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The tree canopy at Western Springs Forest (Photo: Supplied)
The tree canopy at Western Springs Forest (Photo: Supplied)

OPINIONSocietyMay 6, 2021

No ‘crime against nature’ here: Why my critics are wrong about Western Springs

Guest writer
The tree canopy at Western Springs Forest (Photo: Supplied)
The tree canopy at Western Springs Forest (Photo: Supplied)

Last week The Spinoff published an opinion column harshly criticising Auckland Council’s decision to fell a stand of trees at Western Springs in central Auckland. Here, Auckland councillor Pippa Coom responds.

I’m currently reading my way through the almost 20,000 pieces of feedback received on the Recovery Budget, Auckland Council’s 10-year plan. A consistent concern raised by respondents is the need to protect urban trees. That’s not a surprise – since the general tree protection rules were removed by the National government in 2012 there are limited restrictions on chopping down large trees on private land. In a climate emergency, the fate of urban trees is going to come under greater scrutiny, especially when a number of high-profile protests give the impression a “massacre” is under way.

A recently updated council report provides the evidence of what is actually happening on the ground. Over the three to five-year period it covers, changes in tree canopy cover ranged from -5% to +9% at the local board level, providing a neutral gain of 0.6% across Auckland. It’s a cautiously optimistic indication that clearance of trees in urban areas is not occurring, despite the removal of tree protection rules almost a decade ago. However, the report also shows we have a lot more to do to achieve the Urban Ngahere (Forest) Strategy goal of 30% tree cover by 2050, especially in the five local board areas that are currently under the 15% minimum goal.

Last year, Auckland Council signed off Te Tāruke-ā-Tāwhiri – Auckland’s Climate Plan, which included the undertaking to “grow and protect our rural and urban ngahere (forest) to maximise carbon capture and build resilience to climate change”. Our recovery budget backs this up with new funding to contribute to our goal of reducing Auckland’s greenhouse gas emissions by 50% by 2030.

This year’s proposed one-off 5% rates rise will provide an additional $14m to invest in growing our urban and rural forests, which includes:

  • Planting an extra 11,000 mature street trees.
  • Partnering with community to provide an additional 200,000 native seedlings per year to support council projects, plus community and marae planting programmes.
  • An additional 200 hectares of native forest on regional parks.

Surveying is under way to determine locations for street trees; the local board areas with the lowest canopy cover will be targeted first. This is on top of the planting programmes and ecological restoration already under way and in addition to the mayor’s 1.5 million trees initiative.

I‘m deputy chair of the council’s environment and climate change committee, and when I’m accused of supporting a project supposedly involving “wanton destruction” to native trees and a “crime against nature”, I take it very seriously. The track cut through the native understory of the Western Springs forest to fell 198 pine trees is no doubt a confronting sight, and has raised concerns about whether this is really necessary to achieve the Western Springs Native Bush Restoration Project. An alternative proposal of “low-interference ecological management” allowing natural processes to achieve native restoration appears on face value to be a logical approach. However, the case for leaving the forest untouched made in The Spinoff last week ignores relevant facts, expert opinion and context.

A well-used path runs steeply through the 3.2 hectares of native bush and pine stand. It provides a short cut down to the Western Springs Lakeside park, Te Wai Ōrea, and for many kids in the area, a route to school. When I first attempted to get the track maintained almost a decade ago, the Waitematā Local Board received advice that the pine trees had to be removed first due to the instability of the pines and the safety risk. Over the past 30 years the stand has reduced from approximately 700 trees in 1988 to 198, of which 31 were dead, by October 2020. The remaining trees in the stand were in varying condition, with the majority being in a state of decline.

Examples of dead and decaying pine trees felled at Western Springs Forest (Photos: Supplied)

As far back as the mid 90s, the advice about regenerating the area has been consistent from a multitude of experts, including more recently the Tree Council. Leaving the pines and providing for a slow transition may arguably achieve the same results in 20-30 years’ time, but that approach requires ignoring or downplaying the safety risk posed by the pines. It also fails to consider how accessing the pathway contributes to community wellbeing and health. The public hasn’t been able to enter the area since April 2018 due to the risk of harm from falling trees and other safety concerns. The risk was independently assessed by the Tree Consultancy Company in September 2020, which over several weeks individually assessed each tree. Its findings supported the decision to close the forest. It is not for politicians to determine the level of risk or ignore the potential harm.

Independent commissioners reviewed all the evidence presented as part of the project’s resource consent process and determined that removal of the pines in one operation would be a practicable approach to enhancing the indigenous biodiversity values of the Significant Ecological Area (SEA). The commissioners accepted that removal is required due to ongoing and increasing health and safety concerns in relation to the trees’ continuing decline and fail. They concluded, “The alternative option of allowing the pines to fall and the indigenous vegetation to continue to develop was considered but rejected as this would require the closure of the pine tree area and involve no access and no pest control. This will lead to the proliferation of pest plants and hinder the regeneration of the indigenous vegetation”. The resource consent was appealed to the Environment Court and the conditions were strengthened at mediation.

The decision-making report that went to the local board in November 2020, over five years after the project was first consulted on, confirmed that the project is climate positive and also contributes to Auckland’s Urban Ngahere Strategy. The native forest will provide several additional ecosystem services including improving air and water quality, reducing the impact of the urban heat island effect, and providing habitat for fauna. The removal currently under way is closely monitored and happening in accordance with the consent conditions. This will be followed by the planting of around 8,000 native trees and shrubs such as kauri, taraire, kohekohe, pūriri, tītoki, kānuka, māhoe and karamu.

Context and facts matter when describing a so-called “year of the chainsaw” with inflammatory rhetoric that escalates anti-council hatred, provokes the worst abuse I have ever experienced in 11 years on council, and creates an unsafe working environment. Professionals who are deeply committed to the urban ngahere are finding themselves attacked and defamed on social media and in emails sent directly to their inboxes. Accusations of corruption levelled at the contractor working at Western Springs are unsubstantiated, but their workers have been verbally abused and spat at; their equipment has also been urinated on by protestors.

Six pōhutukawa trees opposite the Museum of Transport and Technology in Western Springs that were saved in 2015 (Photo: RNZ/Supplied)

Another claim in The Spinoff piece was that other council projects point to widespread large tree removal across the city. That is not the case. The removal of one macrocarpa at Ash St in Avondale will make way for a 117-unit development in partnership with Marutūāhu iwi and a net gain of 21 mature trees. Council’s so-called “disdain” for “the Mataharehare pā pōhutukawa” is actually an oblique reference to the Ministry of Culture and Heritage’s project to build the National Erebus memorial at Sir Dove Myer Robinson Park. That project is not in fact on the pā site recognised by Ngāti Whātua Ōrākei and will be built with the protection of all the notable mature trees on the site. The so called “killing of another mature native tree cluster in Epsom” reads like teen fiction. In reality, council has moved urgently to save a mature tree when it was discovered that it had not been scheduled in error.

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It is also incorrect to suggest that Newmarket Park and the Bullock Track are examples of how “bad” council is at restoration after pine tree removal. Restoration has only just got under way at the Bullock Track, led by volunteers in an area not controlled by council. Regional Facilities Auckland removed pine trees along the Western Springs Stadium boundary a number of years ago for safety and security reasons just as Auckland Zoo did to develop the stunning native habitat, Te Wao Nui.

This is not to say council can’t do better to protect existing urban ngahere and to work effectively with communities to find solutions. Avondale’s Canal Road is a sad example of a missed opportunity to secure trees on private land when there was still a willing land owner and council budget available, a long time before the battle to save 26 native trees got under way. There are over 500 notable trees waiting to be scheduled in the Auckland Unitary Plan and the Auckland District Plan when resources permit. Although our advocacy continues to central government to reinstate blanket tree protection powers as part of the RMA review, the limited tree protection powers available to council should be more widely used. As a council we also have to address the distrust that allows misinformation to spread and the need to build confidence in decision-making processes.

Just across from Western Springs the majestic “Pōhutukawa 6” stand proud on Great North Road. Over six years ago I was part of a group who came together to successfully save them from the chop for road widening. Despite Auckland Transport having the legal power to remove the trees, the AT Board chair at the time was convinced by the campaign – a mix of politics, activism, media smarts, technical evidence and mana whenua support – to order the road builders to put the project on hold. History has proved us right. The extra lane wasn’t needed after all to make the St Luke’s interchange work more efficiently for vehicles. The future of Pōhutukawa 6 is secure. I continue to support the Western Springs restoration project, confident we’re taking the steps necessary to enhance the urban ngahere for future generations to enjoy.

Keep going!
Image: Getty Images/Tina Tiller
Image: Getty Images/Tina Tiller

SocietyMay 6, 2021

The poor treatment of sexual violence victims in court runs deep in our history

Guest writer
Image: Getty Images/Tina Tiller
Image: Getty Images/Tina Tiller

A proposed new law has highlighted the often distressing experiences of women in New Zealand courtrooms. Change is well overdue, as Elizabeth Bowyer explains. 

Over the past 18 months, as the sexual violence legislation bill has been making its way through Aotearoa’s parliamentary processes, heightened attention has been paid to the distressing experiences victims of sexual violence face when they give evidence in New Zealand courts.

Despite the attention the bill has received, little understanding of the historical roots of these experiences has been present within debates, with Jan Logie, parliamentary under-secretary to the minister of justice for domestic and sexual violence issues, arguing the need for the bill was first realised during the Louise Nicholas case in the early 1990s. 

Women, however, were facing merciless defence tactics in New Zealand courtrooms almost as soon as British law was formally introduced after the signing of the Treaty of Waitangi in 1840. 

If passed, the bill would disallow the sexual history of complainants to be addressed by the defence. It is an effort to discontinue the all-too-frequent occurrence of the irrelevant invasion of privacy victims are subjected to through heavy-handed defence tactics.

These issues were highlighted starkly in November 2019 when then 26-year-old Jesse Shane Kempson appeared in the Auckland High Court for the murder of British backpacker Grace Millane. Kempson’s defence team argued Millane’s death was a consensual sexual encounter gone wrong. Millane’s past sexual history was used as evidence to bolster a defence characterised by Scott Beard, lead detective on the case, as a method of “repetitively revictimis[ing] the victim and the victim’s family”.

Millane was not alive to face Kempson or his defence team in court. For the victims of sexual violence who do enter the courtroom, however, former minister of justice Andrew Little has said giving evidence and facing these tactics is “the single most difficult thing about a trial”. As witnesses, victims face being cross-examined with repeated pointless questions and their sexual history, reputation and credibility being attacked. 

Logie has said the bill would allow sexual violence cases “to be tried on facts and the evidence rather than myths and stereotypes or the ability of the defence to beat down and confuse a complaint to the point where they are unable to hold themselves through that process”.  

It is a process that dates back to before New Zealand was colonised and a colonial court system was established.

In the early 19th century, British courts came to define rape as a violent crime. Cases coming before the courts were rare and prosecution even rarer. Until 1841, a mandatory death sentence was carried out if a defendant was found guilty of rape. In theory, this meant British jurisprudence viewed rape as one of the gravest crimes a person could commit, while in practice the harshness of the sentence led courts to be overly cautious about prosecuting. The gravity of the punishment also caused defence counsels to become aggressive in their questioning of the victim’s story and credibility. 

Attitudes towards evidence in rape cases had also been significantly altered by the writings of 17th-century jurist Sir Matthew Hale. The “Hale warning”, which it came to be known as, was spoken in courtrooms internationally as late as the 1980s and included the line that rape “is an accusation easily to be made, hard to be proved, and harder yet to be defended by the party accused, tho’ never so innocent”.

Hale emphasised the need for physical proof on the woman’s body that a violation had taken place, as well as interrogation of her past sexual history, creating a culture where women on the witness stand were put on trial as much as the defendant themselves. The rise of medical evidence in 19th-century rape cases to prove lack of consent and evidence of violence became central to a victim succeeding in their pursuit of justice. 

By the time the court system was set up in colonial New Zealand, defence counsels had become talented actors in cross-examining witnesses skilfully and callously in an attempt to attack their credibility and sway the all-male jury towards acquittal. Hale’s philosophies of evidence were also by this time deeply embedded in the British and colonial court culture. 

DUNEDIN COURTHOUSE AND GAOL. (Photo: Otago Witness, 07 May 1864; Alexander Turnbull Library, Wellington, New Zealand. /records/3958289)

In 1862, a woman named Mary took the stand in the Dunedin Supreme Court in a case of rape against two men. Mary was subjected to relentless cross-examination by the defence counsel. Her recent marriage was questioned. It was suggested the nuptials had taken place in order for her to appear more credible, as Mary and her husband had taken the opportunity to get married when she was called to Dunedin to give evidence in the case. 

The defence also questioned Mary’s presence on the Otago goldfields, where in the 1860s single immigrant women were regarded as susceptible to prostitution and causing the spread of venereal disease and other immoral behaviour. 

Married Pākehā female victims of good repute were most likely to succeed in the courts in cases of sexual violence, but their experience on the witness stand was often no different to that of single female witnesses. The justice system in colonial New Zealand most often failed Māori women who were victims of sexual violence, unless they were the wives of respectable Pākehā settlers. 

In the case of Mary, a doctor testified that she had experienced extreme violence. Although there were instances of women’s testimony being believed unaccompanied by medical testimony, they were rare and often required performative displays of distress and emotion. The focus on physical evidence redirected the courts’ attention away from the narrative of the witness. Instead her body and not her words were examined by a male doctor and the courts to establish truth. 

After the Offences Against the Person Act 1861, the emission of semen was no longer required in order to prove rape, but resistance to the attack still was. The authority given to the white, male medical voice, coupled with the use of Hale’s attention to physical evidence and heavy-handed defence tactics, saw a New Zealand court culture perpetuated where a hierarchy of reliability surrounding sexual violence was accepted and the voice of the victim sat at the bottom.

If this all sounds eerily familiar, you’d be right. The stories of women’s experiences in New Zealand’s courts brought to the surface of public attention lately tell a similar story to that of women a hundred years ago. It is, frankly, disturbing how little has changed. 

The sexual violence legislation bill will hopefully mark an end in New Zealand to the remaining traces of Sir Matthew Hale’s philosophies of evidence and the culture of distrust of victims in courts. It is hoped alternative ways of giving evidence will become more widely accepted. The bill would also give judges confidence to intervene when inappropriate questioning occurred without fearing it would result in a mistrial. 

One of the challenges of the bill is making sure the defendant still receives a fair trial, of which cross-examination is considered a fundamental tool. With that priority in mind, if alternative forms of evidence or lack of questioning hinder this in any way it can be challenged by the defence and the judge must rule on how to proceed. 

But as Little has argued, there is no way the subject of sexual history and reputation will ever be relevant if sexual offending has occurred. 

Elizabeth Bowyer is a PhD candidate at Te Herenga Waka—Victoria University of Wellington, focusing on feminist legal histories in Aotearoa New Zealand.

Society