An excavator is helicoptered into a remote area of the SH3 Te Ara o Te Ata: Mt Messenger Bypass project site. Photo: Supplied / Waka Kotahi / Andy Jackson
An environmental group has filed for a judicial review of a decision allowing 46 species of wildlife - including protected kiwi - to be killed during the construction of Te Ara o Te Ata / Mt Messenger bypass in Taranaki.
The Department of Conservation granted Waka Kotahi a Wildlife Act Authority for the project in December 2021.
It allows for the deaths of wildlife, including North Island brown kiwi, short-tailed and long-tailed bats and Archey's frog, over the duration of the project.
Under the Wildlife Act, DOC is able to grant permits to capture alive or kill wildlife if it furthered the purpose of the act, which was wildlife protection.
Environmental Law Initiative (ELI) legal advisor Allan Brent said it believed that permitting wildlife to be killed to facilitate road building was not in line with the act.
"We believe this authority is contrary to the Wildlife Act's protective purpose. DOC doesn't have the ability to grant authorities to kill wildlife for purposes unconnected with wildlife protection. We also view the almost complete lack of conditions attached to the authority and the use of environmental offsetting in the decision making to be unlawful," he said.
Brent said the department could have chosen a different route.
"DOC had the ability to refuse to grant the authority and Waka Kotahi would have to go about its business at its own risk. What that would mean is that Waka Kotahi would have to take all reasonable steps to avoid killing wildlife.
"One of the issues is that the permit DOC has issued to Waka Kotahi doesn't necessarily require it to do that, so the permit is actually worse that the default situation."
Brent said the ELI recognised the practical issues of building a road where wildlife was present, but believed the authority went beyond accounting for "collateral damage".
"The authority goes a little beyond that. The authority granted to Waka Kotahi allows for unconstrained killing, so it just gives authority to kill, for example, kiwi. It doesn't say that the killing is in the context of collateral damage."
Brent said the ELI did not want to bring construction sites across New Zealand to a grinding halt.
"We're just saying the very highly protective purpose of the act isn't being acknowledge and it isn't being factored into DOC decision making and DOC can use the act a hell of a lot better than it does without reviewing it."
ELI had tried to engage with DOC over the decision for close to a year with little result, Brent said.
DOC declined to comment because the case was before the courts.
In a statement, Waka Kotahi said it was committed to treading lightly on the land and had a environmental focus for the project, including pest management across 3650 hectares, restoration and landscape planting, and the protection of native species of flora and fauna.
"Work will continue on site, under the provisions of the permit we have been granted. As per standard practice during our work at Te Ara o Te Ata Mt Messenger, and indeed across all our activities nation-wide, we take all practical steps to avoid and minimise any effects on wildlife in the area."
The transport agency said it took pride that Te Ara o Te Ata was an environmental project as much as it was a roading project.
"Our work targets restoration of the mature native forest surrounding the bypass route, which has been seriously damaged by pests such as rats, stoats and possums. We aim to boost the forest's recovery from this damage and provide an environment where threatened species such as long-tailed bats and kiwi can thrive once more."
It said a recent example of the care it was taking included putting in place a 40-metre exclusion zone around a kiwi - named Tom - after he was found to be incubating an egg.
"Following an appropriate period of incubation, the egg was safely transferred to the Kiwi Burrow in Wairakei. The chick will be cared for at this specialist facility and brought back to the Mt Messenger area once it is large enough to fight off predators like stoats," Waka Kotahi said.
The judicial review was due to be heard in the High Court in Wellington next April.
