Ela­tion at swamp kauri de­ci­sion

Court’s ‘il­le­gal ex­ports’ rul­ing huge win, en­vi­ron­men­tal­ists say

The Northern Advocate - - Local News - Lindy Laird

As­mall North­land en­vi­ron­men­tal group is cel­e­brat­ing an “out­right win” af­ter New Zea­land’s Supreme Court ruled the ex­port of swamp kauri slabs and logs as “table­tops” or “totem poles” is il­le­gal.

For years, the North­land En­vi­ron­men­tal Pro­tec­tion So­ci­ety (NEPS) bat­tled and lost in the En­vi­ron­ment and Ap­peal Courts — and has now fi­nally won in the Supreme Court — to stop swamp kauri roots and slabs slip­ping out of New Zea­land on a lu­cra­tive in­ter­na­tional trade route.

The court ruled in favour of the NEPS’ ob­jec­tion to the ex­port of swamp kauri un­der the For­est Act.

The de­ci­sion re­leased yes­ter­day vin­di­cates NEPS chal­leng­ing the Min­istry of Pri­mary In­dus­tries, Cus­toms De­part­ment and Min­istry of Cul­ture and Her­itage to close down the ex­port trade, cit­ing breaches of the Forests Act and also the Pro­tected Ob­jects Act.

A loop­hole had en­abled ex­porters to make su­per­fi­cial changes to the raw wood and call it a prod­uct, such as a table­top or cer­e­mo­nial pole. But call­ing it a table­top did not mean it fit­ted the def­i­ni­tion of a man­u­fac­tured prod­uct, the five Supreme Court judges have ruled.

While they did not agree pieces of swamp kauri were cov­ered by the Pro­tected Ob­jects Act, their rul­ing in re­la­tion to the Forests Act meant the ex­port loop­hole was now closed.

“This is an out­right win. This does not just af­fect swamp kauri but all na­tive tim­ber,” a ju­bi­lant NEPS pres­i­dent Fiona Fur­rell said yes­ter­day.

The Forests Act de­fines a man­u­fac­tured prod­uct as need­ing to leave New Zea­land “without the need for fur­ther ma­chin­ing or other mod­i­fi­ca­tion”.

“The prod­uct must be ready to be used or in­stalled in the form which it is to be ex­ported,” the judg­ment re­leased yes­ter­day said.

Logs would “al­most al­ways re­quire mod­i­fi­ca­tion be­fore be­ing ready for use or in­stal­la­tion. Merely la­belling a log a totem or tem­ple pole does not change this.”

The Forests Act gen­er­ally re­quires, be­fore swamp kauri can be ex­ported, value to be added in New Zea­land af­ter milling.

The court de­fined that as mean­ing swamp kauri would have ef­fec­tively lost its iden­tity as swamp kauri be­fore it could be ex­ported law­fully as a fin­ished or man­u­fac­tured in­dige­nous prod­uct.

There­fore, that was in­con­sis­tent with the pur­pose of any pro­tec­tion un­der the Pro­tected Ob­jects Act, go­ing on NEPS’ in­ter­pre­ta­tion, the judges said.

NEPS’ ar­gu­ment in re­la­tion to the cul­tural, artis­tic, so­cial and his­tor­i­cal sig­nif­i­cance in terms of the Pro­tected Ob­jects Act was largely re­lated to the sig­nif­i­cance of swamp kauri gen­er­ally as a fi­nite re­source and in its es­sen­tial char­ac­ter.

“We do . . . ac­cept that swamp kauri is a fi­nite re­source and that it has sci­en­tific and cul­tural sig­nif­i­cance. Its sig­nif­i­cance is height­ened by the threat to liv­ing trees from kauri die-back dis­ease,” the judges said.

The court would only re­view the case un­der the Forests and Pro­tected Ob­jects Acts, but ac­knowl­edged one of NEPS’ pur­poses be­ing the pro­tec­tion of in­dige­nous bio­di­ver­sity ecosys­tems in North­land.

The court also said there were no con­trols on the ex­trac­tion of swamp kauri in the Forests Act, although ex­trac­tion might be sub­ject to other Acts such as the Re­source Man­age­ment Act.

Fur­rell said NEPS’ fo­cus would turn to North­land Re­gional and dis­trict coun­cils’ poli­cies re­gard­ing kauri swamp ex­trac­tion and the RMA.

“We now in­tend to in­ves­ti­gate the role our coun­cils played in this mess.”

PHOTO / FILE

This stock­pile at Ruakaka was await­ing ship­ment fours years ago, when 95 per cent of swamp kauri ex­ports were go­ing to China.

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