NORTHLAND ENVIRONMENTAL PROTECTION SOCIETY INC v THE CHIEF EXECUTIVE OF THE MINISTRY FOR PRIMARY INDUSTRIES [2017] NZCA 607

NORTHLAND ENVIRONMENTAL PROTECTION SOCIETY INC v THE CHIEF EXECUTIVE OF THEMINISTRY FOR PRIMARY INDUSTRIES [2017] NZCA 607 [19 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA158/2017[2017] NZCA 607BETWEEN NORTHLAND ENVIRONMENTALPROTECTION SOCIETYINCORPORATEDAppellantAND THE CHIEF EXECUTIVE OF THEMINISTRY FOR PRIMARYINDUSTRIESFirst RespondentCOMPTROLLER OF CUSTOMSSecond RespondentTHE CHIEF EXECUTIVE OF THEMINISTRY FOR CULTURE ANDHERITAGEThird RespondentHearing: 14 September 2017Court: Harrison, Cooper and Clifford JJCounsel: D M Salmon and HAT Bush for AppellantJ K Gorman for First and Second RespondentsB R Arapere for Third RespondentJudgment: 19 December 2017 at 11.30 amJUDGMENT OF THE COURTA The appellant's application to adduce further evidence is granted.B The appeal is dismissed.C The appellant must pay one set of costs to the first and second respondentsfor a standard appeal on a band A basis, to be shared between them, andusual disbursements. The appellant also must pay the third respondent costsfor a standard appeal on a band A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] The appellant, Northland Environmental Protection Society Inc (NEPS), is apublic interest group whose purposes include the protection of all indigenousecosystems in Northland. According to Ms Fiona Furrell, the Chairperson of NEPS,it has given particular emphasis to adverse effects associated with the mining andexport of swamp kauri. NEPS is concerned that swamp kauri is being mined, milledand exported from New Zealand in circumstances prohibited under the Forests Act1949 and the Protected Objects Act 1975. It is also concerned about the environmentalimpact of that activity, including on wetlands where swamp kauri had been recovered.[2] NEPS commenced a proceeding in the High Court under the JudicatureAmendment Act 1972 and the Declaratory Judgments Act 1908 seeking declarationsthat illegal exports were occurring, and that the respondents — the Chief Executive ofthe Ministry for Primary Industries (MPI), Comptroller of the New Zealand CustomsService (Customs), and the Chief Executive of the Ministry for Culture and Heritage— were not complying with statutory duties to prevent the unlawful export.[3] NEPS was unsuccessful in the High Court and now appeals.1Swamp kauri[4] Swamp kauri refers to kauri trees and stumps buried and preserved in whatused to be swamp for anywhere between 800 and 60,000 years. Many of the originalkauri trees were of great size and became buried in swamps following an event causing1 Northland Environmental Protection Society Inc v The Chief Executive of the Ministry of PrimaryIndustries [2017] NZHC 308.them to fall and die naturally. As noted by Toogood J, the unique swamp conditionshave preserved the trees and stumps intact.2 They are now highly valued as culturallysignificant taonga and as witnesses to natural events of scientific and ecologicalsignificance. They are also of high commercial value, as a consequence of the size ofthe timber pieces that can be milled, together with the ancient age of the timber. Thisdistinguishes swamp kauri timber from other New Zealand indigenous timbers.[5] Swamp kauri is extracted almost exclusively from non-indigenous scrublandand farmland in Northland. Mr Mathew Bartholomew, the Manager SustainableForest Management employed by the Chief Executive of MPI, who swore an affidavitin opposition to the claim, said that this is the consequence of controls in theForests Act on the milling and export of stump and root material. Per volume pricesfor swamp kauri exports generally range between $1,500 per cubic metre and $6,000per cubic metre. The price varies according to the work required to produce a givenitem and its size. Stump timber attracts the lower value, and the higher value will bepaid for table tops and other finished and manufactured products. Some items sell forwell in excess of $6,000 per cubic metre.[6] Exports of swamp kauri in 2008 and 2009 were of limited volumes: 127.5 cubicmetres and 151.9 cubic metres respectively. However, the amount of swamp kauriexported grew between 2010 and 2015 from 326.6 cubic metres to 2,758.7 cubicmetres, an increase of over 740 per cent. Mr Bartholomew deposed that the highestannual value of exports in that period was in 2014, when 3,635.5 cubic metres wereexported. A little over 91 per cent of the value exported between 2010 and 2015 wasexported to China. The volume exported has remained relatively consistent since2013.[7] Table tops are the major element of the finished or manufactured indigenoustimber products made from swamp kauri and exported overseas. Other productsinclude ornamental carved temple poles and "carvings".32 At [1].3 At [7].The High Court claim[8] NEPS pursued claims against MPI, which has primary responsibility forregulating the export of swamp kauri under the Forests Act; Customs, which isresponsible for clearance of goods at the New Zealand border; and the Ministry forCulture and Heritage, which is responsible for administering the Protected ObjectsAct.[9] NEPS focused on two different types of exported kauri. First, large slabs ofkauri claimed to be table tops, finished in various ways and exported without legs.Second, kauri temple poles: entire logs that have been carved or painted. It soughtdeclarations that the table tops and poles are not "finished or manufactured indigenoustimber product[s]" within the meaning of that term defined in the Forests Act.4 Thismeant that neither could lawfully be exported under the Forests Act. NEPS soughtfurther declarations that MPI and Customs had acted unreasonably in taking at facevalue exporter claims that products were finished or manufactured indigenous timberproducts. It also sought a declaration that swamp kauri is a "fossil" and a "protectedNew Zealand object" in terms of relevant provisions of the Protected Objects Act andthus that their export is prohibited under that Act.5[10] Toogood J declined to make the declarations because he did not accept theinterpretation of the statutes urged by NEPS and, in the case of the allegedunreasonable actions of MPI, because they related to exports that had occurred in thepast and declaratory relief could have no practical effect.[11] NEPS has appealed against the Judge's refusal to make the declarations. In thediscussion that follows, we deal with the appeal so far as it relates to the Forests Act,then with the issues concerning the Protected Objects Act, and finally with theunreasonableness issue.4 Forests Act 1949, s 2, definition of "finished or manufactured indigenous timber product".5 Protected Objects Act 1975, s 2, definition of "protected New Zealand object" and sch 4, cl 5(1),definition of "fossil".The Forests Act declarations[12] Section 67C(1) of the Forests Act prohibits the export of New Zealandindigenous timber unless it falls within one of the stated exceptions. For presentpurposes, the relevant exception is in s 67C(1)(b): "any finished or manufacturedindigenous timber product, regardless of the source of the timber used in the product".Section 67C(3) provides:(3) No indigenous timber (other than personal effects and any finished ormanufactured indigenous timber products) may be exported fromNew Zealand—(a) unless—(i) a notice of intention to export has been given to theSecretary in a form approved by the Secretary; and(ii) the notice of intention includes or is accompanied bya statement of the source of the timber; and(iii) the timber has been presented to a forestry officer forinspection and he or she has inspected and approvedit; and(b) until the expiry of a period (if any) specified for the purposesof this paragraph in the notice of intention.[13] It can be seen that the requirement to give a notice of intention to export doesnot apply in the case of any finished or manufactured indigenous timber products.However, although not required to do so, those exporting finished or manufacturedindigenous timber products may engage in a voluntary process whereby exporters willpresent proposed exports to MPI, enabling MPI to express a view on whether it tooconsiders the proposed export to be a finished or manufactured indigenous timberproduct.[14] The expression "finished or manufactured timber product" is defined in s 2 ofthe Forests Act as follows:finished or manufactured indigenous timber product—(a) means any indigenous wood product that has been manufactured intoits final shape and form and is ready to be installed or used for itsintended purpose without the need for any further machining or othermodification; and(b) includes a complete item or a component of an item (whetherassembled or in kitset form) such as joinery, furniture, toys, tools, andhousehold utensils, household fixtures such as rails and toilet seats,ornaments such as picture frames and carvings, and similar items; but(c) does not include dressed or rough sawn timber, mouldings, panelling,furniture blanks, joinery blanks, building blanks, or similar items[15] This was the crucial provision the High Court had to construe to resolve thispart of the case.The High Court claim[16] The declarations sought by NEPS in the High Court were summarised byToogood J in the following terms:6(a) Ancient swamp kauri table-tops, whether described as "rusticatedtable-tops", "table slabs", "table-tops", "slabs" or otherwise, are not[finished or manufactured indigenous timber products] within thedefinition in s 2 of the Forests Act 1949, unless:(i) their actual intended end use at the time of export is as a table;(ii) they do not require any further machining or othermodification, including any further coating of paint, oil orlacquer, sanding or other finishing, to be in its final shape andform and ready to be installed our used;(iii) they1. include any intended legs, stand or other mounting(whether assembled or in kitform), or, alternatively[;]2. they include all necessary routing, machining or otherpreparation for the installation of intended legs stand,or other mounting; and(iv) they are completed beyond the state of being dressed or roughsawn timber.(b) Ancient swamp kauri logs with light surface carvings or decorationare not [finished or manufactured indigenous timber products] withinthe definition of s 2 of the Forests Act 1949.[17] Toogood J approached the interpretative task by noting first that the prohibitionon the export of New Zealand indigenous timber was in pt 3A of the Forests Act, which6 Northland Environmental Protection Society Inc v The Chief Executive of the Ministry of PrimaryIndustries, above n 1, at [35].contains provisions relating to indigenous forests. He considered it significant that thestatutory purpose of pt 3A "is to promote the sustainable forest management ofindigenous forest land".7[18] The term "sustainable forest management" is defined in s 2 as: the management of an area of indigenous forest land in a way that maintainsthe ability of the forest growing on that land to continue to provide a full rangeof products and amenities in perpetuity while retaining the forest's naturalvalues.[19] The Judge reasoned from this that the definition of "finished or manufacturedindigenous timber product" was intended to function as part of a number of measuresdesigned to discourage the felling of indigenous forests except as part of aNew Zealand-based industry involving the production of furniture or other finishedproducts.8 The wording of s 67B did not support a proposition advanced by NEPSthat a more general conservation purpose was served by the prohibition on export, soas to inhibit the recovery and export of the swamp kauri, which had been buried forcenturies. In this respect, he expressed agreement with an observation made byMcGechan J in Ancient Trees of New Zealand Ltd v Attorney-General that "thereshould not be undue emphasis upon added value processing of kauri remnants beforeexport is permitted. This is forests legislation, not employment protectionlegislation."9[20] As to para (a) of the definition of "finished or manufactured indigenous timberproduct" NEPS submitted that if the shape and form of the product could be alteredafter exportation, it cannot be regarded as being in its final shape or form at that point.The Judge considered the fact that a product could be modified by an overseaspurchaser — whether by re-staining or repainting, drilling holes or slots in a table topso as to facilitate the attachment of legs or a base, or making other modifications forthat purpose — did not mean that the product when exported was not in its "final shapeand form" or "ready to be installed and used for its intended purpose without the need7 At [38], quoting Forests Act, s 67B.8 At [39]–[40].9 At [41], quoting Ancient Trees of New Zealand Ltd v The Attorney-General HC WellingtonCP483/93, 29 April 1994 at 23.for any further machining or other modification". A crucial part of para (a) inthe Judge's view was the reference to the "need" for further modification.10[21] As to para (b) of the definition, NEPS submitted that the words "(whetherassembled or in kitset form)" qualify the words "component of an item".Consequently any component of an item made of indigenous timber must either beassembled (so that if it is a table with a top made of swamp kauri the base must beattached) or in a kitset form (so that in the case of a table top made from swamp kauriit must have its base and the means for attaching the base included with the table topat the time of the export). The Judge rejected that submission. He noted that theexamples given in para (b) of the definition showed that the words in parenthesesqualified both complete items and components. He reasoned that it could not havebeen Parliament's intention that, for example, wooden toilet seats were unable to beexported without cisterns, or that wooden picture frames could not be exported withoutthe pictures inserted. Such an approach would make little sense and do nothing toachieve the purpose of sustainable forest management.11[22] In terms of para (c), NEPS submitted that the paragraph operated as a "proviso"or a "trumping provision".12 A product that would otherwise be in its final shape andform, and be able to be used for its intended purpose without further machining ormodification, but that was also "dressed or rough sawn timber" could not be a finishedor manufactured indigenous timber product.13 The Judge rejected this submission aswell. He considered that para (c) was intended to be "illustrative or explanatory ofitems not intended by Parliament to be included in the definition, and given for theavoidance of doubt".14 In his view, the items listed in the paragraph would not innormal circumstances fall within para (a). None of them were in their "final shape orform", and para (c) clarified that was the case.[23] This reasoning led the Judge to conclude that the declaration sought by NEPSin relation to table tops was not in reality a declaration of the meaning of the statutory10 Northland Environmental Protection Society Inc v The Chief Executive of the Ministry of PrimaryIndustries, above n 1, at [44]–[45].11 At [48].12 At [51].13 At [51].14 At [52].wording. Rather, NEPS was seeking a revision of the statutory definition intended tomeet NEPS's view that only the export of complete tables (whether made up or inkitset form) should be permitted. That view was not sustainable on the plain wordingof the section.15[24] Similarly, the declaration that kauri logs "with light surface carving ordecoration" did not fall within the category defined by the statutory wording andsimply raised the question of the degree of carving necessary in any particular case tomeet the test expressed in the Act.16 The Judge concluded:[56] I am not persuaded that any attempt at making a declaration about themeaning of a description which covers an unlimited variety of potential timberproducts will assist in the enforcement of the legislation. A practical approachto the application of the definition is required. Whether a table-top or a pieceof carved timber made from ancient swamp kauri is sufficiently finished tofall within the category of permitted exports will be a matter of fact and degreefor determination on a case by case basis. The statutory purpose of protectingand maintaining New Zealand's living indigenous trees does not call forpedantic scrutiny in MPI's decision-making about the export of ancientswamp kauri. A commonsense approach, founded in any case on evidencewhich demonstrates that the export product in question is finished to a statein which it is reasonably fit for its intended purpose, will usually besufficient to determine whether the questioned product meets the statutorytest.The appeal[25] NEPS submitted that the Judge was wrong to focus solely on the purpose statedin s 67B. Its counsel, Mr Salmon, argued that the purpose should be read in light ofthe scheme of the Forests Act as a whole, noting that the interpretation of the definitionof "finished or manufactured indigenous timber product" must be one that can beapplied appropriately to a product intended for export that had been sourced not onlyfrom a living indigenous tree recently felled, but also from swamp kauri. Mr Salmonidentified wider purposes served by the legislation. One such purpose was referred toin Ancient Trees where McGechan J referred to what he described as an evidentsecondary purpose behind the legislative restraint on the export of raw indigenoustimber: "elements of employment promotion, regional development, and pure15 At [54].16 At [55].economic theory".17 Another purpose to which Mr Salmon referred was dampeningexport demand.[26] Mr Salmon essentially enlarged on the arguments unsuccessfully advanced inthe High Court about the interpretation of paras (a)–(c) of the definition of "finishedor manufactured indigenous timber product". In relation to para (a), he submitted thata product is only in its final shape and form when the shape, finish and physicalcontours of the product will not be changed through further cutting or shaping and theappearance of the product will not be changed through further altering or finishing.Drilling holes or slots in a table top to attach legs or a base, or drilling holes in a timberdoor for the attachment of hinges are clear examples of modifications without whichthe product would not be able to be used for its intended purpose. The product is thusnot in its final shape and form. He also argued it can legitimately be inferred thatproducts with minimal sanding, oiling or varnishing at the point of export are not intheir final form.[27] Turning to para (b), Mr Salmon accepted that "(whether assembled or in kitsetform)" applies to both a complete item and a component of an item. But he submittedthat in each case, the Forests Act envisages that the product must only be exportedeither in "assembled or in kitset form". He claimed that ensuring kauri products areonly exported in assembled or kitset form would provide added protection andassurance that the products being exported would be in their final shape and form.This would support both the narrower purpose of sustainable forest management anda wider conservation purpose by dampening the added pressure of an export marketand ensuring economic value is maximised in New Zealand.[28] Mr Salmon criticised the Judge's conclusion that para (c) of the definition wasintended to be illustrative only. He suggested that approach required the word "but"at the end of para (b) to be disregarded. A more natural interpretation was to treat"but" as a legislative direction that para (c) provides a general qualification on themeaning to be derived from paras (a) and (b). Further, even if the Judge was right tohold that items listed in para (c) will not usually meet the definition in para (a), that17 Ancient Trees, above n 9, at 22.approach does not address the position where a particular item, while in its final shapeor form, nevertheless falls within para (c). Mr Salmon submitted that for para (c) tohave any effect at all, it must qualify the definition in para (a).[29] He argued the declarations sought should be granted as they simply apply thesection to particular exports and would provide a framework by which to assessindividual exports, still allowing for case-by-case examination of particular products.Analysis[30] Part 3A of the Forests Act was inserted by the Forests Amendment Act 1993.As has been seen, the express statutory purpose of the new part of the Act is set out ins 67B, which refers to promoting the sustainable forest management of indigenousforest land. Not surprisingly, in introducing the Bill, the Minister of Forestry referredspecifically to that purpose.18[31] The principal provisions of the new pt 3A are s 67C, which provides for theprohibition on the export of certain indigenous forest produce, and s 67D, whichcontains prohibitions on milling any indigenous timber at a sawmill unless certainrequirements are satisfied. These requirements may broadly be described for presentpurposes as allowing timber to be milled when it is taken from areas subject toregistered sustainable forest management plans,19 or if the Chief Executive of MPI issatisfied the timber is salvaged timber that has not been harvested from indigenousforest land or is windthrown timber on land that is not subject to a registeredsustainable forest management plan.20 The effect of these provisions is that, assalvaged timber or timber that has died of natural causes, swamp kauri can generallyonly be milled where it is sourced from either non-indigenous forest land or from landthat is not subject to a registered sustainable forest management plan or permit.[32] Section 67C(1) relevantly provides:2118 (30 June 1992) 526 NZPD 9643.19 Forests Act, s 67D(1)(a).20 Section 67D(1)(b)(iv) and (v). The prohibition does not apply in other circumstances (referred toin s 67D(1)(b)(i)–(iii) and (c)–(e)), which we need not discuss here.21 The omitted subs (1)(f) relates to tree fern trunks and fibres.67C Prohibition on export of certain indigenous forest produce(1) No person shall export from New Zealand indigenous timber, exceptthe following:(a) any grade of sawn beech or sawn rimu (other than woodchips), where the Secretary has stated in writing that he or sheis satisfied that the timber has been taken from an area subjectto, and managed in accordance with, a registered sustainableforest management plan or registered sustainable forestmanagement permit:(b) any finished or manufactured indigenous timber product,regardless of the source of the timber used in the product:(c) any personal effects:(d) any stump or root, whether whole or sawn, wherethe Secretary has stated in writing that he or she is satisfiedthat the timber has been taken from an area subject to, andmanaged in accordance with, a registered sustainable forestmanagement plan:(e) any salvaged stump or salvaged root, whether whole or sawn,where the Secretary has stated in writing that he or she issatisfied that the timber has been taken from an area that isnot indigenous forest land:(g) any indigenous timber—(i) from a planted indigenous forest, if that timber is, oris from, a shrub, bush, seedling, or sapling; or(ii) other than indigenous timber to whichsubparagraph (i) applies, if the Secretary has stated inwriting that he or she is satisfied that the timber hasbeen harvested from a planted indigenous forest; or(iii) harvested from a forest subject to a forest sinkcovenant established in accordance with Part 3B.[33] The purpose of sustainable forest management is reflected in subs (1)(a), whichenables sawn beech or sawn rimu to be exported where the Secretary is satisfied thetimber has been taken from an area subject to and managed in accordance with aregistered sustainable forest management plan.[34] Paragraph (b) of the subsection, with which we are primarily concerned here,refers to finished or manufactured indigenous timber products, regardless of theirsource, and together with the exclusion of wood chips in para (a), reflects what appearsfrom the parliamentary materials to have been an intention that exported timber shouldcomprise products to which value has been added by processes carried out inNew Zealand. In moving that the Bill that became the Forests Amendment Act 1993be read a second time, the Minister of Conservation said:22At the end of the day the Government chose to continue the export ban onwood-chips and logs because it wanted to move the mentality of thesawmilling industry to manufacturing high-value, added-value products inNew Zealand, and to move away from the very volatile international trade inwood-chips so that we can get the very best result for a very much diminishingresource here in New Zealand.[35] The apparent breadth of s 67C(1)(b), which applies "regardless of the sourceof the timber used", must be seen in the context of the prohibition on millingindigenous timber in s 67D. As mentioned, s 67D(1) prevents the milling of anyindigenous timber at a sawmill unless the sawmill is registered and the harvesting ofthe timber that is milled falls within one of five stated categories. One of thosecategories applies to timber that has been:23 harvested from an area of land subject to, and managed in accordance with,a registered sustainable forest management plan or a registered sustainableforest management permit and the harvest is in accordance with an annuallogging plan approved under section 67H.[36] It follows from this that, in general, finished or manufactured indigenoustimber products may be exported under s 67C(1)(b). But that provision takes effect inthe context of s 67D(1)(a), which ensures that if the timber that has been finished ormanufactured into a product for export has come from a forest it must be a forest thatis being sustainably managed.[37] We accept, as Mr Salmon contended, that it is possible to discern in theseprovisions a purpose wider than that stated in s 67B: to ensure that value is added toexported timber. But we do not see in the drafting of pt 3A an intent to dampen exportdemand and the parliamentary materials do not suggest that was a motivatingconsideration. If that were the objective it is not unreasonable to infer it would havebeen stated, and implemented directly by controlling the amount of timber exported.22 (11 March 1993) 533 NZPD 13940.23 Forests Act, s 67D(1)(a).The intent rather was to ensure that the forests are sustainably managed and that iftimber is to be exported it be in the form of a product to which value has been added.[38] It was common ground between the parties that pt 3A of the Forests Act appliesto control the export of swamp kauri. As Ms Gorman, who appeared for theChief Executive of MPI and the Comptroller of Customs pointed out, Toogood J'sdiscussion of the statutory purpose did not have the consequence that the Forests Actwould not apply to swamp kauri. On the contrary, the general prohibition on the exportof indigenous timber stated at the outset of s 67C(1) must apply unless s 67C(1)(b)can properly be applied to authorise the export of particular finished or manufacturedindigenous timber products. The voluntary process undertaken by exporters with MPIwas for the purpose of facilitating application of the Forests Act to swamp kauriproducts. We also accept Mr Salmon's proposition that the architecture of the ForestsAct is such that the definition of "finished or manufactured indigenous timber product"will need to be applied in respect of indigenous timber that is both felled and salvaged.There is no basis upon which the meaning of the definition could alter having regardto the origin of the wood. And s 67C(1)(b) applies "regardless of the source of thetimber used in the product".[39] It is in this context that the three paragraphs of the definition of "finished ormanufactured indigenous timber product" must be construed. The definition must beread as a whole, para (a) setting out the meaning of the term, para (b) essentially givingfurther detail as to the meaning and para (c) stating what is not included in thedefinition.[40] The essential difficulty with Mr Salmon's argument concerning table tops isthat para (b) extends the definition to components. So long as a component fits withinpara (a) (that is, it has been manufactured into its final shape and form) it will be withinthe definition. A table top (a component of a table) will be ready for its intended useif it does not need any further machining or other modification to be used as a table top.The fact that the table top requires alteration as part of the installation process doesnot mean that it was not in its final shape and form or ready to be installed prior tothat. The process of installation should not be regarded as something that would takethe component outside of the definition. Mr Salmon's interpretation would subvertthe intended extension of the definition to include components.[41] We accept that the words "(whether assembled or in kitset form)" that appearin para (b) should be applied to both complete items and components of an item. Thiswas in fact the approach taken by the High Court. However, that does not lead to theconsequence for which Mr Salmon contends. It would authorise, for example, a tabletop and separate legs to be exported "in kitset form". But that does not mean that thetable top alone would not be covered by the definition in para (a) and it would serveno rational purpose that we can discern to read the legislation in that way.[42] We consider Toogood J correctly held that the definition must be applied at thetime of export.24 It cannot matter after that point what use the intended recipient ofthe product makes of it; the secondary statutory purpose of adding value to the timberwill already have been achieved. A table top may be affixed by a number of means tothe structure that is to support it. That could be done with glue, or with methodsinvolving the creation of appropriate holes or indentations. Another possibility, giventhe weight of any substantial kauri table, would be to rely on support by trestles. Wedo not consider that the expression "ready to be installed" should be construed so asto prevent such minor alterations that might be carried out subsequent to export as partof the process of installation.[43] It is instructive here to consider examples given of components in para (b) ofthe definition. These include toilet seats. Like Toogood J, we would not consider theaffixing of screws or bolts to a toilet seat as taking it outside the ambit of the definition.Nor do we accept Mr Salmon's argument that it can legitimately be inferred thatproducts with minimal sanding, oiling or varnishing at the point of export are not intheir "final form". It would only be if it could be said at the time of export that suchactions were necessary that it would be legitimate to reach such a conclusion: thereference in para (a) to the need for further machining or modification must beproperly taken into account.24 Northland Environmental Protection Society Inc v The Chief Executive of the Ministry of PrimaryIndustries, above n 1, at [46].[44] Again, contrary to Mr Salmon's submission, we do not see para (c) of thedefinition as "trumping" paras (a) and (b). All of the items listed in para (c) areproducts that might be installed or placed in buildings but are likely to be modified oradapted for that purpose. The common denominator appears to be that more work willbe necessary to render the products into their final shape and form. This is clear in thecase of blanks. And while dressed or rough-sawn timber, if cut to a standard length,might on occasion be ready for use in certain kinds of building without the need forfurther machining or modification, they do not fit readily into the concept of a product"manufactured into its final shape and form". NEPS argued that anything comprisedof "dressed or rough-sawn timber" is not a finished or manufactured indigenous timberproduct. We accept that would be so if the product could not be brought within para (a)of the definition, and para (c) would simply underline that conclusion. But, we do notsee para (c) as invariably operating so as to exclude products that would otherwise fallwithin para (a). In many cases, para (c) would have effect to exclude from thedefinition items not falling within para (a). We are therefore not persuaded Toogood Jerred when he spoke of the items listed in para (c) as illustrating the kind of productsnot embraced by para (a).[45] Nothing in the statutory purposes that we have discussed above leads to adifferent conclusion. For these various reasons, we do not consider that Toogood J'sinterpretation of the definition was incorrect. It follows that the first declarationsought by NEPS was properly declined insofar as table tops are concerned.[46] The reasoning with respect to the logs with "light surface carvings ordecoration" is different but again leads to the same result. As set out above, in thiscase the declaration sought by NEPS was that ancient swamp kauri logs with lightsurface carvings or decoration are not within the definition.[47] Mr Salmon's argument for this declaration was based on evidence relating to anumber of temple poles or carvings claimed to be exported for exhibition in Chinesetemples. NEPS argued that the carvings were clearly shams designed to get throughthe export controls. The examples relied on showed only light surface carving,painting or etching leaving the underlying wood as little disturbed as possible. NEPScomplained also that there is no evidence that the temple poles or carvings had everbeen installed at sites in China where they were said to be exported. Mr Salmonsubmitted that granting the declaration sought would give a signal that MPI andCustoms must take a realistic approach to the proposed export of such items,considering what was their likely intended use.[48] We consider Toogood J rightly concluded that the terms of this declarationsimply raised an issue as to the degree of carving necessary in any particular case tomeet the test expressed in the Forests Act. That is an essential factual question and wedo not consider that a declaration ostensibly sought for the purpose of elucidating thestatutory provision would be appropriate, or if made, of any practical assistance.The question for MPI and Customs would remain the factual one of whether anyparticular lightly carved or decorated log was in fact a "finished or manufacturedindigenous timber product" having regard to the definition of that term.[49] No doubt it will be appropriate for MPI and Customs to be sceptical of claimsthat lightly etched poles have been "manufactured into final shape and form" andto seek assurances where the nature of any other item is such as to call into questionwhether that is so. However, that is an issue requiring consideration on a case-by-casebasis and we do not consider the Judge erred in declining to make the declarationssought.The Protected Objects Act declarations[50] NEPS alleges that ancient swamp kauri is a protected New Zealand objectunder the Protected Objects Act. It claims that the Ministry for Culture and Heritagehad not treated the swamp kauri as such and had failed to require exporters to obtainthe necessary approvals for export under the Act. It is said that the Chief Executivehas also failed to apply the criteria for export of protected New Zealand objects in s 7Aof the Protected Objects Act and consequently has erred in law.[51] Section 2 of the Protected Objects Act defines "protected New Zealand object"as follows:protected New Zealand object means an object forming part of the movablecultural heritage of New Zealand that—(a) is of importance to New Zealand, or to a part of New Zealand, foraesthetic, archaeological, architectural, artistic, cultural, historical,literary, scientific, social, spiritual, technological, or traditionalreasons; and(b) falls within 1 or more of the categories of protected objects set out inSchedule 4[52] Schedule 4 to the Protected Objects Act, entitled "Categories of protectedNew Zealand objects", contains the categories within one or more of which the objectmust fall in order to be within the definition. Category 5 is headed "Natural scienceobjects". The category is described in cl 5(2) of the schedule as follows:(2) This category consists of extant or extinct native organisms, productsof animal and plant behaviour (such as nests, coprolites, and kaurigum), fossils, fluids, rocks, and minerals (including, but not limitedto, ventifacts, obsidians, pumices, meteorites, and tektites) ofNew Zealand origin or related to New Zealand.[53] It is also necessary to note cl 5(3) and (4) of the schedule. These provide asfollows:(3) Objects in this category include—(a) a category of type specimen as defined by the current editionof the International Code of Botanical Nomenclature, theInternational Code of Zoological Nomenclature, or theInternational Code of Nomenclature of Bacteria:Bacteriological Code:(b) a specimen considered to be scientifically important fordefining a taxon through having been illustrated in theoriginal description, or new material subsequently illustrated(that is, hypotypes) and used to expand or refine thisdescription in the scientific literature:(c) a specimen of an extant or extinct plant or rock or mineral,animal, or other organism or fossil or part thereof includingany developmental stage, shell, or skeletal or supportingelement, of which there is not a sufficient selection inNew Zealand public collections to define the variation, range,and environmental context of the taxon or object.(4) Duplicates of a category of type specimen as defined by the currentedition of the International Code of Botanical Nomenclature, theInternational Code of Zoological Nomenclature, or the InternationalCode of Nomenclature of Bacteria: Bacteriological Code may beexcluded from this category if there is sufficient original type materialheld in New Zealand public collections to define the taxon.[54] NEPS maintains that ancient swamp kauri fall within cl 5(2) because theindividual examples are "fossils", which is defined in cl 5(1) as follows:fossil, irrespective of how it is preserved, means an object constituting theremains or traces of a non-human organism that lived in New Zealand prior tohuman habitation; including (but not limited to) the whole organism or partsof it, or trace evidence of its behaviour[55] Section 5(1)(a) of the Protected Objects Act contains a prohibition on exports.In simple terms, it provides that a person may not export, or attempt to export aprotected New Zealand object from New Zealand unless the person has madeapplication for permission to the Chief Executive of the Ministry for Culture andHeritage, the application has been granted, a certificate of permission issued and theexport conforms with any terms and conditions imposed by the authorisation.25The Chief Executive's discretion to grant an application to export a protectedNew Zealand object is restricted by criteria set out in s 7A.[56] Under s 5(2) of the Protected Objects Act, anyone who exports or attempts toexport a protected New Zealand object without the necessary permission commits anoffence. There are substantial penalties: fines for individuals of up to $100,000 orimprisonment for up to five years, and fines for body corporates of up to $200,000.26The High Court claim[57] NEPS sought declarations that:(a) ancient swamp kauri is a protected New Zealand object for the purposesof the Protected Objects Act; and(b) the Ministry for Culture and Heritage has acted unlawfully in failing toimplement the Protected Objects Act in respect of the export of ancientswamp kauri.25 Protected Objects Act, s 5(1)(a). Section 5(1)(b) provides for exemptions by notice in the Gazetteand is not relevant here.26 Section 5(2).[58] The principal argument advanced by NEPS in the High Court was that allswamp kauri falls within the definition of a "protected New Zealand object" in s 5 ofthe Protected Objects Act. The effect of that argument, if correct, would have been torequire the Chief Executive of the Ministry for Culture and Heritage to grantpermission in the case of every export. The Judge rejected the argument, expressingthe view that on a plain reading of the Protected Objects Act, swamp kauri as an entirespecies or class of objects could not be regarded as a protected object. Rather, thescheme of the Protected Objects Act was directed towards the protection of individualobjects or collections of objects forming part of New Zealand's important culturalheritage.27 He also doubted that the swamp kauri came within the definition of"fossil", holding that even if it did, it could not reasonably be said that every piece ofswamp kauri was of importance to New Zealand in terms of the relevant statutorycriteria.28[59] The Judge expressed the view that it could not have been Parliament's intentionto create what would be "an impossibly onerous administrative role" for the Ministryfor Culture and Heritage under the Protected Objects Act, "requiring it to consider allexports of a wide range of natural resources in order to assess the importance of eachobject against the criteria in the Act".29The appeal[60] Ms Bush, who argued this aspect of the appeal for NEPS, submitted thatToogood J had erred by failing to analyse the statutory definition of "fossil" in termsof the uncontested evidence that ancient swamp kauri frequently predates humanhabitation of New Zealand, is preserved, and is the remains of the whole or part of anon-human organism. Consequently, the definition of "fossil" would apply. Each logwould be a "fossil" and therefore a natural science object in terms of cl 5(2) of sch 4and a protected New Zealand object within the definition of that term in s 2(1) of theProtected Objects Act. To the extent that para (a) of the definition requires that theobject be "of importance to New Zealand" Ms Bush submitted that ancient swamp27 Northland Environmental Protection Society Inc v The Chief Executive of the Ministry of PrimaryIndustries, above n 1, at [78].28 At [78]–[79].29 At [82].kauri is of artistic, cultural and historical significance. She relied on Ms Furrell'sevidence that it is regarded as the oldest workable wood in the world, of great size,limited supply, unique character and beauty as a finished wood product.[61] Ms Bush submitted that the High Court was wrong to hold it could not havebeen Parliament's intention that the Protected Objects Act would apply to regulate theexport of all ancient swamp kauri, and she emphasised that cl 5(2) of sch 4 is expressedin wide terms. She contrasted the drafting of the current provisions with those of theAct when enacted as the Antiquities Act 1975. In its original form the Antiquities Actreferred only to "[a]ny type specimen of any animal, plant, or mineral existing orformerly existing in New Zealand".30 Ms Bush emphasised that cl 5(2) and (3) havea wider ambit. She argued that Toogood J's concerns about the potentially onerousadministrative role for the Ministry for Culture and Heritage were overstated becauseunder s 5(1)(b) of the Protected Objects Act the Chief Executive could exempt anycategory of protected New Zealand objects from the requirements of s 5(1)(a) ifsatisfied that sufficient examples of that category are held in public ownership.[62] Ms Arapere, who appeared for the Chief Executive, submitted that Toogood Jwas correct to find that bulk natural materials such as swamp kauri (as opposed toindividual specimens or objects made of swamp kauri) could not meet the definitionof a protected New Zealand object. She relied on the "plain language" of the ProtectedObjects Act, its purpose and the practical ramifications of NEPS's suggestedinterpretation.Analysis[63] Ms Arapere's plain language argument was that "object" could not in itsordinary meaning embrace what she described as an "entire species such as swampkauri". The word "object" is defined in s 2(1) of the Protected Objects Act so as toinclude a "collection or assemblage of objects". We agree that the statutory languageimplies that the protected object must be representative of some class (to use,deliberately, a word not used in the legislation) rather than a collection or assemblage30 Antiquities Act 1975, s 2, definition of "antiquity".that is coextensive with the entire class. However, we do not think the swamp kaurican be described as "an entire species" to use Ms Arapere's term.[64] It is also possible that a collection of objects could be important because itconsists of individual objects each of which is important. If each individual object isof importance (applying the statutory considerations) it would not be sensible toconstrue the Act as inapplicable simply because each individual object would beprotected. Take as an illustration paintings by Goldie. Art objects are in category 2 ofsch 4, which specifically includes paintings.31 Individually each painting would be anobject forming part of the movable cultural heritage of New Zealand, and ofimportance to New Zealand for aesthetic, artistic, cultural, historical or traditionalreasons.32 However, cl 2(2) of sch 4 provides:(2) An object is included in this category if it is—(a) not represented by at least 2 comparable examplespermanently held in New Zealand public collections; and(b) made by—(i) an artist or maker born in or related to New Zealandand who is no longer living; or(ii) a living artist or maker born in or related toNew Zealand where that artist or maker is not theowner; and(c) not less than 50 years old.[65] It can be seen that cl 2(2)(b)(ii) operates so as to reduce the number of itemsthat might otherwise be captured as being within category 2. The reduction is on thebasis of scarcity; death of the artist or, in the case of a living artist, the fact that thepainting has passed out of his or her ownership; and age, by requiring that the paintingbe not less than 50 years old.33[66] In terms of the definition of "protected New Zealand objects", the Goldiepaintings are within para (a), but will not fall within para (b), because they would notbe within a category of protected objects in sch 4. Although paintings are mentioned31 Protected Objects Act, sch 4, cl 2(1)(m).32 Section 2(a), definition of "protected New Zealand object".33 Schedule 4, cl 2(2)(c).in cl 2(1) of that schedule, the requirements of cl 2(2) are not met because there areobviously more than two comparable examples permanently held in New Zealandpublic collections.34[67] We consider that the other categories of protected New Zealand objects in sch 4have been drafted so as to achieve a similar restrictive outcome, the approach differingaccording to the objects in question. Category 1, for example, deals amongst otherthings with historical objects relating to New Zealand but that are of non-New Zealandorigin. The potential breadth of that category is reduced by the requirement that thehistorical objects must have been in New Zealand for not less than 50 years, not berepresented by at least two comparable examples permanently held in New Zealandpublic collections and, in the case of objects of Polynesian creation or modification,be brought to New Zealand before 1800.35 Once again, a potentially broad class isreduced by the drafting of the provision.[68] The same approach is used in the third category, dealing with documentaryheritage objects. There are similar criteria based upon representation in New Zealandpublic collections and age, which limit the number of objects within the categorynotwithstanding that they might be considered to be of importance to New Zealand interms of para (a) of the definition of "protected New Zealand object".36 An equivalentapproach is also seen in category 8 (science, technology, industry, economy, andtransport objects)37 and category 9 (social history objects).38 We consider this contextis of assistance in interpreting category 5, where we think a similar approach is taken.[69] Clause 5(2) states what the category consists of but cl 5(3) states what the"objects in this category include". We accept that this language is not precisely thesame as that employed in the other categories we have mentioned, which in each case(except for category 1) states that "An object is included in this category if", but wedo not consider the difference is significant. In our view, the wording of cl 5(3) must34 Schedule 4, cl 2(2)(a).35 Schedule 4, cl 1.36 Schedule 4, cl 3(3).37 Schedule 4, cl 8(3).38 Schedule 4, cl 9(4).be intended to reduce the very broad ambit of cl 5(2); otherwise the category wouldbe impractically wide.[70] Leaving cl 5(3) on one side, take the case of kauri gum, which is expresslymentioned in cl 5(2). Kauri gum is of importance to New Zealand for historic reasons,at least. Paragraph (a) of the definition of "protected new Zealand object" in s 2therefore extends to it. But it may safely be assumed that it was not intended thatevery example of kauri gum would be a protected New Zealand object. To take aneven more obvious example, "rocks" are within cl 5(2), but clearly intended to belimited by cl 5(3). We see no basis in the drafting of cl 5(2) to distinguish betweenparticular items referred to in it, and in our view all would be potentially subject tolimitation by virtue of the further detail given about the objects found in cl 5(3) (andcl 5(4), which refers to duplicates).[71] Turning then to swamp kauri, the wording of cl 5(3)(a) refers to a "category oftype specimen" as defined in various international codes. "Type specimen" is definedin s 2 as meaning "the specimen on which is based an original published descriptionof the animal, plant, or mineral of which the specimen serves as an example". Counseldid not specifically address the meaning of this sub-clause, but it is plainly limitingand could not be applied across the board to swamp kauri. The same applies in respectof cl (3)(b) and (c): an individual swamp kauri log could not be considered to bescientifically important for defining a taxon, or have any role in defining the variation,range and environmental context of a taxon or object. In addition, cl 5(4) providesthat duplicates of specified categories of type specimen may be excluded from thecategory if there is sufficient original type material held in New Zealand publiccollections to define the taxon. This is a further indication that the provisions of cl 5(3)were not intended to extend to individual swamp kauri logs.[72] Ms Bush's argument apparently sought to overcome these difficulties byemphasising the artistic, cultural and historical significance of swamp kauri for thepurposes of para (a) of the definition of "protected New Zealand object" in s 2 of theProtected Objects Act. However, both paras (a) and (b) of the definition must besatisfied, and the only protected category that could possibly apply to swamp kauri iscategory 5, relating to natural science objects. Artistic, cultural and historicalsignificance do not appear to be relevant to this category. This misalignment is anotherreason why we do not consider that swamp kauri can be a protected object under thelegislation. It must also be remembered that, in this case, the individual items ofswamp kauri in issue have been modified for the purposes of export thereby reducingany value they might have as "natural science objects".[73] For these reasons, we do not consider the Judge erred by declining to make thedeclarations sought under the Protected Objects Act.Unreasonableness[74] Although NEPS's statement of claim made allegations against both MPI andCustoms, the declaratory relief sought was directed only to alleged unreasonableactions by MPI.[75] NEPS's statement of claim identified particular instances in 2013 and 2015 inwhich it claimed MPI had approved shipments of ancient swamp kauri in the form ofproducts claimed to be table tops or table top slabs and trunks or logs described as"carvings" or "Māori carvings". These instances were relied on as occasions whenMPI had failed properly to consider whether the items in question should have beenregarded as falling within the definition of "finished or manufactured indigenoustimber product".[76] NEPS sought to introduce further evidence at the hearing of the appealintended to challenge Toogood J's conclusion that MPI has since taken appropriatesteps to address the procedures it had in place to ensure that the export prohibition isproperly policed. The Chief Executive of MPI objected to the evidence being admittedon the basis that it was not fresh, credible or cogent. It consisted of a series of videosposted on YouTube in mid-November 2016 by a company in the United States ofAmerica concerning new or recent arrivals of ancient swamp kauri timber; a screenshot of that company's website, dating from 30 September 2015, showing a newshipment of swamp kauri; and a letter and documents from MPI dated 9 August 2017responding to an official information request. We have considered the evidence, andadmit it, but in the end do not think that it adds to NEPS's claim for declaration relief.[77] In declining the application for declarations that MPI had acted unreasonablyin taking at face value claims made by exporters, Toogood J noted that the instanceson which NEPS relied were "moot", the impugned exports having occurred well in thepast.39 While the evidence before the Court was sufficient to illustrate the basis forNEPS's concerns about the administration of the Forests Act, it fell well short of whatwould be required to support declarations that MPI had acted unreasonably in the wayit processed the approval applications, or that the particular exports had occurred inbreach of that Act.40[78] Further, declaratory relief directed at condemning the approval of those exportsby MPI or Customs as unreasonable or incorrect could have no practical effect.The Judge considered that was particularly the case because he thought it apparentfrom evidence before him that MPI had identified and had taken steps to address theneed to do more than accept assertions by exporters about the degree of processingundertaken in respect of the products, and in their intended products overseas.41[79] He emphasised that in any case where pre-export approval was sought or whereMPI's attention was drawn to a proposed export, officials would be required to maketheir own assessment of whether the product in question met the statutory test forexemption from the prohibition on export.42 These observations applied to MPI in itsrole in the voluntary inspection and approval process, and to Customs in fulfilling itsobligations to police the statute at the border.[80] As noted, however, the declarations that were sought in this part of the casewere only sought against MPI. Toogood J discussed, without resolving the issue,whether the fact that the voluntary approvals process simply involved MPI giving anopinion meant that the individual decisions were not reviewable.43 We can alsoproceed without resolving that question.39 Northland Environmental Protection Society Inc v The Chief Executive of the Ministry of PrimaryIndustries, above n 1, at [65].40 At [65].41 At [66].42 At [67].43 At [64].[81] NEPS's statement of claim and supporting affidavits identified many specificinstances in which it was said that MPI had improperly approved shipments of swampkauri in the form of table tops or slabs and poles. Where possible, these wereresponded to in affidavit evidence by senior forestry analysts employed by MPI.Because of the approach he took, Toogood J did not deal with the detail of NEPS'sallegations or MPI's response. Had we concluded that the Judge had taken a wrongapproach to the interpretation of the Forests Act it might have been appropriate to referthe case back to the High Court for further consideration of the factual disputes aboutparticular items that have been exported. That said, an application for judicial reviewrelying on so many alleged instances of unlawful exports, in a procedural setting thatdoes not involve the cross-examination of deponents, would be of very doubtful utility.[82] However, we have upheld the Judge's interpretation of the relevant statutoryprovisions. We add that, given the conclusions he reached about the statutorymeaning, we are not persuaded that NEPS has established any error in the waythe Judge exercised his discretion to decline relief on the unreasonableness issue.Result[83] NEPS's application to adduce further evidence is granted. But for the reasonswe have given, the appeal is dismissed.[84] The respondents sought costs on the appeal, which Mr Salmon opposed,referring to the public interest issues engaged by the litigation. Ms Gorman submittedthat NEPS ought to pay increased costs because a plethora of evidence had been calledwith little attempt to focus the argument in a manageable way. She also complainedthat the Comptroller of Customs had been named as a respondent when the argumenton appeal did not challenge the actions of Customs. However, the arguments wererelevant to statutory provisions that have to be applied by Customs and naming it as arespondent did not add to the length of the hearing or the arguments that needed to beaddressed.[85] That said, we are satisfied costs should be awarded in favour of therespondents. Having regard to the public interest nature of the litigation, we considerit will be sufficient for NEPS to pay one set of costs to the Chief Executive of MPIand the Comptroller of Customs, to be shared between them, and usual disbursements.NEPS also must pay the Chief Executive of the Ministry for Culture and Heritage costsand usual disbursements. Costs are to be calculated for a standard appeal on a band Abasis.Solicitors:Lee Salmon Long, Auckland for AppellantCrown Law Office, Wellington for Respondents