Changes to Wildlife Act authorisations: Interacting with wildlife

Introduction

We have reviewed the types of activities that can be permitted under the Wildlife Act 1953 following a recent court decision.

The Wildlife Act 1953 focuses on protecting and controlling wildlife and game. If you want to interact with wildlife (ie to catch, hold, release or kill) you must have a permit from DOC.

A Court of Appeal decision in 2018 and a Supreme Court decision in 2019 relating to shark cage diving has broad implications for what can and cannot be authorised by DOC under section 53 of the Wildlife Act 1953.

Although the case was about shark cage diving for tourists, the Court of Appeal’s decision means there are some activities that DOC can no longer accept applications for, and other activities that DOC would be unlikely to authorise under the Act.

Read the decisions:

Wildlife Act provisions

Under the Wildlife Act:

it is an offence to 'hunt or kill' absolutely protected wildlife (section 63) unless there is lawful authorisation. This includes 'pursuing, disturbing, or molesting' any wildlife.
DOC can authorise a person to 'catch alive or kill' absolutely protected wildlife (section 53). The phrase 'catch alive or kill' is not defined in the Act and so the words have their normal meaning.

Findings of the Courts

The Court of Appeal:

focused on the difference in this wording and clarified that 'catch alive or kill' is not the same as 'hunt or kill'
noted that 'catch alive or kill' were deliberate actions and so an authorisation could not be granted for accidental killing, although if someone was prosecuted a defence may be available
found that other relevant matters such as public safety factors can be considered when assessing applications
emphasised that authorisations granted under the Wildlife Act must be for the purpose of protecting and/or controlling protected wildlife and game.

The Supreme Court:

Confirmed 'hunt or kill' has its own statutory meaning and provided interpretation of the following words:

Pursuing (means to intentionally chase but does not include luring or attracting or merely following an animal at a safe distance;)
Disturbing (means an action which physically or mentally agitates the protected animal to a level creating a real risk of significant harm)
Molesting (means intentionally troubling, distressing or injuring a protected animal)

What has changed for applicants?

There are some activities, such as disturbing wildlife, which in some circumstances it is now clear the Director-General does not have the jurisdiction to issue an authorisation for, even if the activity is consistent with the purpose of the Act, noting that the Supreme Court has provided definitions of disturbance.

DOC is no longer able to accept some types of applications that we previously could. In order for DOC to authorise an activity under section 53, the application must be for catch alive or kill. The decision maker will consider the application, including proposed conditions, against the purpose of the Act.

Note that if there is protected wildlife or game that is causing damage, this activity may be considered under section 54.

Examples of activities that are affected

Authorisations to capture birds for falconry are unlikely to be granted because the purpose of the activity is for sport rather than 'the protection and/or control of protected wildlife and game'.

Applications relating to accidentally killing protected wildlife during earthworks etc. will not be considered as the Courts have made it clear that there needs to be intention. An application to kill wildlife can be considered.

Authorisations for pure disturbance, such as playing bird sounds to attract gannets, to encourage them to establish breeding colonies, or even feeding birds are not something an authorisation can be granted for. DOC will no longer accept these types of applications. Whether or not these activities are an offence will depend on the risk of significant harm and the level of mental agitation it causes the protected wildlife.

Questions

See interacting with wildlife for information on applying for a Wildlife Act authorisation.

If you have a question about an existing or potential application you would like to make contact the Permissions Team in Hamilton – permissionshamilton@doc.govt.nz.