Penguins at Waiheke marina site reveal 'glaring hole' in Wildlife Act, Greens say

Tuesday, 29 June 2021

With legal avenues exhausted, the protectors at Kennedy Point say they've no choice but to occupy the beach.

Penguins at the site of a planned Waiheke marina point to a “glaring hole” in the Wildlife Act, the Green Party says.

The kororā, little blue penguins, living in the rock breakwater at Kennedy Point, Pūtiki Bay, have been a rallying point for opponents of the marina, who are concerned they will be harmed by construction.

The current law doesn’t do enough to protect them, according to the Greens.

That’s because, while handling or moving a protected species requires a wildlife permit, there’s nothing the Department of Conservation (DOC) can do to control animals being disturbed by human activity.

Models represent the dozens of little blue penguins thought to have their burrows in the rock breakwater.

* Waiheke penguin plight shows our broken relationship with nature

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Eugenie Sage, conservation spokesperson for the Green Party, said it’s time for a review and overhaul of the Wildlife Act.

Eugenie Sage, conservation spokesperson for the Green Party, wants the Wildlife Act reformed.

The resource consent for the marina lays out conditions for the protection of kororā, and Auckland Council is currently reviewing an updated penguin management plan.

But as the birds are a protected species, Sage said the Wildlife Act is “critical” for DOC being able to set conditions on disturbance.

“If the Department can’t do that, that’s a problem.

“Kororā are at risk, and they deserve proper protection in terms of any activities which threaten to disturb them.”

Setting conditions around disturbance could mean limiting which season or time of day construction can take place, or prescribing a certain distance between burrows and building work.

Kororā have their burrows in the rock breakwater, which needs to be partially dismantled in the construction process.

DOC used to grant permits around disturbance, and with them conditions on what must be done to mitigate the impact on protected species.

But that changed with a 2019 Supreme Court decision about shark cage diving, where the court determined that disturbance of wildlife cannot be authorised “as an end in itself”.

“A permit cannot therefore be applied for, or granted, to ‘disturb’ kororā,” Acting Conservation Minister Dr Ayesha Verrall said in an answer to a written parliamentary question.

Sage said that highlighted a “big gap” in legislation.

“I think the Wildlife Act is long overdue for reform.

“It’s got a number of inadequacies in relation to Te Tiriti, to customary use, and now this glaring hole in relation to protecting threatened species from disturbance by construction.”

DOC operations manager Kat Lane confirmed the marina developers have applied for a permit to catch, handle and release kororā found in the area during construction.

The application is currently being considered by DOC, she said.

“DOC technical advice is that kororā are robust birds and tolerant of disturbance, as evidenced by them being present in an area with significant human activity.”

DOC staff visited the site in June and determined the risk to kororā from the new buoys was low, as the kororā can swim under or around the buoys or move to the end of the sea wall, Lane said.

But Sage said videos she’d seen appeared to show the construction works were impeding kororā from getting out to sea to eat.

The Greens will be encouraging the government to prioritise the Wildlife Act in any reviews of conservation legislation, she said.

A spokesperson for Minister Verrall said the Wildlife Act is currently under review, but did not address whether this will strengthen DOC’s powers to control disturbance to protected species.