THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC V THE MINISTER OF CONSERVATION AND ORS HC WN CIV-2005-485-2419

THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC V THE MINISTER OF CONSERVATION AND ORS HC WN CIV-2005-485-2419 16 December 2005IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2005-485-2419IN THE MATTER OF Section 71 of the Wildlife Act 1953 AND IN THE MATTER OF the Declaratory Judgments Act 1908 BETWEEN THE ROYAL FOREST AND BIRD PROTECTION SOCIETY OF NEW ZEALAND INC Plaintiff AND THE MINISTER OF CONSERVATION First Defendant AND THE MINISTER OF ENERGY Second Defendant AND SOLID ENERGY NEW ZEALAND LIMITED Third Defendant Hearing: 13 December 2005 Appearances: T J Castle with T E Crossen for plaintiff B H Arthur with P T Beverley for first and second defendants H B Rennie, QC, with N S Elsmore for the third defendant Judgment: 16 December 2005 at 11.00 a.m.JUDGMENT OF MACKENZIE J[1] The Mt Augustus area of the Stockton Plateau near Westport is home to a population of land snails known as Powelliphanta Augustus. These snails are found only in that area, and it is possible, though not yet established, that they are a separate species or subspecies of Powelliphanta. The third defendant (Solid Energy) holds a coal mining licence over that area. It proposes to carry out open cast mining in the area of the snails' habitat. It proposes to carry out certain measures for the translocation of a number of snails, and of the snails' habitat, to adjacent areas. Theplaintiff seeks a declaratory judgment as to the construction of s 71 of the Wildlife Act 1953 ("the Act") in relation to those proposed measures. [2] The proceeding is brought under the Declaratory Judgments Act 1908. The plaintiff seeks an order:"declaring that the proper construction of s 71 of the Act means that the consent of the Minister of Conservation and the Minister of Energy is required before any or all of the following acts may be undertaken: a) Move absolutely protected wildlife by hand; and b) Move absolutely protected wildlife by the act of direct transferring their habitat; and c) Kill absolutely protected wildlife by the act of coal mining."[3] The jurisdiction invoked is that in s 3 of the Declaratory Judgments Act, which provides as follows:3. Declaratory orders on originating summonsWhere any person has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of any statute, or any regulation made by the Governor-General in Council under statutory authority, or any bylaw made by a local authority, or any deed, will, or document of title, or any agreement made or evidenced by writing, or any memorandum or articles of association of any company or body corporate, or any instrument prescribing the powers of any company or body corporate; or Where any person claims to have acquired any right under any such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or to be in any other manner interested in the construction or validity thereof,— such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute, regulation, bylaw, deed, will, document of title, agreement, memorandum, articles, or instrument, or of any part thereof.[4] There are two limbs to that section, so far as the right to apply is concerned. Under the first limb, application may be brought by a person who has done or desires to do any act the validity, legality, or effect of which depends on the construction or validity of a statute. That limb does not apply here, because the only person desiring to do any relevant act here is Solid Energy, and this is not its application. The plaintiff must therefore bring itself within the second limb. It must establish that it isa person interested in the construction of s 71 of the Act. If the words "in any other manner interested" were to be read eiusdem generis with the preceding words, they might be taken as implying that the type of interest which must be established is akin to a financial interest. However, that approach was held not to be appropriate inTurner v Pickering [1976] 1 NZLR 129, and in Wybrow v Chief Electoral Officer[1980] 1 NZLR 147 (CA). There, the words were said to indicate an intention to confer a very broad right to seek the Court's assistance on construction. The plaintiff claims to be interested in that its principal object is the taking of steps for the preservation and protection of the indigenous flora and fauna and natural features of New Zealand. In this case, the first and second defendants accept that the plaintiff falls within the scope of s 3. The third defendant, while submitting that the case is not one which is appropriate for a declaratory judgment, does not expressly contest the standing of the plaintiff. I hold that the plaintiff does have the necessary standing to bring this proceeding. [5] The Wildlife Act 1953 relates to the protection and control of wild animals and birds. It applies to wildlife, which means "any animal that is living in a wild state". The term "animal" is defined to include "any terrestrial or freshwater invertebrate declared to be an animal under section 7B of this Act". Section 7B declares the terrestrial and freshwater invertebrates specified in the Seventh Schedule to be animals. The Seventh Schedule includes all species of Powelliphanta. So it is clear that Powelliphanta Augustus, whether it be a separate species or not, is "wildlife". That means that the interesting question posed by A.P. Herbert, in one of his misleading cases, Cowfat v Wheedle (A.P. Herbert, Uncommon Law), namely whether snails are ferae naturae (wild animals), does not arise here. [6] Section 3 of the Act provides that all wildlife is declared to be subject to the Act and, with a number of separate categories of exceptions, to be absolutely protected throughout New Zealand. Powelliphanta does not fall within one of the exceptions, so that it is declared to be subject to the Act and to be absolutely protected throughout New Zealand. The extent of that protection, as set out in the Act, is contained in s 63(1), which provides as follows:63. Taking protected wildlife or game, etc(1) No person may, without lawful authority,— (a) hunt or kill any absolutely protected or partially protected wildlife or any game: (b) buy, sell, or otherwise dispose of, or have in his or her possession any absolutely protected or partially protected wildlife or any game or any skin, feathers, or other portion, or any egg of any absolutely protected or partially protected wildlife or of any game: (c) rob, disturb, or destroy, or have in his or her possession the nest of any absolutely protected or partially protected wildlife or of any game.[7] The term "hunt or kill" is defined in s 2 as follows:hunt or kill, in relation to any wildlife, includes the hunting, killing, taking, trapping, or capturing of any wildlife by any means; and also includes pursuing, disturbing or molesting any wildlife, taking or using a firearm, dog, or like method to hunt or kill wildlife, whether this results in killing or capturing or not; and also includes every attempt to hunt or kill wildlife and every act of assistance of any other person to hunt or kill wildlife[8] Section 2A sets out the meaning of "possession":2A. Meaning of possession(1) Subject to the provisions of subsections (2) and (3) of this section, any animal or thing shall be deemed to be in the possession of any person when that person has, alone or jointly or in association with any other person, possession of or control over the animal or thing, or possession of or control over any vessel, vehicle, container, package, or place in or on which the animal or thing is.[9] Section 71 provides as follows:71. Saving of other ActsExcept where this Act otherwise provides, nothing in this Act shall derogate from any provision of any of the Acts specified in the Schedule 9 to this Act: Provided that, except with the prior consent of the Minister of Conservation and the Minister charged with the administration of the Act under which the act or authority is performed or exercised, and subject to such conditions as those Ministers may jointly impose, no person shall be entitled to do any act or exercise any authority under any such Act in respect of any wildlife (other than unprotected wildlife) or in respect of any land forming part of a wildlife sanctuary: Provided also that nothing in any such Act shall derogate from the provisions of paragraph (f) of subsection (1) of section 39 of this Act (which relates to the powers of rangers to enter on any land).[10] One of the Acts specified in the Ninth Schedule is the Coal Mines Act 1979. Solid Energy's coal mining licence was issued under that Act. That Act has been repealed, but remains in force for the purposes of the licence. [11] The steps in the plaintiff's argument are essentially as follows: (a) Each of the following actions, namely (i) The moving of snails to a new habitat; and (ii) The moving of the snails' habitat to an adjacent location; and (iii) The removal of any remaining overburden so as to enable mining to be carried out, is an act or the exercise of an authority under the coal mining licence; (b) That an act or exercise of authority under the coal mining licence is an act or exercise of authority under the Coal Mines Act; (c) Each of these actions will necessarily mean that Solid Energy: (i) Has possession of the snails; and/or (ii) Hunts or kills the snails; (d) To have possession of or to hunt or kill the snails is an act in respect of wildlife; (e) Accordingly, the proviso to s 71 applies and the actions require the prior consent of the Minister of Conservation and the Minister of Energy, being the Minister charged with the administration of the Coal Mines Act. [12] The position of the Ministers on these issues is briefly stated by Ms Arthur as follows:(a) Solid Energy does not require authorisation under the Wildlife Act for the opencast mining of the snails' habitat (and, therefore, the incidental killing of the snails) as that lawful authority is provided bythe coal mining licence. The requirement for a further approval would be a derogation from the Coal Mines Act and contrary to s 71. (b) Solid Energy does not require authorisation under the Wildlife Act for the transfer of snail habitat (containing snails) as that activity is nothing more than the removal and placement of overburden, which is authorised by the coal mining licence. This removal of the snail habitat will be undertaken with more care than its removal would be in preparation for opencast mining but it is still likely to result in the death of some snails. The snails will be in the "possession" of Solid Energy during the removal and relocation of their habitat. To require an approval for possession would again be a derogation from the Coal Mines Act and contrary to s 71. (c) Solid Energy does require authorisation under the Wildlife Act for the possession and liberation of snails (translocation). This is because such an activity is not covered by the mining licence so requiring an approval is not a derogation. That authorisation could be obtained from the Director-General of Conservation under ss 53 or 56 of the Wildlife Act or from the Ministers of Conservation and Energy under s 71.[13] Solid Energy's position may be briefly stated as follows: (a) The matter is not an appropriate subject-matter of a declaratory judgment in that: (i) Solid Energy is authorised to carry out mining under the coal mining licence, which requires Solid Energy to minimise the effect of mining upon wildlife; it is authorised both by the licence and under the Coal Mines Act to do all acts necessary to mine; (ii) There is no issue between the defendants as to the applicable law; and (iii) The factual allegations are disputed. (b) None of the acts proposed fall within the scope of s 71 or, if they do, then consent has already been given, by virtue of the coal mining licence and the terms contained in that licence. (c) The Court should in the exercise of its discretion refuse to grant a declaration.[14] It is convenient to address all of the issues raised by all parties by examining the propositions in the plaintiff's argument, as I have summarised them. [15] The first proposition is that the actions in moving the snails, moving the habitat, and removing overburden are acts, or exercises of authority, under the Coal Mines Act. As to the first, Solid Energy proposes to translocate approximately 10% (80 to 100 snails) of the known population of Powelliphanta Augustus from the Mt Augustus area on the Stockton Plateau to two sites, one approximately 800 metres distant and one adjoining the source site. Powelliphanta Augustus is estimated to occupy an area of at least 7.4 hectares (which I will refer to, for convenience, as "the present snail area"). Solid Energy estimates that 25% of the total snail population identified to date will be unaffected by mining and will remain in situ. The two translocation sites selected are an area approximately 800 metres due north of the current habitat, and the second is adjacent to the present snail area. They are to be moved by direct transfer. Individual snails will be collected by hand and moved. The areas to which they are to be moved are assessed as having a similar habitat to that within the present snail area. [16] The second action will involve the physical removal of the vegetation and soil from the present snail area. This is to be carried out by excavation by a backacter or face shovel in one to three square metre clumps or slices of vegetation together with 0.3 to 0.5 metres of attached soil, their placement in a single layer on the deck of a vehicle, and their dumping on to areas to be rehabilitated, with the aim of recreating as far as practicable a habitat area that is the same as the present snail area. It is expected that the snails which have not been transferred by hand and which remain in the area will be moved as part of this process, and there is a risk that some snails may be killed. [17] The third action is the removal of overburden in the areas proposed to be mined which are outside the present snail area. The soil and vegetation, and any wildlife living in that vegetation, will be physically removed and placed nearby, where it can be returned to the mined area after mining operations have concluded. That removal and replacement of overburden is not proposed specifically as ameasure of protection for snails (because it is outside the known snail area) but is required by the terms of the coal mining licence. [18] It may be doubtful whether the first action, moving the snails themselves, is an act or exercise of authority under the coal mining licence. The conditions of the licence require that Solid Energy shall as far as possible prevent injury or damage to wildlife. The action is proposed for the purpose of protecting the snails. To that extent, moving the snails may be viewed as an act done under the licence. On the other hand, moving the snails is not directly a part of the mining operations, nor is it an activity which is specifically provided for in the licence. It is not appropriate for me to decide this issue. Solid Energy has applied for consent to move the snails. Consent may be sought under s 53, if the action does not come within s 71. The application was originally made under s 53, but it is now common ground between the defendants that the application should be treated as an application under s 71, to the extent that this is necessary. The fact that consent has been sought renders the question of whether the moving of the snails requires consent under s 71 academic. For that reason, I consider that it is not appropriate to deal with that question by way of declaratory judgment. I decline to make any declaration concerning the moving of the snails. [19] The other two actions, moving the habitat and removing the overburden from other areas, are both, in my view, acts done under the licence. Removal of overburden is a necessary part of an open cast mining operation, and is specifically authorised by the licence, subject to conditions as to how this is to be done. That applies to removal of overburden from the entire mining area, including the snail area. The fact that differential treatment is proposed of the overburden in the snail area from that in the remaining area does not alter the fact that, in both cases, what is involved is the removal of overburden to enable open cast mining to take place. That is an act done under the licence. [20] The next issue then is whether each of those acts, which are carried out under the terms of the coal mining licence, is an act under the Coal Mines Act. I do not consider that s 71 requires a nice distinction to be made between acts done under a licence or consent issued under one of the relevant Acts, and acts done under apower contained in the Act itself. The distinction is not a meaningful one in this context. Nor is the distinction a clear-cut one in this case. Some of the conditions of the licence are in the Fourth Schedule to the Coal Mines Act and some of them are in the licence itself. For the purposes of s 71, I consider that acts carried out under a licence issued by the Coal Mines Act are acts done under that Act, or the exercise of an authority under the Act. [21] The next proposition is that the acts to which I have referred will necessarily mean that Solid Energy has possession of the snails; and/or hunts or kills the snails, within the meaning of the Act. I have already held that it is not appropriate to make a declaration in respect of the moving of the snails. I accordingly confine my consideration on this issue to translocation of habitat, and the general removal of overburden. This issue is one which must necessarily involve questions of fact. It seems likely, if not inevitable, that there will be snails actually on the vegetation at the time that it is removed from the present snail area, and possible that there will be snails on vegetation in the overburden outside the known area. It seems possible that some snails may be accidentally killed in the removal operation. It also seems possible that the removal of the habitat may affect the snails in such a way that existing snails living in the material which is moved may die. It also seems possible that the removal of the habitat may affect the ability of the population of snails to breed, and sustain itself, on the new habitat, so that the population will be adversely affected. All of those are questions of fact. Some of those issues are hypothetical, in the sense that it is not known whether or not they will occur if the habitat is disturbed by its removal in the manner proposed. Mr Castle submits that Solid Energy will, as a matter of law, have "possession" of the snails which are in the material which is moved. He submits that the removal of the material will "disturb" the snails living there and so fall within the definition of the term "hunt or kill". He also submits that Solid Energy will "kill" any snails which die in the removal operation. A further issue, of whether Solid Energy could be said to "kill" any snails which may subsequently die through inability to survive in the new location, may arise. [22] I do not consider that it is appropriate to attempt to answer the question of what is required for an activity to come within the definition of "possession", or of "hunt or kill", in the abstract, and on the basis of what are necessarily hypotheticalfacts. Having possession, or hunting or killing, may constitute an offence under s 63. Whether the circumstances are such as to constitute an offence under the Act necessarily involves a fact-specific consideration. The question would arise in a prosecution. It would not be appropriate to embark upon the making of a declaration which might affect any future prosecution. Accordingly, I do not consider that it is appropriate to make a declaration which requires a decision, in these proceedings, of whether the actions which Solid Energy proposes will fall within the definition of "possession" or "hunts or kills". I consider that I should, in considering the pure questions of statutory interpretation, do so having regard only to those facts which are not in dispute, a course which I adopted in South East Resources 2001 Ltd v Chief Executive, Ministry of Fisheries [2004] NZAR 715, to which Mr Castle referred. I approach the remaining steps in the plaintiff's argument in that way, and consider whether a meaningful declaration can be made, without requiring any decision on facts which are not yet in issue, and which are disputed. [23] The next step in the plaintiff's argument is that to have possession of, or to hunt or kill, the snails is an act in respect of wildlife. It is entirely feasible to address that question on the hypothesis, but without any factual decision to the effect, that the actions may constitute having possession of or hunting or killing the snails. Ms Arthur submits that removal of overburden (even with the intention of retaining it intact) is not an act in respect of wildlife, but an act in respect of mining. She submits that to require further approval as a result of removing overburden would derogate from the Coal Mines Act. I accept the submission that removal of overburden, both in respect of the present snail area and other areas, is an act in respect of mining, in the sense that it is an act carried out under the mining licence, and accordingly under the Act. That is the essence of my finding on the earlier issue. However, I do not accept that an act in respect of mining, in that sense, may not also be an act in respect of wildlife. It is implicit in the structure of s 71 that it may be both, since the proviso applies only if what is involved is an act of mining, in the sense of being an act under the mining licence, and is also an act in respect of wildlife. [24] So, it is necessary to consider what is meant by the expression "an act in respect of any wildlife". In the context of the Act, I consider that that expressionmust mean an act of the kind which is otherwise prohibited by the Act. In essence, that means that it must be an act of the type prohibited by s 63. If an act is not one prohibited by s 63, then no authority is, in general, required for it. If a particular act, performed by a person who was not subject to one of the Acts specified in s 71, did not constitute a breach of s 63, then no authority would be necessary. It would be illogical to interpret s 71 so as to require consent of the two Ministers, if that identical act was carried out by a person who was subject to one of those Acts. Conversely, if an act under one of the Acts specified would constitute an offence under s 63, unless lawful authority were obtained, then it would not be in conformity with the scheme and purpose of the Act to hold that lawful authority could not be obtained under s 71, because the act was not an act in respect of wildlife. [25] Ms Arthur submits that the conclusion I have just reached would derogate from the Coal Mines Act, contrary to s 71. I do not consider that that conclusion does derogate from the Coal Mines Act. The Coal Mines Act authorises the issuing of mining licences, and the imposition of conditions on a mining licence such as those which are present here, for the protection of wildlife. It is commonplace that the holder of a licence under one Act is required, when carrying on an activity in accordance with that licence, also to comply with the provisions of other Acts. That does not mean that the other Acts which must be complied with derogate from the Act under which the licence is issued. Section 71 does not demonstrate an intention to exempt persons acting under the Coal Mines Act from such of the requirements of the Wildlife Act as would otherwise be applicable. It plainly does not do so, in that it requires consent to any act which, though permitted under the Coal Mines Act, would otherwise be prohibited under the Wildlife Act. The provision that nothing in the Wildlife Act shall derogate from the other Acts must be read in the light of the proviso. The requirement for consent where both Acts are involved is not a derogation from the other Acts. [26] There is one further aspect which needs to be addressed. Section 63 provides that the various actions concerned are prohibited "without lawful authority". Solid Energy submits that it has lawful authority, by virtue of the mining licence, and the conditions which deal with the protection of wildlife, the reinstatement ofoverburden, and such matters. There are essentially two questions which need to be addressed in relation to that issue: (a) Whether the mining licence itself constitutes "lawful authority" for the purposes of s 63, so that no consent under s 71 is required; and (b) Whether the conditions in the mining licence which deal with the protection of wildlife constitute a consent of the relevant Ministers under s 71. [27] As to the first question, I do not consider that the licence itself constitutes lawful authority for a breach of s 63. As I have already noted, an obligation by a licence holder to comply with other statutes in carrying out activities under the licence is commonplace. I do not consider that the present circumstances constitute an exception. The licence itself recognises that activities under the licence may have an effect on wildlife, and contains specific conditions directed towards minimising those effects. But I do not consider that the licence is to be construed as a code, replacing the provisions of the Wildlife Act and any other relevant legislation, so far as the protection of wildlife, flora and the environment are concerned. The imposition of conditions with specific requirements to act in certain ways is more consistent, in my view, with those conditions being additional to other statutory obligations than in place of them. [28] As to the second question, Mr Rennie submits that no form of consent is required, and submits that the licence, when viewed in the light of the conditions which address the protection of wildlife, may properly be regarded as a consent. I do not consider that the licence or its conditions constitute consent for the purposes of s 71. The licence is issued under delegated authority from the Minister of Energy. There is no evidence that the Minister of Conservation participated in the issue of the licence. That is fatal to the submission. However, I prefer not to base my decision only on that absence of evidence. I consider that, even if officials with delegated authority from the Minister of Conservation had participated in the issue of the licence, or in the formulation of the conditions, the licence or its conditions would not constitute consent under s 71. If they were so regarded, they would necessarily constitute consent to any action otherwise in breach of the Act, so long as theconditions of the licence were met. I do not consider that the licence is properly to be construed as having that effect. The licence in this case was issued in 1990.Powelliphanta Augustus was apparently not discovered until about 1996. To hold that the conditions of the licence constituted consent under s 71 would mean that any act of hunting or killing the snails in the course of the mining activity had the consent of the relevant Ministers, even although their existence was unknown. I do not consider that the requirement for consent in s 71 should be read down in that way. [29] For these reasons, I consider that neither the Coal Mines Act, nor the coal mining licence, constitute lawful authority for any act otherwise in breach of s 63 of the Act in respect of Powelliphanta; nor do the terms of the licence constitute consent pursuant to s 71 to any act otherwise in breach of s 63. [30] These findings enable me to make a declaration which may be useful to the parties in determining their legal positions. I do not consider that I should, in the exercise of my discretion, decline to make such a declaration. There will be a declaration as follows: Consent of the Minister of Conservation and the Minister of Energy under s 71 of the Wildlife Act 1953 is required by Solid Energy before Solid Energy is entitled to do any act or exercise any authority under Coal Mining Licence 37 150 issued under the Coal Mines Act 1979 if that act or exercise of authority will have the effect that Solid Energy will: (a) hunt or kill (as that term is defined in s 2 of the Wildlife Act) or (b) have in its possession (as that term is defined in s 2A of that Act) any animal of a species of Powelliphanta. [31] The parties may submit memoranda as to costs.[32] There is one final matter I should address. Shortly before the hearing, the plaintiff filed an affidavit by Ms E.M. Sage in support of the proceeding. Solid Energy objected to the use of that affidavit. Because of the approach which I have taken to issues of fact, I have not found it necessary to refer to that affidavit, so that a decision on the objection would be academic. It is unnecessary for me to rule on the admissibility of the affidavit. "A D MacKenzie J"SolicitorsT E Crossen, Christchurch, for plaintiff Crown Law Office, Wellington, for first and second defendants Anderson Lloyd Caudwell, Christchurch, for third defendant