This Supplementary Order Paper updates certain matters to reflect changes made to the law, enhances alignment with the Resource Management Act 1991 (RMA), and improves the Bill’s workability. It also corrects a number of clerical errors.
The commencement clause (clause 2) is amended to provide that the Bill comes into force on the day after it receives the Royal assent.
Enhanced alignment with the RMA
Amendments in clause 52(3) of the SOP more closely align the time period that archaeological authorities can be exercised with the timeframes that relevant resource consents can be exercised under the RMA.
In clause 54(3), the relevance of statutory acknowledgements is made explicit, as well as the provisions of the Marine and Coastal Area (Takutai Moana) Act 2011.
New clause 89(1A) is included to provide a sanction for a failure to comply with clause 53(2) (which requires an owner of land subject to an authority to notify a new owner that a current authority exists).
New clause 89(1B) provides a sanction for contravention of an enforcement order.
New clause 89A, modelled on section 340 of the RMA, ensures that directors and managers are culpable for the actions of agents, and sets out defences to proceedings.
Amendments in clause 90 substitute largely untried processes for injunctions with the enforcement order processes under the RMA. New clause 91 sets out the court of jurisdiction for offences, enforcement proceedings, and interim enforcement proceedings in line with the RMA.
In clause 94(1), the period for filing a charging document is changed from 12 months from the date an offence was committed to 12 months from the date the offence was known to Heritage New Zealand Pouhere Taonga (HNZPT), or should have become known to HNZPT. This general approach is more closely aligned with section 338(4) of the RMA.
Improving the workability of the Bill
Minor adjustments are proposed to improve the workability of the Bill.
The definition of authority (clause 6) is amended to clarify that an authority may relate to multiple sites. This is followed up elsewhere (see, for example, clauses 42(b) and (c), 45(5), 58(1), and 59(1)).
Clauses 16A(2) to (4) introduce provisions that remove undue concerns about legal risk for non-compliance with general policy and conservation plans. This helps ensure HNZPT will develop strong, effective policy and plans (in preference to the weak, risk-averse approach that might otherwise prevail). The relevant provisions in the Bill are modelled on the Local Government Act 2002 (section 96(4) and clause 8, schedule 8).
There are changes to clarify that where HNZPT is required to recognise the interest of owners, it does so
“as far as those interests are known” (see clauses 11(2), 12(1A), and 24(2)).
The additional cross references in clause 13(9) apply the clause to applicants for all types of archaeological authorities (including exploratory and emergency authorities) to prohibit applicants from obstructing activities carried out to investigate, locate, record, inspect of obtain information about a historic place.
Clauses 23(3A) and 33(2) clarify the reciprocal rights of the chairpersons of the Board and the Māori Heritage Council to participate in the other's meetings (but not to vote).
In clause 40(1) (and in clauses 83, 84, and 89), the amendment (of
“suspects”) reflects the fact that it is not always possible to know definitively that a place has heritage value or status, though there may be good grounds to suspect that it does. It is therefore appropriate to provide a lower level of culpability.
Clause 40(2) is amended to clarify that the protection for archaeological sites applies whether or not a site is entered on the New Zealand Heritage List/Rārangi Kōrero or the Landmarks list.
Clause 41(3) ensures that persons with a registered interest in land are also notified if land is declared to be an archaeological site.
Amendments in clause 42A(2) make more explicit the skills and competencies archaeologists must demonstrate to carry out works on sites of significance to Māori, that is: they must have competencies in relation to Māori values and access to appropriate cultural support. New clause 42A(5) provides that if an application for an authority is accompanied by an application for approval of the person nominated to undertake work on the relevant archaeological site, both decisions and the notification must be made within the appropriate time period specified in clause 48.
Clause 43(2)(a) is amended to clarify what is required by way of identification if there is no legal description of the relevant land.
Changes are made to clauses 44, 48, and 54 to ensure that HNZPT determines and notifies applicants within the specified time periods.
Clause 49(1) is amended to enable a condition to be included in an authority to ensure that the consent of a person with a registered interest in the land (as specified in the condition) is obtained.
New clause 48A is moved (from former clause 51) to improve the logical order of those provisions.
Amendments in clause 53(2) require owners of land subject to an archaeological authority to advise potential new owners of certain matters before any change in ownership, namely:
“the conditions of the authority, and the terms of any consent of the owner”.
Clause 55 is amended to include duties and to provide for HNZPT to take action where it has reason to suspect unauthorised activity.
Clause 56(2)(h) is amended to provide that a right of appeal applies in relation to the exercise of the power of entry, the power to carry out an exploratory investigation, and the power to recover the costs of such an investigation.
Amendments in clause 60(7) ensure that HNZPT's determination on an emergency archaeological authority is not invalidated if HNZPT is unable to contact the owner in the time frames it has to make a decision (3–5 days).
The cross-heading above clause 63 clarifies that the existing heritage list is continued.
Clause 66(3)(b) is amended to ensure that the Māori Heritage Council has the power to deal with vexatious applications.
The amendment to clause 81B(3) clarifies that a place may be included on the Landmarks list as long as it satisfies at least 1 of the criteria.
The amendment to clause 81E(4) gives the Minister for Arts, Culture and Heritage greater scope to reject an application for review of an entry on the Landmarks list.
For a note on the changes in clauses 83, 84, and 89, see note to clause 40 above.
Clause 103(1)(b) and (2)(a) are amended to remove references to an outdated mode of giving notice.
Clerical errors are corrected at clauses 5(2)(h), 64(4) and (6), 66(3)(a) and (5), the heading to 81D, and 97(f).
Redundant provisions are omitted at clauses 46 and 48A.
Departmental disclosure statement
The Ministry for Culture and Heritage is required to prepare a disclosure statement to assist with the scrutiny of this Supplementary Order Paper. It provides access to information about any material policy changes to the Bill and identifies any new significant or unusual legislative features of the Bill as amended.
A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?type=sop &subtype=government&year=2014&no=444& .