High Court Challenge of DOCs changes to WARO restrictions

The five-yearly review by DOC of WARO concessions throughout the country was undertaken during 2014 -to 2015. The WARO concessions are the authorization for helicopter operators are authorised to undertake wild deer shooting and recovery from Conservation lands. DOC made changes to previous concessions that resulted in areas previously closed or restricted to helicopters were open for commercial deer recovery. What ensued was more than a year of battling by the LNIRDF to have those decisions reversed.

 The predecessor to the LNIRDF, the Lower North Island Hunter Liaison Group (LNIHLG) had held ongoing discussions regarding WARO activity in the lower North Island, particularly the Ruahines. DOC had expressed the view that there were “too many deer in the Ruahines” and the group was concerned that DOC may remove existing restrictions to WARO.

Little progress was made in these discussions and the group was advised to submit views to the upcoming CMS review process.

 In 2014 Gordon George, Chairman of the LNIHLG sought information through the Official Information Act, from DOC regarding any proposals regarding the WARO concession review. These requests were stonewalled resulting eventually in a complaint to the Ombudsman.

It was not until DOC had confirmed the new WARO concessions that we found out that in fact our concerns were realized. DOC had allowed WARO into a large part of the Ruahines that had previously restricted that activity to the winter months only.

The LNIHLG, along with the GAC and NZDA began lobbying against the decision and the LNIHLG were invited to meet with the Hon Peter Dunne, Associate Minister of Conservation. This resulted in DOC doing an about turn and implementing a “review” of the Ruahine decision. NZDA, the GAC and the LNIHLG participated in the review which resulted in the original decision being quashed and a return to the previous concession conditions that restricted WARO in summer months.

 At the time the review was initiated, it became known that DOC had also removed the long standing total exclusions to WARO in parts of the Tararuas, much of the Rimutaka forest park and several Wairarapa reserves. DOC would not negotiate on reconsidering these significant changes that would affect many hunters.

The LNIHLG decided that the only way to reverse all the concession changes was to take a Judicial Review in the High Court the seek a revocation of the WARO concessions for the lower North Island.

 To do this, the Lower North Island Red Deer Foundation Incorpration was borne. This gave the group a formal entity to handle the legal process, and provide options for future proposals to improve deer management in the region.

Legal firm DL Piper were engaged to represent the foundation in the legal challenge. Considerable effort went into advising the lawyers preparing affidavits and commenting on responses by DOC.

Funding for the challenge was raised through donations from hunting clubs, NZDA Head office and many individuals. Also, the Lower Hutt branch of the NZDA unwrote the funding and “loaned” the foundation significant funds to see the challenge happen.

Key grounds for our claim included

  • Failure to consult with hunters over the changes made to WARO restrictions
  • Failure to recognize that the effects of the changes were significant
  • Failure to recognize that the Wild Animal Control act requires the department to consult where changes are going to be made
  • That the basis for the decisions were mistake of fact (ie the perceived risk to conservation )

 Our day in court eventually happened on the 3 May 2017. In his judgement, Justice Simon France said he was satisfied the process was unfair because of DoC’s failure to consult.

Justice France says as the Minister of Conservation’s delegate, DoC was under a duty to consult with the Red Deer Foundation in order to achieve a fair process. He said as a result of this unfairness, DoC’s 2015 WARO decision is invalid due to a failure of natural justice.

Justice France has also awarded costs to the Red Deer Foundation

This result proved that the departments long held policy that they did not have to consult with recreational hunters was wrong. The result also served notice on DOC to do better next time.

Read the media release here..

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