Wildlife (Authorisations) Amendment Bill

I move, That the Wildlife (Authorisations) Amendment Bill be now read a second time.

Firstly, I’d like to acknowledge and thank the members for their insightful feedback and time under urgency as we progress with this crucial fix to the Wildlife Act. I also note the spirits of the predecessors of those various parties who endorsed the understanding of the Wildlife Act that this bill proposes to return to, whether or not that was from Norman Kirk to Bill Rowling, David Lange, Helen Clark, and of course, Jacinda Ardern and Chris Hipkins, amongst others: Eugenie Sage, Te Ururoa Flavell, Dame Tariana Turia, and Matua Tā Pita Sharples, who all endorsed the approach that we are now proposing to return to.

The Wildlife Act is an important piece of legislation. It’s not perfect, it needs some mahi ASAP, but for the time being it provides the protection needed to ensure the persistence of our precious indigenous species. The Act protects our wildlife, and it also recognises the need to regulate human interactions with them so that our actions do not negatively affect protected species in the long run.

The High Court decision has impacted on the ability to issue section 53 authorities. As I mentioned earlier, the High Court recently decided that it was unlawful to authorise the killing of protected wildlife under section 53 of that Act unless there’s a direct link between that killing and wildlife protection. This decision has wide-ranging impacts that could delay or stop many important projects at the heart of our environmental protection, such as TBfree—bovine tuberculosis—and also other broader, larger projects around our economy. Infrastructure development projects, future projects that would require authorisation under section 53 of the Act, such as wind farms, power line maintenance, housing development, roads, tourism activities, and many others that are important for our society, our communities, jobs, and the economy. Other conservation work, like pest control and research, could also be impacted.

The bill makes specific, targeted changes to fix this problem—to fix this challenge. The Government’s intent for the bill is to restore people’s confidence that they can carry out their activities lawfully, and to enable DOC - Te Papa Atawhai to regulate incidental harm to wildlife so that activities do not cause permanent harm to the viability of protected wildlife.

The bill validates section 53 authorities, those that are existing. There are between 100 and maybe up to over 500 active authorities that could be impacted by this decision. These authority holders are impacted through no fault of their own. These people need certainty that they are not breaking the law. This bill validates these existing authorities by inserting a new schedule to the Wildlife Act to provide this certainty. The validation will generally apply to all authorisations granted under section 53 of the Wildlife Act before 5 March 2025 when the High Court made its decision.

These validations would mean that it would not be an offence for holders of the authorisation to incidentally kill wildlife as part of their mahi, provided that they undertake that mahi in line with the authorisation and any conditions in it. The bill still requires that making and authorising wildlife permits be consistent with protecting wildlife. That is the purpose of the Act. Permitholders must still take reasonable steps to avoid, minimise, and mitigate harm to wildlife.

The bill does not green-light development projects. I want to be clear, the changes that are proposed in this legislation will not green-light major construction projects that are a threat to our endangered wildlife and precious taonga species, and the protective purpose of this Act remains the same. Some development or infrastructure projects may pose threats to wildlife, as may many other human interactions with wildlife. Having section 53 authorisations helps to manage those risks and ensure that conservation efforts are integrated into the planning and execution of such projects.

The changes being made to this bill will ensure that our treasured species continue to be protected, even in cases when we know that some harm may occur. While this might initially seem contradictory to the goal of protecting wildlife, these authorisations are designed with tailored safeguards. The changes proposed to section 53 will only allow incidental harm under strict conditions so that the actions do not negatively affect protected species in the long run.

The bill restores what was understood to be the status quo before the court’s decision. The bill does not limit the existing powers under the Act to expand on how they are exercised. Instead, the bill provides clarity on the types of conditions that the director-general may impose as part of an authority for incidental killing. These include measures to avoid making a species more threatened or extinct, measures to avoid, minimise, or mitigate harm to protected animals. These measures are consistent with the types of conditions that the director-general has previously set for authorisations to incidentally kill wildlife over 70 years.

Prior to the court’s decision, DOC - Te Papa Atawhai regularly provided wildlife permits that authorise incidental killing, so long as permitholders met the conditions in their permit. These conditions were designed to maintain the viability of affected wildlife populations and protect individual animals as much as possible. Through these conditions, authority holders could ensure their projects proceeded responsibly, while supporting the long-term viability of wildlife populations.

We should be able to continue with projects that provide essential benefits to the lives of New Zealanders without compromising our indigenous species. This balance is key in the protection and conservation of wildlife populations and key to protecting the world that our mokopuna deserve.

There’s more work to be done on this legislation. It’s been articulated very well in interjections even to my kōrero by Matua Minita Jones. These changes are targeted to address the specific issues read by the court decision. They address a symptom of a bigger issue, and might I recount that in the previous Government—and majority Government at that—they were unable to carry out and expedite the changes, but we will do this in due course.

The Wildlife Act is old, it’s lost coherence over time, and that is a key reason why we are sitting here today having to make these urgent amendments to ensure that our treasured species and taonga continue to be protected. Not like that Caulerpa I saw up at Omakiwi and Rāwhiti last week—no, that’s gone.

Hon Shane Jones: Labour done it—Labour did the Caulerpa.

Hon TAMA POTAKA: This 70-year-old Act needs replacing, Matua. But along with 70 years of amendments, there have been 70 years of establishing processes and systems.

I’m not proposing to make these fundamental changes to the Act in an ad hoc way now. This would risk making the Act even less coherent, less effective, and more difficult to work with. A full review remains a priority. We will crack on with that very shortly, but it will be a little bit complex and take time. As the Opposition knows, they took three years and couldn’t make a decision. In the meantime, this bill is a first step. It fixes the current issue, the current raruraru we have, while maintaining appropriate safeguards to protect wildlife. On that note, I commend this bill to the House.

The question is that the motion be agreed to.

Thank you, Mr Speaker. I began my contribution in the first reading of this bill, saying that I had some hope because Minister Potaka talked about the fact that he is still committed to, and still prioritises—I think the word was that he used—a full review of the Wildlife Act 1953. Then, if we have heard correctly on this side of the House, Minister Jones then said he wants to do away with Act in its entirety.

Now, I have way less hope than I did about half an hour ago that this is ever going to get done, and I’ll tell you why, because when we were in Government, my colleague the Hon Willow-Jean Prime had requested Te Papa Atawhai - Department of Conservation (DOC) to undertake a review of the Wildlife Act 1953. It was in the Labour Party manifesto where we committed to do that, and she undertook that. Now, all this Minister had to do, all this Government had to do, was to pick up that work and progress it. They are halfway through the term, and what does Minister Potaka say? Very shortly they will commence work on reviewing the Wildlife Act, which then says to us, on this side of the House, that they haven’t even started—they haven’t even started.

This Minister then goes on to say that he doesn’t want to make changes in an ad hoc way to this piece of legislation, it is old, and it is outdated, and what is he doing today? A knee-jerk reaction to the High Court ruling of just two months ago, which makes this bill even less coherent and less potentially relevant. It definitely dilutes the purpose of this bill.

Now, generally at a second reading speech, we would be feeding back to the House, to Parliament, what submitters have said, what the select committee process was, what did we hear from the officials, how do we genuinely work across the House to finesse a piece of legislation. We can’t do any of that today, because there has been no select committee process. As my colleague the Hon Rachel Brooking outlined in her contribution at the first reading speech just about half an hour ago, this could have taken a week or two. There is no urgency to this. The High Court ruling was just in March this year. There are a number of permits that are potentially facing legal uncertainty as a result. We accept that on the side of the House, but there was no urgency to push this bill through all stages with no select committee process at all, and the Minister has not been able to give us any clear rationale as to what that emergency was that is putting us in this position.

So why are we here today? In that decision of March this year, the High Court set aside an authority that DOC had granted under section 53 of the Act to Waka Kotahi. That was for, as we’ve mentioned previously, the Mt Messenger Bypass. It was a project in Taranaki that passed through areas of native habitat and proposed extensive ecological mitigation and offsetting. Now, as part of that process, various protected species were proposed to be caught and to be relocated. Authority was also sought to kill protected wildlife—

Steve Abel: 46 species.

Hon PRIYANCA RADHAKRISHNAN: 46 species. Unlimited amounts from memory, as well, of 46 species of protected wildlife during that construction period. This was in the context of them saying that it wasn’t possible to trap and to relocate every individual of that protected species.

Anyway, this was then challenged. What is the actual crux of the problem definition that brings us here today? DOC approached applications for wildlife permits under section 53 by looking at whether the projects as a whole and whether the viability of a population was either maintained or was improved through the actions or through some other unrelated action, whether it was a mitigation or something else. They looked at it at a population level. Now, the High Court found that section 53 of the Wildlife Act, that authority, or the way that it was prescribed, permitted, given, or granted was, in a sense, illegal overreach, and that a section 53 permit is unlawful and cannot purport to authorise the killing of protected wildlife if the primary purpose of that killing doesn’t have a direct nexus to the purpose of the Act, and so that was the problem. The High Court’s ruling or finding was, basically, that the permit that was granted under section 53, in that case and potentially in these other cases, goes against the intention or the purpose of the legislation.

So, then, the Government of the day has a choice to make. Do we then do this properly? Do we redraft? Do we review and rewrite the Wildlife Act so that, actually, then the permits that are granted, whether through section 53 or section 71—the latter was not found to be unlawful in this case. Do we rewrite legislation to actually work in a way that it promotes the principal purpose of the Act, which is to promote wildlife and to regulate human interaction?

To Minister Jones’ point, nobody on this side is standing up to say that we don’t need economic development. What we are saying is that those who then build roads or mine, in the case of Minister Jones’ example, need to take reasonable steps to protect biodiversity. I don’t think that’s an unreasonable ask. So we could have changed legislation so that the activity, the behaviour, is in line with the purpose of the Act. But, oh no! This Government doesn’t want to do the hard yards; they just want to tinker around the edges and make it now lawful to do what the High Court said was unlawful. That’s the fix that this Government is—

Tim Costley: You did nothing!

Hon PRIYANCA RADHAKRISHNAN: We did nothing? The High Court ruling was in March this year. So you might just want to, if you’re heckling from across the cross benches, maybe actually do some reading first.

So back to the purpose of the Act. Now, section 71 of the Act allows for things like roads to be built. Permits can be granted in circumstances where the activity is otherwise subject to one of the Acts that’s listed in schedule 9, which lists a whole bunch of Acts, legislation, that is exempted. It’s an exemptions regime, basically.

One of the questions that I will get to in the committee stage of this bill, which we will get to very shortly no doubt, is to ask the Minister why some of these other options weren’t considered. Why is it just tinkering around the edges to make what the High Court said was unlawful now lawful? Why is that the best fix that this Government can come up with?

To go back to this, now, as I said previously, at my second reading speech, usually we would be talking about what submitters have said. We don’t have that. The best that we have is press releases by those who are concerned by this piece of legislation. I have shared some of what the World Wildlife Fund has talked about in terms of this change, both the process of lawmaking, which goes against the very democracy that Minister Jones seems to be so invested in, because it doesn’t allow for New Zealanders to have a say. Internationally, we are regarded to have such a transparent process where every New Zealander can have a say on every piece of legislation that they care about. It’s lauded internationally, but not today, because we’ve got significant pieces of legislation, twice, sitting here for over 30 hours to consider significant pieces of legislation that are being rushed through, rammed through, in urgency for absolutely no reason at all.

The other point that I wanted to make in the time that I have remaining is the fact that those who have, I will say, submitted, because what they have done is to put out press releases about this. They have pointed out that New Zealand has the highest species extinction rate in the world, with more than 4,000 of our native species at risk or threatened with extinction. Not only is, now, DOC woefully underfunded to be able to take on this work, but I would really like to know from the conservation Minister what he is doing in terms of improving biodiversity in New Zealand, because I haven’t seen anything. There’s no Cabinet paper for this piece of legislation that we could find publicly or proactively released. As I mentioned previously, there’s no RIS—there’s no regulatory impact statement. I haven’t seen a single Cabinet paper that this Minister has taken or considered that actually improves biodiversity or extends, for example, marine protection, even though he said that 30 by 30 was just aspirational. We’ve seen all of the targets towards meeting our climate change goals diluted, watered down, as well. So is this Minister’s legacy going to be making it easier to kill kiwi?

Steve Abel.

Hon Shane Jones: Oh, a calm, measured speech, no doubt!

Thank you. I appreciate that. It will be a calm, measured speech because I genuinely think that the Government is making a big mistake here. It’s actually tying up all sorts of processes in blue and yellow and black tape.

Andy Foster: Just copying now.

STEVE ABEL: Pardon me? Let’s be clear about what the decision that has precipitated this knee-jerk piece of legislation was. Justice McHerron highlighted that section 53 permits can only be issued if their purpose is to protect wildlife. In a previous case, the Court of Appeal suggested that one such purpose could be culling of some individuals to prevent the spread of a disease to a wider population. That’s obviously protective, right? The other obvious instance would be using baits or poisons to kill predatory species for the purpose of protecting wildlife but you may incidentally kill some of those native species in the process. But the overall purpose—

Hon Shane Jones: What about people?

STEVE ABEL: I’m getting to that, Minister. The Environmental Law Initiative challenged the decision to grant—[Interruption] I’ll give a calm and collected speech if there’s less interruption, Mr Speaker. It challenged the decision to grant the New Zealand Transport Agency Waka Kotahi authority to kill 46 species of wildlife, including North Island brown kiwi, short-tailed and long-tailed bats, Archey’s frog—the Minister’s favourite frog—as it constructed the Mt Messenger Bypass in north Taranaki. The advocacy group argued that the Department of Conservation (DOC) was only able to grant permits to capture or kill wildlife if it furthered the purpose of the Act, which is protection of wildlife.

The judge found that he did not accept the Crown’s submission that the legislation can authorise the killing of wildlife for any purpose merely if the viability of populations of wildlife that any animals killed belonged to are otherwise being maintained or improved through some other related or unrelated action. Basically, he’s saying that DOC cannot give a licence to kill wildlife—i.e., DOC doesn’t have the power to override the purpose of the Wildlife Act, which is to protect wildlife.

But get this, here’s the nub of it: the problem is not that there will be incidental deaths of wildlife in the building of motorways—and one question that I’ve got for the Minister when he gets up in the chair at some point is, how is it this Act has been in place since 1953 and we haven’t built any roads since then? How is it?

Andy Foster: We’ve built lots of roads.

STEVE ABEL: Exactly. So how is it that a correct interpretation of this law means that you can’t build roads? It’s a serious question—it’s a serious question.

Tim Costley: You’re smarter than that, Steve.

STEVE ABEL: I am smarter than that, and I want to say that the Environmental Law Initiative said—[Interruption] Listen to this; you might learn something here—“There was never any credible risk of developers being prosecuted for incidental killing of wildlife, provided all reasonable steps were taken to prevent that.” This is the Environmental Law Initiative. These “foreigners” that the Minister accuses of being “shadowy”—they’re saying that there was never any credible risk of developers being prosecuted, provided all reasonable steps were taken to prevent that. In that sense, this was not a question of whether development projects could go ahead or not; it was about making sure all reasonable steps are taken to protect what we have left of our wildlife. That is what I would think most New Zealanders would expect.

Just to be clear, in the Wildlife Act, at section 68AB, “Mens rea and strict liability offences”, in cases where it is alleged that anything required to be done—i.e., to not kill wildlife—was not done, the defendant took all reasonable steps to ensure that it was done. That is a defence in the Wildlife Act as it stands: in any case where it is alleged that anything prohibited was done, that the defendant took all reasonable steps to ensure that it was not done.

In other words, according to the Environmental Law Initiative, who brought this case and won this case, the problem was not that you couldn’t build roads and have incidental killings, the problem was that DOC was issuing permits to kill—issuing permits to override the Wildlife Act. They should not have been issuing those permits.

Grant McCallum: And, therefore, you couldn’t build the road.

STEVE ABEL: That’s right.

Grant McCallum: And, therefore, you couldn’t build the road.

STEVE ABEL: No.

Grant McCallum: Yes.

ASSISTANT SPEAKER (Teanau Tuiono): Could I ask members not to have conversations across the House.

Hon Todd McClay: But it’s more interesting than the speech.

ASSISTANT SPEAKER (Teanau Tuiono): That may be so, but if you want to do that, I’ll invite you to step outside.

STEVE ABEL: I’m actually trying to cut to the chase, in a sense, Mr Speaker, because I genuinely think that this legislation is a mess, and it doesn’t solve the problem that the Government thinks it’s solving. It’s actually creating more of a complexity, because now, what is the Department of Conservation to do? For example, if I’m to plough my field, and perhaps I’m going to incidentally kill some skinks, do I need to get a permit to do that now? It’s a question—it’s a serious question.

Let us remember the purpose of the Wildlife Act, because we are a nation that has these extraordinary indigenous species unique to our part of the world, the endemic ones, and 4,000 of them are threatened and endangered. That situation is not getting any better. We set up things like the Wildlife Act, we set up agencies like the Department of Conservation, and their purpose is to protect wildlife. This legislation is saying that their purpose is now to issue permits for developers to kill wildlife. It’s absolutely extraordinary.

Andy Foster: Not deliberately. Just accidentally, occasionally.

STEVE ABEL: Yeah, and currently under the Wildlife Act, if you take all reasonable steps and you incidentally kill wildlife, you can’t be prosecuted. It’s a defence against prosecution.

So that’s why this legislation is actually a massive waste of time—a massive waste of time of the House. Had there been some consultation on it—some external consultation—perhaps the Government would have found out that, actually, the best solution to the problem was to just stop the Department of Conservation issuing these licences to kill, which were found to be unlawful.

All this legislation does is it retrospectively validates existing authorities to kill wildlife under section 53, and it provides authorities granted under section 53 are not unlawful, when, in fact, the court found that they were unlawful, because it doesn’t make any sense that the Department of Conservation has the right to tell a developer that they can break the law. This is about building a motorway through a rainforest.

Now, in the broader sense, as my colleague from Te Pāti Māori spoke about earlier, you can somewhat judge a society by its hierarchy of values in terms of what it determines to protect and what it is prepared to destroy. [Interruption] Pardon me?

ASSISTANT SPEAKER (Teanau Tuiono): Keep the interjections down, please. Just keep them rare and infrequent, and, at 9 o’clock at night, witty.

STEVE ABEL: You can judge as a society by what it chooses to protect and what it’s prepared to destroy. We as a society have consistently, over the course of many generations, chosen to destroy rainforest. We have now 6 percent of our lowland rainforest left. Most of it’s been cleared for pasture; 40 percent of our nation is pasture. But also to this day—and Mt Messenger is an example of it—this rainforest was going to be destroyed and the 46 species impacted to build a road through a rainforest.

Now, the important thing here is that we actually need the forest more than we need the road—[Interruption] You can sigh, Grant, but it is actually science, my friend. Do you realise that rainforests are the cause of the amount of oxygen in the planetary atmosphere that makes the Earth habitable for Homo sapiens? You cannot replant ancient rainforest. You cannot replace extinct species. We are in a mass extinction event on the planet right now because of the mind-set of extraction and destruction of nature and contamination of water and pollution of the atmosphere, and we have to change the mind-set.

That is why we need things like the Conservation Act, the Wildlife Act, and the Department of Conservation to be properly funded and supported, and we need mechanisms for making sure that our means of living and surviving and thriving on this planet is consistent with every other species on this planet living and thriving and surviving. The attitude of this Government, to declare war on nature, to go rip, shit, and bust and destroy rainforest or destroy ecology for the benefit of Australian miners for coal, for gold, for whatever—

Grant McCallum: Jobs.

STEVE ABEL: —is so backward. There are no jobs on a dead planet, Mr McCallum.

Thank you, Mr Speaker. It was interesting to hear a soliloquy there about the hierarchy of what we prioritise. I would have appreciated hearing the member Steve Abel elucidate more where he prioritises humans getting the infrastructure we need to have a country where we can get around, visit our friends and family, where we can go to work, and where we can get things that we need. Yes, from out of the ground; yes, from out of the air; yes, we need to produce stuff to pay for our way in the world. It’s not just some Gaia utopia where humans can’t go about producing for ourselves. That’s what we have to do.

Bringing it back to this bill: the Wildlife Act, which this bill is amending, is 70 years old. In a tangled fleet of old legislation, this is a standout. It is quite old. So perhaps it was unsurprising that with such an old piece of legislation, issues like this have sprung up. But we are here tonight because the Minister has brought an amendment to the House that will go about remedying this situation that has occurred—and I remind the House—in March this year. It is not a thing that has been intended by the bill. It may have been what the court read into the description of the bill, but this House is going in another direction.

We want to be able to allow developers and builders and engineers—people trying to get out there and create a country of infrastructure—to have the confidence that this Government has their back, that they can go out and apply for consents, they can get people employed, and they can do some stuff to build this country up. The case that started this, yes, is still happening under another section of the Act—section 71. So there has been a change in that. So Mt Messenger is still going ahead with the extreme costs that went into getting it to this point. I’m glad to hear that it is still going ahead.

The Wildlife Act, it is designed to protect our valued species. It is there because New Zealanders—as has been elucidated—value our biodiversity. We value what we have in our country. That hasn’t always been the case. There’s been a time in our history when it wasn’t valued highly enough, but New Zealanders have taken that into account. We’ve gone through this House and we’ve gone through processes to value it. The court made a decision that sits at odds with what New Zealanders want from their country—a country where they can afford to pay for conservation because they have an economy. That’s what we’re putting back in place tonight. Thank you, Mr Speaker.

Thanks, Mr Speaker. Look, we are here, as we’ve heard, because of a High Court decision. That decision was about the Wildlife Act, which is a very important Act. I think we’ve all said that it’s very, very important we look after and protect native wildlife in New Zealand, and that Act has been happily helping to protect wildlife since 1953. Possibly one of the surprising things is that there hasn’t been a challenge to it in this light before this—if it was a problem—but what the ruling did is it upset the long-held understanding.

It has been 70-odd years that the understanding has been that the director-general could issue authorisations for the accidental, the incidental—not the deliberate. We’ve heard about 46 species. Nobody is going out there trying to kill 46 species. They’re not even going out there trying to kill one species. What they’re trying to do is avoid that. They’re trying to put conditions in place to avoid that. But, just in case it happens, the authorisations by the director-general are about protecting those people who are doing that work from the liability of that accident or incident. So this bill is really, essentially, about putting back the understanding that has been in place for 70 years. It’s not about going through a big select committee process, etc. It’s not doing something radical; it is just saying we want to go back to what we understood the situation to be since 1953—since 1953.

Tākuta Ferris, in his speech in the first reading, told us that the road builders don’t care. Well, I don’t know, Tākuta, how many of these projects you’ve been to. I’ve been to this one and many others, and what I can tell you is that the people who are working on this project take great pride. There are a lot of conditions. There’s a lot of work going on to protect—to protect—indigenous wildlife and the indigenous environment and to make it better. That is what they’re trying to do. They’re not trying to wreck the place; they’re trying to make it better. That is what the authorisation allows them to do—to say, “We want to build this road. We want to try to make the environment better around there as well.” But, sometimes, something might go wrong, and they simply need the protection against that.

The Environmental Law Initiative won this case, and we’ve heard the reasons for that. Basically, what the court decided—they looked at the Supreme Court and they said, “Well, the Supreme Court has said—and we have to agree with that because we’re the court below that—that it doesn’t matter that section 53 at the moment doesn’t put any real conditions on that.” The problem is that they read it in the context of the Act, and they said that the Act actually says it’s all about protection—it’s not about anything else; it’s about protection. If you do anything which is not about protection of species and about individual creatures, you are ultra vires. They use the words “unlawful” and “ultra vires”.

There is a constitutional point that I wanted to make, and that is that this is a classic case of a court making a decision and then Parliament saying, “Actually, we’ve got a problem with that decision, and we need to fix it.” For those who are first-term MPs, we had the pleasure—and I understand it’s the first time this has been done; some of the MPs who have been here longer said it had never been done before—of being invited to the Supreme Court last year. We met with the heads of each of the levels—District Court, High Court, Court of Appeal, and Supreme Court—and our Chief Judge was quite specific—it was in the context of the Resource Management Act, but quite specific—in saying that, the role of Parliament is to make law, and the role of the courts is to interpret the law. If Parliament doesn’t like the interpretation—and we can all think of plenty of really important areas where we might not like the interpretation—it is Parliament’s job to be able to fix that by passing new legislation so the court then needs to give effect to a new piece of legislation. So I think there is a very, very important constitutional issue here, and that is that it is Parliament’s job as the sovereign of the country to fix things that need to be fixed.

Wildlife protection is very important. It’s very important to all New Zealanders. It is very important to me. It is also important for its intrinsic sake. I used to give—and would if I was invited to give them again—speeches about what we’ve done to our indigenous biodiversity in this country. We have a very, very high level of endemism—that is, species which occur nowhere else on the planet. That is because these islands have been separate from any other area for something like 70 million or 80 million years. That means they have evolved in isolation. There have been no mammals, other than a few bats—and Dana tells me she doesn’t like bats particularly—that makes our indigenous wildlife unique. But since human beings have arrived here—and what I used to say is that, if you take that 80 million - odd years as a 24-hour day, human beings have been here for, guess how long, one second. One second of that 24-hour day, and we’ve done an enormous amount of damage since then. I think New Zealanders understand that. I think New Zealanders really, really care for wildlife, and New Zealanders really, really want to look after wildlife. This bill doesn’t change that at all. There are condition which have got to be wrapped around it. It still says that we’ve got to look after that native wildlife, but it does provide protections against something going wrong, which, from time to time, it will.

There are two ways in which the existing Wildlife Act allows the director-general to give some dispensation, some authorisations: section 53, and we’ve also heard about section 71. So let’s have a look at section 71 and say, “Why couldn’t you just rely on section 71?” Well, the problem is that section 71 says you can only give effect to, effectively, about 16 different Acts. In the case of Mt Messenger, they actually went back and they did a retrospective consent. Do you know who did the retrospective consent? Who did the retrospective consent? The Hon Willow-Jean Prime was the Minister of Conservation, and the Hon David Parker was the Minister of Transport. They authorised this particular road, which is the subject of this case, to go ahead under section 71. They could do that because the Wildlife Act includes, in its Schedule, a number of different Acts, one of which is the Government Roading Powers Act. So they were able to use that. But think of all the times, all the projects, all the things that we would like to see happen in this country, that cannot rely on those 16 Acts.

I’ll just give you a little bit of a list before I sit down. Think about building a road by a local authority or by a developer. That’s not covered by any of those. Think about laying a pipe—not covered. Think about creating a subdivision—not covered. Think about building a dam—not covered, unless it’s under the Public Works Act. Think about building and operating a windfarm. My colleague Cameron Luxton said exactly that when we were considering the Offshore Renewable Energy Bill—very important stuff. Think about operating a farm, clearing vegetation, and pest control. I’ve done pest control for quite a number of years, and you might catch hundreds of rats but you might occasionally catch a protected species in there. You didn’t want to do that, but that would fall foul of this, potentially. Think about predator-proof fences and seeing birds which have flown into those predator-proof fences and killed themselves. Do they fall foul of the Act as this it? So it is important.

Why is this urgent? Because of a whole lot of action that is going on, a whole lot of projects that are going on around this country at the moment, which are then put in limbo—projects which would be going on around this country and are then put in limbo—and it is important that we fix this, give them certainty, and, as the Minister has said, there will be further legislation, undoubtedly, to come to clear all of this up to modernise the legislation, and I look forward to that. I commend this bill to the House.

Tēnā koe e te Pīka. E tū ana ahau ki te tuku i ētahi tāpiritanga whakaaro ki ngā kōrero kua hora ki mua ki te aroaro o tēnei Whare i tēnei pō mō tēnei o ngā pire, te Pire Wildlife (Authorisations) Amendment Bill.

[I stand to offer some additional thoughts to the comments that have been spread before this House tonight regarding this bill, the Wildlife (Authorisations) Amendment Bill.]

As I think about the title of the bill, it strikes me that the authorisations being given are to kill protected wildlife. It seems a little bit of an oxymoron but it is what it is. Whilst many of the issues have been vigorously debated, I want to cut to what is ultimately one of the major problems with all the issues we’re dealing with, and that is that you have a Government who believe in deeming themselves above the courts. Case in point: there’s a ruling by the High Court that says, “You’re out of line. You’re outside the law.”, and so the Government just moved to override that and do something they want to do and just continue to do it.

Today, we had the pay equity bill rushed through as quickly as you could possibly do it—just wiping out active cases before the courts. We had the takutai moana saga last year, with iwi and hapū who have been fighting to get their rights recognised in their own rohe moana. They won those cases, and then this Government decided they didn’t like that ruling so they went over the top of it. So the consistent theme is that we have actions from a Government who deem themselves to be above the courts of the country.

Grant McCallum: We are above the courts.

TĀKUTA FERRIS: This guy doesn’t know what sovereignty means—he’s got no idea what sovereignty means.

So that’s the problem, right? That’s the problem, and we keep coming back here and having this circular debate that goes nowhere, and that side of the House just rushes laws through. No public opportunity to comment. No public opportunity to input. No public opportunity to interrogate. No public opportunity for democracy. I truly believe that that’s the root cause of most of the rubbish this House is dealing with now.

So how can you fix that? Well, it seems there aren’t a whole lot of levers available to this House other than an election that’s coming up. So I hope that the people at home are paying tight attention to what’s going on, very close attention, because it is truly undemocratic.

Hon Member: One person, one vote. All equal.

TĀKUTA FERRIS: Oh, there they go. So here we are debating whether or not it’s OK for the Minister of Conservation, of Te Papa Atawhai and all of the good work that Te Papa Atawhai and its leaders have done over the last 30 or 40 years to claw out the space for Māori views, Māori ways of being, the importance of the relationship between people—we’re talking a lot about people over here—and the natural environment, and here we have a Minister making a call to just cut straight through all of the guts of that work. I’m talking about 40-odd years of work, a lot of which was championed by my late uncle Piri Sciascia in times when these conversations weren’t had, weren’t cared about, weren’t ever entertained. And here we are today, 40-odd years later, with the understanding that we have about te ao Māori, the place of the natural world, the place of people in it, and we’re dealing with this tonight. It is truly astounding, it is truly shameful, and it will be that Minister’s legacy. Kia ora.

I rise to express staunch opposition to this Wildlife (Authorisations) Amendment Bill. It legalises destruction of wildlife, it erodes protection, and it circumvents accountability. It betrays the values that we all claim to uphold. It’s ironic that this bill is introduced under urgency the same week that the public is called to consult on Action for nature: Implementing New Zealand’s Biodiversity Strategy.

Well, now we can recognise the worst predators on nature. With over 4,300 species now at risk or threatened with extinction, Aotearoa’s taonga species need protection, not a licence to kill. We know what triggered this bill: the Mt Messenger Bypass, an infrastructure project bulldozing its way through ecologically sensitive land. I’ve walked among the beautiful kahikatea and swamp maire that will be destroyed for less than 10 minutes time saving. This bypass is a huge dollar cost blowout from 2016. It’s gone from $90 million to $280 million. It’s now more than $365 million. That’s a million dollars a day for a year. It’s now become the catalyst for much wider cost implications if you count the value of things beyond the dollar. It creates much greater damage through triggering this law change.

The Environmental Law Initiative, made up of Kiwi lawyers, took Waka Kotahi to the High Court and they found that Department of Conservation had acted unlawfully. But those same good lawyers say the existing law gives protection from prosecution, as my colleague Steve Abel said, if all reasonable steps are taken to avoid harm. It is a myth that this would halt renewable energy projects. It is a myth that predator control would be threatened. I have probably killed more rats and stoats than anybody else in this House and fed them to the eels.

Dana Kirkpatrick: It’s a big call, Celia.

ASSISTANT SPEAKER (Teanau Tuiono): It’s a big call—you can talk about it afterwards, but if we could keep the remarks down so we can hear Celia Wade-Brown.

CELIA WADE-BROWN: This Government has not strengthened protection; it’s done the opposite. It’s rewritten the rules to make that breach legal, defensible, and it has made it retrospective. So what are we really trading here? We’re trading kiwi for concrete; we’re trading long-tail bats for a few minutes saved in travel times, and we’re trading integrity for expediency.

The Mt Messenger Bypass alone put at risk the critically endangered Archey’s frog, the North Island brown kiwi and the pekapeka—all of them, Freddie or Frida alike—were promised protection under the law and they can now be killed under licence. Minister Potaka said in his introduction to Action for Nature: “We need to focus our minds on protecting this taonga now and into the future.” This wildlife amendment bill is short-sighted. It’s myopic, not focused. No Minister is asking the public to volunteer money for the billions of dollars on roading. No Minister is asking the community to volunteer money for military helicopters, but coalition partners constantly suggest that the Department of Conservation puts out the begging bowl, and now they give them a whole new administrative burden.

This is not protection of wildlife; it is protecting the powerful and releasing them from a duty of care. The Green Party will vote against this bill.

Thank you, Mr Speaker. Speaking as somebody who has for many years on our family farm worked very hard to improve the biodiversity and remove pests, I get really frustrated. One of the reasons that we’re able to do that is because we’ve managed to run an economic, profitable business, and one of the key things about that being able to happen is, and I want to talk about it, and that’s a road, OK. And, no, it’s not the Brynderwyns; that was for another—no, that’s another day. No, it’s actually about the Dome Valley, because 100 years ago this year, a bloke called Gordon Coates, a former Prime Minister of this country, opened that road, 100 years ago today, and that was what connected Northland to the rest of the country. Guess what! Unless we make these changes, the road that we want to build next year to replace that road, a new road through the Dome Valley, will struggle to be built. So that is why it is so vital that we make these changes, so that the people of the North can have economic opportunities and get ahead and have jobs. I commend this bill to the House.

Thank you, Mr Speaker, for an opportunity to speak at this second reading. There’s quite a lot of noise in the House this evening but I’m not criticising that at all; in fact, I’m delighted that so many of my colleagues from this side of the House, and the other side of the House, want to be the member who has killed the most—what was it that you were killing? Rats? Mustelids? Let’s go with mustelids. And they’ve killed the most rats. Great work, colleagues. Well done. Now, they, of course, are not indigenous species, and it turns out that they aren’t protected by the Wildlife Act, these rats, because the Wildlife Act is a curious Act. We’re going to traverse the ins and outs of this bill later, in the committee stage. As many members have said, it’s an old Act, and old doesn’t mean bad, but in this case it does mean convoluted and difficult to follow, which, of course, was why, when Willow-Jean Prime was the Minister of Conservation, she announced the work on the changes, and that was in the Labour Party’s manifesto as well.

We accept, in the Labour Party, that the Act that we’re dealing with, passed in an important year, needs some attention. What the Act does—it’s curious in terms of the fact that it doesn’t really have very many purpose clauses or anything like that that starts it up. The scheme of the Act is that at section 3, wildlife is absolutely protected, but then there are a whole lot of exceptions to that statement that work through in various different schedules. I’m not going to go through that, except to say that we get to this point where the wildlife that is protected is important indigenous wildlife, and, of course, some of them are mammals, in the form of pekapeka.

We know and accept that the Act needs changing and needs reform. And we’ve heard from the Minister of Conservation that the Act needs some mahi—that’s what he said. We ask that Minister to do that work, because we’re now at least halfway through this term of Government, and it seems, from what he is suggesting, that it’s still something that he intends to do at some point.

We encourage that Minister to do this work, because the protection of this wildlife is important, and he is in a coalition Government with another Minister who has already spoken on this bill, being Shane Jones, who told us that he just wants to get rid of the whole Act itself. He said, “Oh, just rely on the RMA.” And what does this Government want to do with the Resource Management Act (RMA)? Well, we’re not quite sure, because when we were in Government, we got rid of it and replaced it with the Spatial Planning Act and the Natural and Built Environment Act. This Government came in and repealed those changes and brought us back to the RMA, and we all know that the RMA does not do well enough in protecting our environment. It also does not do well enough in having efficient processes. There are two problems with the RMA, and both need to be addressed.

What this Government did was repeal those changes so we’re back to the RMA, and then they introduced the fast track, the fast track that is nothing to do with speed but is all to do with overriding environmental protections. I mention this because it goes to the cynical and dangerous approach that this Government has to the environment and anything to do with the environment. We’ve seen that with cuts to the funding for the Department of Conservation. We’ve seen that with funding cuts to the Ministry for the Environment, for all community groups, the ending of Jobs for Nature. Yes, that was due to end anyway, but in Labour’s manifesto it was going to continue, and we haven’t seen anything about the continuation of that.

Then we’ve had changes to the waste levy. So the waste levy can now be spent on anything to do with the environment. The relevance of waste reduction and waste minimisation does not have to be there; there doesn’t have to be any nexus with waste. We’ve seen this Government tell regional councils who might want to implement some up-to-date rules and plans, “No, you’re not allowed to go ahead and notify that plan that might do that, because we’re going to change the national policy statement on fresh water at some point.”—who knows when?

This is the context of, now, this bill coming before us and why it is passing through all stages in urgency. We have no regulatory impact statement, we have no opportunity to ask officials questions. We will, of course, ask the Minister questions, but we do not have the opportunity to ask officials questions. We know that there is a clause in the bill specifically about the impact—well, I’ll ask the Minister questions—of the Environmental Law Initiative’s case and what happens with that, but we’ve not seen, in the documents that I’ve seen—there’s been no examination of the shark case, and that’s where the Supreme Court was really talking about the importance of decisions made under the Wildlife Act—it has to be consistent with protecting wildlife, which is what, of course, the Act is all about. It’s because of that shark case and the Supreme Court decision, that, then, the High Court, obviously being subservient to the Supreme Court, made its decision on this specific case that we’re now seeing the legislation for. The legislation does not appear to make any changes to section 71. So we also know that we have this departmental disclosure document that talks about there being no consultation as well.

What we’ve been saying on the Labour Party side of things is we know that there are problems with this bill, and we want a commitment from this Government that we will go ahead and do that reform, in some sort of good faith to the environment, to make it workable. We know—we’ve heard from the other side as well—that the Ministers who made the decision under the Wildlife Act were Labour Party Ministers, and that was what was appealed. The problem is that this is an all-stages urgency process. So we could go to select committee for a week, we could even go to select committee over a weekend. Having some opportunity for the thoughtful people who are involved in the environment sector, the thoughtful people who are involved in the infrastructure sector—they can tell us how the wording could be improved and what some of the issues are that might arise from it. I will be asking questions in the committee stage about how these new sections will work with the prosecution section because I’m not sure that they’re consistent; in fact, I think a lot of the clauses are in conflict with each other. That process could happen. We could have it go to a select committee quickly and come back. It doesn’t have to take the six months of the normal procedures. But there needs to be something that is not all-stages urgency.

We also will need to discuss in the committee stage the role of section 71 versus the role of section 53 and the amendments in this bill to section 53. So section 71 allows—and we’ve heard from the New Zealand First member—two Ministers, normally the conservation Minister and the one that’s doing the development; so, in the case that was before the High Court, that was the Minister for Conservation and the Minister for Transport, because it was a road. For projects that come under different Acts that are listed in the Schedule—and the Schedule is old and most of those Acts are out of date, but the roading one isn’t. So that is why section 71 can be used, but it’s cumbersome because, of course, it requires two Ministers to make a decision, and that takes, normally, quite a long time, whereas section 53 is one that the director-general can make. So what will the role of section 71 be if section 53 is still used? I’ll come back to that in the committee stage.

I was chatting with a developer the other day, who was building 130 new houses—much-needed houses for us—in Ōtaki. They have been held up for more than half a year because the wildlife permit—that was always issued by the Department of Conservation and always used to be fine, and successive Governments, Labour and National, have supported—could now not be done because of a legal decision which needed to be—hence we bring this bill to change it. The kicker is that they went and consulted a wildlife expert to say these are just your Janet and John ordinary skinks; they’re not protected. But they all said, “How can we do the best thing for them?” And they said, “Move them in May, because with the breeding cycles and mating habits, this is the safest time of year to move them.” But, for more than six months, they have been held up because they can’t get the wildlife permit that they need. So not only are we missing out on houses but we’re missing out on the best course of action for the animals that will be impacted.

These people are trying to do the right thing for our community. They are trying to do the right thing for our wildlife. But we just need to reset the settings to what they always were and what they were always understood to be. So I support this bill because it’s sensible. Yes, it’s allowing people like this, who want to build houses for us, to go and do the best thing for animals, but it’s doing something even better in that it’s providing houses for mums and dads and Kiwi kids right across this country. This isn’t something we should be scared of. I know, over the other side, they only have one setting, which is “No.”, but, actually, we can do some sensible things there, and one sensible thing would be commending this bill to the House.

Thank you, Mr Speaker. I’d like to just start by traversing a little bit the problem that has occurred through the court case and just talk to that—because I do want to put on record from the Labour Party the challenges that have appeared as a result of the court case ruling in March—and then talk to some of the concerns that we have, including around the process.

As people will be aware, there was a court case that found that permits that had been issued were potentially unlawful. The particular thing that was found was that the killing of wildlife needed to have a nexus or a connection with the protection for wildlife that is found in the Act, and so there was that inconsistency found in the application of the Wildlife Act. What that has meant is that there is some uncertainty—and we accept that, in the Labour Party. There is some legal uncertainty for the permitholders, especially because a number of those permits have been granted for a long period of time, and this has been what has been in operation for around 20 years or so. So we accept that that point is a real legal point that has occurred, but what we don’t accept on this side of the House is that we can’t take a short period of time to examine this in great detail in a select committee process. That is the point that we have some real concerns around.

There are a number of good legal experts out there who work in this area, but there are also a lot of organisations that work in this area that I would like to be able to ask questions of. I mentioned a constituent of mine in my previous speech, who I often bump into because he flies around New Zealand from Nelson, doing really important work surveying where lizards are prior to roadworks and other operations taking place. He’s exactly the kind of person I would like to be able to sit down with and actually talk to about this bill, but we don’t have the opportunity to do that. He is the actual expert on this, but we don’t get to hear from him. We don’t get to ask some questions around how we could make the bill workable, because he’s a person who works, obviously, to identify where lizards are so that prior to work happening, mitigating steps can be taken to protect them. He has the expertise, but he also has a strong understanding of how the permit process works and that interaction with the likes of the New Zealand Transport Agency.

I’m frustrated that I’m not, as a member of Parliament, able to make a good decision here in the House, because that is what the public of New Zealand expects us to do. They expect us to make good decisions based on evidence. They don’t expect us to turn up here with one day’s notice on an urgent bill that’s actually an important matter. Protecting our wildlife, our native species, is an important matter. It speaks to who we are as New Zealanders.

Having the Government members getting up and passionately giving their short calls about particular projects—that’s fine. But you actually have to think about what could be the unintended consequences of the way that the bill has been drafted—and we will get to that in the committee stage.

The other point I wanted to note is the retrospective part of this. Whenever we are making legislation that has retroactive application, we should take more care. We should give more scrutiny to it, and that is a principle that is important in this House. When we are looking at decisions that have been previously made and then we take urgent action to change that, we actually need to take more time to do due diligence on it, and that’s a principle that I’m concerned this House is abandoning tonight.

We will get the opportunity during the committee stage to interrogate the Minister, but, again, that does not satisfy us in terms of being able to hear from experts and from stakeholders, and to hear from the officials who have drafted this legislation and their intent. From the way that the clauses have been written, we can’t engage with the Parliamentary Counsel Office on that, for example. I think that that is an error, and so I do not commend this bill to the House.

Thank you, Mr Speaker. It’s an honour to speak in support of the Wildlife (Authorisations) Amendment Bill. In my electorate of Banks Peninsula, we’re currently still in a state of emergency in parts of the electorate, and I think that that really highlights the fact that, actually, climate impact is here right now. We have to be able to do everything that we can to mitigate and protect against that. One of the things we need to do is adapt: build houses in different places, we need to be able to build wind farms and solar farms, and other ways of producing energy. When we have processes that block the way, we need to clear them out. This is a pragmatic way of setting back the rules to the way they were expected for the last 20-odd years or more. I commend the bill to the House.

This is not my area of specialty, but I have been listening to the debate and I have yet to hear, from any of the contributions, any kind of credible justification for the fact that this bill is being pushed through under urgency.

I have to mention the fact that pretty much all of the time of the House today has been spent debating a momentous piece of legislation, the theft by the Government of a massive amount of wealth of this country that is owed to women workers and has been taken from those people through this Government’s destruction of years of work that has been done on pay equity. It’s an absolute scandal that that was pushed through this House under urgency, a real travesty of democracy. Now, you can’t make the same claim about this modest Wildlife (Authorisations) Amendment Bill, but nevertheless, why—why—is this being pushed through under urgency? What possible justification is there? Goodness knows we spend enough time in this Parliament fixing the mistakes caused by rushing law in an ill-considered way through the legislative process, and yet here we are doing it again. This Government is addicted to pushing through legislation under urgency with no reason.

I was the transport Minister for part of the time that the Mt Messenger road was in gestation, and it was a cause of great frustration to me at the time that we weren’t able to make more progress more quickly. After my time, David Parker, as transport Minister, was the one who signed off with the conservation Minister the permit that allowed the incidental killing of wildlife that was a necessary corollary of the construction of that road. That is the story, really, that underpins this debate tonight. Labour is supporting the bill, albeit with reservations, and fundamentally about the process—

Hon Member: No, you’re not.

Hon PHIL TWYFORD: Oh, aren’t we? OK, sorry—I misspoke; I misspoke. We have fundamental reservations about the process associated with this bill. There has been no consultation. It’s clear that, because it’s going through under urgency, there will be no real scrutiny, no expert opinion, and no opportunity for the public to have their say on this bill.

Putting aside the rhetoric in the debate tonight, the competing claims of who has killed the most rodents, who is the most pro-development—the constant sort of enthusing from the Government benches that they are the most pro-development, they want to see the most houses built, the most roads built—there is a basic truth that underpins this bill, and that is: we do have to be able to build infrastructure, we do have to be able to build roads, we do have to be able to build houses and industrial development, and from time to time, that will have a negative impact on our environment. When that infrastructure does actually cause habitat destruction, where it cannot be built without the incidental killing of wildlife, there needs to be an evidence-based and a considered decision-making process so that the right trade-offs can be made.

I don’t think New Zealanders want to see development at all costs; New Zealanders prize our natural environment, they want to see it protected; they don’t want to see, whether it’s a frog or a bat or any other native species, the unnecessary loss of our biodiversity. What this bill does is return to the status quo before the court case that stopped the progress on Mt Messenger and the permit that was issued there. That’s all very well, but we need to know that this mechanism will work, that it won’t actually end up creating more legal uncertainty, and because of the very poor, rushed process associated with this bill, it’s very hard to have that confidence.

The reason why we’re doing it under urgency is because we just can’t wait any more. We don’t want development to be in limbo. This country’s been in limbo for too long. And if all else fails, I’ll go to the bill where it actually says, “The Bill ensures that activities, such as development and infrastructure projects, and conservation work, such as pest control, do not cause permanent harm to the viability of protected species.” I commend this bill to the House.

Bill read a second time.

This bill is set down for committee stage immediately. I declare the House in committee for the consideration of the Wildlife (Authorisations) Amendment Bill.

In Committee

Part 1 Amendments about authorisations