A kauri tree that's estimated to be hundreds of years old is losing its protection despite the Environment Court saying it does its best to protect the threatened tree species.
Arborist Johno Smith spent a week in Awhiawhi in 2015 to protest it being felled. Photo: RNZ / Tom Furley
The kauri in Titirangi, west of Auckland, has been given the name Awhiawhi, and it's been the subject of several years of fighting in court and in the tree itself.
On Wednesday, the court removed an interim order stopping the tree from being felled, meaning it will lose protection on 26 April. The court also declined a permanent protection order for the tree.
The court noted that the outcome "may be extremely disappointing to many citizens".
Winnie Charlesworth, who lives in Titirangi, was part of the group that fought to keep the tree protected.
They were "gutted", she said.
"We just don't see why kauri should be being felled when they are now a threatened species that are dying at a rapid rate from kauri dieback."
She said it made no sense that kauri could be felled, especially when millions were being spent on investigating kauri dieback and protecting the tree.
But she was also aware that there was not much that could be done, given the legislation.
The fact is that removal of kauri trees - although they are a threatened species due to kauri dieback disease - is permitted under the Auckland Unitary Plan.
The court said it had been taking a "particular interest in the maintenance of kauri trees as a consequence of [kauri dieback]".
"Where such trees are protected and where there is the potential for them to be protected from kauri dieback or other adverse effects, this court has been anxious to ensure that this charismatic megafauna ... is protected into the future."
But it was still bound by law - specifically, an amendment to the Resource Management Act that removed the ability for a council to have blanket protection of trees within urban areas and instead required specific protections under a district plan.
And even if such protections were in place, resource consent could still be sought to remove trees. That kind of resource consent had previously existed for the tree.
Additionally, the tree did not have protection because it was not in a Significant Ecological Area (SEA), nor was it individually identified for protection.
A kauri tree in the Waitākere forest damaged by kauri dieback. Photo: RNZ / Dan Cook
The court also said: "We understand the law is clear in that this cannot simply be an aversion by members of the public to the proper exercise of legal rights by owners. Many people may disagree... The remedy in such a case is to seek to have legislation changed.
"It cannot be that the court should be asked to achieve outcomes contrary to those in the statute because a significant proportion of the public does not agree with them."
Ms Charlesworth said: "That's what the court document highlights, is that it needs a plan change to protect kauri like this ... we can't select each tree in the forest and put it up for being a notable tree and go through the council process ... if you live out here where you've got a forest, it's a huge process to identify them all."
She was particularly annoyed because the area where Awhiawhi was growing had previously been subject to a SEA.
However, that was removed when the landowner previously obtained a resource consent to build a house and clear vegetation, the court said.
That consent has since been surrendered, but the SEA has still been removed. The Environment Court said the earlier granting of the consent based on the landowner changing plans, preserving "the majority of the rear of the site which constitutes an important conservation area".
Ms Charlesworth said the whole Waitākere area should be protected to encompass all kauri.
She didn't think there was anything further they could do to protect Awhiawhi.
"An RMA change, that's years away and it's bizarre for a community that lives among the kauris that they're not protected ... We're all gutted. Most people that move to the bush in Titirangi develop sites that fit around the ecology of the area. So they develop around the kauri."
The court acknowledged the same and said Awhiawhi could be protected by seeking identification as a notable tree, but that the Auckland Council had not agreed to do that so far.
Local iwi and scientists hold the tree in "high regard" and are concerned about the loss of it, according to the court.
Particularly of interest was its survival in an area where kauri dieback was present, especially after it was ringbarked in December 2015.
Those trying to save Awhiawhi were especially unhappy with efforts by the landowners to be allowed to remove it because they had said, in an open letter from March 2015, they would "let the trees stay".
RNZ attempted to contact John Lenihan, one of the owners of the property where the kauri grows, but was told he was unavailable on Thursday.
The court left the interim order in place until 26 April in case the involved parties wanted to seek further injunctions in the High Court.
