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Round, David J --- "The lion, the nurse and the weasel: law and policy concerning endangered species in New Zealand" [2011] NZJlEnvLaw 6; (2011) 15 NZJEL 147

Last Updated: 30 January 2023

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The Lion, the Nurse and the Weasel: Law and Policy concerning Endangered Species in New Zealand

David J Round*

Not I, some child, born in a marvellous year Will learn the trick of standing upright here¹

Current law and administration, under the Wildlife Act and Conser- vation Act, are clearly inadequate to prevent the extinction of many native vertebrates and invertebrates. Change is necessary, but the Australian and United States model often proposed as desirable would not work satisfactorily here — nor does it there — for inevitable reasons, including (but not limited to) the unavoidable fact that there will never be nearly enough public money available in future to ensure its success. It might be prudent, therefore, to allow more private involvement in native species recovery projects, although that approach too has its limitations and dangers. The Department of Conservation is reluctant to allow much private involvement now, and some of its reasons may well be good ones. The entire debate is fraught with perplexing cross-currents. No clear simple answer seems to exist, but the deaths of species are dreadful indications that our world is dying.

*LLB (Hons) (Cantuar), Lecturer in Natural Resource Law, University of Canterbury; former long­time chair of the Christchurch branch of the Native Forests Action Council (NFAC) and of the North Canterbury branch of the Royal Forest and Bird Protection Society; former national president and long­time executive member of Federated Mountain Clubs Inc. (FMC); member of the Canterbury/Aoraki Conservation Board.

1 Allen Curnow Attitudes for a New Zealand Poet (iii), The skeleton of the Great Moa in the CanterburyMuseum, Christchurch, first published in Sailing or Drowning (Progressive Publishing Sy, Wellington, 1943).

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1. THE ENCHANTED AVIARY

Within thy dim cathedral aisles, More exquisite than marble piles, Enraptured tuis chant their psalms And mokos chime in holy calms ...²

New Zealand’s native plants and animals, as all New Zealanders know, evolved in the almost complete absence of mammals. The sea held whales, dolphins and seals, but the land’s only native mammals were several small species of bat. New Zealand was instead dominated by birds. Our avifauna has been described as:³

... the most extraordinary, indeed unbelievable, assemblage of birds. Nothing like it was found anywhere else on earth ... [I]n New Zealand, birds occupied all of the major ecological niches occupied by mammals elsewhere. One hundred and sixty­four species have been recorded, a very large number of which were flightless.

To a biologist, the most extraordinary thing about the evolutionary radiation of birds in New Zealand is its ecological breadth. Nowhere else on earth did birds evolve to be the ecological equivalents of giraffes, kangaroos, sheep, striped possums, long­beaked echidnas and tigers. In a sense, New Zealand is a completely different experiment in evolution to the rest of the world. It shows us what the world might have looked like if mammals as well as dinosaurs had become extinct 65 million years ago, leaving the birds to inherit the globe.

The birds included a dozen species of moa, of which the largest, Dinornis maximus, was over three metres in height and weighed up to 250 kilograms. There was the world’s largest eagle, the marvellous huia whose sexes had differently shaped bills, the mysterious adzebill, and many others. The consequences of their disappearance still reverberate; only now, for example, is it being recognised that the seabirds which for aeons flocked landward in countless numbers to their burrows and nests top­dressed the land, much of it of no great inherent fertility, with inestimable quantities of fertilising guano.

Birds were not, though, the biota’s only remarkable aspect. Six species of frogs, all of an ancient family, may also have been a dominant life form until the arrival of humans and their mammal companions. Several species of tuatara (Sphenodon spp), now surviving only on offshore islands, are among the most

2. WS Elliott Beautiful Zealandia in From Zealandia. A Book of Verse (John M Watkins, London, 1925).
3. Dr Tim Flannery The Future Eaters (Reed, 1994).

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primitive of all living reptiles, having evolved before the dinosaurs. Until very recently, fewer than a dozen species of lizards — skinks and geckos — were recognised, but the number is now recognised to be well over 60, and further species continue to be identified.⁴ There are many curiosities and marvels among the invertebrates, and native plants also abound with strangeness and beauty.

2. BEAUTY SWEPT AWAY

Always to islanders danger

Is what comes over the sea ...⁵

But this utterly wonderful and different world, as we all know,⁶ was doomed from the moment when man and his mammalian companions set foot here — first the Māori, with the dog and the Polynesian rat, the kiore, and then the European, with his rats and mice and cats, rabbits and hares, deer, pigs and goats, possums and mustelids.⁷ Some of these ate the birds and their chicks and eggs, the lizards and frogs and insects; others drove plants to rarity or extinction, and with them the creatures that depended on them. Trout and salmon ate and competed with the native fish; introduced birds competed with surviving natives, and both new birds and fish very possibly spread diseases among them just as deadly as were measles and colds to early Māori. The Māori “fires of Tamatea” had destroyed between a third and a half of the land’s original forest cover, and the pioneers’ axes, ploughs, drains and fire prepared the land for their domesticated plants and animals. “The passing of the forest”, as William Pember Reeves called it in a once well­known poem,⁸ has long imparted a melancholy strain to our national life and thought and verse:

4. Kerry­Jayne Wilson The Flight of the Huia (Canterbury University Press, 2004) 17. 5 Curnow Landfall In Unknown Seas in Sailing or Drowning, above n 1.
   6. The story has been told a hundred times. As well as Dr Flannery’s The Future Eaters and Kerry­Jayne Wilson’s The Flight of the Huia, recent accounts include Carolyn King’s Immigrant Killers, Introduced Predators and the Conservation of Birds in New Zealand (Oxford University Press, 1984) and Exotic Intruders, The Introduction of Plants and Animals into New Zealand (Heinemann, 1983).
   7. The weasel, stoat and ferret, all members of the Mustelidae, the weasel family; all savage killers, introduced originally to control numbers of the previously introduced rabbits, but which all at once began to wreak destruction on native birds.
   8. Copies of Reeves’ verse have long been uncommon, but The Passing of the Forest was reproduced in the introduction to Laing and Blackwell’s Plants of New Zealand (Whitcombe and Tombs, 1st ed 1906, 7th rev ed 1964), for long the standard amateur work of reference.

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Scan The blackened forest ruined in a night, The sylvan Parthenon that God will plan

But builds not twice. Ah, bitter price to pay For man’s dominion — beauty swept away!

The memory of that cruel necessity, the price that had to be paid for our fields and homesteads — indeed for all our way of life — forms, along with other historical circumstances (our assumed superiority to our larrikin neighbours across the Tasman, for example), the foundation of that spirit of conscientiousness which still imparts a high­minded, if not necessarily realistic, tone to much New Zealand public discourse.

The terrible nature of the price for our prosperity can be gauged by some figures concerning native birds. The figures cannot be precise, even when there is not the remotest possibility (as there may be with a species but recently considered extinct) that it may be rediscovered alive. Scientists may also discover the fossil or sub­fossil remains of completely new (although undoubtedly extinct) species. Scientists may also reclassify extinct species so that what were once two species are now considered but sub­species or varieties of one; or they may do the opposite. Numbers are nevertheless unlikely to change greatly.⁹

In the last 2000 years, 40 per cent of the terrestrial and freshwater bird species native to the New Zealand mainland have become extinct. Nearly all were endemic — that is to say, they were found nowhere else in the world. About 33 bird species became extinct after Polynesian settlement. Another 12 species and a sub­species have become extinct since 1800.¹⁰ (That figure of 12 includes species such as the huia whose populations and range had been much reduced by pre­European hunting, where European hunting might perhaps be considered merely the coup de grȃce.) Seventeen species more now survive only on offshore islands. These figures do not include another 13 now­extinct bird species endemic to the Chatham Islands.

But the tale does not end there, for we are now becoming aware that the effects of European settlement have not yet all been fully realised, and that further extinctions are all too possible. The easy presumption of our youth that the age of extinctions was over was the opposite of the truth. The Department of

9. These figures are drawn from chapter 5, Extinctions of New Zealand Vertebrates, of Kerry­ Jayne Wilson’s The Flight of the Huia, above n 4, where they are conveniently summarised in Table 5.1 at 120.
10. The Department of Conservation’s list of extinct birds, part of its 2005 Threat Classification System lists, described below, lists 16 species as having become extinct since 1840 — for whatever reason it does not consider pre­1840 extinctions at all — but that figure includes three Chatham Islands species.

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Conservation (DoC) maintains and updates New Zealand Threat Classification System lists.¹¹ The lists cover all species of plants and animals, and place them in one of seven categories. Native bird species still alive today are categorised thus:

The total of these numbers is the total of threatened bird species — 153. This does not leave many about whose future we can be relaxed. Not all of these 153, of course, will become extinct tomorrow. Indeed, it might be added that in nature many more specialised species are always likely to be sparse or have a restricted range, simply because they are adapted to some very specific and limited environment. (It must also be added, of course, that however “natural” these limited numbers may be in nature, they still render such species potentially very vulnerable to human actions.) Nevertheless, even after having removed from the list those “sparse” in numbers and of “restricted range”, and those, for good measure, whose decline is only “gradual”, that still leaves 66 species whose continued existence on these islands should be a matter of serious concern.¹²

For other categories besides birds the figures are equally melancholy. In the first four categories — nationally critical, nationally endangered, nationally vulnerable, and in serious decline — we find four species of bat, six marine mammals, 11 reptiles, three frogs, seven freshwater fish, 251 terrestrial invertebrates, 14 freshwater invertebrates and 18 marine invertebrates; in all, in those first four categories, 97 vertebrates and 283 invertebrates.¹³

11. R Hitchmough, L Bull and P Cromarty New Zealand Threat Classification System lists (Science and Technical Publishing, Department of Conservation, 2005). This list is not identical to the “Red List of Threatened Species” maintained by the International Union for the Conservation of Nature (IUCN); the Red List’s categories, for example, are different, being extinct in the wild, critically endangered, endangered, vulnerable, and near threatened, and there may besides be different views of how threatened a species is; but sincere differences of opinion between scientists are not to the point here.
12. It must be added that most of these species are endemic, although not all of them are. The kōtuku, the “rare white heron of a single flight”, in fact has a widespread world distribution; but even widespread species, of course, still face threats and pressures elsewhere.
13. The number of invertebrates is probably on the low side, however, for being on the whole

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If we add in the other three categories — those species in gradual decline, in particular, are surely worthy of being included in the list — we have totals of 315 vertebrates¹⁴ and 1,327 invertebrates. Then there are the plants; 343 in the first four categories, and 1,146 in all.

Another 1,414 species of animals and 1,719 plants and fungi are classified as “Data deficient”, meaning that not enough is known about them to be able to categorise them with certainty. If more were known, some of these might well have to be added to the list of threatened species.

These figures are not offered merely by way of introduction to our problem. They are the problem itself. Our law, as will be explained, would like to protect our native plants and animals. Yet very clearly, as the figures show, the law is ineffective in doing so. It simply is not working. The law merely forbids humans to kill endangered species. It does not attempt to deal with the cat and the weasel, which, in any case, cannot read. We must ask ourselves if it is possible to improve the law while maintaining the present general approach, or whether it might be worthwhile changing to a completely new model; a model, of course, at present untried in this country; an experiment, therefore, which, if it failed, might have the most disastrous consequences. At stake is the future of hundreds, thousands of threatened species. Hilaire Belloc tells us of the terrible fate that befell Jim when he ran away from his nurse and was eaten by a lion.¹⁵ Should we, then, following Belloc’s advice:

always keep a-hold of Nurse

For fear of finding something worse

Or, instead of throwing good money after bad, should we take a gamble, abandon that position, try something completely different and pray desperately for more success? The present approach is not working; but will a new approach be better? What if it makes things worse? And what terrible damage will have been done before we know? But why persist with a model known to be failing? The choice is a terrible one, and whatever decision we make will have to be made, as almost all decisions are, on the basis of imperfect information.

smaller and less conspicuous, their decline and absence, indeed their existence in the first place, is more likely to be overlooked.

14. This includes 52 marine fish.
15. H Belloc Cautionary Tales for Children, first published with other verses as collected

Cautionary Verses (1940).

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3. STATUTORY PROTECTIONS FOR NEW ZEALAND WILDLIFE

The fault is great in man or woman Who steals a goose from off a common; But what can plead that man’s excuse Who steals a common from a goose?¹⁶

This article will henceforward concentrate on native animal species rather than plants. The protection of plant species in adequate numbers can most certainly be challenging, for plants suffer from grazing and browsing mammals, and from competition by introduced species, just as native vertebrates and invertebrates suffer from introduced predatory and competing species. But all the legal issues that can arise do so in the case of animals, and it is generally much easier to protect plant populations, however sadly diminished, from complete extinction. Animals, therefore, will be our focus. We will observe here merely that the Native Plants Protection Act has been a dead letter since its enactment in 1934. Only one, unsuccessful, prosecution has ever been brought under it,¹⁷ and it comes as a constant surprise to discover that it has not been repealed. But the principal reason why the Act is ineffective is not that it fails adequately to control human activity, but chiefly because it is, like the Wildlife Act (which deals with animals), misdirected; or, at least, it forbids only one possible sort of harm to native species, and that harm, although not insignificant, is not the chief harm from which native species now actually suffer.

The Wildlife Act 1953 did not have many predecessors, only the Injurious Birds Act 1908 and the Animals Protection and Game Act 1921. It deals, then, not only with the protection of native species but also with game birds and “injurious birds”. Its chief concern, however, is protection, and s 3 declares that “[s]ubject to the provisions of this Act, all wildlife is hereby declared to be subject to this Act and (except in the case of wildlife for the time being specified in [the first five schedules] hereto) to be absolutely protected ...”. “Wildlife” is defined as “any animal living in a wild state”.¹⁸ An “animal”, however, is not, as a zoologist might expect, any member at all of the animal kingdom, the Animalia, however primitive or simple, but rather any mammal or bird (with certain mostly domestic or introduced exceptions), and any

16. An anonymous 18th­century epigram, known in various forms.
17. Davy v Borough of Birkenhead, unreported, 1973; described in Derek Nolan (ed) Environmental and Resource Management Law (3rd ed, LexisNexis NZ Ltd, 2005) 408– 410.
18. It follows, therefore, that any species believed extinct but later discovered to survive automatically enjoy the Act’s protection.

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reptile or amphibian, and includes also (by later amendments) any terrestrial or freshwater invertebrates and any marine species which are specifically declared to be “animals”. The Wildlife (Basking Shark) Order 2010, for example, declared basking sharks to be “animals”.¹⁹ Various schedules list animals which are declared to be game, or partially protected, or which may be hunted subject to the Minister’s notification, or which are not protected except in certain times and places, and so on. Then there are the provisions we would expect concerning museum specimens (for the Act covers dead animals as well as living), authorisations to take or kill wildlife for certain purposes, offences, and so on. Sanctuaries and refuges may be established.

The Wildlife Act, then, is concerned chiefly to protect wildlife from the direct actions of human beings. If a species is absolutely protected, then no one may take or kill it.²⁰ But that is as far as the Act goes. Publicly owned sanctuaries and refuges aside, the statute does not, for example, forbid the destruction of the habitat on which a species might depend. It protects the goose, but not the common. Nor does it contain anything to encourage, let alone require, any human action to face and deal with the other various causes of the decline of threatened species, most notably predation by and competition from introduced species. Plans may be made for species recovery,²¹ but those plans are just one small paragraph in a long list of the Minister’s general powers. The Act, then, is in no sense a statute for the recovery of threatened species, and on the depressing facts above it is clearly quite ineffective in preventing the continued decline and extinction of native species.

Nor can we discover any pressing obligation on the Crown and Department of Conservation in the Conservation Act. The very general words of s 6 of the Act merely empower the Department “to manage for conservation purposes

... all natural resources ... held under this Act”. “Natural resources” includes “birds and animals of all kinds”. Again, these words certainly cover this situ­ ation, but they are not particularly demanding or imperative, give no special place to endangered species, and merely list “management” as one thing among many on the Department’s list of duties. Part IIIA of the Act, dealing with “management planning”, makes no mention of plans for species recovery.²²

19. Not one has been seen along the Canterbury coast this summer ( pers comm).
20. At any rate, without the permission of the Director­General of Conservation, which permission must (surely) be granted only if it will serve the best interests of the species. This point is considered in part 4 below.
21. Wildlife Act 1953, s 41(1)(e).
22. Under the Conservation Act 1987, s 53(2)(e) the Director­General has the power to “prepare

... plans for the conservation, management and control ... of any natural resource”, and by s 53(3)(g) may “control any introduced species causing damage to any indigenous species or plant”; but these powers, again, are but items on a long list, with no priority, and permissive rather than mandatory.

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Since 2000, New Zealand has had an official Biodiversity Strategy,²³ a “20­year vision for protecting native species”. It involves a vision, goals, principles, action plans and annual reports. The reader may be almost surprised to be reminded of the existence of this strategy, which seems to have made no difference whatsoever, and to be little more than an opportunity for bureaucratic exercises. The Strategy has no legal standing, however, and given present legal, administrative and social arrangements, it would be a waste of time to consider it further.

Our first thoughts, then, might be that the answer lies in having legislation dedicated in whole or in part to the protection and recovery of threatened species, and we might turn to such countries as Australia and the United States of America for models of what that legislation might be. Australia, in particular, is not only closest to New Zealand physically but also in its biological situation

— a land with a highly distinctive flora and fauna suffering from the very recent arrival of European settlers and their destructive animal companions; a land even more prosperous than our own, whose people, like our own, are concerned to make such amends and undo such damage as they can. The United States of America has been settled longer by Europeans, and, since it has not been isolated as Australia and New Zealand have been, its species are more resilient and less likely to be affected by the appearance of new species. There, habitat loss is likelier to be a greater threat than predation and competition.

4. AUSTRALIAN AND US STATUTORY PROTECTIONS

But with the morning cool repentance came.²⁴

In Australia, the earlier Endangered Species Protection Act 1992 has now been replaced by the more general Environmental Protection and Biodiversity Conservation Act 1999, which recognises threatened species and ecological communities as a matter of national significance. The Act’s operation is complicated and hindered by the division of authority in the Australian constitution between the federal government and the states. The general approach, though, is, as in the 1992 Act, one of national co­ordination, the listing of threatened species and communities and (be it noted) “threatening processes” in publicly available lists,²⁵ and the development and implementation of publicly scrutinised recovery plans and threat abatement plans.²⁶ (Much,

23. The New Zealand Biodiversity Strategy (New Zealand Government, February 2000). 24 W Scott Rob Roy, first published by Constable (1818), ch 12.
25. Items in all these lists may be nominated by the public.
26. A fuller account of the 1992 Act, much of it applicable to the new statute, is given in JCZ

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although not all, of the work of co­ordination and public consultation and notice, matters of mere administration, does not necessarily require legislation, although legislation provides certainty, clarity, publicity, funding and validation of the importance of the work.)

In 2007, however, a review by the Australian National Audit Office of the Act and actions taken under it recorded unsatisfactory aspects. Lists of threatened species were not up to date, and a great number of required recovery plans had not been prepared. Information was not perfect, and consequently incorrect decisions could be made; and on several occasions the Department of the Environment and Water Resources, which administers the Act, had been denied by the federal government the funds which were necessary for it to meet its statutory obligations. Moreover, although there might be public agreement about certain “threatening processes”, such as predation by introduced species, there continues to be far less agreement about the culpability of other threatening processes, such as the habitat degradation and loss which is the natural concomitant and price of economic development. At least, there is less agreement about the desirability of including such land clearance and destruction on the Act’s list of “threatening processes”.²⁷

No government is perfect, however, and any government has to serve conflicting objectives and desires, and never has as much money as it would like. The public may demand conservation, but the public also demand the easy lives which environmental degradation provides them with for the present. We may decry economic development in principle, but it underlies our entire economic and social organisation, and there would be very few of the voters of New Zealand or Australia or anywhere else who, if faced with a blunt and stark choice between economic development and all its benefits and absolute environmental sustainability with all its discomforts, would choose the latter. The identified defects in the Act’s administration are no more than those that must really be expected in any pretty acceptable system of democratic government. The Act is certainly a step forward, but it is not and never will be a perfect answer. Its defects — inadequate funding, bureaucratic inertia (although to be fair, this may be at least in part a consequence of lack of funding), and the eternal conflict between protection and economic “development” — are surely inevitable.

The United States Endangered Species Act of 1973, enacted at the urging of President Richard Nixon, goes further than the Australian legislation. It provides, again, for the listing of endangered species, but allows citizens not only to make their own nominations but also to challenge decisions of the Fish

Woinarski and A Fisher The Australian Endangered Species Protection Act 1992 (1999) 13 Conservation Biology 959–962.

27 See Woinarski and Fisher, above n 26.

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and Wildlife Service not to list particular species. Once a species is listed the Fish and Wildlife Service is obliged to create a Recovery Plan outlining the goals, actions required and likely costs of increasing the species’ numbers to the point where it can be removed from the list, and also estimating the time it will take before that goal can be reached.

Since loss of habitat is in America the principal, although not the only, current cause of species decline, the Act does not, like the Australian Act, merely allow for the listing of “threatening processes”, but actually makes specific and extensive provision for “critical habitat”. Critical habitat may be public or private land, and its designation is mandatory for all threatened and endangered species. It includes habitat where the species is found and also habitat where it is not but where it would nevertheless be able to live. Economic considerations may not be taken into account in decisions to list species, since those are looked upon as purely scientific decisions, but decisions on critical habitat are made on the basis not only of scientific data but also on economic impacts and any other relevant impacts. Nevertheless, private land may be designated as “critical habitat”. There is a widespread popular belief ²⁸ that listing as critical habitat prevents private landowners from any “adverse modification” (logging, draining, ploughing or building, for example) which would be inconsistent with the endangered species’ survival, but in fact private land, even if listed, is only affected by that listing if some federal action — a licence or permit, or a loan — is also involved.²⁹ It is usually the prohibition on the taking of listed species which weighs most heavily on landowners.

A couple of the Act’s other features should be noted. The Act imposes an obligation on all other federal agencies to ensure that their actions are not likely to jeopardise the continued existence of endangered or threatened species. It also provides for a number of arrangements that can be made with private and other non­federal landowners which may offer incentives to those landowners to manage their land in a suitable way. Habitat Conservation Plans³⁰ allow for economic development which might negatively affect land the home of an endangered species, if in return the landowner will implement a plan which will minimise and mitigate harm to the species elsewhere on that or nearby land. Where a plan is made, an Incidental Take Permit (ITP) will allow a certain

28. Which the author has even heard in personal communications from New Zealand farmers with interests in conservation and private property issues.
29. An approach similar to that of New Zealand’s 1973 Environmental Protection and Enhancement Procedures, involving Environmental Impact Assessments prepared by the applicant and audited by the Commission for the Environment (the predecessor of the current Ministry). The procedures were compulsory only where public money, some permission or licence from the Crown, or some other sort of “leverage” on the Crown’s part was involved. The size or environmental impact of the proposal, large or small, was immaterial.

30 Section 10(a)(1)(B).

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number of “takes” of a protected species, being the deaths of the species that will occur as a result of the development. Under “Safe Harbour agreements” landowners agree to alter their properties to benefit or attract a listed species in return for federal assurance that future “takes” will be permitted above a certain level. By the similar Candidate Conservation Agreement (CCA), private landowners have incentives to protect species not yet listed. If a landowner agrees to restore or enhance or maintain the habitat of currently unlisted but declining species, he receives a promise that if the species were to be listed in future, the landowner will not be required to do more than already agreed to under the CCA.

Opinions differ as to how successful the Endangered Species Act has been. Only 21 species have been removed from the Act’s lists because their populations have recovered, and nine species have become extinct since being listed. (Some of those species, however, may have been extinct already; they were listed just in case one or two survivors were rediscovered.) On the other hand, many listed species have stabilised their populations, and it is easy to believe that were it not for the Act many species, although admittedly still listed, might well have become extinct. Without the Act things could well have been worse.

The problems with the Act’s working are, very broadly speaking, similar to the problems of Australia’s administration, problems which, as I have suggested, are inherent and inevitable. Political pressures can obstruct the law. The Washington Post has reported³¹ that the Bush administration erected “pervasive bureaucratic obstacles” which in various ways, often unauthorised by law, limited the number of species protected under the Act. Budgetary constraints can simply make it impossible to administer it fully. Even with the best will in the world there are practical limits to funding, and to the size of any bureaucracy, and inevitable delays and gaps in a law’s administration. Landowners may object to their land being designated as critical habitat, and may take steps to ensure that it will not be in future.³² The Act may therefore operate as a “perverse incentive” to encourage pre­emptive habitat destruction. Economic considerations may be taken into account in the designation of “critical habitat”, and the Act’s entire approach, inevitably again, sets itself

31. Juliet Eilperin “Since 01, Guarding Species Is Harder: Endangered Listings Drop Under Bush” The Washington Post (Washington, DC, 23 March 2008).
32. The best­known example concerns the red­cockaded woodpecker, which inhabits very old, well­established forest. Landowners have altered logging practices to ensure that their forests will not become old enough to become “critical habitat” for the woodpeckers; see, for example, RL Stroup The Endangered Species Act: Making Innocent Species the Enemy (PERC [Property and Environment Research Center) Policy Series, April 1995). His conclusion is that a “takings regime” would make landowners far more sympathetic to the Act’s administration.

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in direct opposition to the economic growth fundamental to our current, if completely unsustainable, way of life.

It must be added, of course, that in New Zealand loss of habitat is only one of the threats our wildlife faces, and by no means the most significant threat. Introduced species, and their effects — direct predation on native bird and animal species, competition between introduced plants and animals and native ones, and the effects of new diseases, perhaps little understood, on native species — these are New Zealand’s chief problems.³³ Habitat loss has certainly been significant in the past,³⁴ but certainly for most of the better­known endangered species habitat is not the problem now. There are still enough native forests to support kiwi and kākā, kōkako and kākāpō, yet the forests are empty. The small caution should be added, however, that the causes of population decline can be much more complex than at first supposed.³⁵ Was the decline in takahē numbers in the Murchison Mountains of Fiordland caused simply by the intrusion of stoats, or was it by deer which competed with the takahē for food, or was it by good beech mast years which encouraged mouse populations which stoats then fed on (the stoats then turning to other prey when mouse numbers later declined), or was it by increased deer numbers leading to an increase in deer carcasses and therefore stoat numbers? The answer is not clear. Introduced species can affect each other as well as native species; the destruction of wild cats, say, could actually result in an increase in native bird mortality, if those cats, as well as taking some native birds, had mainly been feeding on rats which were now able to breed unchecked and thereby ravage bird populations more.

Things may well be more complicated than they at first appear to be.³⁶

33. “Predators, competitors and pathogens” — Clare J Veltman Investigating Causes of Population Decline in New Zealand Plants and Animals: Introduction to Symposium (1996) 20(1) New Zealand Journal of Ecology 1–5.
34. The best­known and often repeated figure is that New Zealand has lost about 90 per cent of its wetlands since European settlement.
35. See Veltman, above n 33.
36. Steller’s sea cow, the largest of the Sirenians, discovered by Vitus Bering in 1741 living around only a couple of tiny islands in the Bering Sea, was made extinct by Russian whalers by 1768. But it is now believed that this was merely the final blow in a much longer tale of extermination. The sea cow had been much more widespread in pre­human times, but the hunting of the sea otter by aboriginal peoples along those coasts had led to a long­term major increase in the numbers of sea urchins, the otter’s chief food. Sea urchins fed on seaweed, which was also the chief food of the sea cow. The removal of the sea otter from the ecosystem therefore led directly to the disappearance of the sea cow’s food and therefore the sea cow itself from those regions. It survived only on the tiny islands where Bering discovered it because only those islands were uninhabited by aboriginal otter­hunters. Richard Ellis No Turning Back, The Life and Death of Animal Species (HarperCollins, 2004) 132–134.

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5. THE LUXURY OF PROSPEROUS TIMES

A simile! We mortals cross the ocean of this world Each in his average cabin of a life;

The best’s not big, the worst yields elbow-room. Now for our six months’ voyage — how prepare? You come on shipboard with a landsmans’s list Of things he calls convenient: so they are!

An India screen is pretty furniture, A piano forte is a fine resource,

All Balzac’s novels occupy one shelf ...³⁷

Browning’s wise old bishop imagines the landsman planning to fill his cabin with a marble bath as well, a selection of fine paintings, and even more books, only to be reminded by the agent that all passengers were given an allowance of six feet square, and that he will therefore have to offload his furniture. He ends up, therefore, with nothing in his cabin, and far less comfortable than the passenger who planned from the beginning for his six feet square, and has filled it snugly with just the right amount and size of sturdy and appropriate furniture. The landsman can only console himself in his discomfort with the thought that all the same, he has “the better notion ... of fitting rooms up”.

Much of the criticism directed at the administration of the Australian and American statutes partakes of the landsman’s refusal to face reality. The complaints generally are that this or that statute would work better if only there were an utterly whole­hearted government commitment — if only bureaucracy were completely efficient — if only there were enough funding to enable everything to be done — if only the interests of endangered species were given complete and absolute priority over all other interests, most notably the interests of economic growth and of particular landowners who might have other plans for their properties — if only all of this could happen, why then, everything would be perfect.³⁸ And so the thoughts of Australians and Americans most concerned for species’ future are inclined to go no further than the perfection of the present system. When that perfection is not achieved, they, like the bishop’s landsman, console themselves with the thought that they had the “better notion” of how to organise things, even though that notion actually flew in the face of reality. But they do not change their plans, they merely lament that things are

37. R Browning Bishop Blougram’s Apology, first published in Men and Women (1855).
38. It has been suggested that the words “if only” are among the stupidest words in the world.

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not done better, and wring their hands feebly as the species they love and should be guarding slide into extinction.

For the perfection of the present system is simply never going to be achieved. Even in the best of times, which are now very clearly in the past, budgets were limited and the requirements of economic prosperity could never be forgotten. In harder future times there will be less money, not more, and more demands than there are now on those depleted revenues. Environmental concern will turn out to have been a luxury of prosperous times. But as times become harder many people are going to be more, not less, determined to try at least to maintain their standard of living, even if that means sacrificing the future on the altar of today. Paradoxically, then, as the environment becomes more damaged, environmental issues fade from public concern as they are replaced by more selfish human concerns about individual survival.³⁹ It displays a fundamental misreading of human nature and the likely course of events to believe that the future will see increased concern for endangered species and more public willingness to fund their protection and also, as part of that protection, to forego economic opportunities. Einstein is said to have remarked that stupidity consists in doing the same thing over and over again and expecting a different result. It is certainly a very unscientific stupidity to expect a perfection of law and administration which, despite intentions as good as ever they will be, has never existed in the past. It is stupidity to fail to observe that circumstances have changed, and it is stupidity to fail to take account of human self­interest and selfishness, however short­sighted that might be argued to be.

6. THE IMPOSSIBILITY OF PERFECTION

I think, and think on things impossible, Yet love to wander in that Golden Maze ⁴⁰

While we would certainly not suggest that Dr Mark Seabrook­Davison is anything less than a perceptive and well­informed student and observer of biodiversity management, his recommendations for change, contained in his recently concluded and widely reported doctoral thesis,⁴¹ do savour, at least, of excessive optimism. He observes that only 6 per cent of recorded threatened species — 188 — are managed at present, and indeed that a mere four “iconic”

39. This point is explored more fully in David J Round “The Future of Environmental Law” (2011) 19 Waikato LR 144
40. J Dryden The Rival Ladies Act iii, sc 1.
41. MNH Seabrook­Davison An Evaluation of the Conservation of New Zealand’s Threatened Biodiversity: Management, Species Recovery and Legislation (Massey University, 2010).

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species — including the takahē and kākāpō — take 8 per cent of the total budget. It is, he believes, an “anomaly” which New Zealand should debate, that “a considerable amount of the recovery budget has been allocated to iconic species that are at such low numbers that they have ceased to have any ecological role”. He considers that the Department of Conservation’s budget for species management and recovery — currently NZ$33 million per annum — is only one tenth of what is needed for recovery programmes for all endangered species.

Indeed, if further evidence were needed of the ineffectiveness of the Depart­ ment’s present approach, at least given present levels of funding, it can be found in its Project Prioritisation Protocol (PPP), which is essentially a conservation triage approach, whereby all threatened species are assessed for their survival in the long term. The assessment will be based not only on biological information but also on species’ cultural and genetic significance, but nevertheless the assessment will be made, and on it will be based future decisions about species recovery. All other management strategies will be either subservient to the PPP strategy or will be discarded. Unspoken, then, but very clear, is the necessary implication that some species will be too low on this list of priorities to receive any attention at all. From the bottom of the list they will soon fall completely off it. The PPP is an admission that further extinctions will happen.⁴²

Dr Seabrook­Davison rightly observes that no legislative criteria exist to guide the Department as to when or how it should produce recovery plans. We might observe in reply that there is nothing to stop such plans being produced now — they are, after all, merely administrative documents such as every organisation produces regularly for its own guidance — but nevertheless without a requirement and outline in legislation it is all too easy for such plans to slip down a list of priorities, and, even if prepared, to be ignored or forgotten. Although New Zealand does have the advantage of a large conservation estate, it lacks an “integrated national management approach” to the conservation of its biodiversity. “Considerable improvement of the management and recovery of threatened species”, he believes, “can be achieved with the enacting of dedicated threatened species legislation.”⁴³

Few would argue that dedicated legislation would not be useful. But Dr Seabrook­Davison also identifies “inadequate resources, staff shortages and

42. “Decisions would be made on a national scale and would be based on benefits, the chance of success, long­term costs and whether the species was endemic to New Zealand ... Expensive, technically challenging programmes with a low likelihood of success, or those

... proven to be struggling, would probably be dropped ... There are 2,800 species ... at risk of extinction and we are working with 200 so we need to spend wisely to protect as many species as we can ... .” Allan Ross, DoC Ecosystems and Species Manager, The Press (Christchurch, New Zealand, 28 November 2009).

43. All of these remarks appear in the abstract of his thesis.

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an overwhelming workload” as causes of the failure to achieve comprehensive recovery of threatened species”, and those problems are ones which cannot be solved by legislation. The current budget is only one tenth of what is required

— can one imagine that any government, of whatever political hue, would provide the extra NZ$300 million per annum?

His full list of recommendations appears in chapter 6 of his thesis.⁴⁴ He calls for:

1. Dedicated legislation, which would provide a transparent legal process for identifying species and monitoring their progress towards recovery.
2. An integrated national approach, making national plans and setting national priorities.
3. The listing of all species on a central and of course public register.
4. Recovery plans for all species, according to a standard format and with a timeframe for their implementation. He observes that the listing process would “eliminate any bias towards prominent or iconic taxa”. The slug is as important as the kākāpō. He notes that, since 2002, only 12 plans have appeared, and seven of those were updated versions of earlier ones — yet threatened species of course number in the thousands.⁴⁵
5. Security of funding.
6. Co­ordinated management between conservancies. Otherwise the good work done in one place may be undone by different priorities next door.
7. Allied to this, integrated pest management is vital. At present, incredibly, there is no national strategy for pest control.
8. Dr Seabrook­Davison also calls for “threatened species recovery groups”, whose membership should “include all stakeholders, such as developers and people in primary industries”. The Department should “promote their role in taking an active part in directing the management of threatened species”, and members should receive remuneration.
9. “Community conservation groups”, which are somehow different from the threatened species recovery groups, are important.
10. Finally, he observes that “under the United States Endangered Species Act, private landowners are encouraged to be custodians of their land and the species it contains. This is proactive management which

44. The list is unnumbered and somewhat repetitious, and has been simplified and organised as well as summarised here.
45. The total number of recovery plans is, however, a little larger. The North Island Kokako Recovery Plan 1999–2009, Threatened Species Recovery Plan 30, lists 31 recovery plans published up until 1999.

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reduces the amount of state­funded recovery action. It also encourages a degree of husbandry from the landowner ...”.⁴⁶

This is a list of commendable and desirable things. But it is simply impossible to believe that they will ever come to pass. We might be able to imagine that Parliament could be persuaded to pass dedicated legislation, but (as Parliament would be aware at the time) the costs of implementing that legislation by the list’s other items are simply prohibitive. No parliament is going to vote the Department of Conservation several hundred million more dollars each year, let alone, as Dr Seabrook­Davison also proposes, make that funding indefinitely secure. Many of the items on the list require significantly increased numbers of Departmental staff who, even if the money could be found to pay them, might not even exist and be able to be recruited at present in adequate numbers. This proposed course of action, then, however excellent it may be, simply is not going to happen. It is, therefore, a foolish proposal. It is foolish to insist on the impossible as the only solution. “The perfect is the enemy of the good.” It guarantees failure. It is a betrayal of the species that we are hoping to protect.

7. ROLES AND RELATIONS OF THE STATE VERSUS PRIVATE ENTERPRISE

For forms of government let fools contest; Whate’er is best administered is best ⁴⁷

We must therefore think of other ways to protect endangered species, and if we cannot rely on the state and taxpayers perhaps we must, in one way or another, rely on private persons. But here a great uneasiness at once possesses us. The very word “privatisation” brings with it a great deal of political baggage. The privatisation of many aspects of our national life and our national assets — the “family silver” — which has occurred under and since the 1984–1990 Labour government, however necessary it might or might not have been, has been deeply disapproved of by many, and considered as unfortunate even by most of those who accepted it as necessary.⁴⁸ Further privatisations, even of unimportant things, are not popular. The proposal that large and important parts of our natural heritage, pre­eminently the common patrimony of us all, and a

46. This seems a rather optimistic interpretation of the Act.
47. A Pope An Essay on Man, first published 1732–1734, Ep iii, l 303.
48. “There is still a lot of bad feeling around about some of the 100 per cent sales carried out in the earlier privatisation phase, not least the ... railways privatisation debacle.” Chalkie The Press (Christchurch, New Zealand, 19 January 2011).

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central part of our national identity, should somehow or other be put into private hands, is unlikely to be greeted with anything but unease and opposition, even if such proposals were properly understood. Already the support of research and recovery projects for several prominent endangered bird species by several prominent corporations has excited mixed feelings. Comalco has supported kākāpō work, Mainland Cheese the yellow­eyed penguin, and the Bank of New Zealand the kiwi.

It is good, we might say, that corporations act as responsible and public­ spirited citizens, and give something back to the communities from which they derive their profits and existence. It is no more than a corporation’s public duty. On the other hand, though, even leaving aside thoughts of what further benefits these enterprises might derive from their sponsorship, and recollections of the various financial gifts which the public has made and continues to make to these entities — supplying cheap electricity to Comalco, and taxpayer bailouts of the BNZ — leaving such cynical thoughts aside, we could surely argue that as a matter almost of principle, the protection and restoration of the natural world and endangered species is a matter that of its very nature belongs to the community. It is a job that the state should be doing, and to leave it to private bodies is an unhealthy abdication by an overburdened, weak and impoverished state of one of its inherent tasks. A more proper response might be to insist all the more firmly that the state does indeed do this thing.

But that, as already argued, is just not possible.

In 2002 Mr Gerry Eckhoff, then an ACT list Member of Parliament, was the object of an attempted “public roasting”⁴⁹ at the hands of the Labour government as a result of his suggestion that the commercialisation of native species might be their salvation. His views were easily parodied and unfairly simplified, and it must be admitted that he did seem to underestimate some of the challenges of endangered species breeding programmes, and fail to understand the biological differences which enable some species, such as the domestic fowl, to breed prolifically while others, such as the kiwi, potter along with only one egg a year. Nevertheless, his arguments may have some point. Not only sheep and cattle, pigs and fowl are abundant on New Zealand farms — deer and tahr are farmed, and salmon, and ostriches, whose numbers have grown from nothing to about 10,000 in 2004. Whitebait and freshwater crayfish — native species both — are farmed. Many native plant species, he points out, are propagated here and exported overseas. If it were profitable and lawful, then, for private persons to breed kiwi and kea, weka and kākāpō, then the numbers of those species would increase. Some species might be bred for the table;⁵⁰ more might well be bred

49. His own phrase. He describes the incident, and presents the views I summarise here, in a speech to the World Freedom Summit given in Rotorua on 24 July 2004, available at

<http://www.act.org.nz/news/capitalism=conservation> .

50. See the description in part 9, below, of Mr Roger Beattie’s plans for weka.

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for sale to rich overseas collectors, some of whom are prepared to pay millions of dollars for single specimens of rare creatures. There would of course still have to be careful regulation. But, as Mr Eckhoff asks: “If trade works for ... sheep and cattle, why should it not work for indigenous species? If a highly valued sheep or cattle beast is exported in comfort and security to some foreign clime to breed happily — while increasing the gene pool in that country — then what’s the problem? ... Being exported in the animal equivalent of a first­class seat sure beats the heck out of being smuggled out stuffed inside a PVC pipe and injected with tranquillisers for the journey⁵¹ to the other side of the world.” The 1973 Convention on International Trade in Endangered Species (CITES) would not be an impediment to such trade, for art III of the Con­ vention provides that export permits may be granted if such export will not be detrimental to the survival of the species, and the particular specimen was not obtained in contravention of the domestic laws of the country concerned. Article VII specifically provides for trade, stating that specimens of Appendix I species (being particularly endangered ones) bred for commercial purposes are to be deemed specimens of art II species (ones not necessarily threatened with extinction, but still being exploited in an unsustainable manner), for which

international trade, if properly regulated, is acceptable.

Such is Mr Eckhoff’s general approach. It echoes the debates which tore the Maruia Society ( previously the Native Forests Action Council, NFAC, originally the Beech Forest Action Committee, BFAC⁵²) apart in the early 1990s. Maruia’s director Guy Salmon believed that privately owned native forests were best protected by allowing carefully regulated sustainable logging, which would make the forests economically valuable and therefore, obviously, provide an incentive for owners to treat them carefully. NFAC had always been an activist society, however, established when the Royal Forest and Bird Protection Society, New Zealand’s premier conservation organisation, had been less prominent and less engaged politically than it is now, and for a variety of reasons the majority of Maruia’s then membership, which was largely young and idealistic, tended to oppose compromises with the forces of capitalism. Bitter arguments within NFAC accompanied the passage through Parliament of the Forests Amendment Act of 1993, many NFAC members and whole branches considering that absolutely all native logging on private land should be forbidden. Guy Salmon’s later support for selective, allegedly sustainable helicopter logging of Westland rimu for the high­value Japanese craft market did not succeed, and lost him much credibility.

The same debates are heard overseas. Ever since CITES was made, African countries have continued to debate the wisdom of continued trade in ivory.

51. Quite possibly, also, stuffed inside someone’s garments.
52. And existing now only as a consultancy under the name of Ecologic.

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At the 2010 annual meeting in Doha of CITES parties, Tanzania and Zambia, supported by the 13­member Southern African Development Community,⁵³ proposed a partial lifting of the ban on the trading of ivory, arguing, among other things, that such trade enhanced the value of elephant herds and therefore assisted in the protection of the species. Opponents, including Kenya and 22 other African countries, argued, with a considerable amount of evidence, that much of the ivory which might be traded were the ban to be lifted was in fact poached, and that to lift the ban would be in effect to countenance poaching. The ban remained in place, but the issue will undoubtedly continue to bubble away.

There is no doubt that privatisation of public assets is particularly promoted by influential lobby groups representing wealthy interests not generally notable for their environmental concern. In 1997, for example, the New Zealand Business Roundtable published Conservation Strategies for New Zealand,⁵⁴ written by Peter Hartley, a professor of economics at Rice University in the United States of America and at the time the executive director of the Tasman Institute, a now­defunct free­market think tank. Professor Hartley considered much more than endangered species management, and argued for much more private influence in, and indeed the privatisation of, much of the conservation estate. It is entirely natural and reasonable that those with genuine environmental concern be deeply suspicious of rich men who want to bring the natural world into the marketplace, and allow nature to be used for the making of money. Those suspicions may be unfair, but one cannot help but wonder if such men are among those who “know the price of everything and the value of nothing”. There are, as Chris Carter, Minister of Conservation at the time of Mr Eckhoff’s public roasting, said, more important things than money. But, as Mr Eckhoff replied, Mr Carter’s department had just received NZ$300 million of public money, which it showed every desire to keep and use, and without which it would not be able to do anything at all. Dr Seabrook­Davison’s call for the Department’s endangered species programme to be allocated ten times as much money as it now receives is generally echoed by concerned persons. A lofty contempt for mere money obviously goes only so far.

It is only reasonable that conservationists should worry if market proposals are the thin end of a very long and unpleasant wedge, only the first step in another round of plundering an increasingly precious public patrimony of natural heritage. They are justified in wondering exactly what motives, public good or private profit,⁵⁵ move the advocates of privatisation. They are right to be concerned that anything less than total and absolute inviolability will, so to

53. And also by China and Japan.
54. Peter Hartley Conservation Strategies for New Zealand (New Zealand Business Roundtable, Wellington, 1997).
55. Of course, privatisers would reply that these are the two sides of the same coin.

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speak, break the spell of respect which sets protected species apart as creatures utterly sacred, so that as species come to be more connected with the prosaic world of commerce and daily reality, we will not be so inclined automatically to consider them untouchable, and more inclined to see them as things of private value, which might therefore, for example, be poached in the wild. All these are valid points. Yet it must be admitted that the conservation movement, as much as the Business Roundtable, can be moved by motives of which the movement itself seems hardly to be aware.⁵⁶ Its virtually automatic opposition to any suggestions of private involvement in conservation, particularly if the making of money is involved, can smack as much of socialism as it does of genuine environmental concern. At any rate, in hard economic times, when calls on the public purse are increasing as the purse itself is shrinking, and when it is clear that current species recovery efforts are no more than a drop in the bucket, the matter is one which, whatever our ultimate conclusion, at least deserves serious public debate.

The colourful career of Freddie Angel, for example, makes it clear, if it were not clear enough already, that rich overseas wildlife fanciers are prepared to pay very substantial sums of money for New Zealand lizards such as the richly coloured and variously patterned jewelled gecko (Naultinus elegans). As a general rule, geckos are not difficult to keep and breed in captivity.⁵⁷ Indeed, as explained below, certain lizard species may be kept in captivity now, but only for certain purposes which most emphatically do not include trade or profit. Now suppose some experienced and knowledgeable amateur naturalist with a long interest in and love of lizards were to breed these in captivity, in premises licensed by the Department and of course generally regulated by the Department, under regulations which would not be intended to frustrate the venture from the beginning in all but name. The lizards would be bred at least in part as a business venture, so that they might be sold to overseas or indeed even local collectors. They could be marked, perhaps microchipped, before sale. The Department’s recompense for thus allowing public fauna to be used for private gain might be payment in lizards, or some obligation on the breeder to enhance wild populations, as well, possibly, as money. A species is thereby removed from the excessively long list about which the Department must take

56. This question is considered at greater length in Round The Future of Environmental Law, above n 39. Professor Joseph L Sax makes a not entirely unrelated point in Mountains Without Handrails, Reflections on the National Parks (University of Michigan Press, 1980) where he argues that the opposition which many environmentalists have to motorised vehicular forms of recreation in the wilderness (jet­boats, 4WD vehicles, trail­bikes, snowmobiles, and so on), although publicly expressed in terms of environmental damage, is fundamentally based on another quite different belief, that such activities are bad for the character and souls of those who engage in them. This observation seems to your author to contain much truth; but again, many in the environmental movement seem unaware of it.
57. Richard Sharell The Tuatara, Lizards and Frogs of New Zealand (Collins, 1966) 47.

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expensive action at the public expense; the threat of poaching of wild species is much reduced; and it is even possible that new populations might be established overseas.

The same approach could be taken to not a few other species. There would be a tendency, doubtless, for private breeders to prefer “charismatic megafauna”

— larger, more photogenic and cuddly species — but bird recovery programmes are more expensive than those for smaller, humbler species. One bird whose responsibility is taken off the public hands might well financially enable the Department to rescue quite a few smaller, more obscure species. Every species bred privately enables public money for species recovery to go further. And some humbler species — wetas, snails, beetles, for example — will appeal to some private parties.

The instinctive reaction to this suggestion made by various conservationists to whom the author has spoken is one of automatic opposition. Reasons offered usually include the threat of encouraging poaching, the risk of something going wrong, and the simple wrongness in principle of using rare native animals for private gain. But poaching could be discouraged by distinctively marking all specimens, and the very existence of legal export channels would make smugglers less inclined to risk severe punishment. A certificate of sustainable origin might well add cachet to an overseas lizard or weta population. Concern about the risk of something going wrong is an argument that we should deliberately persist in a current clearly ineffective course of action. The third reason, opposition to using animals for private gain, is no more than a philosophical proposition with no bearing on the matter. It would allow a species to become extinct rather than be saved by private enterprise. Mr Eckhoff summed it up in the slogan “better dead than privately bred”. We have no objections, after all, to using domesticated animals for private gain, nor even to the taking of some native species — fish and shellfish, most notably — by private persons to be eaten, and even to be gathered commercially. So we must ask, and hope for a rational answer calmly expressed: what would be wrong with such a private lizard­breeding scheme?

Let us go further, from the cages out onto the hills. Banks Peninsula, for example, still shelters among its regenerating scrubland and bush remnants many jewelled gecko populations. Many of these populations are on private land, where our laws recognise that landowners have certain rights. What obligations should we impose on a landowner lucky or unlucky enough to have these lizards? If we refuse to allow him any resource consents under the Resource Management Act to alter lizard habitat, he will consider himself unlucky; those portions of his land will have been taken from him, in effect, as a de facto lizard reserve; he will be bearing a burden more properly assumed by the whole community, and, both because of likely resentment and also shortage of money (for the area of his land that he can farm has been reduced),

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he will be very unlikely to be willing to play the role of unpaid caretaker. Some farmers are public­spirited, or rich, enough to do so, but that cannot be taken for granted. Who will pay for fencing his lizard lands? The state cannot afford to, and we cannot force the farmer to. In any case, someone might leave a gate open. Moreover, without further provision than mere protection of habitat, lizard populations will continue to decline from predation. There must be a caretaker and manager then. Who is this to be? It could be a paid official of the Department, but it would surely make sense to engage the services and goodwill of the landowner always on the spot. How is he to be remunerated, then, for his trapping and fencing? Money, after all is short. Would it not be reasonable to allow him to conduct paying guests around his lizards, or even to allow him to breed and sell some? If we want lizards to continue to live in the wild, there must be a caretaker. Who is that to be, and how is he or she to be paid? We cannot avoid this question.

Across the Tasman, indeed, such a commercial model for native wildlife has been essayed by Earth Sanctuaries Ltd, a private company which claimed to be “the only listed company in the world with the core business activity being conservation”. Originally founded in 1969 and launched commercially in 1988, at the height of its success it owned and operated 10 wildlife sanctuaries totalling about 90,000 hectares. It derived its income chiefly from the various activities offered in its sanctuaries — guided walks, outdoor education, native nursery sales, sales of native animals, accommodation, food and beverage and gift shop sales, weddings, functions and conferences, and filming and photography — as well as consulting services, contracting to build feral­proof fences and eradicate feral animals, and reintroducing wildlife onto private land. Its founder and guiding light, Dr John Wamsley, has been described as a “somewhat controversial” figure whose relationships with government agencies “have not always been entirely cordial”, but that is not a crime. He was also recognised by the then Prime Minister, John Howard, as Australian Environmentalist of the Year in 2000; but recognition by Mr Howard is not a crime either. Earth Sanctuaries has been described as having made “a very significant conservation of endangered Australian wildlife, not only by protecting habitat and reintroducing individual animals, but also by increasing public interest in endangered­species conservation”.⁵⁸

Earth Sanctuaries Ltd did, however, go bankrupt in 2006, reminding us that “when conservation is turned into a private enterprise, environmental priorities can be compromised by the vagaries of the market and the needs of private concerns to earn an income”.⁵⁹ The reasons for the bankruptcy seem to

58. R Buckley (ed) Case Studies in Ecotourism (CAB International, 2003), ch 4 at 95–97.
59. J Sydee and S Beder The Right Way to Go? Earth Sanctuaries and Market-Based Conservation (University of Wollongong Research Online, 2006) <http://ro.uow.edu.au/ artspapers/115> .

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have been connected with accounting approaches and asset valuations more than anything else, but reasons are scarcely relevant; chance and misfortune may beset the best­laid plans. As it happens, its sanctuaries were purchased by responsible buyers, but that could not have been guaranteed. It could be observed, though, that publicly funded government initiatives also have no guarantee of long­term funding, and also depend, if not quite so immediately, on popular support. Parliaments are marketplaces too.

Hardly surprisingly, Earth Sanctuaries’ career has been caught up in our political and philosophical arguments about the proper roles and relations of the state and private enterprise. Any opinions on its usefulness as a model for the future are inevitably coloured by the politics of the commentator. Sydee and Beder⁶⁰ are convinced that it is not a good model, pointing to its eventual commercial failure, and arguing also that such private projects may threaten public access to public land and may result in native species becoming private property. In fact, Earth Sanctuaries’ reserves were private property, purchased with the company’s own money, and any scheme for protecting and breeding endangered species may well involve the exclusion of the public. The public have long been excluded from the takahē area in the Murchison Mountains, for example; access to Kapiti Island is very carefully controlled; and public access to many other islands, such as Codfish and Little Barrier, is virtually impossible. Species are unlikely to become, legally, “private property”, but even if they were to do so it would only be when all other publicly owned members of the species were dead and only the privately owned ones survived; and what would the species itself prefer in that situation? It is impossible to read Sydee and Beder without being aware of the strongest personal and political feelings. Anyone who can rejoice in our new­found interest in sustainability because it “challenges capitalist hegemony” clearly has just as much of an axe to grind as any apologist for the free­market system. Their chief objection to Earth Sanctuaries, in fact, is that its operations and success would “deflect attention away from the socio­economic crisis” (emphasis in original), and “confine debate and actions to what can be achieved by the market”. This seems to be an argument that because Earth Sanctuaries cannot do everything — it does not oppose forestry operations, for example, or save wilderness — therefore what it does is of no value. If the authors are successful in their political programme we may all one day be living in a socialist utopia, but they give us no hope that there will be many currently endangered species around. Their personal agendas are obvious, and do not add much to our understanding.

It may be that Mr Roger Beattie’s own proposals for weka nibble at the boundaries of what markets can achieve. He has been attempting for some years to reintroduce to the mainland of the South Island the eastern buff weka,

60. Ibid.

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a species or sub­species now extinct on the mainland, but which was introduced to the Chatham Islands in the 19th century, where it breeds so prolifically and is so common that it is not protected at all. At his own expense, Mr Beattie has erected predator­proof enclosures on his own farm on Banks Peninsula, and he has also given birds to wildlife sanctuaries and Ngāi Tahu. He has found that weka breed prolifically in the right conditions, hatching up to three clutches of four or five eggs a year.⁶¹ His intention, however, is ultimately to breed weka for the table. He hopes to be able to sell breeding pairs to other farmers as well as birds dressed for the table, and estimates that they could provide an income of NZ$50 per bird. Weka fencing is significantly cheaper than deer fencing.

The buff weka, however, occupies an anomalous legal position. It is mentioned in the Wildlife Act’s third schedule, “Wildlife that may be hunted or killed subject to the Minister’s notification”, where the entry is “South Island weka (on Chatham Islands only)”. On the mainland of the South Island, then, the third schedule does not apply, and any weka would therefore be absolutely protected. Eating would be out of the question. It might be possible to squeeze the weka into one of the Act’s other schedules, but clarification by legislation would be clearer and more certain, as well as being an opportunity for public debate. The legal question in Mr Beattie’s case is ultimately one of how far it is possible to extend s 53’s words and, more generally, the purpose of the statute. Accepting that the Director­General’s power to authorise taking and breeding must in every case be for the ultimate benefit of the species, would the Act encompass situations where one purpose, anyway, of the captivity and breeding programme is profit? What, moreover, of a breeding programme where the intended future for many individual birds is the table? The ultimate consumers of the cooked weka are not engaged in a breeding programme except very indirectly,⁶² but their possession of the protected species must still be allowed by law. Their eating of the weka could be argued to be ultimately for the greater good of the species, in that it is necessary in order to support the wider breeding programme, but it would certainly be helpful if legislation made the point clearer. Indeed, as the statute reads at present, every individual diner would need specific authority from the Director­General for his or her possession of an endangered species — a term which includes dead specimens and parts thereof

— a drumstick, a breast. So legislation is desirable.⁶³

But Mr Beattie’s project approaches the limits of what markets can do for more practical reasons than the details of the Wildlife Act. We may wonder how many people are going to be prepared to pay such princely sums for a

61. Fuller descriptions of his plans appear in The Press (Christchurch, New Zealand, 3 December 2009 and 5 February 2010).
62. Wendell Berry, in an oft­repeated saying, maintains that “Eating is an agricultural act”.
63. Although our finer natures may shrink from doing anything as demeaning to a native bird as eating it, Māori do not have the same qualms; see part 9, below.

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bird no bigger than a domestic fowl. We may also wonder if there might not be just a little danger of poaching. Another weka sub­species is found on the South Island’s West Coast. It is not impossible to imagine a black market, or at least killing for one’s own table. If domesticated weka were over generations selectively and specifically bred for the table it is also possible to imagine that such birds would not only be unfit for the wild but might also harm wild populations if interbreeding were allowed to occur.

8. DEPARTMENTAL ATTITUDES

Nothing’s more dull and negligent Than an old lazy government That knows no interest of state

But such as serves a present strait ⁶⁴

As noted above, the private holding of a handful of species, although for strictly limited purposes which do not include trade or gain, is legally possible now. The Department of Conservation has a 12­page policy document,⁶⁵ Captive Management of Wildlife Absolutely Protected Under the Wildlife Act 1953, which describes the principles underpinning captive management of New Zealand wildlife and gives three management categories. The principles are in accord with those articulated in International Union for the Conservation of Nature policies; the highest priority is in situ conservation in species’ natural habitats, and any captive management (the subject of this paper) should be closely integrated with programmes to conserve the species in the wild. Captive populations should be viable without the continued addition of wild specimens, and collection should not threaten wild populations. Breeding programmes should always be carefully planned, and they should not involve commercial transactions. The principles do, however, also recognise the important role played by “individuals and institutions outside the Department”, and under the terms of the World Conservation Strategy the Department “has an obligation to encourage the most effective use of those resources for conservation”.

Worthy of note also is principle 1.5.4:

As part of its obligation under the Conservation Act 1987 the Department will give effect to the principles of the Treaty of Waitangi, by providing opportunities for consultation and participation of tangata whenua with respect

64. S Butler, Miscellaneous Thoughts, 1 59.
65. Dated September 2003. The 12 pages include contents, references and glossary; only five pages (including an introductory page) are substantive.

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to the captive management of protected native species where appropriate. In particular, the Department will consult with tangata whenua where indigenous protected species are being taken from the wild into captivity, released from captivity into the wild or are being exported.

In addition, ss 287 to 296 of the Ngāi Tahu Claims Settlement Act 1998 impose specific requirements on the Department in relation to the protection, management and conservation of “taonga species”. These species are those listed in sch 97, and include about 70 bird species;⁶⁶ about 55 plants; seals and whales; and various fish and shellfish. The Crown acknowledges Ngāi Tahu’s link with these species. Various sections make it clear that this acknowl­ edgement does not affect the legal interests of others, does not “of itself ” create any right in any species, and may not be taken into account in the administration of the law. Nevertheless, the Minister of Conservation must in various ways involve Ngāi Tahu in the making of policies and plans for the recovery of those species.

The three categories for captive management are for direct conservation benefit (threatened species recovery and the restoration of ecosystems), for indirect conservation benefit (animal rehabilitation, display for the purposes of conservation advocacy, and export, which is permissible “only where it is demonstrated that this will improve the conservation of a species), and a third category which we would have to describe as “other”, but is officially described as “captive management which does not fall into category 1 or 2”.

The 2003 policy specifically noted that it would not initially apply to red and yellow crowned parakeets and certain common lizard species because captive populations of them are widespread and the “genetic fitness” of those populations is unknown. In 2008, then, the Department issued a discussion document,⁶⁷ which recognised that some private captive holdings were of significant value, while others were not; recognised also that not all current private holders of parakeets and geckos were aware of the legal requirements to obtain a permit; and also recognised the undesirability of “driving private breeders underground”. The document raised the possibility, then, of a new regime whereby these common species would be listed in the Wildlife Act’s third schedule, so that they could be held in captivity without a permit, as long as the holder adhered to a set of conditions outlined in a notice in the Gazette. Private holders of other species who wished to retain their holdings would be

66. It is impossible to be more precise, for the schedule uses such general expressions as “Albatrosses and mollymawks” and “terns”.
67. Department of Conservation A framework for managing protected “common” species held in private holdings (Discussion document DOCDM­332805, Department of Conservation, Wellington, 2008).

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allowed to do so for the term of the animals’ lives, but would not be permitted to breed from those animals.

This change has not yet been made. The reason for the delay may be no more than the natural slowness of bureaucratic wheels. Perhaps it is because there are plans, still unknown to the public, for a fuller revision of the Wildlife Act; perhaps it is because of the unfortunate heading of the third schedule, which speaks of “Wildlife that may be hunted or killed subject to Minister’s notification”. That heading could mislead less attentive members of the public as to what they could do with lizards and parakeets. For that reason alone the schedule’s title should be changed if this proposal were to go ahead.

Perhaps, then, the Department itself has doubts about the wisdom of any change; doubts about future public understanding; or more self­centred doubts about its own future role. It must be admitted that the Department guards its own prerogatives in the matter of protected species with a jealousy that sometimes seems to go beyond what the safety and integrity of the species require. Mr Beattie’s plan, for example, does indeed raise interesting legal questions, best answered by legislative change; but leaving that entirely to one side, Mr Beattie found the Department quite uncooperative in his desire to bring the weka, unprotected on the Chatham Islands, to the mainland. Indeed, even when the Department was actively killing hundreds of weka on the Chatham Islands in order to protect breeding colonies of the very rare magenta petrel, Mr Beattie still had obstacles thrown in his path.⁶⁸ The Whangarei Native Bird Recovery Centre, which has been operating for 16 years and has established an excellent track record, has had “constant battles” with the Department,⁶⁹ which, among other things, originally ordered the destruction of “Snoopy”, the Centre’s one­legged kiwi, much used in educating children about kiwi and wise methods of trapping. The Department’s 2008 discussion document could be argued to be unduly precious in its dismissal of private holdings where “significant hybridisation or selection has occurred [so] as to render the animals of limited potential use for recovery or ecological restoration programmes”. Hybridisation does occur in nature, and indeed can restore vigour to populations. The general approach of the Captive Management policy is not at all open, let alone positive, to private holdings, going so far, indeed, as to require that if an absolutely protected animal’s full recovery is unlikely and it cannot be placed in an authorised programme, then treatment should be withheld and the animal euthanased.⁷⁰

68. Pers comm.
69. Dr Muriel Newman Newman Weekly (19 November 2005). Peter Hartley, in Conservation Strategies for New Zealand, above n 54, spends several pages (177–180) describing short­ sightedness and unhelpfulness on the Department’s part.
70. Department of Conservation Captive Management of Wildlife Absolutely Protected under

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Private groups and institutions do work with the Department — The Press of 25 January 2011 reported that in the 2010 season the Willowbank Wildlife Reserve released 87 kiwi chicks into the wild, bringing the total since 2006 to 258, and expects to exceed the 2010 number in 2011. The financial arrangements accompanying Willowbank’s work are unavailable to the public. Most public involvement, however, does not concern captive specimens but volunteer projects for restoration and fencing of habitat, very often accompanied by pest control. These are, of course, excellent projects, but are of worth to conservation only as long as enthusiasm does not falter. If trapping stops, if a broken fence is not repaired, then the work of years can be undone overnight.

9. MĀORI CLAIMS AND “CULTURAL HARVEST”

I am Tane — the Tree-God! Mine are forests not a few — Forests, and I love them greatly,

Moss-encrusted, ancient, stately — Lusty, lightly-clad and new! ⁷¹

Perhaps, though, there may be another reason for the Department’s reluctance to countenance private interest in protected species. It has often been remarked, in current debates over possible tradable water rights, that if water were to be “privatised” then Māori would be certain to lay claim to it.⁷² It would be surprising if Māori were not to lay claim to wildlife also, should any possibility of privatisation occur. As noted above, the Ngāi Tahu Claims Settlement Act recognises just about every native bird in the South Island, and many native plants and marine mammals, as “taonga species”, about whose management Ngāi Tahu has special rights to consultation. Sir Tipene O’Regan has argued that fur seals are a nuisance to commercial fisheries and should be “harvested” because they are no longer endangered, and that the only purpose of protecting the native wood pigeon, for example, is so that numbers may increase to a level

the Wildlife Act 1953 (Approved policy, Department of Conservation, Wellington, 2003) at 2.2.10.

71. Alfred Domett Ranolf and Amohia, A South Seas Day Dream (1872); changed, in the 1883 edition, to Ranolf and Amohia, A Dream of Two Lives.
72. See, for example, M Durette, C Nesus, G Nesus and M Barcham Māori Perspectives on Water Allocation (Ministry for the Environment, June 2009) 17. Water permits may of course be traded now, admittedly under significant restrictions.

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where their hunting and eating is again possible.⁷³ Perhaps more significant may be the Wai 262 claim, lodged with the Waitangi Tribunal in 1991. The claim has been much amended since it was lodged over 20 years ago, but in its original form it claimed that te tino rangatiratanga “was and is an absolute authority which ... incorporates a right of development which permits ... iwi to conserve, control, utilise and exercise proprietary and ownership rights over natural resources, including indigenous flora and fauna”.⁷⁴ “Decision­ making authority” over all native plants and animals was also claimed, as well as “all rights relating to the protection, control, conservation, management ... propagation and sale” of flora and fauna. The claim also alleged that these rights are so “absolute” that “any” exercise of kāwanatanga by the Crown is actually a denial of rangatiratanga. All laws, then, about protection and conservation would be a breach of the Treaty. For the Crown to make laws protecting native plants and animals; for the Crown to engage in actual conservation work; for a nurseryman to sell native plants, and for a non­Māori to cultivate them; all these were claimed to be improper. “The establishment of scientific reserves, protected areas and other actions or inactions of the Crown which prevent or inhibit Māori access to kererū⁷⁵ is a denial of the right to maintain cultural and spiritual concepts ... .” Since nothing in the law prevents anyone from looking at and admiring pigeons, this must be a complaint that the law prohibits the killing and eating of pigeons; and other parts of the claim object more generally to the establishment of protected species. When such claims are made it is not unreasonable for the Department to be very cautious about any moves towards private rights in relation to protected species. Whatever our views on the solution to the problem of threatened species, we must surely agree that uncontrolled exploitation by Māori is very clearly not an option. And, should one racially defined part of the population be made the owner of all wildlife (or anything else), why should the rest of the population thereafter care for what is not its own property, let alone increase the amount of money to be spent on its protection?

On 2 July 2011, the Waitangi Tribunal released Ko Aotearoa Tēnei (This is New Zealand), its report on the Wai 262 claim. Of the Report’s eight chapters, in two volumes, only one chapter, chapter 4, deals with “taonga controlled by the Department of Conservation”. Over the years, as amendments have been made to the claim, its scope has considerably widened. The Report is now a “whole­of­government report”, “addressing the work of around twenty government departments and agencies and Crown entities. It is also the

73. See DJ Round Truth or Treaty? Commonsense Questions about the Treaty of Waitangi

(Canterbury University Press, 1998), ch 6 “The Natural World”.

74. An amended statement of claim dated 31 July 1998 makes it explicit that “this claim is about te tino rangatiratanga”.
75. The native wood pigeon, Hemiphaga novaeseelandiae.

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first Tribunal report to consider what the Treaty relationship might become after historical grievances are settled ... .”⁷⁶ Most of the Report is obviously beyond the scope of this article, and its recommendations have of course no force in law in themselves. Briefly, though, chapter 4 considers⁷⁷ that “Māori are obliged to act as kaitiaki (cultural guardians) towards taonga (treasured things) ... such as ... species of flora and fauna. ... Despite considerable effort by DOC, current conservation and wildlife laws and policies do not support these kaitiaki relationships to the degree required by the Treaty. Supporting kaitiaki relationships will harness Māori knowledge, resources and values, strengthening conservation of precious habitats and species. This is not only positive for Māori culture and identity but can also improve environmental outcomes.”

The Tribunal therefore recommends “the establishment of new national and regional partnership structures to give Māori an equal voice with the New Zealand Conservation Authority and regional conservation boards”. “Decision­ making about customary use of taonga ... should ... be shared ... at a local level between tangata whenua and DOC conservancies. ... [D]ecisions should be based on the principles that the survival of the species is paramount, but that iwi have a right to exercise kaitiakitanga and maintain their culture.” The Tribunal also recommended amendments to the Wildlife Act “to provide that management of protected wildlife be shared between the Crown and Māori, and that no one ‘owns’⁷⁸ protected wildlife”.

The Report, then, recommends something less than full Māori ownership. It does recommend, however, substantial Māori involvement in management and decision­making, which might well be considered to be a recognition of some sort of proprietary interest. Its extra layers of bureaucracy and management would of course come at a financial cost, possibly at the expense of spending on endangered species themselves. The Report clearly contemplates increased use of native species as an expression of Māori culture, and that could have significant consequences. The Report Summary says only that supporting kaitiaki relationships “can” improve environmental outcomes, and it can easily be imagined that many newly created and empowered Māori management structures with a voice equal to the Department’s might not have the survival and recovery of species as their primary concern. It remains to be seen what comes of the Report, but the sceptic might not necessarily consider it to be a guarantee of improvement in the lot of endangered native flora and fauna.

76. Waitangi Tribunal Indigenous Flora and Fauna and Cultural Intellectual Property: Report Summary <www.waitangi­tribunal.govt.nz> (accessed 9 July 2011).
77. Ko Aotearoa Tēnei, Factsheet 5 <www.waitangi­tribunal.govt.nz> (accessed 9 July 2011). 78 The Report Summary’s own inverted commas. The Summary goes on to explain in

parenthesis that “currently the Crown owns protected wildlife”. This does not, however, appear necessarily to be the case.

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Some of the objections raised below to the Conservation Authority’s “cultural harvest” proposals might well also apply to the Report’s recommendations.

These controversial “cultural harvest” proposals appeared in a “discussion paper” published by the New Zealand Conservation Authority in May 1994, entitled Maori Customary Use of Native Birds, Plants & Other Traditional Materials. “Harvest” is of course a loaded term, for the word makes us think of orchards and fields of grain, and implies that the gathering is a sustainable one. The very word implies that populations of protected native birds can cope with regular human killing of them, even though the statistics about threatened species make it all too clear that, even without human killing, the numbers of so many species are declining.

The “discussion paper”, a mere 13 pages in length, was no such thing, for it contained no list of options, with their merits and demerits, but only one future outcome, that of handing over to local Māori groups all decisions about the “cultural harvest” of protected species, with no input from anyone else. It started off from the entirely unestablished premise that all plants and animals belong to Māori. (In 1994, needless to say, the Waitangi Tribunal had not made any findings on the Wai 262 claim.) The paper did not even give a list of particular species proposed for harvest; it was simply a proposal for Māori control over wildlife. Section 4 of the Conservation Act was misrepresented⁷⁹ to mean that “Treaty principles” must be given effect to and take precedence over all other legal obligations.

The discussion paper caused considerable outrage and prompted many furious public submissions in opposition. It was generally thought that if the Conservation Authority had any sense it would thereafter quietly shelve the entire proposal. Nevertheless, in 1997 the Authority produced a rather thicker but only slightly less objectionable second discussion paper.⁸⁰

The 1997 paper did not begin by asking how conservation, the purpose of the Conservation Act, could be enhanced by Māori “cultural harvest”; instead, its basic assumption was still that Māori use is a good thing, and it considered conservation questions only in order to check that this desirable aim did not harm conservation. It displayed a sublime disregard for practicalities by proposing that the Department monitor, in every part of the country, all the populations of all species which might be “harvested”, so that sustainable harvesting could occur. Even supposing that species were actually increasing or maintaining themselves, such monitoring would cost an enormous amount of money which the Department does not have and will never obtain. If Parliament is unlikely to increase the Department’s vote to cover species recovery work, it

79. Not for the first or last time.
80. Maori Customary Use of Native Birds, Plants & Other Traditional Materials, Interim Report and Discussion Paper (New Zealand Conservation Authority, 1997).

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is hardly likely to vote equally large amounts to do no more than monitor race­ based killing.

The paper also contained a strange contradiction, dismissing European attitudes to the natural world as a “use ethic” and “utilitarian”. Not only is this a gross travesty which ignores many ancient and even modern voices declaring the sanctity of nature, it also sits very strangely in a paper promoting Māori use. Although it spoke of the importance of “New Zealanders’ different traditions, values and beliefs, and concepts of the relationships between humans and the natural world”, it ignored the cultural significance to Europeans of native plants and animals. Not so long ago European New Zealanders ate pigeon and kākā pie, took eels and whitebait, ducks and seals. Cultural sensitivity is a Pandora’s box which, when opened, may contain some very unpleasant surprises.

Moreover, the paper never considered the possibility that, once some Māori taking of protected species is allowed, that would break the sanctity which now surrounds and protects those species. When someone now kills a kiwi or pigeon or seal, we view that act with horror. If some members of the population may do those things lawfully, that horror would disappear. There will, indeed, be no obvious reason why anyone should not do those things. People will say that the species population must be large enough to allow taking — otherwise Māori would not be allowed to take. If they may take, why may non­Māori not have the same right? Inevitably, some non­Māori will kill endangered species for no other reason than resentment at perceived Māori racial privilege. It will not be possible to condemn that killing on the ground that it is of an endangered species, for, of course, it will be permissible for members of another racial group to kill them.

The first, 1994, discussion paper considered that cultural harvest was legally possible without any changes to the Wildlife Act. Section 53 of the Act allows the Director­General of Conservation to “authorise any specified person to catch alive or kill for any purpose approved by the Director­General any absolutely protected or partially protected wildlife or any game or any other species of wildlife the hunting or killing of which is not for the time being permitted”.⁸¹ If that is read together with a common misreading of s 4 of the Conservation Act, which is alleged to “give primacy” to the Treaty, and if Treaty principles are assumed to allow Māori taking of protected species, then “harvest” could be said to be a purpose properly authorised by the Director­General.⁸² Two replies could surely be made to this. One, which cannot be dealt with at length

81. Wildlife Act 1953, s 53(1).
82. “Section 53 offers both greater flexibility and greater discrimination, with the legal capacity for specific small­scale uses of different species, approved for particular people or groups of people, for particular reasons or purposes, limited as appropriate to a short timeframe or localised to a defined area” — 1994 paper, at 4.

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here,⁸³ is simply that nothing in Treaty principles entitles Māori to exemptions from laws imposed for the common good, or even to continue to have special rights over territories which they have freely alienated, or which (even if they were not freely alienated) have later been the subject of amiable full and final settlements. The other more specific reply is that it is an elementary principle of statutory interpretation that general words in a statute be interpreted and limited so as to further the purpose of the statute. The purpose of the Wildlife Act is the welfare of wildlife. A breeding programme pretty clearly is for that purpose; it might even be argued that a breeding programme such as Mr Beattie’s, which has as one of its objectives the production of domesticated birds for the table, is for the ultimate benefit of the species, although it would be prudent to have legislation make that quite clear. But it is surely impossible to argue that mere hunting and killing of wild specimens for human use is in any way for a species’ own benefit.

“Cultural harvest” is sometimes defended as being nothing more than a mere following of the example of Australian Aborigines and North American Indians, but their situations are quite different from that in New Zealand. Australian and North American native peoples are, by and large, far less integrated into wider society than are Māori. There is much less intermarriage; many of them live separately, in the outback or on reservations of one sort or another; and for that reason, they may actually rely on traditional foods. The hunting and taking of those species is something that has always occurred, not, as is proposed here, a recent revival not for any reason of practical necessity but rather to make a political point. Even more significantly, the biology of species hunted in Australia and America is different. Salmon and deer, bears and kangaroos are capable of sustaining much more hunting pressure than our own native bird species, many of which, at the best of times, can increase in numbers only slowly. As it is, pre­European Māori drove over 30 bird species to extinction, and most surviving species are threatened now. Māori poaching of pigeon at present in Northland threatens to render the species extinct there reasonably soon.⁸⁴

We can certainly see, then, the perilous straits into which any talk of market operations and private interests in native species might lead us.

83. But which can be studied in DJ Round “De Balaenis Noviter Inventis” [1996] NZLJ 164 and “Here Be Dragons” [2005] OtaLawRw 3; (2005) 11 Otago LR 31.
84. Sunday Star-Times (New Zealand, 4 April 2010).

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10. ENVOI

No man is an Iland, intire of itselfe; every man is a peece of the Continent, a part of the maine; if a Clod bee washed away by the Sea, Europe is the lesse, as well as if a Promontorie were, as well as if a Mannor of thy friends or of thine owne were; any mans death diminishes me, because I am involved in Mankinde; And therefore never send to know for whom the bell tolls; It tolls for thee.⁸⁵

Perplexing cross­currents vex this debate. The staunchest opponents of any introduction of free­market principles and private interest might at the same time be those most likely to sympathise with Māori dreams, however irredentist and fatal, of ownership or special interests. Our well­nigh universal respect and love of our native wildlife, which renders any harm to them unthinkable, will last only as long as they remain sacred and inviolable and very clearly a national patrimony; yet that very sacredness might require a regime of public ownership and management which the state just cannot afford, and which therefore dooms species to extinction. Guy Salmon believes that “there is an unfortunate regression whenever green movement supporters abandon the sustainability principle in favour of some tribal instinct to arbitrarily declare one species or another to be a sacred object — whether it be native beech trees, Kaimanawa horses, or the muttonbirds traditionally harvested by Maori ... if those principles [of sustainability and biodiversity conservation] are understood from an effects­ based perspective, as they should be, neither of them requires a blanket ban on native timber production”.⁸⁶ Yes indeed; yet we would have to admit that the Resource Management Act’s requirement of sustainable management has failed to realise the high hopes many held for it. Sustainable management is an excellent thing in principle; yet it seems that genuinely sustainable management can only be practised in appropriate and compatible legal and social settings.⁸⁷ Our own arrangements are such that any sustainable management is, in fact, sooner or later, very likely to be unsustainable. In any case, we will see no point in sustaining without an underlying sense of the sacred to give reason to what we do. Our practices are inevitably based on our attitudes and understanding of the world. Without a sense of sacredness, we will soon fail to see the point of labouring mightily to save a species that seems simply to be unable to accommodate itself to new realities. Yet that sense of sacredness inclines our

85. John Donne Meditations XVII (1624).
86. Quoted in Hartley Conservation Strategies for New Zealand, above n 54, at 359–360.
87. See Round The Future of Environmental Law, above n 39, for further discussion of how environmental ethics must be genuinely lived, and how this is only possible in societies structured in compatible ways.

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policies towards absolute protection and inviolability, which deprives a species of economic value and therefore makes it more vulnerable to destruction.⁸⁸ Moreover, concern for endangered species and protected lands tends inevitably to focus on those matters to the detriment of the wider health of the earth and the welfare of all species.

We cannot turn the clock back. We have come to these islands and altered them irremediably. It would be a fine thing if some of the pests and predators we introduced so carelessly were to be completely exterminated, but at present, anyway, that seems an unrealistic dream.⁸⁹ For the foreseeable future, then, there lies on us the heavy burden of management. It is only one of many burdens we must bear in increasingly hard times, and we will take it up only if we consider ourselves somehow obliged to do so. If we are not to leave our land worse than it was even just a generation ago, its forests empty, silent and forever wounded, we must do something.

Some things are being done. As well as maintaining predator­free offshore islands the Department has established half a dozen “mainland islands” where intensive predator control enables native species to survive and recover. Increasing numbers of reserves not managed by the Department — Wellington’s Karori Reserve, for example, managed by the Wellington City Council; Riccarton Bush in Christchurch, managed by its own trust board; the Waitati reserve north of Dunedin — have also, at great (and not necessarily sustainable) cost, been fenced against predators.⁹⁰ Aerial applications of 1080 poison give wildlife a breathing space, but despite the Department of Conservation’s vigorous and well­documented defence of 1080 its use continues to be opposed by an increasingly vocal lobby. Research continues into other possible means of controlling predator populations. “Biodiversity offsets” arranged under the Resource Management Act may require predator control. As long as remnants of our wildlife remain in a few sanctuaries, like Pere David’s deer within the walls of the Imperial Hunting Park, there is still hope. But the Park’s walls were breached, and the deer killed. Only the Duke of Bedford saved the species from extinction, by having his own herd at Woburn Abbey. Perhaps we need our own dukes; perhaps there is a greater place which we should allow to private benefactors. Perhaps the Department’s new emphasis on integrating

88. And also, paradoxically, to poaching.
89. Although a new organisation, Predator­Free New Zealand <www.predatorfreenz.com>, has already chosen this as its objective.
90. “In an article scheduled for publication in the June edition of the New Zealand Journal of Ecology, Canterbury Museum Curator of Vertebrate Zoology Paul Scofield and Resource Economics Professor Ross Cullen and Maggie Wang, both of Lincoln University, argue that fenced sanctuaries offer poor value for money compared with other pest control regimes aimed at saving endangered species.” David Brooks Both Sides of the Fence, Forest and Bird (May 2011) 47.

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conservation with economics will lead in this direction.⁹¹ Its paper Positioning DOC 2010–2020 — to achieve more conservation recognises the “ongoing decline of native habitats and species” and “the need to engage with others ... if we are to win the battle to protect our biodiversity”.

We can argue about some things — whether the Resource Management Act is achieving its goal of sustainable management, for example — but extinctions cannot be argued about in the same way. It may perhaps be unclear on the facts if a species is extinct; but no other dispute is possible. There was such a form of life upon the earth, and now there is not — and the chances are very high that we humans are responsible for its disappearance. The death of species, as of individuals, is a universal law, for there is always a “background rate” of extinctions;⁹² but it is clear that human beings are now greatly accelerating that rate, and many biologists consider the age in which we are living at this very moment to be that of the earth’s sixth great mass extinction. This current mass extinction has not been caused by meteors or volcanoes or — yet — by climate change, but by us. Every extinction is in an absolutely literal sense a sign that the world is dying. If these other species are not metaphorical canaries in the mine, what are they? And as we persist in our doomed courses, we do not even seem to care that we have driven into the darkness for ever some other life with which we shared the Earth. When we have ceased to care, then we have indeed turned from life. Then indeed Donne’s words are true. The death of every species diminishes us; and we need not send to know for whom the bell of extinction tolls, for at the end it tolls for us also.

91. See The Environment and the Economy, a speech given by Al Morrison, Director­General of Conservation to the Resource Management Law Association (Wellington, October 2009).
92. “Of all the species that have lived on the earth since life first appeared here three billion years ago, only about one in a thousand is still living today.” Richard Ellis No Turning Back, above n 36. Background extinctions, which are always occurring, must be distinguished from “mass extinctions”.