Wildlife Act authorisations

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Neil Fitzgerald
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Wildlife Act authorisations

Postby Neil Fitzgerald » Wed Aug 21, 2019 4:39 pm

The court fights between paua fishers and the shark diving tour operator on Stewart island has led to reconsideration of what DOC can permit under the Wildlife Act. The link below gives a summary. My summary of the summary is that it appears to be a complete mess and could be detrimental to a lot of wildlife conservation and research.

https://www.doc.govt.nz/get-involved/ap ... risations/

As we all know, under the Act:
  • It is an offence to ‘hunt or kill’ without an authorisation (and this includes 'pursuing, disturbing, or molesting' any wildlife)
  • DOC can authorise a person to ‘catch alive or kill’

Now it turns out that 'catch alive or kill' is not the same as 'hunt or kill'
So, 'disturbing' wildlife is one of the things that can't be done and not one of the things that can be authorised
Also, authoristaions must be for the purpose of protecting and/or controlling wildlife
And the court has determined that 'catch alive or kill' is a deliberate act
Meaning that accidental killing can not be authorised (yay, stop all fishing, stop all road projects!?)

So, you can deliberately kill wildlife (with authorisation), as long as it is for protecting and/or controlling wildlife (not human-centric funsies), and you don't disturb any wildlife in the process, and you don't do it accidentally.
It is never OK to disturb protected wildlife. It's an offence and you can't get authorisation to do it.
Am I being silly?
How about this as an example of silly:
..playing bird sounds to attract gannets, to encourage them to establish breeding colonies. The Court’s decision means this is now seen as ‘disturbing’ the wildlife under the Wildlife Act and is not something a permit can be granted for.

So, one of the key tools that has been used to recover seabirds is out, because it disturbs the birds!
Decoys to attract gannets/shags? Doubt it.
Chumming for seabirds is obviously out. Better hope you only attract unprotected fish if you do.
Pull down that bird feeder in your garden.

I can't wait to see this being enforced on dog-walkers at the beach and roading authorities wanting to chop down bat roosts to make way for SH1!

There is still an appeal with the Supreme Court, and one way or another the Act is obviously going to need to be updated, but at the moment this is how things are.
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Re: Wildlife Act authorisations

Postby andrewcrossland » Wed Aug 21, 2019 8:23 pm

There's a lot to unpack here........

Some interesting stuff around clarification of what DoC can and can't do, and some useful implications for that balance between human-centred needs (such as recreation that causes disturbance) and wildlife needs.

Sometimes although something is technically illegal the courts would be reluctant to venture into the world of the ridiculous and post a prosecution. There's a big difference between what some policy analyst at DoC offers as an interpretation and perhaps is taken onboard as official or unofficial "policy" and what experienced Departmental lawyers would want to take to court. What I mean is, if people all over the country are not prosecuted for feeding bread to threatened gulls and to ducks and coots; steer a jet boat up a river and disturb a colony of nesting terns in the process; ride a quad bike across a farm paddock and disturb some nesting SIPO, kayak across a bay and push roosting shags off their posts; gut a fish on a jetty and throw the waste to some gulls; etc, then its pretty unlikely isn't it that DoC (despite what they've written) would proceed to actually prosecute someone for using a bird feeder, throwing chum to sea birds, etc??
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Neil Fitzgerald
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Re: Wildlife Act authorisations

Postby Neil Fitzgerald » Wed Aug 21, 2019 9:19 pm

Permissions office confirmed for me that chumming for birds (unless to catch or kill them) cannot be authorized.
Could this be the end of Albatross Encounter?
It was also confirmed that feeding gulls or walking in the bush can not be authorised (yes, I asked). However, they do of course say, as Andrew does, it is unlikely that there would be any enforcement action and, if there was, the Wildlife Act may provide a defense. I'm hoping to find out what the defense might be.
An interesting point which I'd missed, is that you can disturb wildlife as long as that disturbance was part of a permitted activity (such as catching for banding).
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Re: Wildlife Act authorisations

Postby Jim_j » Wed Aug 21, 2019 10:31 pm

Sorry Neil I'm being a bit lazy and not reading it myself - but one of the key things I see in your summary and example is "disturbing wildlife"
Is there a definition of this?

I personally don't see how putting out a bird feeder or a sound system is disturbing wildlife - unless you disturbed wildlife in the act of putting them out?

I presume there is also a definition of what "disturbing" in terms of wildlife actually means?

If you go out in the bush say with the intent to observe wildlife and in the course of observing a bird it sees you and flys away you are in trouble? - BUT - if you are tramping say and not intending to see wildlife but a bird sees you and flys away you are ok because it was not your intent to observe it?

Cheers Jim
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Re: Wildlife Act authorisations

Postby Neil Fitzgerald » Thu Aug 22, 2019 8:53 am

From the permissions office, who I must say were very quick and helpful in replying to me when they must have a massive backlog to deal with.
"‘Disturbing’ wildlife is to cause the wildlife to take a path that it otherwise wouldn’t have taken."
Attracting a protected wild to your bird feeder is essentially the same as attracting a protected wild bird to a boat with food.

As currently interpreted, it doesn't matter if you deliberately or accidentally disturb a bird. Both are an offence, and you can only get authorization to deliberately disturb, not to do it accidentally.
The law is an a.... While no one is likely to be prosecuted for having a bird feeder or disturbing a bird on a track, I can't help but think good people may feel uncomfortable knowing they are technically criminals.
There have been cases in USA (where there are also laws against disturbing wildlife) of photographers being fined for photographing deer from a roadside because the deer lifted it's head to look toward the person before returning to feed.
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Re: Wildlife Act authorisations

Postby Jim_j » Thu Aug 22, 2019 11:05 am

Thanks Neil.
Ha - In theory then if I plant a kowhai tree (instead of putting out a bird feeder) - then I would be breaking the law as well!! - bit of a set back for all those revegetation projects...

Sounds like some serious revision is required....

Cheers
Jim
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Re: Wildlife Act authorisations

Postby Jim_j » Thu Aug 22, 2019 11:08 am

The other point here as well of course is who can prove what course the animal would have taken? - I suspect the animal concerned is not going to be able to provide evidence....
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Re: Wildlife Act authorisations

Postby Hypno » Thu Aug 22, 2019 2:18 pm

Jim_j wrote:The other point here as well of course is who can prove what course the animal would have taken? - I suspect the animal concerned is not going to be able to provide evidence....
Be like trying prove the if the tourist fed the kea his biscuit or if the Kea stole his biscuit.
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Re: Wildlife Act authorisations

Postby Jan » Fri Aug 23, 2019 8:00 pm

I understand you can only be charged with disturbing a protected native species of bird if you knew it was there and intended to do it anyway. That lets 4WD drivers off destroying colonies of nesting riverbed birds if they were ignorant of their presence. Clearing tracks and felling bush in the breeding season must often destroy nests of protected birds, but if no-one knew they were there, well, woop-do-woo, away we goo....
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Re: Wildlife Act authorisations

Postby Jim_j » Fri Aug 23, 2019 9:21 pm

I had a bit of a read of the Courts decision Jan, and what Neil has said, and I THINK it appears ignorance is no excuse.

I feel sorry for DoC here this determination seems over the top - typical legal over-interpretation overruling a lot of common sense!!

I do find it a bit hard to understand the suggestion by DoC that using sound systems to attract sea birds is against the wildlife act - the new determination makes it clear that the DG of DoC can approve "disturances" to protected species if it is for their protection - attracting sea birds to areas outside there current range is for their long-tem protection - no different than translocating Kiwi - just a different way to do it.

However I agree it's clear that using fish guts etc and even taped calls to attract birds for "entertainment" (i.e. for bird people to see & photograph them) is against the Act (based on this ruling). Although I guess it would be ok if it was for their "protection" (eg moving birds for translocation, distribution surveys etc)
I don't actuaLLY disagree with this - I've seen a lot of dodgy practice with taped calls in the breeding season - however as Andrew has pointed out hard to see DoC trying (or even wanting) to enforce something that is already common practise.

The fact is though that predators/climate change are the key threats to NZ species - time spent on anything else is wasting resources!!

Cheers
Jim

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