Swamp kauri log export or art?
A swamp kauri log exported to China sparked deep discussion among forestry public servants over what is art and what is a log
A Supreme Court judgment has placed Te Uru Rākau, the Ministry for Primary Industry forestry arm in the role of deciding what’s art and what’s a log.
Te Uru Rākau's call is a swamp kauri log with light carvings, similar to those found inadequate as to be considered a finished product, and a paua shell-dotted resin inlay is a genuine sculpture.
In order to be exported, legally indigenous wood, such as swamp kauri, must be a finished product. All value must be added in New Zealand prior to export. The November 2018 judgment found rough sawn slabs sold as table tops and logs lightly carved and sold as temple poles were not finished products, making their export illegal.
The decision to call an item exported in December, barely a month after the Supreme's Courts judgment, a sculpture has shocked the Northland Environmental Protection Society’s Fiona Furrell.
“I feel this Ministry is making a mockery of the Supreme Court ruling.”
The society had fought for nine years through the court system to clamp down on the swamp kauri trade after it became concerned about Northland’s wetlands being destroyed in the hunt for the lucrative product. She was delighted at the Supreme Court judgment, which in essence found that if it looked like a log, it was a log.
Furrell thinks the application of the Supreme Court judgment by Te Uru Rākau is a case of “public servants gone mad”.
“You don’t get a statue that looks like that. It’s a log. One hundred percent log.”
The Supreme Court judgment says:
“... a log cannot be a finished or manufactured indigenous timber product unless the work on it is so extensive that it has lost its identity as a log. Surface carving or decoration, however elaborate, is unlikely to cause such a loss of identity.”
What is art?
The log, or sculpture in question had been ordered before the judgment by a buyer in China. Prior to the judgment Te Uru Rākau was satisfied the item was a finished product. After the ruling it reassessed whether the item had lost its identity as a log.
It turned to the Ministry for Culture and Heritage for advice on how to separate log from sculpture.
Two experts were consulted, however, they were not asked to view the specific item in question said a spokesperson for the Ministry for Culture and Heritage:
“... the Manatū Taonga Protected Objects Act experts did not view the specific object in question. This is because the experts were asked for general advice on how to define a 'real' or genuine artwork or sculpture in relation to the Protected Objects Act. They weren’t asked for and therefore didn’t provide an individual assessment of any particular example.”
The response in Te Uru Rākau’s decision document shows experts from the Auckland Art Gallery and Te Papa both said they did not feel it was possible to provide a guideline for determining if something is a work of art.
The Ministry for Culture and Heritage defined sculpture as three-dimensional art made by carving, modelling, casting or constructing and suggested the artist’s provenance, the artistic or technical care making the item, and the artists stated meaning of the work could be used as factors in determining art, or log.
The item exported had an inlay of paua and kauri leaf, and outline carvings of items such as a silver fern frond, a kiwi and words. Other than the resin inlay it appears similar in photographs to logs submitted as evidence in the court case, which Supreme Court judges found to still resemble logs.
Te Uru Rākau also contacted the Chinese buyer. Two previous 'logs' purchased in 2015 were still intact.
The $200,000 gamble
Before Te Uru Rākau had decided art or log, the swamp kauri was on a ship for China.
It was a gamble which could have landed the exporter with a hefty fine if the log was found to be a log, not a sculpture.
In this case, the gamble paid off. The decision was the log is a “genuine sculpture”:
“The sculpture has undergone manufacturing to such an extent that transformed it from its raw form and constructed it into a sculpture that has natural characteristics.”
Te Uru Rākau director, forestry and land management, Oliver Hendrickson said after comprehensive analysis the organisation is confident the log was finished in a way that was compliant with the law.
“While it is not compulsory to seek approval prior to export, exporters will incur fines of up to $200,000 if found to be in breach of the Act. That is why exporters are encouraged to notify Te Uru Rākau of their intention to export.”
The decision was made not to prosecute the exporter for exporting an illegal item.
The document notes the item had been exported already and reads:
“As a result the below recommendation now refers to a decision as to whether to prosecute according to the Solicitor General's Prosecution Guidelines…
“It is the opinion of TUR that the export on the 22nd December 2018 was of a genuine swamp kauri sculpture, falling within the definition of a FMITP within s2 of the Forests Act 1949.”
For Nelson Parker, the exporter of the artistic transformation of the log, this official call equates to, 'Congratulations, it’s a sculpture'.
‘We’re still doing everything we were doing before’
Kahui-based Parker has been in the swamp kauri trade for years. He’s still “hot under the collar” he wasn’t part of the court case. He thinks people in the swamp kauri trade weren’t able to defend themselves through the drawn out court battle.
He understands Northland Environmental Protection Society’s concern about wetlands but said recently he’s been pulling logs out of long-established farm pasture.
It’s been business as usual since the November judgment.
“Has it affected us and to what degree? No, we’re just going on as normal, we just need to tick more boxes.”
Slabs are now being exported as table kitsets. Stumps, which are legally allowed to be exported unfinished, are being carefully documented to prove their stump status.
When it comes to the log versus sculpture question, Parker maintains that, from certain angles, the finished item looks nothing like a log.
“That is an artform and it’s a sculpture. It’s not a log, it’s a sculpture.”
The Te Uru Rākau’s decision document lists a breakdown of costs supplied by Parker to create the item. It includes 400 artist hours at $40 per hour, as well as 600 litres of resin at $20 per litre. Other costs included sand paper, oil, and paua shell.
Parker said the client is going to place it in his museum in China.
Having exported the item prior to getting confirmation it was art, Parker said he’s happy with the outcome.
“I knew what was at stake, I knew there was possibly serious consequences, but I was sick and tired of all this bureaucracy. We were given the green light and then it turned red.”
Can the log versus sculpture call be challenged?
If someone feels Te Uru Rākau's artistic judgment is lacking, there's one path which could be pursued.
The decision not to prosecute Parker for exporting the item could be subject to a judicial review.
Fiona Furrell said the Northland Environmental Protection Society is considering its options.
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