This submission focuses on the weaknesses within the proposed Bill to achieve better heritage outcomes.
To: The Local Government & Environment Committee
On the Heritage New Zealand Pouhere Taonga Bill
We submit on behalf of the newly formed “Historic Places Central Otago Inc.” (HPCO) which has replaced the former Central Otago Branch Committee of NZHPT. Our stated objectives are to ensure the protection of heritage and provide local advocacy on all matters concerning heritage.
HPCO seeks to have the opportunity to have a representative appear in support of this submission.
It is widely considered that a weakness in existing Heritage Protection legislation in NZ is that it does not provide for the active protection of heritage, although there is provision in the new Bill to promote the protection of heritage. This weakness originates from the Historic Places Act, 1993 (HPAct,1993) which promotes the protection of heritage but doe not provide positive protection for heritage in NZ (excepting Heritage Protection Orders).
Where historic places and areas are Registered (as in Part 2 of the HPAct, 1993, and Part 4 of the NZ Heritage Bill) they are still vulnerable to destruction, damage or modification because Registration does not provide adequate protection.
There are sections defining who should be notified of the Registration of historic places and historic areas. However, Territorial Authorities and Regional Councils are only required (S.32 D in the HPAct, 1993 and S.75 of the Heritage NZ Bill) to “have particular regard to” the Recommendations of the Trust with regard to heritage matters when considering, for example, Resource Consent applications. Note that the role of HPT has been confined to making recommendations for passive protection.
We submit that changes to the Bill are required which would require more active protection of heritage values when authorities use their functions and powers under the Act.
The New Zealand Pouhere Taonga Bill, 2011 provides the opportunity to overcome previous weaknesses by strengthening legislation to provide active protection for heritage in NZ.
We have analysed and compared six parts of the existing legislation with the Heritage NZ Bill , 2011 with a view to making recommendations as to how the proposed Bill could be strengthened with respect to the positive protection of heritage values.
The six parts we have compared are as follows:- (1) Purposes, (2) Registration, (3) NZ Historic Places Trust, (4) Protection (5) Archaeological site definition and (6) Offences. The detail of this analysis and comparison is included in Appendix 1 attached to this submission.
SUBMISSIONS ON SIX SECTIONS OF THE Heritage NZ Bill 2011
With recommendations as to how the Bill might be improved
to strengthen the protection of Heritage in NZ.
1. Purposes (Part 1 of the Bill)
• The stated purposes of the Heritage NZ Bill are identical to the purposes stated in the existing legislation.
• We recommend that there should be more active protection of heritage values in NZ, instead of the passive protection provided under existing legislation.
2. Registration (Part 4 of the Bill)
• The purposes of registration in the existing legislation (Historic Places Act, 1993) include “ to assist historic places, historic areas, wahi tapu, and wahi tapu areas to be protected under the RMA”. This does not provide any real protection [our emphasis]
• Both the existing legislation and the Heritage NZ Bill 2011 require that Territorial Local Authorities (TLAs) and Regional Councils “must have particular regard to recommendations” with respect to Registration, but are not required to act on those recommendations
• It is concluded that there is a real opportunity here to strengthen the provisions for heritage protection
3. New Zealand Pouhere Taonga (Part 2 of the Bill)
• Both the HPAct, 1993 and the Heritage NZ Bill 2011 state that “The Trust may, in its discretion, notify any territorial authority of the particulars of any registered historic place………………” but is not required to notify the TLA. This criticism continues to apply to the new Bill
• The new Bill should be re-drafted to include provisions for more active protection of heritage values in NZ and should require the HNZPT to notify TLAs of particular Registered Places and Sites
4. Protection (Part 3 of the Bill)
• Heritage NZ Bill 2011and the existing legislation are similar with regard to protection of heritage values. Both enumerate functions “to identify, record, investigate, assess, register, protect and conserve wahi tapu, wahi tapu areas, historic places and historic areas” and “to advocate the conservation and protection” of the same values. This list of functions illustrates the passive nature of the stated intention to protect heritage. Where the words spell out protection they give no indication of how this could or should be achieved.
• We strongly recommend that the opportunity should be taken in the new legislation to make the protection a more active and positive function of the new Heritage NZ Bill 2011
• We understand that the new Bill will simplify and streamline the archaeological authority (consent) processes established under the existing legislation.
• We do not understand why there seems to be no provision for heritage orders in Heritage NZ.
• Given that Subparts 1 and 2 of the Heritage NZ Bill Part 3 appear to provide secure protection of any historic place, historic area, wahi tapu, or wahi tapu area, we do not understand why wider use of these instruments is not used by NZHPT to protect heritage in NZ.
5. Archaeological site definition (S. 6. Interpretation in the Bill)
• We submit that a new date of 1945 should be set for Archaeological site definition.
Based on the old rule of a rolling 100 years for archaeological site definition, the current date is already 12 years out of date. We therefore advocate a change of the 1900 date to 1945. This will ensure a broader net of heritage protection and enable TLA’s to have greater influence on the control of heritage where Resource Consents would be involved.
• The date of 1945 has been set, as the period 1900 – 1945 was not one of rapid architectural change due to the depression in the 1930s and two world wars but would now include wartime sites. This period is also a reflection of pre-1900 styles within a period of economic restraint except for the Arts and Crafts/Art Deco influences, which are very distinct and also need active protection.
6. Offences (Part 5 of the Bill)
• It is right and proper that offences against heritage values should be recognised in both existing legislation and in the proposed new Bill. Offences should be subject to appropriate fines, but prevention would be better than crime. Once damage has been done there is often no way the original condition can be reinstated. We believe that the new legislation offers an opportunity for other parts of the Act to be strengthened with respect to active protection of heritage values, thereby by preventing damage.
• We note that the offence of “destruction, damage or modification” has been renamed “harming” in the new Bill. We assert that this change in language suggests a softening of attitude rather than the required strengthening of protection.
• We note that the fines have been appropriately increased.
FINAL OBSERVATIONS AND CONCLUSIONS
The functions of Heritage legislation (both existing and in the proposed new Bill (“to identify, record, investigate, assess, register, protect and conserve wahi tapu, wahi tapu areas, historic places and historic areas”) are laudable, however they fall short of effective protection of those values. While there may be a provision to “to advocate the conservation and protection” of the same values, there is no indication or direction as to how real protection could or should be achieved.
It is all very well to provide for the recognition of, and punishment of, offences of “harming” heritage values, but prevention would be better than crime. Adoption of our recommendations should reduce the extent of damage and loss which is continuing at the present time.
In our view the new Heritage New Zealand Pouhere Taonga Bill, 2011, provides an ideal opportunity to strengthen measures to protect the unique heritage values of Central Otago, which are probably more numerous and more significant and varied than elsewhere in NZ.
D White, Acting Chairman, Dr Mike Floate,
Historic Places Central Otago Inc. Member of Historic Places Aotearoa
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