Six ways conservation law is an ass

New Zealand has around 4000 species at risk of extinction. Some are given excellent legal protection through law, while others slip through legislative cracks. Farah Hancock reports on some of the more ridiculous situations.

Since people have arrived on New Zealand's shores, biodiversity has suffered. More than 50 species of birds have been wiped out, four plants, three lizards, three frog, one fish and an unknown number of invertebrates. Another 4000 species face the threat of extinction. Even where there's a public will to save a species, current rules aren't always helpful - and there's a skew in the rules to the cute critters. 

1. What’s up with you Wildlife Act?

If you’re an animal, the Wildlife Act can be your best buddy. It gives absolute protection and makes it illegal for anyone to possess you - dead or alive - in New Zealand or in the water of our exclusive economic zone. 

There’s a wee catch and it’s the word “animal”. Giant weta and butterflies, sought after by overseas collectors, aren’t animals. Freshwater fish aren’t animals. Plants and fungi definitely aren’t animals.

The solution is to make other species honorary animals. The Wildlife Act has a special list of identity-bending critters. Schedule 7 is a list of: “Terrestrial and freshwater invertebrates declared to be animals”.

It’s an inelegant solution, but it does offer excellent protection for those that make the list. The problem is the list is very short: freshwater fish, fungi and plants don’t feature, and even some critically-endangered insects don’t get on the list. 

The Eyrewell beetle, which is listed as ‘nationally critical’, the last stop on threat classification ranking before extinction, is on the Department of Conservation’s list of 150 priority species but not in the Wildlife Act. 

The Eyrewell beetle. Photo: Birgit Rhode / Landcare Research – Manaaki Whenua CC BY 4.0

2. It’s my land, I’ll do what I want.

Without the Wildlife Act declaring the Eyrewell beetle an honorary animal, there was nothing the Department of Conservation staff could do to stop the landowners from mulching the forest it lived in and turning it into an intensive dairying operation for 14,000 cows in Canterbury’s dry plains.

Despite the lack of legal options, passionate staff fought in vain for eight years to convince Ngāi Tahu Farming to preserve reserves in the places the beetle was last seen. Staff failed, and were even censured for being too passionate by management. No beetles have been found since the conversion and the hunt for them ends in 2020.

In another beetle-related matter, a possible new beetle exists on a two-hectare site in the Mackenzie Basin. Scientists would like to learn more about it, but can’t. Private landowners won’t let the scientist onto the land:

“I have been unsuccessful as access to the small commercial site has been denied.”

3. Catch me if you can

There’s one native fish you don’t want to catch in New Zealand on private or conservation land. 

The Freshwater Fisheries Regulations spells it out:

“No person shall intentionally fish for, take, or kill grayling or fish of the genus Prototroctes, and any person unintentionally taking or killing any grayling or any such fish shall forthwith convey or cause it to be conveyed to an officer of the Fish and Game Council within the meaning of the Conservation Act 1987 for the district within which the grayling was killed, and shall give to that officer full particulars of the time and place of the capture of the grayling.”

It's a paragraph of protection that came far too late. When the law passed in 1951, grayling had been extinct for decades. Still, the rule persisted and even survived a 1980s update.

The extinct grayling are the only native fish to get this level of protection.

4. Cuter than kākāpō, but on the menu 

Canterbury mudfish, one of New Zealand’s most endangered freshwater fish species, don’t have the same safeguards as the extinct grayling.

While slimy mud-dwellers aren’t everybody's cup of tea, the mudfish does have some ardent fans. University of Canterbury professor Angus McIntosh describes them as “as almost the coolest fish going around” and "super good-looking and cuter than kākāpō".

'Super good looking' Canterbury mudfish. Photo: Colin Meurk - CC BY-SA 4.0

The cuteness factor and same threat classification to kākāpō is no help to the mudfish.

It’s completely legal to take indigenous freshwater fish, such as mudfish, if it’s not on conservation land for eating. 

Worryingly for the Canterbury mudfish, most of its habitat is on private land where it ekes out a life in drains and water races. If farmers decided the bony fish was a delicacy, it would be legal for them to catch and eat as many as they want. 

While their small size, numerous bones and potential muddy tang might save them from the frying pan, council rules requiring water races be kept clear mean keeping mudfish's homes safe is tricky for conservation-minded farmers. 

5. Make up your mind. At risk, or for sale?

One water dweller has the confusing status of being on two lists. The longfin eel is on DoC’s priority list of species to conserve, as well as in the Quota Management System as something that can be legally caught and sold.

The eel’s conservation status is the same as the North Island brown kiwi. In 2019, the 137 tonnes were legally allowed to be caught. Some are likely to be shipped offshore live, packed in polystyrene boxes with ice. Others are smoked and sold locally. 

For $3.10 your cat could enjoy eel from "New Zealand's pristine streams and lakes." Photo: https://www.kohepets.com.sg/

Off-cuts could be ending up in tins of expensive, gourmet pet food. Shops don’t tend to label products to say whether they contain the endangered longfin, or the not threatened shortfin eel, so making a moral decision about purchasing smoked eel, or food for a pet is hard.

If eels escape commercial fishing nets, there are turbines to face.

Some dams get a free pass to mince up the at-risk species. The Conservation (Indigenous Freshwater Fish) Amendment Bill passed this year improves the lot of freshwater fish, but existing hydroelectricity dams are exempt from making sure their turbines don’t chop up eels making their once-in-their-lifetime trip to spawn at sea. Advocates worry the combined pressure of dams and commercial fishing are too much,

Eels found below Karāpiro dam during migration season. Photo: Supplied

6. I steal dead things

While some would query whether something counts as biodiversity when it's dead, there’s plenty to learn from bones and fossils which can inform conservation. 

A loophole in legislation means bones of extinct species are fair game if found on private land - and there’s a thriving moa bone market on TradeMe.

It’s a loophole suspected of being flouted by looters. Fines for taking bones from conservation land are up to five years' imprisonment or a $300,000 fine.

The catch is that it's hard and costly to prove a bone has been taken from conservation land. Despite a number of investigations, there have been no prosecutions. Security around known sites containing moa bones has been improved and changes to laws hoped to put a stop to the legal sale encouraging pillaging are under discussion.

Fossils face another quirk of the law. Earlier this year, Foulden Maar’s fate made headlines. The owner’s plan was to grind up the fossils present in the diatomite-rich maar and turn them into a food additive for stock food for pigs, chickens and turkeys.

Advocates looked into whether the Protected Objects Act could help stop the scientifically-important fossils being turned to dust and exported.

The Protected Objects Act stops identified whole fossils from export, but once fossils are ground up, it can't stop the export. The Act also has no power to prevent fossils being crushed.

How to fix all the silly legal gaps?

This year was a big year for biodiversity protection and this will continue into 2020.

A new Biodiversity Strategy will be finalised. This is an aspirational document that has no legal teeth on its own, but does provide overarching aspirations which will trickle down to other documents. 

The National Policy Statement for Indigenous Biodiversity will provide more legal protection in the way of national rules councils must follow. This is likely to improve the protection of threatened species on private land.

Reform of the Resource Management Act is also under way. One group has suggested as part of the reform a general Marie Kondo-style clean up of all laws is undertaken.

Other rules are set to change too, although the pace is slow. A proposed ban on mining on conservation land is still waiting to be implemented. Māui and Hector's dolphins are still waiting for protection from a delayed threat management plan. 

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