Introduction

Contrary to media reports, the Supreme Court's recent decision in Shark Experience Ltd v PauaMAC5 Inc has expressly left the question of whether shark cage diving is an offence in New Zealand open for a future case in which a breach of Section 63A of the Wildlife Act 1953 is alleged.(1)

The Supreme Court ruled on the correct approach to interpreting Section 63A but declined to make a determination on the limited facts before it. The decisions of the Supreme Court and the lower courts illustrate the challenges of statutory interpretation and the resulting potential for differing judicial views.

Background

The Wildlife Act aims to protect wildlife through a tiered system with different levels of protection for different categories of wildlife. Although all species are protected, through a series of provisions and schedules, the levels of protection are circumscribed for certain categories. The act is set up in this manner to eliminate the risk of inadvertent omission of species.(2) Section 7BA of the act, added at the same time as Section 63A, extends the meaning of 'animal' to include the marine species listed in Schedule 7A, which includes white pointer sharks, more commonly known as great white sharks.

As a result, great white sharks are absolutely protected under the act. Section 63A of the Wildlife Act makes it an offence to hunt or kill any absolutely or partially protected marine wildlife without lawful authority. Effectively, it expressly extends to marine
wildlife the protection under Section 63 which makes it an offence to hunt or kill any absolutely protected or partially protected wildlife or any game. Section 53 of the act empowers the director general of conservation (director general) to authorise any specified person to "catch alive or kill" any wildlife for any purpose approved by the director general.

The issue which arose is the meaning of 'hunt or kill' in Section 63A and whether shark cage diving falls within that meaning. The act defines 'hunt or kill' as:

in relation to any wildlife, includes the hunting, killing, taking, trapping or capturing of any wildlife by any means; and also includes pursuing, disturbing, or molesting any wildlife, taking or using a firearm, dog, or like method to hunt or kill wildlife, whether this results in killing or capturing or not; and also includes every attempt to hunt or kill wildlife and every act of assistance of any other person to hunt or kill wildlife.

Section 68B provides a statutory defence to Section 63A offences. It is a defence to a charge of killing, injuring or being in possession of any marine wildlife, contrary to the act, if the defendant proves that the death or injury was accidental or  incidental and that such killing or injuring was reported.

Lower court decisions

Shark Experience Ltd offers customers the opportunity to view great white sharks in Foveaux Strait, off the northern Tῑtῑ Islands and east of Stewart Island, an area where great white sharks are known to aggregate. Berley and other forms of bait are used to attract sharks with customers then being submerged in cages suspended from boats.

In December 2014 the director general granted authorisations, purportedly under Section 53 of the Wildlife Act, to operators including Shark Experience to carry out shark cage diving operations. The director general issued the authorities on the assumption that shark cage diving breached Section 63A of the Wildlife Act.

PauaMAC5 Inc represents commercial fishers of pāua under quota, who operate in the same area as Shark Experience. It was concerned that its divers were being endangered by shark cage diving operators, claiming that the use of berley attracted greater numbers of sharks to the area and produced more aggressive behaviour. It brought proceedings in the High Court challenging the lawfulness of the authorisation on the grounds that the director general was required, but had failed, to consider the safety of other water users when issuing the authorities. The director general opposed, arguing that the Department of Conservation was under no statutory obligation to consider public safety when making decisions under the Wildlife Act. The issue in the High Court was whether the authorities issued were lawful.

In June 2017 Justice Clark in the High Court held that shark cage diving was not an offence under Section 63A of the Wildlife Act and that, as a result, the director general lacked power under Section 53(1) to authorise it.(3) The High Court held that the words "pursuing, disturbing, or molesting" were necessarily connected to, and qualified by, the words "hunt or kill" which appear in the same part of the definition. On this reasoning, pursuing, disturbing or molesting protected wildlife would come
within 'hunting or killing' only if it occurred for the purpose of hunting or killing, in the ordinary meaning of those words.(4) As shark cage diving did not come within the meaning of 'hunt or kill', it was not an offence under Section 63A and no authorisation under Section 53 was required.

The High Court decision was appealed to the Court of Appeal. The questions at issue were as follows:

• Is shark cage diving an offence under Section 63A of the Wildlife Act?
• If so, does the director general have the power to authorise the activity under Section 53(1) of the act?
• If the director general does have the power, are they required to consider the safety of pāua divers when making a decision under Section 53(1)?(5)

In September 2018 the Court of Appeal reversed the High Court's decision, ruling that shark cage diving was an offence under Section 63A and that the director general had no power under Section 53 to authorise it.(6)

The Court of Appeal noted that attempts to hunt or kill were separately provided for in the Section 2 definition(7) and that the comprehensive inclusion of a wide range of actions that created a risk of harm to wildlife reflected the act's purpose of absolute protection of specified species.(8) The court's view was that the statutory scheme indicated that Section 63A did not require proof of an intention to hunt or kill.(9) The defence provided by Section 63B (which excuses cases of accidental or
incidental killing or injuring of marine wildlife provided that the reporting requirements were met) would be pointless and unnecessary if an offence under Section 63A required proof of intention; accidental or incidental killing or injuring would not breach Section 63A in any event.

While such a conclusion would prima facie mean that any act which amounted to pursuing, disturbing or molesting would, without more, amount to hunting or killing, the Court of Appeal held that not every such pursuit or disturbance would amount to pursuing or disturbing under the Wildlife Act. It was a question of fact as to whether the pursuit or disturbance was sufficiently likely to result in harm to the animal.(10) For instance, if a protected fish is required to deviate only momentarily from its path to avoid a swimmer, there is no risk of harm, whereas if a protected bottom-dwelling species is accidentally stood on, there is a risk of harm. The Court of Appeal applied a risk of harm gloss to both 'pursuing' and 'disturbing'.

Supreme Court decision

The Supreme Court granted leave to appeal on three issues:

• the meaning of the phrase "hunt or kill" in Section 63A;
• whether shark cage diving using attractants is 'hunting or killing' within the meaning of the Wildlife Act; and
• in light of that meaning, whether shark cage diving should have been declared an offence under Section 63A.(11)

The leading judgment was given by Chief Justice Winkelmann, jointly with Justices Young, Glazebrook and O'Regan. Justice France gave a separate judgment agreeing in general with the interpretation and orders but taking a different view on three aspects of the reasoning (please see
Endnotes 23 to 25).

Meaning of 'hunt or kill'

A key aspect of the first issue was whether the words "pursuing, disturbing, or molesting any wildlife" in Section 2 of the Wildlife Act are qualified, such that a person must pursue, disturb or molest wildlife with the intention, purpose or in the course of hunting or killing wildlife in order to breach Section 63A, or unqualified (so no connection to hunting or killing is required).

The Supreme Court agreed with the Court of Appeal that the words "pursuing, disturbing, or molesting" were not required to be carried out in connection with hunting or killing, or with the intention of hunting or killing, and that Section 63A was, therefore, a strict liability offence.

As currently defined, 'hunt or kill' comprises three levels:

• The first level is "includes the hunting, killing, taking, trapping, or capturing of any wildlife by any means".
• The second level is "and also includes pursuing, disturbing, or molesting any wildlife, taking or using a firearm, dog, or like method to hunt or kill wildlife, whether this results in killing or capturing or not".
• The third level is "and also includes every attempt to hunt or kill wildlife and every act of assistance of any other person to hunt or kill wildlife".(12)

The first level is the non-extended meaning of 'hunt or kill', which is consistent with common usage. The second level is an extended meaning of 'hunt or kill', which is beyond the common usage of the words and includes both acts incidental to hunting or killing wildlife (ie, "taking or using a firearm, dog, or like method to hunt or kill wildlife") and other kinds of potentially harmful action ("pursuing, disturbing, or molesting any wildlife") that are not necessarily connected to hunting or killing in the common usage sense. The third level deals with attempts or the giving of assistance.

One of the principal purposes of the Wildlife Act is the protection of wild animals,(13) with the act being the fall-back protection mechanism in cases not specifically provided for by other legislation. (14) This purpose supports the extended meaning of 'hunt or kill'.

While pursuing and disturbing are actions that can naturally be read as incidental to the act of hunting (or killing), the use of the word "molesting" suggests an action which is an end in itself.(15) There is nothing in the language or punctuation of the second level to suggest that the words "to hunt or kill wildlife" are intended to attach to the words "pursuing, disturbing, or molesting any wildlife". (16)

As the existence of the Section 68B defence implies that an intention to kill or injure protected marine wildlife need not be proved for an offence to be made out under Section 63A,(17) as a matter of statutory interpretation, it is not necessary to prove intent to commit a Section 63A offence.(18)

The lead judgment addressed the meaning of each of the prohibited acts, and their connection to intent, as follows:

• 'Hunting' means an intentional act, committed if a person is shown to have had intent.(19) It is not possible to accidentally or unintentionally hunt an animal.
• 'Killing' means causing the death of a protected animal, which does not require proof of an intention to kill.(20)
• 'Pursuing' means intentionally chasing but does not include luring, attracting or merely following the animal at a safe distance.(21) While the Court of Appeal had considered that 'pursue' had a broader meaning which included luring a protected animal,(22) the Supreme Court disagreed, considering that the lower court's interpretation was consistent neither with the natural and ordinary meaning of pursue nor with the statutory purpose.(23) If the purpose of using attractants is catching or killing the animal, it would amount to hunting. The purpose of the Wildlife Act is to protect wildlife but attracting an animal to food or to a scent, thereby allowing the animal to be observed, is not, on its own, obviously harmful.(24)
• 'Disturbing' means an action which physically or mentally agitates the protected animal to a level that creates a real risk of significant harm.(25)
• 'Molesting' means intentionally troubling, distressing or injuring a protected animal.(26)

Does shark cage diving amount to 'hunting or killing' as defined?

The leading judgment in the Supreme Court concluded that shark cage diving is not hunting because there is no intention to catch or kill the sharks.(27) Shark cage diving using attractants is also not pursuing since there is no suggestion that the boats or divers chase the sharks.(28) The court did not hear full argument on whether it amounts to molesting and, therefore, it was not appropriate to decide the issue.(29) Whether shark cage diving using attractants amounts to disturbing sharks depends on whether there is a real risk that luring a shark to a particular location with bait or berley will physically or mentally agitate or stress the shark to a level creating a significant risk of harm. (30) As none of the evidence in the High Court was directed to the issue, the Supreme Court did not consider it appropriate to determine whether use of attractants amounts to disturbing.(31)

Comment

This shark diving case shows that three separate judicial considerations of the same words can produce three different conclusions about their meaning. Ultimately, the Supreme Court's decision affirms the central importance of purpose and full statutory context.

For further information on this topic please contact Tom Burgess at Wilson Harle by telephone (+64 9 915 5700) or email ([email protected]). The Wilson Harle website can be accessed at www.wilsonharle.com.

Endnotes

(1) Shark Experience Ltd v PauaMAC5 Inc [2019] NZSC 111 (Supreme Court judgment).
(2) Supreme Court judgment, above n1, at [9].
(3) PauaMAC5 Inc v Director General of Conservation [2017] NZHC 1182.
(4) Discussed at [19] of the Supreme Court judgment, above n1.
(5) PauaMAC5 Inc v Director General of Conservation [2018] NZCA 348, [2019] 2 NZLR 1 (Court of Appeal judgment) at [7].
(6) At [68]-[69].
(7) Court of Appeal judgment, above n5, at [39].
(8) At [40].
(9) At [28].
(10) At [43].
(11) At [27].
(12) Supreme Court judgment, above n1, at [34].
(13) At [44].
(14) At [45].
(15) At [36].
(16) At [37].
(17) At [54].
(18) At [58].
(19) At [62] and [93(a)].
(20) At [93(b)].
(21) At [93(c)].
(22) At [45].
(23) At [65].
(24) At [66]. Justice France preferred to leave open whether 'pursue' includes luring a protected animal using attractants until the issue arises in a criminal prosecution.
(25) At [93(d)] and [69]-[75]. Justice France agreed that 'disturb' should carry a real risk of harm but did not consider that harm must be significant.
(26) At [93(e)] and [67]-[68]. Justice France preferred to describe 'molest', along with 'pursue', as embodying some purpose or deliberate action in the context of provisions which it is agreed impose strict liability.
(27) Supreme Court judgment, above n1, at [102].
(28) At [103].
(29) At [104].
(30) At [105].
(31) At [109].