I was the lawyer representing Michael Tavares, a courageous young man who climbed a centuries-old Kauri tree in Titirangi in Auckland’s west to save it from destruction. He was charged with trespass after sitting in the tree for 81 hours.
Many people have asked me if the charge can be defended. I thought it would be useful to set out the legal position as to why that would be bound to fail and would only land Michael with a harsher sentence. This has also prompted me to reflect on the state of the law relating to non-human nature.
The relevant law is as follows:
Trespass Act 1980
s3 Trespass after warning to leave
(1) Every person commits an offence against this Act who trespasses on any place and, after being warned to leave that place by an occupier of that place, neglects or refuses to do so.
(2) It shall be a defence to a charge under subsection (1) if the defendant proves that it was necessary for him to remain in or on the place concerned for his own protection or the protection of some other person, or because of some emergency involving his property or the property of some other person.
There is no denying the fact that Michael was in the tree, that it was on someone else’s land, nor that he refused to leave when asked. There is copious recorded evidence of this, played on media outlets. So the physical element of the offence is proven.
The underlying issue is that anything not human on a human’s land – including trees, however noble – are that human’s property.
A defence under s3(2) may have been possible if the owner of the land didn’t have the legal property right to cut down the tree, even though the tree does not belong to Michael. But the owner had just obtained a resource consent under the Resource Management Act 1991. Although the application was not publicly notified as many wished, the owner nonetheless has a clear property right to cut down ‘their’ tree. No judge in the land would allow that valid property right to be overridden by an act of trespass and even in the extremely unlikely event that they did, it would certainly be overturned on appeal.
So the legal position is clear. We had no option but to plead Michael guilty. This way he is given credit for an early guilty plea, an important consideration in sentencing as it means a significant discount because the police have not had to run a case, call witnesses, etc. He was ordered to enter into a restorative justice process with the property owner but they were not available to participate.
Michael was convicted (which was inevitable) on the 12th of June but no fine or other punishment was imposed. He may be called for sentencing in the next 12 months if he breaches the trespass order. After 12 months without incident, he is in the clear.
But doesn’t it seem at least a bit odd that we treat a centuries-old Kauri as if it were a car or a lamp? In fact, all non-human animals – from snails to horses to whales – are treated in more or less the same way.
Not to say that there is any great consistency in the way we treat non-human animals. That varies widely depending on the value particular animals hold for humans. Legally protected native animals are at the top of the hierarchy; next come ‘companion’ animals, dogs, cats, certain birds, which are considered to be deserving of better treatment than the next category down, farmed animals. Farmed animals are legally treated in ways that would cause a public uproar if applied to pet cats or dogs and ‘pest’ species are actively hunted with virtually no welfare restrictions on the manner of their dispatch. In any event, the Animal Welfare Act 1999 does not prohibit the killing of any animal, it seeks only to minimise cruelty. I’ve written in much greater detail on animal welfare law here.
Until our law is reformed to recognise the legal personhood of non-humans, we will continue to see this sort of absurdity. The recognition of legal personhood is a long way from equal rights to humans. What it means, though, is that a natural thing would have legal standing and could be represented in legal proceedings by a lawyer rather than just being treated as a piece of property, the same way that a ship or a corporation are considered ‘legal persons’. In practical terms, this would have meant that a representative could have argued on behalf of the tree as part of the consent application.
Meanwhile, the Kauri still stands.