Labelling a slab of swamp kauri a tabletop doesn't make it one, Supreme Court rules
By Pattrick Smellie
Nov. 9 (BusinessDesk) - New Zealand's highest court has ruled that exporting slabs of swamp kauri as "tabletops" or swamp kauri logs as "totem or temple poles" is illegal under the Forests Act.
The decision marks an important victory for the Northland Environmental Protection Society, which has challenged the Ministry of Primary Industries, Customs Department and Ministry of Culture and Heritage through the courts to close down the export trade in unimproved slabs and logs of the rare and lucrative resource.
"A slab of swamp kauri labelled a table top would not fit" the definition of manufactured product in the Act, the judges concluded. "The use as a table could not be discerned from the product itself. Further, a table top is not a product in its own right and thus is not ready to be installed in a larger structure."
While the five judges of the Supreme Court did not agree that pieces of swamp kauri were covered by the Protected Objects Act, the ruling means that unless a swamp kauri exporter turns such a slab into a real piece of furniture, the loophole under which such timber has been exported to date is now closed.
The Forests Act defines a manufactured product for export as needing to be sent over the wharves "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 today says. The judges also accepted that a component of a product could not have been intended to mean any piece of a product.
"A single component cannot come in kitset form," the Supreme Court ruled. "Nor can it sensibly be said to have been assembled. Further, this interpretation would in many cases subvert the purpose of ensuring value is added in New Zealand.
"Accordingly, an indigenous wood product that is the component of an item ... is one that forms part of a product in its own right and either has been assembled and is ready to install or is in kitset form and ready to be installed once assembled."
Likewise, logs would "almost always require modification before being ready for use or installation," the judges said. "Merely labelling a log a totem or temple pole does not change this.
"A log cannot be a finished or manufactured indigenous timber product unless the work on it is so extensive that it has lost its identity as a log. Surface carving or decoration, however elaborate, is unlikely to cause such a loss of identity. In most cases, any value added in New Zealand by surface carving or decoration is likely to be minimal."
Where tabletops were concerned, adding legs or other mountings or producing the product as a self-assembly kitset would not be enough to get around the law, although "a crafted rustic bespoke table would clearly come within" the legal definition of a value-added product, "even if the table had a table top that, considered alone, could be classified as rough sawn timber".
On the claim that swamp kauri should be covered by the Protected Objects Act, however, the Supreme Court agreed with the Court of Appeal that the law was intended to apply to individual items.
"The Act is not designed ... to protect natural materials such as swamp kauri in bulk. It is true that protected New Zealand object is defined to include a collection or assemblage of objects but these terms imply that the collection or assemblage is in one place or in the hands of one owner. That does not apply to swamp kauri."
The judges also urged Parliament to reconsider how the Forests Act treats swamp kauri, given that the legislation's focus is mainly on living trees and because kauri itself is threatened by the kauri dieback disease. Nor was it clear that exports of swamp kauri stumps should be allowed, even though the export of stumps of recently felled kauri is permitted.