Heritage New Zealand Pouhere Taonga Act 2014
The Heritage NZ Act replaced the Historic Places Act 1993. One of the drivers behind the Heritage NZ Act was to improve collaboration between agencies and improve integration with the RMA. For example, it is intended that information required for a resource consent application under the RMA could also be used for applications for archaeological authorities under the Heritage NZ Act.
Purpose and principles
The purpose of this Act is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand.
All decision-makers must recognise the following principles:
- historic places have lasting value in their own right and provide evidence of the origins of New Zealand's distinct society; and
- the identification, protection, preservation, and conservation of New Zealand's historical and cultural heritage should—
- take account of all relevant cultural values, knowledge, and disciplines; and
- take account of material of cultural heritage value and involve the least possible alteration or loss of it; and
- safeguard the options of present and future generations; and
- be fully researched, documented, and recorded, where culturally appropriate; and
- there is value in central government agencies, local authorities, corporations, societies, tangata whenua, and individuals working collaboratively in respect of New Zealand's historical and cultural heritage; and
- the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tūpuna, wāhi tapu, and other taonga.
Heritage New Zealand Pouhere Taonga
The Act “continues” the body previously known as the New Zealand Historic Places Trust (Pouhere Taonga) under the name Heritage New Zealand Pouhere Taonga (“Heritage NZ”).
Heritage NZ is governed by a Board appointed by the Minister. 3982 The Board is advised by a Māori Heritage Council on issues of significance to Māori.
Heritage NZ is primarily an advocacy body charged with advocating for the conservation and protection of historic places, historic areas, wāhi tūpuna, wāhi tapu, and wāhi tapu areas and fostering public interest and involvement in historic places and historic areas.
It has various other functions including:
- identifying, listing and protecting historic places, historic areas, wāhi tūpuna, wāhi tapu, and wāhi tapu areas on the New Zealand Heritage List,
- issuing archaeological authorities in accordance with the Heritage NZ Act,
- managing historic places, buildings, and other property owned by Heritage New Zealand,
- providing advice on heritage matters in the event of a national or local emergency,
- maintaining a list of places of outstanding national heritage value called the National Historic Landmarks, and
- acting as a heritage protection authority under the RMA.
Māori Heritage Council
The Heritage NZ Act continues the Māori Heritage Council established under the Historic Places Act 1993. The Council consists of eight members appointed by the Minister, four members of the Board and four other appointees who are Māori and have appropriate skills, knowledge or cultural background.
The functions of the Māori Heritage Council include:
- assisting Heritage New Zealand to reflect a bicultural view in the exercise of its functions
- ensuring the protection of wāhi tapu, wāhi tapu areas, and other historic places and areas of interest to Māori, meet the needs of Māori in a culturally sensitive manner
- making recommendations to Heritage NZ on archaeological authority applications that relate to sites of interest to Māori
- considering and determining applications to enter wāhi tapu and wāhi tūpuna on the New Zealand Heritage List
- Proposed historic places and historic areas of interest to Māori to be entered on the New Zealand Heritage List
- making recommendations to Heritage NZ on resource consent applications relating to wāhi tapu on the New Zealand Heritage List
Heritage New Zealand has statutory responsibilities for archaeological sites under the Heritage NZ Act. The archaeological site is defined to mean any place in New Zealand including any building or structure … that (i) was associated with human activity that occurred before 1900 or is the site of the wreck of a vessel where the wreck occurred before 1900; and (ii) provides or may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand.
Archaeological methods referred to in the definition can include investigation of a building's structure and fabric without any element of in-ground excavation.
Modification or destruction of an archaeological site is prohibited, unless an archaeological authority is obtained from Heritage NZ.
This applies whether or not an archaeological site is a recorded archaeological site, entered on the New Zealand Heritage List, or entered on the Landmarks list.
An archaeological authority is not required for work on buildings that are archaeological sites unless the work will result in the demolition of the whole building.
There are three types of archaeological authority applications:
- An application to undertake an activity that will or may modify the whole or part of an archaeological site (whether it is recorded or listed or not)
- An application to undertake an activity that will or may modify or destroy a recorded archaeological site, if the effects of that activity on the site will be no more than minor
- An application to conduct a scientific investigation of an archaeological site (whether it is recorded or listed or not)
An application for an archaeological authority must include:
- A legal description of the land,
- The name of the owner of the land,
- Proof the owner consents to the proposed activity,
- Proof the appropriate iwi or hapu consent (for application type C in relation to a site of interest to Māori)
- A description of the archaeological site and its location,
- A description of the proposed activity,
- A description of how the proposed activity will modify or destroy the archaeological site,
- An assessment of the archaeological, Māori and other relevant values of the archaeological site and the effect of the proposed activity on those values (except application type B),
- A description of any consultation that has taken place or reasons why consultation has not occurred.
Where the above information has been provided for the purposes of a resource consent application or notice of requirement the same information may be provided to Heritage NZ.
Once an application is received, Heritage NZ has 5 working days to determine if it is complete and adequate.
Any application relating to a site of interest to Māori must be referred to the Māori Heritage Council for recommendations.
When considering an application, Heritage NZ must:
- Have particular regard to any matters in a customary marine title planning document, 3996
- Have regard to any matter it considers appropriate, including: 3997
- the historical and cultural heritage value of the archaeological site and any other factors justifying the protection of the site,
- the purpose and principles of the Heritage NZ Act,
- the extent to which protection of the archaeological site prevents or restricts the existing or reasonable future use of the site for any lawful purpose,
- the interests of any person directly affected by the decision of Heritage NZ,
- any statutory acknowledgement that relates to the archaeological site,
- the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tūpuna, wāhi tapu, and other taonga.
Heritage NZ may grant an authority (subject any conditions it sees fit) or refuse to grant an authority.
Heritage NZ must give notice of its decision no later than 20 working days after the application is accepted as complete and adequate. The time limit is extended to 30 working days if Heritage NZ decides it needs to undertake its own assessment of the Māori values associated with the site. The time limit is extended to 40 working days if Heritage NZ decides the complexity of the matter requires additional time. Neither extension type is applicable to application type B.
Any person “directly affected” by the decision may appeal the decision to the Environment Court.
An applicant must also apply for approval of the person who will carry out the activity. Heritage NZ may only approve a person to undertake an activity carried out under an authority if satisfied the person:
- has sufficient skill and competency
- is fully capable to ensure the activity is carried out to the satisfaction of Heritage NZ
- has access to appropriate institutional and professional support and resources
- for a site of interest to Māori, has the requisite competencies for recognising and respecting Māori values
- for a site of interest to Māori, has access to appropriate cultural support
There is an overlap with the RMA which may also control modification or destruction of an archaeological site. Local authorities and Heritage New Zealand need to work together to avoid confusion and unnecessary regulatory duplication. District plans have an important role to play in managing the surroundings associated with archaeological sites. They can include the sites thought to be of local significance where national protection may be lacking. District plans provide an additional layer of protection and ensure applicants and the public are informed about the archaeological authority process.
A national database of recorded archaeological site is held by the New Zealand Archaeological Association.
The database includes sites that may have been modified or destroyed since recording, may include sites outside the definition of archaeological sites under the Heritage New Zealand Pouhere Taonga Act 2014, does not commonly include information on the extent of the site around a recorded point location and the historic point locations are not always to modern standards of accuracy. Its coverage of sites in the Coastal Marine Area is often poor. Use of the database is best guided by archaeologist familiar with the system, and for many purposes its use often requires fieldwork to confirm site information.
More information on protection of archaeology is available on the Heritage NZ website.
Heritage NZ may enter into a heritage covenant with the owner of a historic place, historic area, wāhi tūpuna, or wāhi tapu to provide for its protection, conservation and maintenance.
A heritage covenant is a voluntary agreement between the owner of the land and Heritage NZ. Once agreed, a heritage covenant places conditions on the management and use of the place or wahi tapu. It is usually permanently registered against the land title meaning the restrictions are legally binding on all subsequent owners.
Heritage covenants can be unregistered in certain circumstances and can be for a defined number of years.
Heritage covenants can arise:
- Through the request of an owner to ensure long term protection of their property
- Through the requirements for protection of places or areas as part of the resource consenting process
- As a condition of a grant under National Heritage Preservation Incentive fund
- As a means to mitigate or prevent damage to archaeological sites.
New Zealand Heritage List
Heritage NZ must maintain the New Zealand Heritage List (previously the Historic Places Register). The purposes of the List are to inform members of the public about historic heritage, to notify the owners of historic heritage and to be a source of information about historic heritage for the purpose of the RMA.
The List identifies historic places, historic areas, wāhi tūpuna, wāhi tapu and wāhi tapu areas. Historic places are divided into Category 1 (places of special or outstanding historical or cultural heritage significance or value) and Category 2 (places of historical or cultural heritage significance or value).
Heritage NZ or any other person may apply to Heritage NZ to enter a historic place or historic area on the List. If Heritage NZ considers an application is supported by sufficient evidence it must publicly notify the application and give notice to the owner of the historic place or historic area and the relevant local authorities. If an application relates to Māori land, Heritage NZ must give notice to the appropriate registrar of the Māori Land Court. If an application relates to the common marine and coastal area, Heritage NZ must give notice to any customary marine title or protected customary right holder.
Any person may apply to the Māori Heritage Council to enter a wāhi tūpuna, wāhi tapu, or wāhi tapu area on the List. If Heritage NZ considers an application is supported by sufficient evidence it must publicly notify the application and give notice to the owner of the land and the appropriate iwi or hapu and the relevant local authorities. If an application relates to Māori land, Heritage NZ must give notice to the appropriate registrar of the Māori Land Court. If an application relates to the common marine and coastal area, Heritage NZ must give notice to any customary marine title or protected customary right holder.
Heritage NZ may enter the item on the List without giving public notice if the owner of the land and the appropriate iwi or hapu (if relevant) give their written approval to the application.
Any person may make a submission on an application within 20 working days of the notification or the specified time limit.
If Heritage NZ or the Māori Heritage Council is the applicant, an independent expert assessor must be appointed to make recommendations to Heritage NZ or the Māori Heritage Council. If a recommendation is not accepted, reasons must be provided.
The entry of a historic place, historic area, wāhi tūpuna, wāhi tapu or wāhi tapu area takes effect on the date the public and specified affected parties are notified of the entry. 4014
An entry on the List may be reviewed at any time, provided 3 years has passed since the entry was made or the last review was undertaken. The review is conducted in the same manner as proposal for a new entry. 4015
National Historic Landmarks
National Historic Landmarks is a list of places of outstanding national heritage value. The purpose of the Landmarks list is to promote an appreciation of the places of greatest heritage value to the people of New Zealand and the conservation of such places, including their protection from natural disasters, to the greatest extent possible. 4016
Heritage NZ must invite public submissions on any proposed addition to the list and make a recommendation to the Minister .The Minister makes the final decision regarding the inclusion of a place on the Landmarks list. 4017 A review may be conducted from time to time in the same manner. 4018
National or local emergency
The Heritage NZ Act provides a process for obtaining an emergency authority to modify or destroy and archaeological site in an area where a national or local emergency is declared.
When determining an application Heritage NZ must have regard to:
- The purpose of the emergency authority process,
- The need to protect public health and safety,
- Whether the application is adequate (to the extent relevant),
- The matters normally considered when determining an application,
- The views of the owner (to the extent they can be ascertained).
An application relating to a site of interest to Māori must be referred to the Māori Heritage Council who must make recommendations within 3 working days.
Heritage NZ must determine an application within 3 days of the application being received, or 5 days in the case of an application relating to a site of interest to Māori. 4022
An emergency authority may be granted subject to a condition requiring an investigation to be carried out.
There is a right of appeal against a decision of Heritage NZ to the Environment Court for an applicant whose application is decline and the appropriate iwi or hapū in respect of a site of interest to Māori. 4024
Enforcement and Offences
Heritage NZ may apply for an enforcement order prohibiting a person from taking any action or omitting to act in a manner that would likely to be an offence or a breach of duty under the Heritage NZ Act.
It is an offence to intentionally and without the authority of Heritage NZ modify or destroy property of Heritage NZ. The maximum penalty is a fine of $150,000 (natural person) or $300,000 (other person) for destruction or $60,000 (natural person) or $120,000 (other person) for modification.
It is an offence to intentionally modify or destroy a historic place, historic area, wāhi tapu, wāhi tapu area, or wāhi tūpuna, in a manner that breaches the terms of a heritage covenant, if the person knew or ought reasonably to have suspected it was protected by a heritage covenant. The maximum penalty is a fine of $150,000 (natural person) or $300,000 (other person) for destruction or $60,000 (natural person) or $120,000 (other person) for modification.
It is an offence to fail to comply with a condition of an archaeological authority. The maximum penalty for the above offences is a fine of $60,000 (natural person) or $120,000 (other person).
It is an offence to refuse an authorised person access to an archaeological site or historic place to carry out an investigation. The maximum penalty is a fine of $3,750 (natural person) or $7,500 (other person).
Other offences are listed in section 90 of the Heritage NZ Act.
Section 3 Heritage New Zealand Pouhere Taonga Act 2014
Last updated at 12:00PM on November 23, 2017