The following is the text of the submission made to the Local Government and Environment Select Committee on the 3rd August at the Antarctic Centre.SUBMISSION
To: The Local Government & Environment Committee
On the Heritage New Zealand Pouhere Taonga Bill (HNZPT)
This Submission is made by Historic Places Canterbury (HPC) an independent regional society
affiliated to Historic Places Aotearoa (HPA). HPC is the NZHPT approved body which the
Canterbury Branch Committee has transitioned to. Our objectives are the protection of heritage
and providing local advocacy on heritage.
Rebalancing heritage values against the values associated with private ownership
HPC feels a strong concern that the overall intention of the Bill is to weaken existing heritage
protection. While it is reasonable that land owners should not be charged the cost of an
investigation into a possible archaeological site where one is not in fact found, the narrowing
down of the removal of the prohibition against Ministerial direction on heritage matters in the
Bill is more disturbing. The Minister's statement in a cabinet minute that the first direction
he will give will be to expect HNZPT to take a pragmatic approach where heritage conservation
imposes a significant burden on owners raises real concern for the future downgrading of
protection. We have seen the result of such a pragmatic approach in Christchurch since the
earthquakes. There have been many instances where owners of listed buildings, including
those who have received considerable input of public funds, have preferred to demolish and
take their insurance money. CERA, on the instruction of the Minister, has taken the view that s
38 notices will be granted in such cases permitting demolition without recourse to the Resource
Management Act, despite reports by Council or NZHPT engineers that the building was
recoverable and not a risk to public safety. Given that the Christchurch earthquake has already
had an adverse impact on insurance as well as costs of bringing buildings up to earthquake
standards, one expected result of such a Ministerial direction could well be to see HNZPT
standing back more often from opposing applications to demolish or significantly alter listed
By international standards, we already have comparatively weak protection for heritage
buildings. The Register, for example, has no real force unless the historic places or area and
wahi tapu or areas are also listed in a district plan and yet there is no requirement that they must
be. At best, local authorities are required to have regard to recommendations regarding historic
areas and wahi tapu areas. It is unclear 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, on the evidence of the Minister's statement and the
response to the earthquake, that seems inherently unlikely. HPC believes, it is important to
strengthen protection by requiring registered buildings to be listed in district plans. To bring us
into line with the nations we regularly like to compare ourselves with we need a rebalancing in
the direction of greater protection, not the reverse.
Emergency situations. HPC acknowledges the need for a separate process for managing
archaeological authorities in the event of emergencies and believes that the procedure set out in
the Bill, based on the procedures developed in response to the Canterbury earthquake, has
proven to be generally satisfactory. However, in light of the Canterbury Earthquake
experience, HPC is of the firm view that HNZPT must have a statutorily mandated role to play
in emergency decision making not only in relation to archeological authorities but in decision making
over the fate of listed buildings.
Membership of HNZPT. HPC believes that for clarity the Bill should make explicit reference
to whether or not HNZPT will or may retain a membership base. It is noted that the Cabinet
Paper of December 2009 indicates the intention to keep membership but the Bill is silent on this
point. NZHPT has a number of life members who have contributed in the expectation of
certain benefits provided in return such as free entry to Trust properties and reciprocal visiting
arrangements. If membership were removed they would rightly feel aggrieved. There are also a
number of people with honorary life memberships who cannot lightly be cut out of the benefits
offered by membership. On the other hand HPA has an equally natural desire to take over the
membership base as much as possible and if HNZPT retains membership it will,to some
extent, inevitably be competing for the same members. In the short term at least, HPA will be
at a clear disadvantage because it will lack the incentives for joining which NZHPT can offer.
One of the rationales stated for splitting the former branches from NZHPT, was that heritage
would benefit because the local members would be freed to do what they did best , which was
advocacy. However, without a strong membership base the advocacy power of the newly
independent groups will be weakened. If the principle of co-operation articulated in the Bill is
to have any real meaning in the process of transition to a network of independent advocacy
groups then the issues surrounding the question of membership need to be satisfactorily
resolved before this Bill is enacted.
Comment on specific clauses
The definition of archaeological site needs clarification – particularly the position of pre-1900
buildings. If any change to a pre- 1900 dwelling is to activate need for an archaeological
authority it will risk potentially overwhelming the HNZPT at the expense of more critical sites.
It would make more sense to limit the provisions to situations where the building is to to be
HPC considers that the definition of wrecks could be extended to vessels built prior to 1900
but wrecked after that date.
Clause 4(c) A reference to government departments seems to be conspicuously absent from
this list. The Department of Conservation and the Ministry of Culture and Heritage are two
departments which one would expect to work collaboratively on heritage.
Clause 7 (i) (1) This is inconsistent with Clause 75. The former refers to wahi tapu and wahi
tapu area and refers to a duty on local authorities to have particular regard to the
recommendations of the Council, whereas the later refers only to wahi tapu areas and omits the
word particular. HPC submits that the the wording of clause 7(i)(1) is preferable.
Clause 11 In order to support principle 4(c), clause 11 should include an additional function
of working collaboratively with other bodies, organisations and individuals respect to New
Zealand's historical and cultural heritage.
Clause 11(2) This clause is a significant change from the current provision which provides
that the Minister may not give directions to the NZHPT in relation to heritage matters. HPC is
opposed to the change which is inconsistent with the provisions provided in the case of similar
autonomous Crown Entities. In the case of the Arts Council, the Film Commission the
Broadcasting Corporation and the Museum of New Zealand, their empowering Acts also
directly override the general provisions of the Crown Entities Act in relation to Ministerial
directions by providing for a prohibition against a direction in relation to cultural matters
(which is the equivalent of heritage matters for HNZPT) . The removal of this prohibition
lessens the arm's length independence of the organization. If the current prohibition were
retained the Government would still have the power to give directions on non-heritage related
matters and would have indirect influence on heritage matters through its power to allocate
funds and to appoint members of the Board but the proposed change introduces the possibility
of a completely different order of direct influence on HNZPT in the exercise of its statutory
Clause 14 HPC strongly supports the requirement to develop a general policy statement on
the administration of archaeology sites.
Clause 15 Procedure for adopting policy statements. HPC notes that clause 15(6), which
allows Heritage NZ "to amend a statement in the manner and by any process that it thinks fit",
seems to effectively nullify the procedural requirements set out in the remainder of the clause.
Clause 21 This clause needs to make it clear that Historic Places Aotearoa and any subsequent
affiliates with Historic Places do not fall within the provisions of this clause.
Part 3 HPC is concerned that the removal of the equivalent of Section 5 of the current Act
relating to heritage orders signals further evidence of an intention to downgrade heritage
protection. However we acknowledge that by virtue of the power to act as a Heritage
Authority, the power to impose Heritage Orders will remain possible.
Clause 37 Heritage Covenants. HPC is concerned at the new provision requiring the consent
of mortgagees to a heritage covenant. The Regulatory Impact Assessment document of 3
August 2011 states the reason for this is to ensure that the mortgagee is aware of the covenant.
This concern could be met by a requirement that the mortgagee signs a statement that they are
aware of the covenant. By going further and requiring consent of the mortgagee it is possible
that someone with only a small financial interest in a property could prevent a covenant. For
example, in the case of a farm with a mortgage, where it is intended to place a covenant over a
small area containing a wahi tapu or a heritage farm building, a covenant should have no impact
on the mortgagee's interest in the property. In our submission this provision, at the very least ,
needs a proviso to the effect that a mortgagee should not unreasonably withhold consent.
Part 5 Offences and penalties HPC strongly supports the increase in the level of fines
which can be imposed and the new provision which would allow penalties to be imposed on
Clause 90 HPC supports inclusion of a new power for HNZPT to seek injunctions.