back to the Minister about what we have heard and provide advice about the review on aspirations for the future and recommendations on the next steps.’
To assist the process a Strategic Oversight Group has been established to provide conservation knowledge and advice. The 12 members bring diverse skills and expertise in te ao Māori, conservation, law, environmental policy, tourism, science, game animal management and governance. Members of the Strategic Oversight Group were nominated by conservation boards, the Tourism Industry Association, Fish and Game, the Game Animal Council, and the Environmental Defence Society. Members are not representing their organisations but have been appointed based on their individual skills and expertise.
CONSERVATION ACT 1987
Legislation governing the conservation sector includes Marine Reserves Act 1971, Marine Mammals Protection Act 1978, Biosecurity Act 1993, Reserves Act 1977, and National Parks Act 1980. But the most significant one is the Conservation Act 1987, which established a series of institutions (DOC, the Conservation Authority, Conservation Boards and Fish and Game councils) and central planning mechanisms (Conservation General Policy, Conservation Management Strategies and Conservation Management Plans) that operate within the conservation framework. It also sets out a regime for the regulation of activities within conservation land and waters including the grant of concessions.
The Act’s definitions emphasise “preservation and protection” and maintaining “intrinsic values” rather than sustainable use (although the definitions of both preservation and protection are qualified by the term, “so far as is practicable”). The definitions also apply more broadly than to just biota and include geological features and landscapes as well as historic places (such as archaeological sites and historic buildings and structures). The importance of people being able to appreciate natural and historic areas, and enjoy them recreationally, is recognised as is the interest of future generations.
Interestingly, the more nature-focused term, ‘nature conservation’, which recognises “intrinsic values” and directs “specific regard” to “indigenous” flora and fauna is only employed twice in the Conservation Act: in relation to the functions of the Conservation Authority and selection criteria for members of Conservation Boards. This means that the term is of minimal relevance to the work of DOC and that the Conservation Authority operates under a more nature-based and indigenous-focused conservation lens than the Department.
Rather strangely for conservation legislation, the things to be preserved, protected, and maintained are termed “resources” implying that their value is in their use. At the time the Act was passed, conservationists raised concerns about the reference to resources and omission of direct reference to the protection of flora and fauna in the core definition of conservation. Some of our interviewees echoed this view.
During our interviews we found that the underlying principles of the Conservation Act, and the extent to which protection of conservation land should take priority over its economic use, remains contested. Interviewees expressed a diverse range of perspectives on what the purpose of the Conservation Act should be. For example, we were told by some that the current regime is too focused on protection, particularly when it applies to a diverse array of conservation land types and values. Instead, DOC should be empowered to apply a “broader lens” to enable greater consideration of the “social, cultural and economic context and outcomes”. But others felt that the focus of the system needed to be more strongly on “preservation”, and that despite recognition of intrinsic values by the Act, these were too often compromised to enable activities such as tourism.
Deidre Koolen-Bourke and Raewyn Peart. Conserving Nature: Conservation Reform Issues Paper. 2021. Environmental Defence Society.
Also in this issue:
- An update from our International Liason Officer – David Lawrie
- Convolvulus Hawk-moth – a new resident
- The State of the Hauraki Gulf – Raewyn Peart
Read more in the full magazine here: