Protecting New Zealand’s past – new heritage law in force

The Heritage New Zealand Pouhere Taonga Act 2014 (Act) came in to force on 20 May 2014. The Act repealed the Historic Places Act 1993. Section 5 of the new Act conveniently sets out other consequences.

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First, it replaces the former New Zealand Historic Places Trust with the new entity “Heritage New Zealand Pouhere Taonga”, and continues the Maori Heritage Council. It continues to provide for heritage covenants, and to prohibit modification of archaeological sites unless an authority is obtained. It provides a new fast-track response about heritage matters in the event of a national or local emergency being declared, being a consequence of difficulties arising out of the Christchurch earthquakes. It continues the former register of historic places, but changes the reference to a register to become the “New Zealand Heritage List/Rarangi Korero”.

In addition, a totally new higher level list is to be established and known as the “National Historic Landmarks/Naga Manawhenua o Aotearoa me ona Korero Tuturu”. Penalties for breaches of the Act are increased. In relation to administration, the former local branch committees of the Historic Places Trust (HPT) are disestablished. The latter disestablishment was a deliberate policy of the Act to remove any tensions between the branch committees and the head office in the capital city.

On the latter matter of dissolution of the branch committees, a small olive branch is offered under section 102(2), namely that Heritage New Zealand Pouhere Taonga, for a period of up to 12 months after commencement of the Act, must take reasonable and practicable steps to support independent heritage groups set up to replace the committees. Whether new or existing committees will in fact take over the role of the former Auckland branch of the HPT will be an evolving process.

The governing body of Heritage New Zealand is a board, which will now compromise eight persons appointed by the Minister. The former provision for three members to be elected by members of the HPT has been disestablished, again with a deliberate intent to provide the minister with the power to appoint the full board, including the chairperson. Of interest, the appointment of the members to the board, announced on 22 May 2014, indicates that the former board has been wholly replaced. Mr Wyatt Creech, a former deputy prime minister, has been appointed the Chair. One person qualified as a barrister appears on the board.

Regarding the purpose and principles of the new Act, former provisions are carried forward (section 4), but an additional principle states that “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”.

The endorsement of a collaborative approach has been gaining currency in other areas, such as the land and water forum proposals, and is to be commended. This principle could have relevance to the potential for coordination of the approval processes for entry of properties on the Heritage List, and the provisions in the proposed Auckland Unitary Plan which include a vast list of places of interest to mana whenua which have not been through the formal approval process managed by the Māori Heritage Council.

Another feature that appears in the functions and powers (section 13), and in the processing of applications, is to “recognise the interests of an owner, as far as those interests are known, in a particular historic place, historic area, wahi tupuna, wahi tapu, or wahi tapu area”.

In the past, one would have expected that the interests of an owner or property rights would have been a basic consideration, but this element has now been given statutory recognition. A further matter appearing in the functions, is that a Minister must not give directions to Heritage New Zealand that concern heritage matters relating to historic places, areas, and wahi tapu. However, this restriction does not apply to the power of the minister to give directions concerning the Landmarks List.

Regarding the financial implications of the exercise of powers, section 14(4) states that “no interest in land may be regarded as having been taken or injuriously affected and no compensation is payable by reason only of any provision of this Act”. Accordingly, despite recognising the interests of an owner in land affected, there is a clear exclusion of any entitlement or expectation as to compensation for actions taken under the Act. However, that provision would not necessarily rule out negotiations with the Trust as to financial support upon entering in to a heritage covenant under section 39 of the Act.

As stated, the system of identifying places and buildings to be entered on the New Zealand Heritage List is continued, and these entries will be advised to local authorities who may resolve to add the same properties to lists under the district and regional plans. The process of listing where initiated by Heritage New Zealand includes reference of the proposal to an independent assessor to make a recommendation. The lists of properties must be made available for public inspection on the internet site of Heritage New Zealand, and any listing will appear on a Land Information Memorandum (LIM) report.

The National Historic Landmarks List is to promote an appreciation of the places of greatest heritage value to the people of New Zealand and their protection to the greatest extent practicable, including protection from natural disasters. In the original Bill, the list was to be limited to 50 entries, but that cap has been removed from the legislation. The Minister, on the recommendation of Heritage New Zealand after a public submission process, will make the decision as to listing.

Overall, the Act has been long-awaited since its introduction in to Parliament in 2011.

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