Bruce Albiston Submission For Heritage New Zealand Pouhere Taonga Bill

Bruce Albiston has generously provided us with a copy of  the Submission he made to the Select Committee. We encourage you to read his submission especially the section dealing with Registration.
Bruce Albiston, aside from being very involved in North Otago Heritage, owns the magnificent Burnside Homestead and has served as NZHPT General Manager Southern Region so his submission is well informed!


To:        The Local Government & Environment Committee
Parliament Buildings

On the Heritage New Zealand Pouhere Taonga Bill

1.    Introduction:
i. This Submission is made by Bruce Albiston, a long standing and continuing member of the NZ Historic Places Trust, and now also a member of Historic Places Aotearoa Incorporated (HPA).   I wish to appear in support of this Submission.

2.    Background:
ii. I am co-owner of a Registered Category I place under the Historic Places Act 1993. I served as the General Manager Southern Region for NZHPT 2002-2007. In this capacity I also served as a member of the HPT National Senior Management Team. I have latterly been an elected member of the North Otago Branch of NZHPT. In this role I attended the meeting called by the Minister for Art Culture and Heritage of all Branch Committees 2010, when the proposed restructuring of the NZHPT was presented to the 21 Branch Committees.

iii. It was my understanding from the Wellington meeting, as also that of others present, that the twin objectives of the dis-establishment of Branches were the separation of roles between HPT as a Crown Entity, and empowering of reframed local heritage advocacy entities, which the Branches would be enabled and supported by Government to form regionally and nationally. There was no ambiguity that the reformation of the heritage sector was to be driven as a continuing partnership between the regulatory and the advocacy sectors, albeit ensuring a mutual capacity to act independently.

iv. As a result of the Wellington meeting 2010 I have supported on a personal level the formation of Historic Places Aotearoa Incorporated (HPA) as a National organisation. I see its role as co-ordinating the advocacy activities of the New Zealand Historic Places Trust (NZHPT) Branches which are being dis-established as a result of this legislation, to act as collaborative partners with the new Heritage NZ Pouhere Taonga.

v. I note my accord with the HPA submission inter alia: “The effect of the Bill, if passed, is to alter the structures and functions of the NZHPT, meaning that the groups of volunteers around the country that have comprised the membership of the NZHPT Branch Committee need to reform themselves into new organisations if they are to continue their heritage activities.  HPA has been set up as the new parent body for such groups.”

3.     Core Submission:
vi. I wish strongly to register my concern and represent my belief that the Bill as presently drafted does not achieve a stated objective at the heart of its intent:
Part I Cl 4 Principles- All persons performing functions and exercising powers under this Act must recognise— (c) the principle that there is value in local authorities, corporations, societies, and individuals working collaboratively in respect to New Zealand’s historical and cultural heritage;

vii. I quote from HPA submission: “NZHPT has approximately 20,000 members and the objective is that a large percentage of these will move across to the new organisation HPA………..  HPA, as the new volunteer heritage body will seek to operate in a similar fashion utilising all or parts of the existing NZHPT Branch structure where those groups elect to join HPA, with independent legal status.”

viii. The Bill either does not mandate HPT to relinquish its membership arm or is intentionally silent and complicit with an interpretation that within its general powers HPT may continue promotion of a voluntary membership. This seems to conflict with the collaborative principle as well as the undertaking of Government to enact legislation that maintains the importance and equivalence of the voluntary sector’s advocacy role.

4.     Membership:
ix. I concur with HPA in general support of the Bill:  “While there was initially dismay among the 20,000 plus voluntary members of the NZHPT from which the Branch Committee members are drawn, that the review of the statute was to result in the dis-establishment of the Committees, we are now past challenging that decision.  HPA is itself a demonstration of the resolve to form a vigorous new voluntary group supporting heritage out of the organisation that is being demolished.”

x. However I qualify my support by saying that should HPT continue the maintenance of a competitive voluntary membership with HPA, I with many others around NZ would vigorously lobby Government and Parliament to honour the undertaking of equivalence of support for the new network of regional entities and advocates forming HPA. This did not nor will mean high levels of funding input into HPA. But there should be an appropriate funding mechanism which ensures continuity of the heritage communities’ activism and advocacy, as did the network of funded HPT branches.

xi. In good faith Branch Committees elected from the existing HPT membership are working to realign their functions. The evidence for NZHPT‘s, hence Government’s participation in such a realignment is more in the breach than in positive action. I am unaware of it having sent any sort of communication apart from administration of the Branch funds, which sets out a pathway by which they and the Branch Committees could canvas the membership on the issues of future belonging, whether to the new HPA or such as a dual membership with NZHPT. I do agree with HPA that there is an incongruity in a Crown Entity having a membership base!

xii. I think the major lack is a joint communiqué from HPT and HPA to ALL THE HPT MEMBERSHIP, explaining the changes/transition, and presenting a united front for members to understand the option of transferring their membership to HPA. Government said it would fund the transition. A major PR exercise has been needed to achieve this and it has not happened. The canard offered that the individual choice of members could not be presumed upon by HPT fails to be credible if the members do not have a full, fair and comprehensive outline of all the issues and options.

xiii. The Tools for branches to make the transition, sent out by Ministry for Culture and Heritage were focused entirely on formation of a Trust or an Incorporated Society. This being what everybody in the voluntary sector already knows. Also the HPT offered funding specific to the HPT divorce costs that essentially was already in the books as the dedicated funds of the Branches, administered centrally. There has been no offer that I am aware of for the transfer of the annual quantum of grants for branches that in effect have been a purchase of services by HPT. Government has averred it wants a vigorous advocacy voluntary sector. Funding mechanisms are evolved for other volunteer sector activities. Government could transfer from HPT’s funding agreement a quantum for such as COGS to administer in a contestable pool but specified to heritage advocacy. It seems that the Bill’s provision on how heritage advocacy is to be supported resides in the collaborative principle referred to above- Part 1 Cl 4 (c). The HPA’s submission that the Bill should be specific in provision for the institution of the independent body requires an amendment derivative of the provisions in the HP Act 1993 that provided for the Branch Committees.

xiv. The Branch Committees or HPA entities, presently drawn exclusively from the HPT membership, covering the country, will continue to function as the “eyes and ears” of their local government, as also on occasion the Minister and the Ministry. They will address nationally important heritage issues and offer their information and knowledge for the benefit of the statutory effectiveness of NZHPT.  The Branch Committees are enthusiastic and diligent local people, knowledgeable about heritage and history, including many eminent professionals across all relevant disciplines.

xv. In my working experience with NZHPT at a senior management level these were the people who would draw critical issues to the attention of the professional staff. Seldom would the general public or the staff of local government perform the function of alerting the empowered officers of HPT to issues. It was a system that worked well for 55 years and the so-called tensions upon which this Bill is premised were the exception not the rule.  This was the collaborative principle at work which the founding members of HPT and the Government of the day espoused in 1954.

xvi. The stated reasons for the legislative reforms have only rarely in my estimate compromised NZHPT’s ability to perform its statutory functions.  It is true that on such occasions the professional organisation and the volunteer HPT members have at times got on opposite sides of heritage disputes and the body has not spoken with one voice.

xvii. It should be acknowledged that in such disputes the local advocates/members have sometimes been right and have been held to be so by both the High Court and the Environment Court.  If this Bill ensures that statutory accountability issues are properly separated, it surely follows that the critical function of local advocacy emanating from committed membership organised into local branches/new entities, equally should continue and be mandated by Government, including a funding contribution as in xiii above.

xviii. The Minister proposed to the national gathering of Branches in 2010 that the Government held it to be essential that local Branches and members should be freer to do what they are best at doing, advocacy. The message given was that NZHPT would be facilitating the process of evolving a transition to independent advocacy functions for new entities. It does not appear that the heart, the existing membership, of such a reframed identity for Branches and members either is being properly informed or given appropriate levels of help to transfer existing membership from NZHPT to HPA.

xiv. If this new framework is solely for the benefit of the nation’s heritage, a partnership should continue between NZHPT and HPA which could be in the nature of a Memorandum of Agreement. Such might even include contracting out/in functions that are of mutual benefit including the membership, magazine and funding.  A basis for cooperation, compatibility and coherence could strengthen the entire sector, rather than the apparent competitiveness of separate memberships. I note that such a mechanism could address the issues raised by other submitters inclusive of such as life membership.

xv. I strongly support the HPA submission:  inter alia- “Given the above background HPA considers that the legislation should in some way direct NZHPT to facilitate the establishment of HPA including, where possible, the transfer of the existing membership across to HPA or otherwise legally established volunteer heritage groups………… HPA notes that Section 60 of the Historic Places Trust at 1993 which specifically provided for membership of this nature has not been carried forward into the Bill ……………..The Crown Entities Act 2004 does not appear to contemplate Crown Entities having voluntary membership ……………..

5.    Registration:
xvi. The Bill properly provides Pt 4 Cl 76 (3) Local authorities that receive recommendations under subsection(1) or (2) must have regard to recommendations received from Heritage New Zealand Pouhere Taonga or the Council, as the case may be.  (“must have regard” is a defining change from HPA 1993 which says “must have particular regard)

xvii. The question is does this say what it means and mean what it says? By any standard the entire clauses 75-78 could be read to mean that the Local Authority provided with the statutory notice of registration should automatically list that in its Plan. I question why only historic areas are subject to this provision. It should cover all registration categories.

xviii. I note that the hierarchy of requirements for listings in Plans has been debated, and submitted across a number of City and District Plans. The purported trigger for some interpretations was that MUST meant what it said, as distinct from “may have particular regard”. The word ‘particular’ was held to add strength but the key difference was between may and must. It may be argued that the provisions of the new Bill as in General Policy part 2, subpart 1 Cl 15, allied to Part 4 cl 77-78 provides for the promulgating of a defining protocol between HPT and LA’s. I have heard this argued before the environment court with differing views held by varying judgements and case law. The Bill should rectify the provision unambiguously.

xix. I would argue that the following underlined words from the Bill validate the interpretation that notice of registration to a LA is for the purpose of a Plan heritage listing; also noting in support  that quite specifically LIMS & PIMS must include registration information. “Pt 4 Cl 78  (4) A notice given under subsection (3) is deemed to be information notified under this Act to a territorial authority by a statutory organisation with the power to classify land or buildings for any purpose.”

xx. If there was no other reason for the enacting of heritage reforms the addressing of this issue alone would make the case. Although many Local Governments have progressed their heritage policies a large number still are significantly deficient in heritage listings. Some have deliberately forestalled the listing of registered places and areas of national and even international significance in order to avoid acting on advice given by NZHPT regarding appropriate Plan rules for protection, as long ago as a decade or more.

xxi. I submit that this Bill must be altered to ensure that the provisions for registrations being listed in Plans as heritage items should be mandatory and the provision of Pt 4 Cl 76 (3) that Local Government MUST have regard to recommendations for proper protection of registered historic places should be specified as meaning mandatory.

xxii. As submitted by Historic Places Canterbury, I concur that the Register has no real force unless registered historic places or area and wahi tapu or areas are also listed in a plan and yet there is no requirement that they must be, unless the interpretation espoused in para. xx is upheld and enacted.  At worst without this interpretation, local authorities will continue to note that they are required to have regard to recommendations regarding historic areas and wahi tapu areas. By noting that it has been tabled or discussed when advice of registration is received, currently LA’s are purporting to have complied.  It is also wrong and confusing as to why this clause should be limited to historic areas and wahi tapu areas. Although the concurrent review of the registration provisions provides the possibility that these will be strengthened, this Bill should make changes that, as per my above advocacy: “says what it means and means what it says.”

6.      Part 3 Protection
xxiii. The Bill provides for Heritage NZ being designated to act as a Heritage Authority. Section 5 of HPA 1993 has been discarded. This gave a more explicit mandate for the use of covenant as an instrument of protection. I note that the volume of covenants entered into annually is miniscule. In my experience HPT has not been specifically resourced within its funding agreements for this statutory role.  A covenant on registered places most at risk would have to be observed by all inclusive of the LA. Without the Section 5 HPA 1993 being included, this Bill requires more specific teeth for registration to be given effect by the statutory authorities, in one way or another. I note that this Bill binds the Crown.  Explicitly and implicitly I interpret that to mean that the Crown is obligated to ensure that its’ new Crown agency, HANZ, is resourced and delivers in accord with this legislation, including the promotion of covenants. Does the Bill actually provide for that?

xxiv. I support the definition of an archaeological site that underpins Sub-Part 2, Cl 40.  Inter alia:  Part 1- Cl 6 Interpretation In this Act, unless the context otherwise requires:—archaeological site— (a) means any place in New Zealand, including any building or structure (or part of a building or structure), that—(i) was associated
with human activity that occurred before 1900………  The general policy framework of the HANZ should ensure this definition will be administered without unnecessary penalty to private owners. It is well past time that the cavalier treatment of many strategic built heritage sites ceased. All intrusion above and below ground can be evaluated for pre 1990 sites as to its likely effect and the values that reside given full account and respect for their intrinsic archaeology value. I strongly urge that the Bill be enacted with this definition in place.

xxv. Clause 11(2)  This clause gives rise to a concern that whilst the Minister must not give directions to Heritage NZ on heritage matters, there appears to have been an abrogation of the similar HPA 1993 provision in the emergency powers arrogated following the Christchurch earthquake. Nor is there a definition of what may be included or excluded in “heritage matters”.  In order to support principle 4(c), clause 11 could include an additional function of working collaboratively with other bodies, organisations and individuals with respect to New Zealand's historical and cultural heritage.

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