Heritage New Zealand Pouhere Taonga Bill

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Commentary

Recommendation

The Local Government and Environment Committee has examined the Heritage New Zealand Pouhere Taonga Bill and recommends that it be passed with the amendments shown.

Introduction

The Heritage New Zealand Pouhere Taonga Bill seeks to repeal and replace the Historic Places Act 1993. The New Zealand Historic Places Trust (Pouhere Taonga) in its current form, which was established under the Act, would continue under the name Heritage New Zealand Pouhere Taonga. The new name is intended to remove confusion as to the organisation’s legal status as a Crown entity.

The bill also seeks to reform the organisation’s governance and structure by disestablishing branch committees, removing three elected board member positions, and creating two board member positions to be filled by appointment by the responsible Minister. The bill would continue the Māori Heritage Council.

The bill aims to redress the balance between heritage values and private ownership. New archaeological provisions are intended to improve efficiency, reduce costs, and improve alignment with the Resource Management Act 1991.

The bill would also

  • simplify and streamline the archaeological authority processes

  • establish an emergency authority process

  • ensure Heritage New Zealand Pouhere Taonga and the Māori Heritage Council could reject vexatious applications for registration of historical and cultural heritage sites

  • increase the maximum monetary penalties to bring them into line with those under the Resource Management Act.

Supplementary Order Paper

Supplementary Order Paper 135 in the name of the Minister for Arts, Culture and Heritage, Hon Christopher Finlayson, proposes a number of amendments to the bill to

  • clarify the purpose of the Register of historical and cultural heritage

  • recognise the full range of types of Māori heritage places

  • help set national priorities for the conservation of heritage places.

The proposed amendments include the addition to clause 6 of definitions of “common marine and coastal area”, “protected customary right”, and “wāhi tūpuna”, and the replacement of Part 4 of the bill (clauses 63 to 81 as introduced).

We agree with the amendments proposed on the SOP, and have incorporated them into our recommendations.

This commentary covers the key amendments that we recommend to the bill. It does not cover minor or technical amendments.

Principles

We recommend amending clause 4 to widen the range of parties Heritage New Zealand Pouhere Taonga must work with to include tangata whenua and central Government agencies. We consider it is important that this Crown entity work collaboratively with as many of the interested parties as possible, including other central Government agencies.

We do not consider it necessary to amend clause 4 to include a principle specific to underwater heritage, as the bill is intended to apply to all of New Zealand’s historical and cultural heritage. We note that the bill’s archaeological provisions would apply to underwater sites including certain wrecks; and that the definitions of “historic place” and “historic area” cover land within New Zealand’s territorial limits, while the definition of “land” includes land covered by water.

Interpretation

We recommend a number of amendments to clause 6, including the following:

  • Amending the definitions of “exploratory investigation”, “historic place”, “scientific investigation”, and “site of interest to Māori”.

  • Inserting definitions of “building”, “owner”, “person”, “structure”, and “tangata whenua”.

  • Deleting the definition of “harm”.

Amending the definition of “exploratory investigation” is intended to address concern that it could capture non-invasive activity such as walking across a site; and amending the definition of “site of interest to Māori” is intended to make it more inclusive and cover archaeological sites in which iwi or hapū have or have had an interest, and other places of heritage interest to iwi or hapū.

Clause 37(6) of the bill as introduced includes a definition of “owner” which would apply only to heritage covenants. We believe it would be more helpful to delete this definition and insert a new definition of “owner” (similar to that in the Resource Management Act) in clause 6 so that it would apply throughout the bill. We also recommend that the definition of “owner” recognise ownership interest in Māori reserve land.

Harm

The Historic Places Act, which this bill would replace, uses the phrase “destroy, damage, or modify” in relation to archaeological sites. The intent of including a definition of “harm” in the bill as introduced (in line with current drafting practice) was to modernise this language and use fewer words where possible. We have reached the conclusion that the proposed definition does not recognise the fact that archaeological activity can have both positive and negative outcomes.

We therefore recommend deleting the definition of “harm” in clause 6, and replacing the term “harm” throughout the bill with “modify or destroy”. Because the original phrase was “destroy, damage, or modify” we recommend, for the avoidance of doubt, amending clause 6 by adding a definition of “modify” that includes damage.

Treaty of Waitangi (Te Tiriti o Waitangi)

We recommend amending clause 7 to reflect the provisions in the bill that would give effect to the Treaty of Waitangi, such as those for notifying appropriate iwi of applications for registration of wāhi tapu and wāhi tūpuna. The amendment we propose reflects current drafting practice regarding legislative provisions for Treaty clauses.

Heritage New Zealand Pouhere Taonga

Special adviser

We recommend inserting new clauses 10A and 10B to allow the responsible Minister to appoint the chief executive of the Ministry for Culture and Heritage as special adviser to the governing body of Heritage New Zealand Pouhere Taonga (its board). This is to facilitate the flow of information between the responsible Minister and the board on government policy issues. The special adviser would not be a member of the board and would not have voting rights.

Functions

We recommend amending clause 11 to require Heritage New Zealand Pouhere Taonga to recognise landowners’ interests when fulfilling its advocacy function under subclause (1)(b). We were not persuaded that the subclause should be deleted in its entirety, and believe that the amendment we propose would resolve possible tensions between the Crown entity’s regulatory role and its advocacy function.

For the sake of clarity, we also recommend amending clause 11 to provide a more comprehensive list of the entity’s functions, primarily those regarding the New Zealand Heritage List, which we discuss later in the commentary.

Powers

The majority of us recommend amending clause 12(1)(a) to make clear the nature and extent of the Crown entity’s advocacy role by stipulating that it is limited to advocating its interests in a public forum or a statutory planning process in which it has standing under an Act. This is intended to ensure that Heritage New Zealand Pouhere Taonga maintains an appropriate statutory role; that is, presenting a professional heritage perspective in appropriate contexts, such as council hearings.

For the sake of consistency with the amendments proposed to clause 11, the majority of us also recommend amending clause 12 to require Heritage New Zealand Pouhere Taonga to recognise landowners’ interests.

Rights of entry onto land

We recommend amending clause 13 to make it clear that Heritage New Zealand Pouhere Taonga would be permitted to enter land with any assistance deemed reasonably necessary, such as persons, vehicles, machinery, or equipment for the purposes set out in subclauses (1) and (3). The wording we propose is similar to that used in the Public Works Act 1981 and is intended to facilitate the practical application of clause 13.

Policy statements

We recommend amending clause 14(2) to provide Heritage New Zealand Pouhere Taonga with 18 months to develop general policy statements, including those for the administration of archaeological sites and emergency authorities. Increasing this from 12 months would allow the entity time for public consultation and deliberation.

Procedures for adopting policy statements

We recommend amending clause 15 to require Heritage New Zealand Pouhere Taonga to develop a general policy statement for the administration of the New Zealand Heritage List (clause 63) and the National Historic Landmarks List (new clause 81B). We discuss the New Zealand Heritage List and the National Historic Landmarks List below.

We also recommend requiring Heritage New Zealand Pouhere Taonga to issue a general policy statement for its statutory advocacy role. This is intended to ensure public input into the way its functions under clauses 11 and 12 relating to landowners’ interests would be carried out.

Breaching policy statements and conservation plans

We recommend inserting new clause 15A and amending clause 16 to allow Heritage New Zealand Pouhere Taonga to amend a general policy statement (new clause 15A), or breach a conservation plan (clause 16).

We recommend inserting new clause 16A so that the Crown entity could only breach a general policy statement or conservation plan if the board had resolved “on reasonable grounds” that such an action might be taken. This would require a unanimous resolution, and would apply only in exceptional circumstances such as a natural disaster.

These provisions are similar to those in the Local Government Act 2002 that allow local authorities to act inconsistently with their long term plans in certain circumstances.

Protection of names

We recommend amending clause 21 to protect the name “Māori Heritage Council” so that no body or entity could be incorporated or registered under the name Māori Heritage Council. The name Māori Heritage Council has been in statute since 1993 and we feel it is important that it be protected.

We do not agree with the argument for changing the name of Heritage New Zealand Pouhere Taonga to include the word “historic” rather than “heritage”, as we consider it is important that the name be appropriately distinctive. Furthermore, the use of “heritage” would reflect the name of the entity’s long-running publication Heritage New Zealand. We note that there is international precedent for using the word “heritage” to describe organisations with a similar mandate to Heritage New Zealand Pouhere Taonga.1

Māori Heritage Council

Māori Heritage Council continued

We recommend amending clause 23 to allow the Minister for Arts, Culture and Heritage to appoint the chairperson of the Council, from among the council members, in consultation with the Minister of Māori Affairs. As introduced, clause 23 reflects the arrangements of the current Māori Heritage Council, which the bill would continue. The amendment we propose would better reflect the Council’s status as a part of a Crown entity.

Functions

We recommend amending clause 24 to cover fully the functions of the Māori Heritage Council. The amendment is intended to ensure that the Council’s functions are set out clearly, and are consistent with clause 7 (Treaty of Waitangi, Te Tiriti o Waitangi).

As a consequence of amendments we propose to clauses 11 and 12, the majority of us also recommend amending clause 24 so that the Māori Heritage Council must recognise landowners’ interests.

Meetings

We recommend amending clause 32 to align the procedures of the Māori Heritage Council regarding roving resolutions with the Crown Entities Act 2004.

Archaeological sites

We recommend transferring the provisions in clause 40 as introduced to new clause 41, and those in clause 41 as introduced to new clause 40. We consider it important to place the prohibition (new clause 40) ahead of the declaration (new clause 41).

We also recommend amending clause 40 to make it clear that it would apply to all sites that met the definition of an archaeological site, whether or not they were recorded or entered on the heritage list.

We further recommend amending clause 40 to remove the requirement to apply for an archaeological authority to modify or destroy a standing building unless it is being demolished in its entirety. If a building were to be demolished in its entirety, an authority would still be required.

We recommend amending clause 41 to require Heritage New Zealand Pouhere Taonga to notify the appropriate iwi or hapū and the relevant local authorities, as well as the affected owner, of a declaration of an archaeological site.

Applications

We recommend inserting new clause 42A, and including in it the provisions that were in clause 45 of the bill as introduced. New clause 42A would allow Heritage New Zealand Pouhere Taonga to approve a person to carry out archaeological work independently of the relevant application for the work to proceed. We also recommend a consequential amendment deleting clause 43(2)(e).

We recommend a number of amendments to clause 43 including the following:

  • allowing applications, for all types of archaeological authorities, to be submitted without an owner’s consent, whilst requiring that work under an authority does not commence until a consent is given (new subclause (2)(ba))

  • requiring applicants to provide a description of all known archaeological sites in their application (subclause (2)(c))

  • clarification that those seeking to conduct a scientific investigation of a site of interest to Māori must obtain the consent of the appropriate iwi or hapū (subclause (3)(a)).

The proposed amendments to new subclause (2)(ba) and subclause (3)(a) are designed respectively to ensure that projects are not delayed unnecessarily while an owner’s consent is obtained, and that there are no delays if an applicant has not selected an archaeologist. The proposed amendment to subclause (2)(c) is intended to ensure comprehensive information is provided by applicants to facilitate the decision-making process.

Factors relevant to determination of applications

The majority of us recommend amending clause 47 to require Heritage New Zealand Pouhere Taonga, when determining an application for an archaeological authority, to consider all of the matters that the Environment Court is required to consider. They would include the extent to which protection of a site prevents or restricts the existing or reasonable future use of the site for any lawful purpose, and the interests of any person directly affected by the decision.

Determining applications for an emergency authority

We recommend similarly amending clause 60 to require Heritage New Zealand Pouhere Taonga, when determining an application for an emergency authority, to have regard to all of the matters that the Environment Court is required to consider. We consider that this would result in more robust and balanced application decisions. For consistency, we further recommend requiring the Crown entity to “have regard to” public health and safety when making decisions on emergency authority applications, rather than requiring them to “take [them] into account”.

Registration of historic places

In the bill as introduced, clause 63 would require Heritage New Zealand Pouhere Taonga to “continue and maintain the Register of historic places, historic areas, wāhi tapu, and wāhi tapu areas established under section 22 of the Historic Places Act”. Amendments to clause 63 on SOP 135 would change the name of the list from “Register” to “Record”, because the term “register” conveys a legal situation not imposed by the bill. SOP 135 does not seek to affect the requirement to “continue and maintain” a register or record.

While we agree that it would be inappropriate, in the context of this bill, to use the term “register”, we consider that replacing it with the term “record” is not without disadvantage, as it could create confusion with the New Zealand Archaeological Site Recording Scheme, under which archaeological sites are often referred to as “recorded”.

For these reasons, we recommend amending clause 63 to replace the proposed name “Register of historic places, historic areas, wāhi tapu, and wāhi tapu areas” as the “New Zealand Heritage List/Rārangi Kōrero”. This is intended to reflect the Māori heritage component of the list, as well as eliminating potential ambiguities.

We also recommend amending clause 63 to make it clear that all entries in the existing register would be deemed to be in the heritage list.

National Historic Landmarks List

We recommend inserting new clause 81A to make it clear that entries in the National Historic Landmarks List could include a landmark incorporating more than one or building or site, such as an art deco precinct or the Treaty Grounds at Waitangi. This provision was never intended to be restricted to individual buildings, and this amendment would make the intent clear.

We recommend amending clause 81B to provide a dual name for the list: National Historic Landmarks list/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu.

We also recommend amending clause 81B by removing the provision that the National Historic Landmarks List must not include more than 50 places at any one time. The purpose of the list is to ensure that the most important places are protected to the highest standard practicable and other provisions already set a high bar for inclusion. We consider that a restriction on the total number is unnecessary.

We are recommending above that Heritage New Zealand Pouhere Taonga be required in clause 15 to develop a general policy for administration of the National Historic Landmarks List.

Offences

We recommend amending clause 89, and deleting clauses 87, 88 and 91. Clause 87 largely duplicates the provisions in clauses 84 and 85, while the offence provisions in clauses 88 and 91 have never been used and are considered unworkable. The proposed amendments to clause 89 would delete reference to bylaws, as there are no existing bylaws or provisions in the bill for bylaws to be promulgated.

These amendments would provide for the more objective “knows or reasonably ought to have known” test for determining if a person has committed an offence.

Branch committees dissolved

We recommend amending clause 100 to require Heritage New Zealand Pouhere Taonga to take reasonable and practicable steps to support independent heritage groups formed to replace current branch committees in the 12 months following enactment. Although the Crown entity is already assisting with the formation of new groups, there is concern that insufficient support might be available.

We are not recommending the transfer of members to a new membership structure, as it would be inappropriate to prescribe this in legislation without members’ agreement.

We recognise that some transitional financial support, and other support, has been made available to local organisations. Some of us would recommend that such support be greater and made available on an ongoing basis.

Other matters

During our consideration of the bill issues relating to earthquake strengthening of heritage buildings were raised. They are being addressed in the Government’s review of New Zealand’s earthquake-prone building system, and fall outside the scope of this bill. We realise the importance of this work, and look forward to the results of the review.

Appendix

Committee process

The Heritage New Zealand Pouhere Taonga Bill was referred to the committee on 8 May 2012. The closing date for submissions was 21 June 2012. We received and considered 80 submissions from interested groups and individuals.

Supplementary Order Paper 135 in the name of the Minister for Arts, Culture and Heritage, Hon Christopher Finlayson, was received by the committee on 18 October 2012. We invited further submissions, with a closing date of 29 November 2012. We received and considered an additional 15 submissions.

We heard 36 submitters, which included holding hearings in Auckland and Christchurch.

We received advice from the Ministry for Culture and Heritage and the New Zealand Historic Places Trust.

Committee membership

Nicky Wagner (Chairperson)

Maggie Barry

Jacqui Dean

Paul Goldsmith

Claudette Hauiti

Hon Phil Heatley

Gareth Hughes

Raymond Huo

Moana Mackey

Eugenie Sage

Hon Maryan Street

Andrew Williams

Holly Walker replaced Gareth Hughes for this item of business.


  • 1   For example, English Heritage and the Australian Heritage Council. New Zealand is also a signatory to the World Heritage Convention, which relates to historic places.