What the tahr decision actually says

It was claimed as a win but last week’s court decision on tahr control was mostly legal shots thumping harmlessly into a wall. David Williams reports

ANALYSIS: Last Friday, hunting groups welcomed a “landmark” High Court decision, “halting” a controversial plan to “exterminate” all tahr in national parks and sharply reduce numbers in other parts of the Southern Alps.

In a press release, hunting lobby group Tahr Foundation, which took the judicial review, called the decision a victory for common sense. Spokesman Willie Duley accused the Department of Conservation of trying to ride roughshod over the hunting sector with “sham” consultation.

The Professional Hunting Guides Association president James Cagney dubbed DoC’s plan a “body blow for our industry”, a plan that would “unthinkingly wipe out these jobs without any consideration”.

In a clever segue, Cagney pointed to the Tiwai Smelter’s closure announcement, adding: “We don’t need any more misery.”

Did they have their heads buried in the alpine tussock?

Sure, DoC was pinged for poor consultation over the scale of culling, and the court said only half the helicopter hours can be used before renewed consultation. But the judicial review upholds much of the Department of Conservation’s plan and reinforces the bid to rid national parks of the exotic beasts. Justice Robert Dobson even challenges some of the rhetoric about damage to the commercial hunting industry.

“The High Court decision is good news for alpine plants and ecosystems,” Conservation Minister Eugenie Sage says in an emailed statement, also sent to Stuff. There are no plans to eradicate Himalayan tahr, she says, there are just too many of them in the Southern Alps.

DOC operations director Dr Ben Reddiex won’t say when official culling operations will start. “Since this year’s tahr control operations were recently announced, there have a number of inappropriate comments made on social media regarding the safety of our staff and contractors. We are reporting threats made to staff and contractors to NZ Police.”

Harassment of DoC staff and contractors, often over the predator-killing toxin 1080 and tahr culls, has prompted DoC to establish a national security team.

Fury and fear

Similar to two years ago, when hunter outrage at a looming “tahr-maggedon” prompted a crowdfunding campaign and petition, for the last few weeks hunting groups have fomented fury and fear about the supposed near death of a niche tourism industry.

It’s also an election issue. On Sunday, Nicole McKee, who runs a firearms instruction business and is third on the ACT party’s list, accused the “Greens” of approving a plan to drive tahr “to the brink of extinction”.

Much of what is being said, however, isn’t true or lacks context.

The operational plan was actually approved by a deputy director-general of conservation, and will leave thousands of tahr roaming 425,000 hectares of public conservation land.

Adoption of the plan comes after years of DoC being challenged to do its job, and after pressure from Minister Sage. The Department of Conservation will now spend more time enforcing a 1993 statutory tahr control plan which caps numbers on public conservation land at 10,000 animals. That’s nowhere near extinction, and it might take years to get the population down to that level.

The animals’ feral range also extends 133,000ha on Crown pastoral leases and private land. There will still be tahr, and plenty of them. (The last estimate has the tahr population on conservation land at 34,478, with a 95 percent confidence range of 26,522 to 44,821.)

Bulls will now being targeted in national parks, but by law, that should have been happening already. Previously, DoC caved to the hunting lobby and mandated official culling operations only target nannies and juveniles in national parks, leaving bulls for hunters.

If the numbers had been knocked down sufficiently, the looming “extermination” in national parks wouldn’t be necessary. Killing the estimated 6973 animals in the Westland Tai Poutini and Aoraki Mount Cook national parks would still leave thousands of tahr on nearby conservation land. Leaving all of them in national parks, however, would allow continued damage to alpine tussock grasslands – which have been in the parks far longer than tahr, introduced in 1904 – in the country’s most special and protected places.

The 1993 tahr plan was a compromise that has never been realised, trading off acceptable vegetation damage with reasonable hunting opportunities.

It was designed to use hunters – both commercial and recreational – to keep the tahr population within an acceptable range, and save the taxpayer money. DoC was meant to pay for culling operations when densities in seven so-called “management units” exceeded their maximums.

However, the tahr population has been substantially higher than 10,000 since at least 1996. Part of the problem has been DoC’s lack of resources, or inclination, to enforce the plan.

It seems fair to ask why public conservation land should suffer to prop up commercial hunting businesses created on the assumption a statutory plan wouldn’t be enforced.

“Witnesses for the foundation who attended say that they were too stunned after receiving the proposed plan just three nights before the meeting to effectively muster opposition to it.” – judicial review judgment

The Tahr Foundation is an incorporated society, formed four years ago to represent interest groups. Its membership comprises professional hunting guides, helicopter-using trophy hunters, deerstalkers and other recreational hunters and high country farmers.

New Zealand is the only country in the world with a huntable population of tahr. The guided hunting industry is worth an estimated $103 million a year in direct and indirect spending.

The judicial review centred on DoC’s consultation leading up to this year’s tahr control plan for the year, starting July 1, and provision for 250 hours of helicopter time for culling in 2020-21, as opposed to 80 hours the previous year.

Foundation chairman Snow Hewetson told the court there’s no urgent ecological threat requiring such a “dramatic change” to culling tahr. Wanaka’s Gerald Telford, who owns and operates a hunting business, estimates a herd of close to 24,000 is required to sustain a “viable industry”. Several members, incuding Francis Duley, publisher of New Zealand Hunter magazine and producer of an outdoor adventure TV show, took issue with aspects of the DoC evidence.

In response, DoC’s tahr programme leader James Holborow says “substantial injury to the industry” will not occur, and the culling will have little impact on commercial hunting because the most important activity happens outside national parks.

The official cull was 7238 animals last year – a huge jump on the 168 the year before, because of a fatal helicopter crash in October 2018. This year’s 250 hours of cull time equates to about 7500 animals.

Consultation on the tahr plan is done through a liaison group, which, beyond a large number of hunting bodies, includes representatives from Ngāi Tahu, the NZ Conservation Authority, the local conservation board, Forest & Bird, and Federated Mountain Clubs.

An initial meeting was planned for March 24 this year but was delayed by Covid-19. After the country emerged to alert level three, discussions resumed on May 21.

A DoC-appointed facilitator helped arrange interviews with 18 groups between May 26 and June 8. Aspects of the draft plan were mentioned – crucially, moves to target all tahr in national parks, stop the spread of tahr, and thin high-density management units.

The draft plan, circulated on June 16, left foundation members “shocked”, the court was told. A meeting was called for June 19, after which no material changes were made.

“Witnesses for the foundation who attended say that they were too stunned after receiving the proposed plan just three nights before the meeting to effectively muster opposition to it,” the High Court decision said.

DoC was also accused of being closed-minded; of being determined to push through the plan as drafted. (That’s the same criticism made by Forest & Bird a year ago, when the draft plan continued the policy of official cull operations not shooting bull tahr in national parks. The conservation lobby group is seeking a declaratory judgment on the tahr plan.)

The foundation rediscovered its composure on June 22, when it asked Minister Sage to reject the plan, and review the statutory plan. That was followed, a day later, by a solicitor’s letter giving notice of the grounds of a legal challenge.

Papers were filed in court on June 26.

Hunters’ primary role

The foundation’s legal challenge, as is the way, was somewhat scattergun.

It maintained hunters have a “primary role” in tahr culls, and DoC must promote or protect the interests of commercial hunters. Also, that hunting groups deserve meaningful consultation, and DoC’s leaders asked the wrong questions and didn’t have the right information.

Tahr Foundation lawyer Jack Hodder QC said DoC’s 2020-21 plan failed to protect, and actually harms, the interests of hunting groups. “Arguably, DoC was on notice, or ought to have appreciated, that the level of control DoC proposes to undertake will decimate, to the point of threatening the survival of, the commercial tahr hunting industry,” he told the court.

However, the High Court decision diminishes commercial and recreational hunting to an “available means”, merely a “discretionary factor”, for culling tahr. DoC’s official operations then reduce numbers to the 10,000 maximum.

The foundation’s claims of inadequate consultation were echoed in a press release by the statutory Game Animal Council, which expressed extreme disappointment at DoC’s “failure” – with chair Don Hammond adding “if the operations are completed, they will devastate tahr hunting”.

Dobson held this concern was “not accepted as the correct position”.

DoC denied it has a formal obligation to consult over its plan, or that, given “considerable dialogue” with hunting interests, the number of animals to be culled should have been a surprise.

The judgment said there’s a legitimate expectation for meaningful consultation on the plan, given the “step change” that arrived on June 16. DoC was guilty of “partial inadequacy”.

Dobson wrote: “I do sense an element of overstatement in their claim as to the extent of departure from recent DoC practice represented by the proposed 250 hours, and accordingly a similar overstatement in the extent to which it represented an unexpected surprise. However, I do accept that the manner in which that critical ingredient of the proposed plan was conveyed left hunting interests with inadequate time to make a full response.”

The internal paper put to DoC’s decision-maker, the deputy director-general, appropriately canvassed all issues, including those of hunting interests, the judge said.

In terms of targeting bull tahr in national parks, the National Parks Act says extermination of exotic animals is required “as far as possible”. Rather than this line allowing wiggle room for hunters, Dobson said it’s just as “possible” to shoot bulls as other tahr in national parks.

DoC’s early interviews flagged the loss of this concession, the judgment said, giving hunting interests ample time to prepare arguments ahead of the June 19 meeting.

While the department failed to provide meaningful consultation on the scale of its operation, Dobson said quashing the plan would be disproportionate. The decision was reasonable under the law but it was the process that was inadequate.

Dobson directed DoC to re-consult over its operational plan, calling a meeting or a series of meetings, and release “new material” giving parties five days to respond. A reasoned decision (not a different one, necessarily) will then be produced.

Only half the proposed control hours can be used until re-consultation is completed and a further decision issued. (Tellingly, there’s no restriction on control outside the tahr “feral range”, and no constraint on bulls culled in national parks.)

You can almost see the judge’s brow wrinkle when his decision considers claims of the cull’s effect on commercial hunting. The extent of harm relies “on an expectation of a herd size materially larger” than that set out in the 1993 control plan, and a policy adopted two years earlier.

It’s at that point Hodder, the foundation’s lawyer, changes tack. The foundation doesn’t resist a move towards 10,000 tahr, he told the judge, it’s just about the means and the speed of achieving it.

The judge wrote: “The latter consideration implicitly acknowledged the prospect that the commercial hunting industry may have to downsize, but that a staged adjustment over time is likely to lead to far less economic and personal hardship than the foundation sees resulting from what it treats as a precipitous drop in the number of tahr.”

This position seems optimistic, given the Tahr Foundation’s cries of victory in the judicial review, and a protest planned for the Mackenzie Basin this Sunday. It’s easy to underestimates the depth of feeling within the hunting fraternity about further restrictions, particularly in the wake of the ban of military-style semi-automatic weapons and equipment after last year’s terrorist attack in Christchurch.

Over the last fortnight, about $140,000 has been raised for the incorporated society on a Give a Little fundraising page “to protect our tahr herd and call the government into account”. It’s part of a “battle”, funders are told, to “strike a balance” between hunting, recreation, jobs and conservation. (Presumably the money isn’t a legal fighting fund. Professional Hunting Guides Association president Cagney says it has had enough of court cases and it’s time for DoC to properly consult the hunting sector.)

A petition on Change.org has about 50,000 signatures.

To promote its tahr campaign, the foundation produced a slick video which, initially, borrowed the language used by Prime Minister Jacinda Ardern after the mosques attack. The video originally said of tahr, “They are us”. It has apologised and it now reads, “What they mean to us”.

On Sunday, after donating $25 to the New Zealand Tahr Foundation’s cause, Eve wrote: “THIS IS A SYMBOL OF THE NEED TO PROTECT YOUR FREEDOM.”

Actually, after reading the court judgment, it seems to be a symbol of how quickly a special interest group can be mobilised by wrapping reasonable statements in rhetoric and glossing over key points.

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