Conservation law and the Black Petrel: a New Zealand PhD thesis takes a legal view

Philippa Wallace has been awarded her Doctor of Philosophy in Law by The University of Waikato for a study of how New Zealand domestic and international conservation law affects the nation’s threatened birds.  Her thesis considers in detail the ACAP-listed and both nationally and globally Vulnerable Black Petrel Procellaria parkinsoni and the Sooty Shearwater Puffinus griseus in two of the six case studies covered.

Chapter Six of the thesis “Distribution of benefit and harm to species through law and planning in New Zealand - international obligations” inter alia considers the role of the Albatross and Petrel Agreement in helping conserve New Zealand’s Black Petrel.

Black Petrel at sea, photograph by Biz Bell

The abstract of the PhD thesis follows:

“Endemic birds in New Zealand are under threat, and increasingly so, as human activity reshapes the land, reconstitutes the water, consumes space and resources and alters faunal composition.  The decline of biodiversity is a pressing concern globally and the unique nature of the endemic fauna of New Zealand provides impetus for concern.

Examination of the state of birds and analysis of the response of New Zealand law to the agents of decline is the key contribution of this research.  The substance and operation of New Zealand law is examined to determine its influence upon the distribution of benefit and burden to New Zealand birds.  Six case study birds: the black petrel, dotterel, kokako, godwit, sooty shearwater, and the wrybill are studied to elucidate these matters.

In examining distribution of harm and benefit, a particular focus of the research is upon the degree of care that is applied to protecting birds through the law and related planning instruments.  By assessing the principles, criteria and methods applied to protecting birds, the research identifies that an objective of avoidance of harm to indigenous Threatened or At Risk species, their habitats, and ecosystems upon which they depend, will benefit birds.  It concludes that conservation status, as opposed to habitat or sectoral dispensation, is an important determinant for application of the standard, as this provides the most consistently protective approach.  In addition, it is demonstrated that where uncertainty or ignorance arises as to existence or level of harm, the use of precaution and giving the benefit of the doubt to nature is important for enhancing protection.

New Zealand conservation law is analysed at the international level in conjunction with species and habitat protection at the domestic level.  International agreements, the Wildlife Act 1953, the Conservation Act 1987, the Resource Management Act 1991 and related policy and plans are examined.  Although at times strongly beneficial, the research concludes that the arrangements made by the law are wanting.  An important contribution of the research is to demonstrate the deficiencies, which can be separated into three classes: the problem of standard, the problem of consistency and integration, and the problem of implementation.

These problems constrain the protective force of the law.  Fragmentation and lack of a strong and consistent protective standard limit protection of birds against competing social, economic and cultural factors.  The law requires revision.  Species protection calls for particular attention.  The Wildlife Act 1953 maintains a standard of absolute protection of birds, but the research demonstrates the many ways in which this standard is compromised.  Greater strategic planning and integration is required, particularly with regard to human development.  Interrelationships between the statutes, including that between the Wildlife Act 1953 and the RMA 1991, require addressing.  Inadequate implementation of existing law compounds these matters, and the research identifies a range of aspects where gains for species could be made.  It concludes with a series of recommendations directed at the identified problems.”

Reference:

Wallace, P.J. 2014.  Boundaries of Absolute Protection: Distribution of Benefit and Harm to Birds through Law and Planning in New Zealand.  PhD Thesis, The University of Waikato.  528 pp.

John Cooper, ACAP Information Officer, 23 November 2014