Canterbury Earthquake (Historic Places Act) Order 2011

2011/231

Coat of Arms of New Zealand

Canterbury Earthquake (Historic Places Act) Order 2011

Anand Satyanand, Governor-General

Order in Council

At Wellington this 27th day of June 2011

Present:
His Excellency the Governor-General in Council

Pursuant to section 71 of the Canterbury Earthquake Recovery Act 2011, His Excellency the Governor-General makes the following order, acting—

  • (a) on the advice and with the consent of the Executive Council; and

  • (b) on the recommendation of the relevant Minister following the Canterbury Earthquake Recovery Review Panel's review of a draft of the order.

Order

1 Title
  • This order is the Canterbury Earthquake (Historic Places Act) Order 2011.

2 Commencement
  • This order comes into force on 1 July 2011.

3 Expiry
4 Application
  • This order applies only within greater Christchurch.

5 Interpretation
  • (1) In this order, unless the context otherwise requires,—

    applicant means a person or body applying under this order for an emergency authority or a general emergency authority

    Canterbury archaeological officer and archaeological officer mean a person appointed under clause 6 to carry out the functions of the archaeological officer

    emergency application means an application made under clause 8 for an emergency authority

    emergency authority means an authority that may be granted under clause 10 to do anything that—

    • (a) would, but for this order, require an authority under section 11(1) of the Act; and

    general emergency application means an application made under clause 9 for a general emergency authority

    general emergency authority means an authority that may be granted under clause 10 to do anything that—

    • (a) would, but for this order, require an authority under section 12(1) of the Act; and

    greater Christchurch has the meaning given in section 4(1) of the Canterbury Earthquake Recovery Act 2011

    territorial authority has the meaning given in section 5(1) of the Local Government Act 2002.

    (2) The terms archaeological site and Trust have the meanings given to those terms in section 2 of the Act.

    (3) The terms authority and general authority mean the same in this order as they do in sections 11 and 12, respectively, of the Act.

Canterbury archaeological officer

6 Appointment and functions of Canterbury archaeological officer
  • (1) Without limiting the powers of the Trust under section 54(2) of the Act, the Trust may appoint 1 or more of its employees to be an archaeological officer.

    (2) The purpose of an appointment is to assist with any action required to assist in the recovery from the Canterbury earthquakes.

    (3) The functions of an archaeological officer are—

    • (a) to receive emergency applications under clause 8 and general emergency applications under clause 9; and

    • (b) to receive applications made to the Trust under section 11 or 12 of the Act for an authority or a general authority (including applications made on or after 4 September 2010) if, and to the extent that, those applications—

      • (i) relate to an archaeological site within greater Christchurch; and

      • (ii) require an emergency authority or a general emergency authority to do something that is, directly or indirectly, necessary or desirable to promote any of the purposes of the Canterbury Earthquake Recovery Act 2011; and

    • (c) to determine—

      • (i) whether to grant an emergency authority or a general emergency authority; and

      • (ii) if so, any conditions that are to apply to the authority.

    (4) A person appointed under subclause (1)—

    • (a) must be suitably qualified to carry out the functions of an archaeological officer; and

    • (b) must discharge—

      • (i) the functions conferred on that officer by this order; and

      • (ii) any functions that the Trust delegates to the officer under the Act.

    (5) The Trust must forward to an archaeological officer without delay any applications to which subclause (3)(b) refers.

    (6) An archaeological officer must make any decisions under this order having regard to any of the purposes of the Canterbury Earthquake Recovery Act 2011.

Prohibition

7 Archaeological sites not to be destroyed, damaged, or modified
  • (1) This clause applies instead of section 10(1) of the Act in relation to archaeological sites within greater Christchurch.

    (2) No person may destroy, damage, or modify the whole or any part of an archaeological site knowing, or having reasonable cause to suspect, that it is an archaeological site, unless either—

    • (a) an authority to do so has been granted under section 14 of the Act; or

    • (b) an emergency authority or a general emergency authority has been granted under this order.

Applications for emergency authorities and general emergency authorities

8 Applications for emergency authorities
  • (1) This clause applies instead of section 11 of the Act if a person requires an emergency authority to destroy, damage, or modify the whole or part of an archaeological site in any part of greater Christchurch.

    (2) An application for an emergency authority must—

    • (a) be made to an archaeological officer; and

    • (b) provide all the information that the archaeological officer considers reasonable in the circumstances of the application, which must not, in any case, be more than would be required under section 11 of the Act.

    (3) An application that relates to a site of Māori interest must include, in addition to the statement required by section 11(2)(d) of the Act,—

    • (a) an assessment of any Māori values associated with the relevant archaeological site; and

    • (b) a statement as to whether consultation on that assessment has taken place with tangata whenua.

9 Applications for general emergency authorities relating to archaeological sites
  • (1) This clause applies instead of section 12 of the Act if a person requires a general emergency authority to destroy, damage, or modify the whole or any part of—

    • (a) all archaeological sites within a specified area of land in any part of greater Christchurch; or

    • (b) any class of archaeological sites within a specified area of land in any part of greater Christchurch.

    (2) Subclause (1) applies even if some or all of the sites within the specified area have not previously been recorded or otherwise identified.

    (3) An application for a general emergency authority must—

    • (a) be made to an archaeological officer; and

    • (b) provide all the information that the archaeological officer considers reasonable in the circumstances of the application, which must not, in any case, be more than would be required under section 12 of the Act.

    (4) Clause 8(3) applies to an application under this clause, with the necessary modifications.

Determination of applications

10 Powers of archaeological officer in determining emergency applications
  • (1) This clause applies instead of section 14 of the Act in relation to—

    • (a) an emergency application under clause 8:

    • (b) a general emergency application under clause 9.

    (2) An application to which this clause applies must be determined by an archaeological officer, who may grant or decline the application, in whole or in part.

    (3) In determining applications referred to in subclause (1), the archaeological officer—

    • (b) is not required to consult (though may do so) with any person in relation to an application.

    (4) The archaeological officer must reject any application made under clause 8 or 9 if the applicant—

    • (b) has not provided any other information required by clause 8(2)(b), 8(3), 9(3)(b), or 9(4), as the case requires.

11 Determination of application
  • (1) The archaeological officer must, in relation to an emergency application or a general emergency application,—

    • (a) make a determination—

      • (i) not later than 5 working days after receiving an application that relates to a site of Māori interest; or

      • (ii) not later than 3 working days after receiving any other application; and

    • (b) as soon as practicable, give written notice of the determination to—

      • (i) the applicant; and

      • (ii) the owner, if the applicant is not the owner; and

      • (iii) the territorial authority in whose area of jurisdiction the archaeological site is located, if the territorial authority is not the applicant; and

      • (iv) tangata whenua, if the application relates to a site of Māori interest; and

      • (v) the chief executive.

    (2) The notice must advise the applicant of—

    • (a) his or her appeal rights in the Environment Court under clause 15; and

    • (b) the time and date by which any notice of appeal must be lodged.

    (3) In this clause, chief executive means the chief executive of the department that is, with the authority of the Prime Minister, for the time being responsible for the administration of the Act.

12 Effect of grant of emergency authority or general emergency authority
  • (1) The grant of an emergency authority or a general emergency authority does not affect, or otherwise excuse the applicant from, any duties or responsibilities arising under any other enactment in relation to the same archaeological site.

    (2) An emergency authority or a general emergency authority—

    • (a) commences, despite section 20A of the Act,—

      • (i) on the day after the last date by which any appeal must be lodged and served in accordance with clause 15(3); or

      • (ii) on the day after the determination of an appeal, if successful; and

13 Conditions that may be imposed on emergency authorities
  • (1) This clause applies instead of section 15 of the Act in relation to an emergency authority or a general emergency authority.

    (2) An archaeological officer may grant an emergency authority or a general emergency authority subject to any conditions that the officer thinks fit.

    (3) Without limiting subclause (2), if the archaeological officer is satisfied, on reasonable grounds, that an archaeological investigation of the relevant site would be likely to provide significant information on the historical and cultural heritage of New Zealand, the officer may grant an emergency authority or a general emergency authority subject to a condition requiring an archaeological investigation of the site.

    (4) If subclause (3) applies, the investigation must be completed,—

    • (a) in the case of an archaeological site that is above ground level, not later than 10 working days after the date that the emergency authority or general emergency authority is issued; and

    • (b) for any other archaeological site, within the time specified in the authority.

    (5) Despite clause 12(2)(a), if a condition of the kind referred to in subclause (3) of this clause is imposed, the emergency authority or general emergency authority may only be exercised to the extent that it does not interfere with the archaeological investigation until—

    • (a) the archaeological officer has been advised in writing that the archaeological investigation has been completed; and

    • (b) either—

      • (i) the archaeological officer confirms that the emergency authority or general emergency authority may be exercised; or

      • (ii) 5 working days have elapsed after the date on which advice was given to the archaeological officer under paragraph (a) and the archaeological officer has not notified the applicant that the emergency authority or general emergency authority must not be exercised.

    (6) In subclause (3), archaeological investigation means an investigation that is within the scope of paragraph (b) of the definition of archaeological site in section 2 of the Act.

14 Rights and obligations
  • (1) This clause applies instead of section 17 of the Act in respect of an emergency authority or a general emergency authority granted under this order.

    (2) With the prior consent of an archaeological officer, the holder of an emergency authority or a general emergency authority may engage a person approved by the archaeological officer to carry out any work required as a condition of the emergency authority or general emergency authority.

    (3) All costs incurred in engaging a person under subclause (2) are the responsibility of the person to whom the emergency authority or general emergency authority is granted.

    (4) The person approved to carry out work in compliance with the requirements of a condition of an emergency authority or a general emergency authority must, as soon as practicable, prepare a report to the satisfaction of the archaeological officer on the work done.

    (5) The report must be given to—

    • (a) the person to whom the emergency authority or general emergency authority is granted; and

    • (b) the owner, if different from the person referred to in paragraph (a); and

    • (c) the Trust.

15 Right of appeal
  • (1) This clause applies instead of sections 16 and 20 of the Act, except to the extent that provisions of section 20 are expressly applied.

    (2) There is a right of appeal—

    • (a) for an applicant whose application under clause 8 or 9 is declined, in whole or in part, by an archaeological officer; and

    • (b) for tangata whenua, on a matter of culture or tradition associated with a site of Māori interest against—

      • (i) a decision of an archaeological officer on any application relating to a site of Māori interest:

      • (ii) any conditions imposed by or under an emergency authority or a general emergency authority.

    (3) A notice of appeal must—

    • (a) state the reasons for the appeal and the relief sought; and

    • (b) be lodged with the Environment Court not later than 10 working days after the date of the notice given under clause 11(1)(b); and

    • (c) be served on each person or body referred to in clause 11(1)(b) within 5 working days of the date that the notice is lodged with the Environment Court.

    (4) Any appeal under subclause (3)—

    (5) Except as provided for in subclause (2), there is no right of appeal for any person against a decision of an archaeological officer.

    (6) There is no right of review of the conditions of an emergency authority or a general emergency authority for the person to whom that authority is granted.

Offences and penalties

16 Offences and penalties of Act to apply
  • To avoid doubt, the following sections of the Act apply, with the necessary modifications, to breaches of the specified clauses of this order:

    • (a) section 99 of the Act applies to any breach of clause 7 as if the reference to an authority of the Trust were a reference to an emergency authority or a general emergency authority; and

    • (b) section 100 of the Act applies to any breach of conditions imposed under clause 13 as if those conditions had been imposed under the Act on an authority of the Trust.

17 Revocation

Rebecca Kitteridge,
Clerk of the Executive Council.


Explanatory note

This note is not part of the order, but is intended to indicate its general effect.

This order comes into force on 1 July 2011, after its gazettal. It replaces the orders made under the Canterbury Earthquake Response and Recovery Act 2010, namely the Canterbury Earthquake (Historic Places Act) Order 2010 as amended by the Canterbury Earthquake (Historic Places Act) Amendment Order 2011.

Clause 3 provides for expiry of this order on the date of the expiry of the Canterbury Earthquake Recovery Act 2011 (the CERA) on 18 April 2016.

Clause 4 provides for the order to apply to the area defined in the CERA as greater Christchurch, namely the districts of the Christchurch City Council, the Selwyn District Council, and the Waimakariri District Council, and including the coastal marine area adjacent to those districts.

Clause 5 sets out the meanings of certain key terms.

Clause 6 provides a power for the New Zealand Historic Places Trust to appoint 1 or more Canterbury archaeological officers to assist with the recovery from the Canterbury earthquakes, setting out the functions of the officer and the qualifications required for any appointee.

Clause 7 expresses the prohibition applying instead of section 10(1) of the Historic Places Act 1993 (the Act) against knowingly destroying, damaging, or modifying the whole or any part of an archaeological site unless an authority has been granted under the Act or an emergency authority or a general emergency authority has been granted under this order.

Clauses 8 and 9 provide for applications to be made for emergency authorities or general emergency authorities, setting out the information required with those applications.

Clauses 10 and 11 provide for the determination of applications, instead of the provisions of the Act. Consistency with the purposes of the CERA is required and consultation may be dispensed with, but applications that do not satisfy the information requirements must be rejected. Strict time limits are imposed on the decision maker.

Clause 12 clarifies the continuing applicability of duties and responsibilities under other enactments and provides for the commencement of an emergency authority or a general emergency authority on the day after the period for lodging and serving an appeal has expired, or after the determination of an appeal, if successful. An authority expires upon the expiry of the CERA unless an earlier expiry date is specified in the authority.

Clause 13 applies instead of section 15 of the Act to provide for conditions that may be imposed on the granting of emergency authorities or general emergency authorities.

Clause 14 sets out the rights and obligations applying to a holder of an emergency authority or a general emergency authority instead of the provisions of section 17 of the Act.

Clause 15 provides for a limited right of appeal for—

  • an applicant for an emergency authority or a general emergency authority whose application is declined, in whole or in part; and

  • for tangata whenua, on matters of culture or tradition in relation to a site of interest to Māori, against a decision of an archaeological officer or the conditions that are imposed in relation to a site of interest to Māori.

Clause 16 provides that the relevant offence and penalty provisions of the Act apply to breaches of clause 7 or 13 of the order.

Clause 17 revokes the Canterbury Earthquake (Historic Places Act) Order 2010.

This order is made under the Canterbury Earthquake Recovery Act 2011 and its effect is temporary.


Issued under the authority of the Acts and Regulations Publication Act 1989.

Date of notification in Gazette: 30 June 2011.

This order is administered by the Ministry for Culture and Heritage.