Sally McKechnie: Simpson Grierson partner unpacks wildlife-based High Court ruling

There's widespread uncertainty among developers after a Department of Conservation wildlife permit was deemed unlawful. 

The High Court in Wellington made the decision over the Transport Agency having permission to inadvertently kill protected wildlife at the Mt Messenger project site. 

The decision broadly means nothing can be killed unless it has a disease, there is overpopulation - or something similar. 

Simpson Grierson partner Sally McKechnie says some permits may now be invalid. 

"It's a case by case basis that will depend on the given permit - but we've got clients, we know we've got colleague firms around town that have clients trying to work exactly that out."

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Episode Transcript

Speaker 1 (00:00):
Law firms and the government are scrambling this after an
unexpected ruling by the High Court in Wellington in question
a permit that the NZTA had got to inadvertently kill
bats and keiweed during the build of the Mount Messenger bypass.
The court ruled that permit was unlawful. In simple terms,
nothing can be killed unless it is diseased or there

(00:23):
is over population. But that will likely impact developers and
everything from minds to roads, a whole bunch of stuff. Now,
Sally McKinney is with Simpson Greerson. She's a partner and
she's here to break it down for us. Good afternoon,
Good afternoon, right, Sally. How many projects could this potentially affect?

Speaker 2 (00:44):
We don't know exactly because there's no public list of
companies or entities that hold these permits. But if you're
a commercial or industrial infrastructure builder or developer with a
big footprint, particularly if you've got vegetation clearance, it's very
likely you've had to get a wildlife permit or you've
got one you're applying for at the moment with DOC

(01:05):
so potentially very wide.

Speaker 1 (01:07):
So they're not going out and shooting key we are there.
I mean it's just if you're clearing vegetation, some might
die in the process.

Speaker 3 (01:13):
Is that it that's most of the permits.

Speaker 2 (01:16):
Yes, it's for situations where you might inadvertently kill something.
So you do your best to clear an area. But
your experts tell you that even if you use exhaustive efforts,
there will be some lizards, for example, left behind, and
some may be killed when you then move the rocks
or move the earth or dig the whole right, So no,
one's very few of these are to do it on purpose.

Speaker 3 (01:38):
Some of them are, but very few these.

Speaker 2 (01:40):
Ones are much more inadvertent by catch, if you will,
of development.

Speaker 1 (01:45):
Okay, is this a big deal? I mean does this
mean that you know all the current permits might be invalid.

Speaker 2 (01:53):
For the permits where these these commercial questions. Yes, there's
real uncertainty about that. It's a case by case basis, Ryan,
so depend on the given permit. But we've got clients,
we know, We've got colleague firms around town who have
clients trying to work exactly that out. Now, because this
covers more than just native species. There's nine hundred native species.

(02:14):
This covers four hundred birds three species. That's one hundred
and thirty something reptiles, a whole lot of introduced species.
So wildlife is not just protected wildlife, it's any wildlife
in New Zealand that basically isn't feral or that you
would usually think you could hunt. It's a really broad
description of what wildlife is.

Speaker 1 (02:34):
It sounds like a bit of a mess. Does what
happen needs to happen? Does the government need to come
in and regulate here or change the law in some way?

Speaker 3 (02:41):
Yes, I think they do, Ryan, twenty nineteen.

Speaker 2 (02:45):
There was a big decision from the Supreme Court which
started this problem, and at that point they probably should
have changed the law. Then Doc's been trying to work
around it, and that work around on Monday, that door
got closed. So the only practical work around for developers
who don't want to kill but know that they might
and are being responsible and getting a permit, they can't
get those kind of permits now and so they can't.

Speaker 3 (03:06):
Do those works.

Speaker 1 (03:07):
So does that mean stuff's actually on hold?

Speaker 3 (03:11):
Certainly that is a real possibility.

Speaker 2 (03:13):
If you're currently getting if you currently have a works permit,
a construction permit to undertake land clearance, you would be
looking very hard at whether or not you could do
that lawfully.

Speaker 1 (03:24):
At the moment, that's not a great look when we're
trying to get all these overseas investors to come here
and do their digging, is it.

Speaker 2 (03:32):
The timing is very unfortunate. I mean, this hearing was
in September. The government wouldn't have known the judgment was
coming out this week. They can't influence that, but yes,
it came out on Monday. I mean, the government didn't
want this. The Department of Conservation have been quite pragmatically
coming up with a workaround, but the courts now said
that's not allowed under this law. And so if the

(03:52):
government wants that pragmatic process to continue, then they're going to.

Speaker 3 (03:57):
Need to change the law.

Speaker 1 (03:58):
Okay, interesting, Thank you very much for that. That's Sally mckickney.
She's a partner at Simpson Grierson. For more from Hither Duplessy,
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