What the shark cage ruling means for 1080

A recent Supreme Court decision doesn’t have immediate implications for aerial 1080 drops, the Department of Conservation says. David Williams reports.

An anti-1080 lawyer’s attempt to relate a recent Supreme Court decision to the use of the poison has been firmly rejected by the Department of Conservation.

Bluff company Shark Experience was taken to court by a group representing commercial pāua quota owners over its Foveaux Strait shark cage diving operation. The Court of Appeal ruled the activity is effectively a “hunt or kill” of protected great white sharks, as defined by the Wildlife Act. But earlier this month, the Supreme Court overturned that decision.

Days after the Supreme Court ruling, anti-1080 lawyer Sue Grey wrote to the Department of Conservation, on behalf of Ngā Kaitiaki, an incorporated society set up last year. In her letter to DoC director-general Lou Sanson, Grey argued the court decision clarified that spreading poison in a way that may disturb or kill protected wildlife is an offence under the Wildlife Act, unless properly authorised.

(Last year, Grey was involved in delaying but not stopping a 1080 drop in Auckland’s Hunua Ranges – an operation that saw pest numbers drop and kōkako numbers climb.)

Grey’s letter claimed there was an “ongoing high rate of kill of endangered kea, mohua and other wildlife” from 1080 operations, which also resulted in “the aerial spread of deadly poison dust over national parks and other public land”.

DoC was accused of only knocking on the door of backcountry huts to inform groups of 1080 operations. That is “clearly unsatisfactory in terms of health and safety obligations”, Grey wrote, as she urged DoC to “take seriously its legal and moral responsibilities”.

“You are urged to place all imminent aerial poison operations on hold until all Wildlife Act, health and safety and consultation obligations can be properly assessed and complied with, in addition to ensuing compliance with all label and other mandatory conditions of approval on the use of these deadly poison baits.”

“There is hard evidence, gathered over many pest control operations, that point to the benefits to species populations from the use of aerial 1080.” – Martin Kessick

DoC’s response to Grey, sent last Wednesday, came from the deputy director-general of biodiversity, Martin Kessick. The department has no intention of halting 1080 drops, he says, and is taking its legal responsibilities seriously.

“There is nothing in the Supreme Court’s decision on the offence provisions relating to shark cage diving which has direct implications for the authorisations being granted in relation to 1080,” says the letter, provided to Newsroom by the department. “Your letter has confused a number of matters relating to health and safety, consultation, compliance with labels and other mandatory conditions of approval and DoC is already complying with the law.”

Kessick admits, however, that DoC is seeking further advice on how the court ruling applies beyond shark cage diving.

He dismisses the description of wafting poison dust in national parks as “misleading”, and the suggestion that the only advice provided to those in backcountry huts is a knock on the door as “incorrect”.

It’s “false” to say there’s a high rate of kill of endangered species, he says. “There is hard evidence, gathered over many pest control operations, that point to the benefits to species populations from the use of aerial 1080. The risk to humans is a public safety matter, but there is no substantive evidence about the risks you raise.

“DoC will continue to research other methods to deal with predator pests but at this stage the benefits of using 1080 to native species far outweigh the risks.”

Comparison ‘not appropriate’

Aerial 1080 drops are conducted to protect and increase populations of indigenous species, Kessick’s letter says. “In the case where there may be some deaths of individual protected wildlife, these have been authorised under the Wildlife Act.”

DoC doesn’t need to urgently improve its consultation practices, Kessick says.

The 1080 toxin is one of the most researched toxins in the world, he writes. It’s approved by the Environmental Protection Authority, and the Ministry for Primary Industries, and has been investigated by the Parliamentary Commissioner for the Environment.

For those reasons, Kessick argues, consultation is limited to the effects of a specific operation in a particular location.

“Comparing the consultation for shark cage diving undertaken by a commercial tourist operator for its own benefit and being a relatively new activity in New Zealand with the consultation on a very long-standing activity of pest control is not appropriate.”

Carol Sawyer, an anti-1080 campaigner based in Wanaka, challenged parts of Newsroom’s story last week about a reduction, to 900,000 hectares, in the area of native forest being treated by 1080. Sawyer - who was put out by the suggestion that a reduction in area might please some of the poison’s opponents - claimed the more intensive operations would increase the poison bait being applied by “a massive 631,288kg MORE than was originally planned”.

But based on DoC’s figures, the increase is 51,035kg of bait. Given the poison comprises 0.15 percent of bait, that’s an extra 76.5kg of poison across almost 850,000 hectares of forest.

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