Judge says MPI destruction order 'unlawful' but too late for trees

Fruit trees being chipped before burning at Pattullos Nurseries. Photo /Supplied.

A Hawke's Bay fruitgrower says he has suffered financially and emotionally after he was made to burn thousands of fruit trees while waiting for a High Court judgement.

Kerry Sixtus from Pattullos Nurseries in Napier was one of five industry players hoping to put a stop to the Ministry for Primary Industries' efforts to destroy tens of thousands of imported apple and nectarine plants across Hawke's Bay.

MPI issued a contain and/or destroy order for tens of thousands of plants, after a routine audit in March found several critical non-compliances at the Clean Plant Centre Northwest at Washington State University.

A total of five growers from across the country, including four parties from Hawke's Bay, joined together to challenge the directive for nurseries and orchardists to contain and/or destroy tens of thousands of apple (Mali's) and stonefruit (Prunus) plants.

Although a High Court Judge yesterday found that the MPI directions were unlawful and directed MPI to reconsider its approach, Sixtus said that came too late for most.

"Orchardists, probably just about most of them, have destroyed the trees that they were required to destroy and I've already destroyed some of my nursery crops as well."

An interim order was in place regarding containment and spray programmes, but for some the budwood did not have any leaves, making spraying is useless (the spray enters the plant's "bloodstream" via the leaves).

That meant making the tough decision to destroy these plants now in order to comply with the original MPI directive, regardless of yesterday's judgement.

"At the end of the day, we are responsible for complying with government directives and that's what we were doing - whether we liked it or not.

"The cost of actually standing up and squaring your shoulders on behalf of an industry - it's not just on behalf of ourselves - and that has come at a significant financial cost but also a rather large personal cost."

The judgment encouraged MPI to work with industry to develop and agree a more appropriate set of directions that address their key biosecurity concerns.

"Hopefully we get a change to engage with MPI on a level playing field, rather than having one party in the room with all the power. We want to engage with MPI, we want to find resolution to these problems, we want to have some common sense at the table.

"I'm hoping they will look at the judgement and say we need to sit down at the table with the effected parties and find solutions to this problem that we can agree on."

The MPI directive includes original plant materials imported between 2012 and 2017, and extends to budwood and propagated materials derived from the original plants.

The order affected 32 orchardists, nurseries, importers and intellectual property companies in Hawke's Bay, Waikato, Nelson and Central Otago across a range of fruit-based industries including apples and nectarines in Hawke's Bay.

A spokeswoman for MPI said the ministry remained "concerned" at the biosecurity risk associated with this plant material.

"Our decisions and actions throughout this process have been based on protecting New Zealand and our horticultural industry.

"We note that the Judge found the diligence and care demonstrated in our decision-making cannot be faulted, that we very carefully and thoroughly researched the situation, and our decisions were reasonable.

"However, he disagreed with the sections of the Biosecurity Act that we used. We will be carefully considering the judgement and our next steps, and how to address the biosecurity risk that New Zealand still faces."