Why the pine tree might land the Government in court

  • Māori representatives have threatened to take the Government to court over its about-turn over pine trees
  • Exotic trees such as pine offer quick returns and fast carbon-storing powers but potentially sacrifice biodiversity
  • The fight over pine versus native trees has exposed different views between and within iwi and Māori communities
  • The Government may face a court case or Tribunal claim over its Treaty obligations

An opportunity for Māori landowners to earn billions by planting exotic trees came tantalisingly close.

But it may be stripped away by the Government in what some forestry experts argue is a breach of trust and the Treaty of Waitangi. They’re prepared to take the fight over rights to court.

On the other side, other Māori communities argue the long-term consequences of mass pine planting – on native flora and fauna, and jobs – mean the Government was right to re-think its policy and put limits on planting pine. Future generations will be grateful for limits on exotic forests, they believe.

* Moves to limit pine would force landowners, Māori to forego ETS cash
* Forestry proposal will trash Tai Tokerau’s Māori landowners
* Government proposes banning pine carbon farms from the ETS

Here’s how the argument came about.

From January, landowners who established permanent forests were going to have access to a new source of revenue. They could sell the emissions absorbed by their growing forest to polluting companies. (Under the Emissions Trading Scheme (ETS), polluters must hand over a carbon credit for every tonne of greenhouse gas they create.)

The owners of harvested forests – the ones producing logs – had been able to sell carbon units for years, in addition to selling the wood they grew. The new opportunity was for landowners planting permanent forests, which wouldn’t be chopped down.

Owners were expected to earn at least 50 years of carbon units.

In 2018, when the first-term coalition Government initially floated the addition of permanent forests to the ETS, it didn’t distinguish between native forests and exotics such as pine, redwood or eucalyptus.

At that time, the market price of an ETS unit was creeping up from $20 to $25 per tonne. Following other legislative reforms, the price rocketed to $85 at the start of this year, and now sits around $75.

At those prices, carbon farming is an enticing prospect for landowners with marginal hectares that aren’t good for dairy or meat. Investors with cash for establishment costs were eager to pair with Māori landowners to plant exotic trees, and divide the profits.

But after the Climate Change Commission came out strongly for limits on exotic forests, the Government changed its mind. Earlier this year, it proposed that permanent forests must be composed of native species to be eligible to sell carbon units under the ETS.

That’s left a budding permanent forest industry with regulatory whiplash.

In May, Forestry Minister Stuart Nash unveiled a proposal to treat exotics trees differently. (File photo)


In May, Forestry Minister Stuart Nash unveiled a proposal to treat exotics trees differently. (File photo)

Te Pāti Māori co-leader Debbie Ngarewa-Packer said Māori landowners and foresters were “surprised and devastated” at the proposal, with no prior warning. “Te Tiriti says we are in a partnership, not a dictatorship.”

New permanent exotic forests could still claim a few units by entering into the harvested forest category. However, there’s a cap on the number of ETS units this category can sell, reducing income.

Opponents of the latest proposal gave fiery feedback during the public consultation. Now, some are considering taking the matter to court – arguing the Government’s actions breach the country’s founding document, the Treaty (Te Tiriti).

On the ground

Te Kapunga Dewes – chief executive of forestry and horticulture organisation Whenua Oho and chair of Ngā Pou a Tāne, a Māori foresters and landblock body – opposed the change in policy.

Collectively, it could cost iwi landowners billions in lost revenue, he said.

Ever since the permanent forest plans started to germinate, the Government’s consultation with iwi has been poor-quality, Dewes said. But, he added, the earlier proposals were at least less contentious. The latest consultation was both controversial and just six weeks long.

“This is going to have a huge economic and social impact for Māori landowners,” he said.

Dewes considers this a breach of Te Tiriti. Office for Māori Crown Relations guidelines suggest that for issues that significantly impact Māori, co-designing a policy is appropriate. “I didn’t see any co-design through that six weeks, prior to it, and I haven’t seen any since.”

Pine vs podocarp

Exotic and natives trees both absorb carbon as they grow. Every tonne of carbon dioxide out of the air is one that won’t cook the planet.

Eventually, a mature native forest will hold twice as much carbon as an exotic plantation. But that will take centuries to happen. In the race to store carbon, natives are the figurative tortoise and exotics are the hare.

Pines are famously fast at absorbing carbon for growth, but other species – notably redwoods – may beat them. The planet is quickly approaching 1.5C of heating, beyond which the world is expected to experience proportionally greater impacts.

And the faster these trees absorb carbon, the sooner the landowners will recoup their planting costs and start turning a profit.

Meanwhile, natives bring high upfront and ongoing costs, Dewes said. The outlay for native planting varies significantly – he gives the analogy of a new suit, from the mass-produced basic to the hand-stitched custom design.

He acknowledged the Government hopes to bring down the cost to plant natives. “That would be fantastic. Full stop.”

But to protect against introduced mammals, young native forests must also be fenced and pest-controlled. With the natural upper soil layer lost when the forests were first razed, native seedlings are more temperamental, he said.

“I have $2000 [per hectare] to establish my pine forest, which I’m 95% sure will work. I’ve $15,000 for natives and I’m only 50% sure it’ll work. Then I’ve got costs on top of that.”

There’s a huge gap between the economics of pine and native forests, Dewes added: “It’s an order of magnitude.”

In addition, Māori landowners are limited in their ability to raise cash. Ngarewa-Packer notes that collectively owned land cannot be used as the security for a loan.

Treaty partners

Scion native forestry expert Ramona Radford​ is of Māori and Pākehā heritage – the two peoples of the Treaty, she says. She noted the English language version of the Treaty guaranteed Māori chiefs and iwi “undisturbed possession” of forests – alongside fisheries, lands and estates. Article Two in te reo discusses whenua (land), kainga (villages) and taonga (properties and treasures).

“This is a fundamental of the Treaty relationship,” said Radford (Ngāitai, Whakatōhea, Ngāti Porou).

Undisturbed possession meant the Government – acting for the Crown – can’t interfere using physical, material, political or legislative force, Radford said.

“There’s an Article Two breach potentially,” she said. “It is very clear [the Government] is moving into an area they have had very little advice on.”

This constitutional right covers living indigenous forest, she added. It also covers the forest as it existed before European settlers arrived.

“When the Crown is making a decision about native afforestation, they cannot make that decision on their own. Under the Treaty, they have an obligation to move that forward – not in consultation – but in partnership with Māori.”

Native seedlings are more expensive to establish, and require more TLC than hardy Pinus Radiata.

Chris McKeen/Stuff

Native seedlings are more expensive to establish, and require more TLC than hardy Pinus Radiata.

Dewes agrees: “The Government has an obligation to co-design, [with] co-governance, what it proposes for native afforestation.”

Radford noted, in te ao Māori, the health and wellbeing of people is intrinsically linked to the health of Te Waonui a Tāne or the great forest. “When you disturb the possession, you sever future generations from the full enjoyment, expression, understanding and rights to be kaitiaki [guardians] of the forest or te taiao [the environment].”

Yet Radford stressed that excluding all permanent exotics would be an injustice on Māori communities. “We desperately want to have economic self-determination. We want that land covered in gorse and ragwort and blackberry to become economically viable.”

The living forest

Like the fabled hare, pine can also be seen as the second-place prospect. For a start, exotic trees won’t restore biodiversity.

Tairāwhiti resident Manu Caddie​ said there was a strong argument that without limits on permanent exotic forests, the Government would also be breaching the Treaty, as taonga would be unprotected.

Many Māori “see native flora and fauna most definitely as taonga that aren’t being protected through the historic and current regulation that has incentivised alternative systems”, said Caddie (Ngāti Pūkenga, Ngāti Hauā and Ngāti Māhanga).

The Government can and should exercise its responsibility by setting rules, just as it does on fossil fuel exploration permits or nuclear energy, Caddie said. (This view was shared in a submission made by the Totaranui land block, which he lives on with his wife.)

“The forests we do have should be the best-quality forests we can have,” he said.

Mānuka is world-famous as a nectar source for honey. Could it be harnessed in the cosmetic industry?


Mānuka is world-famous as a nectar source for honey. Could it be harnessed in the cosmetic industry?

Renee Raroa – a fellow researcher who also works for Tohu, a start-up to fund native forestry – sympathises with landowners who feel torn between the economics of pine and the holistic benefits of indigenous trees. She understands the frustration at having an opportunity taken away.

But to her, that means the economics must be adjusted in favour of native species: “so we’re doing the best for the land and not the best just for the people”.

Funding more research to quantify the many benefits of indigenous forests would be a start, said Raroa (Ngāti Porou).

Pine’s strengths – being quick and cheap – could also undermine the country’s shift to green technology.

The Government and the independent Climate Change Commission have noted that no limits on exotic forests would result in an unchecked number of carbon units being generated, and sold to polluters.

Caddie shares these concerns. “If pines were included, we’ll have an excess of credits – and that will suppress the ETS price and disincentivise the change that we need to see.”

For example, a polluting company might feel reassured by a low, stable carbon price and delay investment in comparatively expensive, zero-emissions technology.

The greenhouse gas would be mopped up by trees, but the other impacts – such as the health issues from the air pollution caused when fossil fuels are burned – will remain.

Because permanent exotic forests need less tending, they create significantly fewer jobs, Caddie added.

Time to talk

There is some common ground. Most agree that native forests are, environmentally and culturally, the most suitable choice.

Radford also wants to see the land return to indigenous forests in the long-term. However, a middle approach – with some mandated limits, criteria and standards on permanent exotic forests in the ETS – could unlock both economic and environmental benefits, she added.

Indigenous forests aren’t going to regenerate on their own, she said: “They need some help and assistance”.

Radford and Dewes suggest that the permanent exotic forests might not need to be permanent. Instead, they could be transitioned into natives.

University of Canterbury forestry researcher Euan Mason​ said some exotic forests, as they age, develop an understorey of native trees. So there appears to be the opportunity for a forest to transition. But the best examples haven’t yet finished this process, he added: “In almost all other cases, forests are harvested before we see the final result.”

Because not all exotic forests develop a native lower canopy, safeguards and a long-term management plan are likely to be required, Mason said.

Rather than “locking up and leaving” native forests, Caddie said there are ways to generate revenue. He hopes to develop markets for native bio-extracts, such as manuka oil for cosmetics. “We’ve got to find what sustainable utilisation looks like.”

Raroa is helping to build the Toha marketplace where all recorded benefits of native forests – such as the biodiversity, freshwater or carbon gains – are sold separately. “That means there’s more finance coming back to the project.”

She suggests a mandated “mosaic” of permanent natives and exotics could be a compromise. The exotics – limited to a set percentage of planted hectares – could raise the cash required to fund the native forest.

A mosaic of fast-growing pine seedlings alongside natives is one proposal for a compromise solution.


A mosaic of fast-growing pine seedlings alongside natives is one proposal for a compromise solution.

Ngarewa-Packer believes it’s possible to find a win-win. “I think it’s really easy.”

Te Pāti Māori supports native afforestation rather than exotics, she said. But this shift would require assistance from Government to make the forests equally financially viable. “The Government has to make sure the changes mean that Māori landowners – who are in that position through no fault of their own – aren’t marginalised and discriminated.”

To create a farming emissions pricing system, the Government set up a five-year partnership with the agricultural industry, Ngarewa-Packer noted. Māori landowners have not been provided comparable co-design on forestry, she added.

Whatever the best solution is, Caddie doesn’t believe it will be found through a short, unengaging official consultation or a court case, but with a meeting or wānanga. “In this region, we’ve tried to bring really diverse points of view together and get people in the same room and try and find some consensus. That hasn’t always been possible, but we’ve also come to a deeper understanding of each other.”

The environment itself must be given voice in any discussion, he added.

Asked if he’d be prepared to attend a forum, Forestry Minister Stuart Nash​’s office said he would not comment on the proposal until the consultation had concluded and all submissions had been reviewed. At that point, “we will be in a better position to make an announcement”, the statement said.

Climate Change Minister James Shaw​ also did not confirm whether he would arrange a meeting. After all feedback has been reviewed, the Government would “consider our next steps, including whether any further consultation is required”, he said in a statement.

Radford agreed Government ministers had a responsibility to have a “meaningful conversation” with iwi leaders about what this decision means for Māori, and listen to what matters to each iwi.

A regional approach might be chosen, where hapū could help decide the limits on exotics for their land. That would honour – rather than damage – the relationship Māori have with the environment, she added.

That conversation would need to happen soon, Radford said, noting the Government’s 2020 declaration: “We’re apparently in a climate emergency.”

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