Is our past falling through the gaps?

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20th century sites of historic interest and national significance often fall into a zone of uncertainty, in which the jurisdictions of the RMA and the HNZ Act are unclear or incomplete.

20th century sites of historic interest and national significance often fall into a zone of uncertainty, in which the jurisdictions of the RMA and the HNZ Act are unclear or incomplete.

In this excerpt from a paper presented at the 2015 NZPI Conference, the uneasy relationship between the RMA and the Heritage New Zealand Pouhere Taonga Act is explored, and ideas for a more integrated solution are suggested. Jill Gregory and Amanda Stolz of Chapman Tripp report.

The importance of protecting heritage is well recognised, both at a national and international level. Yet parts of the architectural, historical and cultural componentry which inform the unique “kiwi” identity may be in danger of falling through the gaps.

Resource consent applicants, Heritage New Zealand and councils often assume that conditions relating to ‘heritage’ can be left to the archaeological authorities stage. But there are risks with this approach, residing in the uneasy interface between the Resource Management Act 1991 (RMA) and the Heritage New Zealand Pouhere Taonga Act 2014 (HNZA).

Why is there a problem?

An application under the RMA requires a full assessment of the effects on historic heritage not limited by any date. Yet Heritage New Zealand has limited statutory jurisdiction to require the protection or investigation of post-1900 sites and it is unclear how this heritage should be preserved for the well-being of the community. If reliance is placed solely on the HNZ authorisations, post-1900 heritage not identified in a district plan can be modified or destroyed without any regulatory intervention.

The tendency to rely on the HNZ Act is heightened by the duplication between the Acts in terms of information requirements and approval timeframes.

A good example of this problem is WWII sites. Unless specifically listed, HNZ is not involved in how these sites are recorded or preserved, as they are not “archaeological” under the HNZ Act and do not require authorisations. Also, our experience is that councils will often not impose any conditions, unless volunteered by an applicant, meaning this heritage is lost.

Previous reform

In 2009, the Ministry for Arts, Culture and Heritage began a review of the Historic Places Act 1993, including the consenting process for archaeological authorities. Ultimately, the Ministry went with the option requiring least legislative change. The issue is whether it has succeeded in delivering the desired effects.

The HNZ Act, which replaces the Historic Places Act:

• amends the Treaty of Waitangi clause to align with current legislative practice

• widens the range of parties with which Heritage New Zealand must collaborate to include tangata whenua and central government agencies, and

• ensures that the interests of property owners are recognised when Heritage New Zealand performs functions under the Act.

Alignment with the RMA has been improved and the process streamlined through a number of changes to the archaeological provisions, including:

• creating four types of archaeological authorities: General (including minor effects), Exploratory, Scientific and Emergency

• reducing the timeframes for processing general authorities from three months to 20 to 40 days (depending on the type of application)

• removing the requirement to submit an archaeological assessment with the authority application where the effects of the activity on the site will be minor

• requiring the consent of the relevant iwi or hapu to conduct a scientific investigation of a site of interest to Māori

• removing the requirement for an archaeological authority for work on a pre-1900 building unless it is being demolished

• introducing reduced information requirements and processing timeframes for emergency authorities once a state of emergency has been declared

• requiring that archaeologists approved to work under an authority on sites of interest to Māori are sensitive to Māori values and have access to appropriate cultural support

• requiring that the landowner’s consent is given before work under any authority can proceed (although consent is not required at the application stage), and

• clarifying that an authority stays with the land even if the ownership of the land changes (in the same way a resource consent does).

However, some questions remain. Who is best placed to manage the modification or destruction of post-1900 heritage? And, is it really efficient to lodge the same documents to two different agencies to obtain consent for an activity?

Future reform – ideas for better integration

In our view, the better approach to integrating the RMA and the HNZ Act would be to separate the advocacy and education functions from the consenting functions. This would mean that:

• Councils would be solely responsible for consenting activities to modify
or destroy heritage sites, and

• HNZ would have wider powers to advocate for, and hold a database of, post-1900 heritage sites that contribute to our history of New Zealand.

Councils – to consider applications and impose conditions

Heritage effects are integral to assessing whether a particular project should be approved under the RMA. However, there are often a range of competing interests that need to be assessed and balanced. This assessment process ensures that the outcome meets the RMA’s sustainable management purpose.

By comparison, when HNZ considers an application for authorisation to modify or destroy a site, it is limited to considering heritage matters and not the broader principle of sustainable management. Having one consenting body also reduces red tape and increases efficiency. The very fact that the same report can be lodged under the RMA and the HNZ Act indicates unnecessary duplication in the regimes.

We believe councils should be responsible for imposing conditions to manage the modification or destruction of historic heritage, with National Environmental Standards to provide consistency in decision-making.

Heritage New Zealand – to advocate and educate

The strength of HNZ is its ability to advocate and educate New Zealanders for the protection of heritage. In pursuit of these functions, it plays an important role in plan making and resource consent applications by advocating for the avoidance or appropriate mitigation of adverse heritage effects.

This advocacy role should be encouraged and strengthened. So let’s take the example of WWII camp sites that need to be destroyed to provide for a new road. Under our integrated framework:

• a Council would assess all the effects of the project. If consent is granted, the Council can impose appropriate conditions to mitigate the destruction of heritage. The conditions could include a requirement for the sites to be investigated by an archaeologist, a report to be produced and educational signs to be erected near the site, and

• HNZ would be the organisation responsible for collecting any artefacts from the sites, documenting these into a national database and working with other organisations, such as museums, to ensure the information is accessible to the public.

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