The uneasy relationship between the RMA and the heritage New Zealand Pouhere Taonga Act Ideas for an integrated framework?

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1 The uneasy relationship between the RMA and the heritage New Zealand Pouhere Taonga Act Ideas for an integrated framework? Jill Gregory Senior Solicitor, Chapman Tripp Amanda Stoltz Solicitor, Chapman Tripp Wednesday 15th April pm Keywords: historic heritage, legislation, conditions, authorities Introduction The cultural identity of many New Zealanders is distinctively kiwi and is influenced by our unique architectural, historical and cultural heritage. This heritage informs our sense of identity by helping us understand who we are and where we come from. This paper briefly outlines how the current legal framework operates to protect New Zealand s heritage and explores the relationship between the Resource Management Act 1991 (RMA) and the Heritage New Zealand Pouhere Taonga Act 2014 (HNZ Act). Although heritage is a broad term that encompasses a range of different activities, landscapes and places, this paper focuses on the protection of historic buildings, cultural heritage, archaeological sites and artefacts and does not consider natural or intangible heritage.

2 The importance of protecting heritage is well recognised, both on a national and international stage. Yet, we remain concerned that parts of New Zealand s historic heritage are falling through the gaps. This paper considers whether a new national framework is needed, in the consenting space, to ensure a complete picture of our historic heritage is captured and taken into account when planning for our communities. Overview of current legislation Statutory recognition of the importance of protecting New Zealand s heritage dates back to 1840, when national parks and historic structures were protected through their ownership by public bodies. In 1954, the Historic Places Act was enacted. This Act established the New Zealand Historic Places Trust, which, in combination with the Town and Country Planning Act 1953, was the genesis for today s current legal framework, which protects heritage primarily through the regulation of private property rights (rather than through public ownership). Today, there are a number of different bodies responsible for heritage protection in New Zealand and a myriad of different pieces of legislation, most notably, the RMA and the HNZ Act. The Department of Conservation, the Ministry for Culture and Heritage, the Ministry for the Environment, Heritage New Zealand Pouhere Taonga (Heritage New Zealand or HNZ), local authorities, iwi and hapū, and community groups all play a role in identifying, recording and protecting New Zealand s heritage. Resource Management Act 1991 What heritage is covered? The definition of historic heritage in the RMA means those natural and physical resources that contribute to an understanding and appreciation of New Zealand's history and cultures, and includes: historic sites, structures, places, and areas; archaeological sites; sites of significance to Maori, including wāhi tapu; and surroundings associated with the natural and physical resources. 1 1 RMA 1991, s

3 Mechanisms for identification and protection: Plan making and consenting All persons exercising functions and powers under the RMA are required to recognise and provide for matters of national importance in policy statements and plans and in the assessment of resource consent applications. 2 The protection of historic heritage from inappropriate subdivision, use, and development is listed as a matter of national importance in section 6 of the RMA. Councils are also required to have regard to any relevant entry on the New Zealand Heritage List when preparing or changing a regional policy statement, regional plan or district plan 3 and rules that protect historic heritage in proposed plans take immediate legal effect. 4 The RMA recognises the particular relationship between Maori and their cultural heritage. The relationship of Maori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu, and other taonga is identified as a matter of national importance. 5 Moreover, the definition of historic heritage specially includes sites of significance to Maori and section 8 of the RMA requires decision makers to take into account the principles of the Treaty of Waitangi. The purpose of the Act in section 5 of the RMA also brings consideration of historic heritage into play insofar as it is relevant to the social and cultural wellbeing of people and communities. Most commonly, district plans will identify heritage sites, structures, places and / or areas and provide policies and rules regulating their use and development. In practice, the level of protection afforded to historic heritage will depend on the classification of that site, structure, area or place in the relevant Plan (subject to the overriding requirements in Part 2 of the RMA). In many cases, the plan making stage is where the debate about what should be protected and to what extent is played out. This debate is evident in the current Proposed Auckland Unitary Plan process, and the Council s policies for demolition controls and special character overlays. Where consent is required for works that affect historic heritage included on the HNZ List, Councils are required, in certain circumstances, to notify Heritage New Zealand as an affected party. In our experience, HNZ (and its predecessor the Historic Places Trust) is actively involved in plan reviews, plan changes and resource consent applications. Mechanisms for identification and protection: Heritage Orders The RMA empowers heritage protection authorities to lodge Notices of Requirement for heritage orders. When confirmed, a heritage order is included in the District Plan and operates much like a designation. However, heritage orders are not often used, we assume 2 RMA, sections 74(1)(b), 66(1)(b), s61(1)(b) and RMA 1991, ss 61(2), 66(2) and 74(2). 4 RMA 1991, s86b(3)(d). 5 RMA 1991, s6(e)

4 in large part because they give the owner the right to apply to the Environment Court for an order requiring the heritage protection authority to remove the heritage order or to acquire the land under the Public Works Act Mechanisms for identification and protection: Enforcement The RMA also contains a number of enforcement provisions. Abatement notices and enforcement orders are typically issued in relation to the breach of rules in a plan or the terms of a resource consent but they could also potentially be relevant where necessary to avoid, remedy or mitigate any actual or likely adverse effects on the environment. 7 Heritage New Zealand Pouhere Taonga Act 2014 The HNZ Act came into force in May 2014 and was designed to rectify various weaknesses in the previous legislative regime - the Historic Places Trust Act 1993 (HPA). The purpose of the HNZ Act is identical to that of the HPA and is to promote the identification, protection, preservation, and conservation of the historical and cultural heritage of New Zealand. 8 The HNZ Act established the HNZ Board and retained the Maori Heritage Council. These bodies are responsible for supplying and maintaining the New Zealand Heritage List. The List identifies and records places or areas of historical significance, wāhi tapu and wāhi tupuna. Any person can apply to have a site / place included on the List. An application then goes through a notification and submission process prior to its inclusion on the List. However, the List does not carry any statutory muscle (with the exception of relevance to applications to the Overseas Investment Office). Registration is merely an acknowledgement that the site is worth protecting. As discussed above, local authorities are required to have regard to the List when preparing their plans and / or policy statements; however, there is no obligation for them to give effect to the List, nor for the provisions or rules in those documents to prevent a property or site being modified, damaged, neglected, sold, or even destroyed. The HNZ Board can also make recommendations to local authorities regarding how best to conserve or protect heritage in the area. Local authorities are only required to have particular regard to these recommendations. 9 Ultimately, the protection of historic places, areas, wāhi tapu and wāhi tupuna depends entirely on the provisions of each district plan. However, the Trust also has the status of a heritage protection authority under the Resource Management Act 1991, and can issue a requirement for a Heritage Order (see above) if necessary. 6 RMA 1991, s198. There are currently only 18 Heritage Orders included in the Heritage List. 7 RMA 1991, ss 314, HNZ Act 2014, s3. 9 HNZ Act 2014, s

5 Archaeological sites Heritage New Zealand has greater powers in relation to the protection of archaeological sites. An archaeological site is defined in the HNZ Act as any place in New Zealand (including buildings, structures or shipwrecks) that was associated with pre-1900 human activity, which provides or may provide evidence relating to the history of New Zealand that can be investigated using archaeological methods. 10 The HNZ Act makes it unlawful for any person to modify or destroy, or cause to be modified or destroyed, the whole or any part of an archaeological site without the prior authority of Heritage New Zealand. If you wish to do any work that may affect an archaeological site you must obtain an authority from Heritage New Zealand before you begin. This is the case regardless of whether the land on which the site is located is designated, or the activity is permitted under the District or Regional Plan or a resource or building consent has been granted. The HNZ Act provides for substantial penalties for unauthorised destruction or modification of an archaeological site. A declaration can be made to identify a place associated with post-1900 human activity as an archaeological site, and afford the site the same protections as pre-1900 sites by requiring an authority to be obtained before modification or destruction is authorised. However, no authority is required from HNZ to modify, or destroy any other post-1900 sites. National Historic Landmarks/Ngā Manawhenua o Aotearoa me ōna Kōrero Tūturu The HNZ Act also established a new list, the purpose of which is to promote an appreciation of the places of greatest heritage value to the people of New Zealand. Heritage New Zealand is currently developing a draft general policy for administration of this List. Other national legislative regimes The Local Government Act 2002 empowers local authorities to develop provisions that address local issues; including, heritage planning, funding and management. The Conservation Act 1987 guides the Department of Conservation and promotes the conservation of New Zealand's natural and historic resources. The Reserves Act 1977 protects reserves that are classified as historic reserves. The Building Act 2004 includes a range of provisions relevant to historic heritage, including the principle of the need to facilitate the preservation of buildings of significant cultural, historical, or heritage value. It also contains a number of provisions relating to health and safety, especially for earthquake prone, dangerous and insanitary buildings, which can sometimes create tensions with heritage protection. 10 HNZ Act 2014, s

6 The Protected Objects Act 1975 came into force on 1 November 2006, superseding the Antiquities Act Under the Act, there are nine categories of protected New Zealand objects. The Act imposes regulations regarding import / export of these protected New Zealand objects and the sale of ngā taonga tūturu (objects made by Maori and more than 50 years old) within New Zealand. International Guidance New Zealand Committee of the International Council on Monuments and Sites (ICOMOS) Established in 1987, ICOMOS exists to encourage best practice in the protection and management of historic heritage. A New Zealand Charter has been developed to provide a set of guidelines on cultural heritage conservation and to guide the quality of conservation work. 11 It is used by central government ministries and departments, by local bodies in district plans and heritage management, and by practitioners as guiding principles. UNESCO and UNIDROIT Conventions New Zealand's access to the UNESCO and UNIDROIT Conventions came into force in May It allows New Zealand to recover illegally exported objects and other signatory countries to recover protected objects illegally exported into New Zealand. Summary It is evident that the identification, advocacy and management of heritage in New Zealand have the potential to be complicated. The second part of this paper will look specifically at the consenting regimes for modification and destruction of heritage and how, in our view, the regimes could be integrated and improved to ensure a better relationship between the RMA and the HNZ Act. What is falling through the gaps? In our experience, when seeking resource consent, an issue commonly confronted by parties is how heritage matters should be addressed in conditions (if consent is granted). There is often an assumption by applicants, HNZ and councils that conditions relating to heritage can be left to the archaeological authorities stage. The risk with this approach is that the scope of an authority is limited by the HNZ Act, as discussed above. While consistency between the RMA and HNZ Act is desirable, simply referring to archaeological authorities as a method of managing modification and destruction is arguably insufficient and fails to recognise and provide for the protection of historic heritage as required by the RMA. 11 ICOMOS New Zealand Charter

7 Why is there a problem? An application under the RMA requires a full assessment of effects on historic heritage (not limited by any date), yet the authorisation process is limited to archaeological sites (being pre-1900 sites). If reliance is placed solely on the HNZ authorisations, as is often the case, then the modification or destruction of post-1900 historic heritage (not identified in a district plan) can occur unmanaged, and potentially result in a loss of heritage that would otherwise have contributed to our cultural identity. Heritage New Zealand has limited statutory jurisdiction to require investigation or preservation of post-1900 heritage and while there is a myriad of heritage regulation, it is unclear how this heritage should be preserved for the wellbeing of the community. The problems stem from the overlapping but not identical jurisdiction of the RMA and the HNZ Act. The tendency to rely on the HNZ Act is, in our view, heightened by the duplication between the Acts in terms of information requirements and approval timeframes. An uneasy relationship has resulted. A good example of this problem is WWII sites that need to be modified or destroyed to provide for development. Unless specifically listed, HNZ is not involved in how these sites are recorded or preserved, as these sites are not archaeological under the HNZ Act and do not require authorisations. In our experience, in many cases, unless offered by an applicant, councils will not impose any conditions, meaning this heritage is lost. If councils do impose conditions, for example, conditions requiring heritage reports, collection of any artefacts and establishment of any signage and education of the sites, what should a council do with that information? Should councils be responsible for a database of these heritage items? Previous reform A 1996 report by the Parliamentary Commissioner for the Environment identified an ongoing loss of heritage and brought into question the adequacy of the (then) Historic Places Act The Report identified the following issues with New Zealand s legislative framework: The lack of an integrated strategy for all types of heritage conservation; The absence of strategic planning; The lack of a clear national strategy; The limited focus and lack of resources and funding of historic and cultural heritage; and 12 Parliamentary Commissioner for the Environment, Historic and Cultural Heritage Management in New Zealand (1996)

8 Inconsistencies in the responsibilities of the various agencies involved in historic and cultural heritage protection. In 2009, the Ministry for Arts, Culture and Heritage began a review of the HPA, focussing on three keys areas: the consenting process for archaeological authorities, 2. the legal structure of the New Zealand Historic Places Trust; and 3. the registration process. This paper discusses the first of these three key areas. Consenting process for archaeological authorities Three options were considered for the reform of the archaeological consenting process: 1. The HPA option to create a single type of authority and a separate process for proposals with minor effects, to align timeframes with the RMA, and to allow the same information to be submitted under both the HNZ Act and the RMA; 2. The RMA option to integrate archaeological consenting into district plans, to develop a National Policy Statement and National Environmental Standards and repeal the HPA; and 3. The Hybrid option to identify protected sites and include relevant rules in district plans and to empower the New Zealand Historic Places Trust to process consents. Ultimately, the Ministry decided to proceed with the HPA option. This option required the least legislative change but, in our view, failed to address the issues previously identified by the Parliamentary Commissioner for the Environment. The HNZ Act replaced the HPA and: reforms the governance of the New Zealand Historic Places Trust in line with its status as a Crown entity; facilitates the flow of information on government policy issues by appointing the Chief Executive of the Ministry for Culture and Heritage as special adviser to the Board; streamlines the general provisions and principles by: 13 A series of cabinet papers were put forward from December 2009 through to introduction of the Bill

9 o amending the Treaty of Waitangi clause to reflect the provisions in the Act that would give effect to the Treaty of Waitangi in line with current legislative practice; o widening the range of parties Heritage New Zealand must work collaboratively with to include tangata whenua and interested parties including central Government agencies; o ensuring that the interests of property owners are recognised when Heritage New Zealand performs functions under the Act; and Attempts to improve efficiency, reduce costs, and improve alignment with the RMA by making a number of changes to the archaeological provisions: o there are now four types of archaeological authorities: General (including minor effects), Exploratory, Scientific, and Emergency authorities; o timeframes for processing general authorities have been reduced from 3 months to between 20 and 40 working days depending on the type of application; o where a recorded archaeological site is to be modified and the effects of the activity on the site will be minor, no archaeological assessment need be submitted with the authority application; o an application to conduct a scientific investigation of a site of interest to Māori requires the consent of the appropriate iwi or hapu; o no archaeological authority is required for work on a pre-1900 building unless it is being demolished; o emergency authorities can be applied for following a declaration of a state of emergency with reduced information requirements and processing times; o in the case of sites of interest to Māori, the archaeologist approved to undertake archaeological work under an authority must have skills and competencies relating to recognising and respecting Māori values and have access to appropriate cultural support; o applications for all types of archaeological authorities are able to be submitted without an owner s consent, but that work under an authority may not commence until consent is given; and

10 o an authority now stays with the land and is still valid if ownership of the land changes (in the same way a resource consent does). However, the following questions remain: Who is best placed to manage the modification or destruction of post-1900 heritage? 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 Unfortunately, the recent reform of the HNZ Act was too focussed on process and did not address critical broader questions about the protection and management of heritage in New Zealand. Ideally, a robust review would have looked at the myriad of heritage legislation and assessed options to streamline process where possible and fill any remaining gaps. 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: Councils should be solely responsible for consenting activities to modify or destroy heritage sites; and HNZ should 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 Under the RMA, Councils are required to assess whether particular applications should be allowed. Decisions are ultimately governed by the purpose of the RMA, which is to promote the sustainable management of natural and physical resources. A decision on whether a development should proceed requires an assessment of, amongst other things, its effects on historic heritage. In our view, a decision to approve a development under the RMA should be paramount, and unable to be frustrated by subsequent specific narrow consents. 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 under the RMA. This assessment process ensures that the outcome meets the 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

11 Having one consenting body also reduces regulatory 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 and inefficiencies in the regimes. We believe councils should be responsible for imposing conditions to manage the modification or destruction of historic heritage. National Environmental Standards could be drafted to provide national consistency to the consenting process and imposition of conditions. Ultimately, this approach would ensure councils consider all historic heritage and impose conditions accordingly. Heritage New Zealand to advocate and educate In turn, we consider that HNZ needs a broader role to collect information and maintain a national database on all historic heritage, regardless of whether a site is on one of the Lists or is a pre-1900 site. These current limitations do not reflect the reality that all heritage plays an important role in informing our cultural identity. The strength of HNZ is its ability to advocate for the protection of heritage and educate New Zealander s about our history. In our experience, HNZ plays an important role in plan making and resource consent applications by advocating for 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 includes effects on the camp sites and any other heritage. If consent is granted, the Council can impose appropriate conditions to mitigate the destruction. 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. HNZ would be the organisation responsible for collect the report and any artefacts from the sites and document these into a national database, and work with other organisation such as museums to ensure the information is accessible to the public. Conclusion This paper has explored the uneasy relationship between the RMA and the HNZ Act, with a focus on consenting. The uneasy relationship manifests in conditions of resource consent that refer to the need to obtain archaeological authorities under the HNZ Act. In our view, simply referring to, or relying on, archaeological authorities as a method of managing modification and destruction is insufficient and fails to recognise and provide for the protection of historic heritage as required by the RMA

12 Although steps have been taken to streamline and simplify the archaeological authority process and to align timeframes and reporting requirements with the RMA, there remains overlapping, but inconsistent, jurisdiction between the regimes creating gaps. We have suggested a new approach to consenting that seeks to fill the gaps and create a comprehensive national framework to ensure all heritage is recognised as contributing to our national identity. Our approach separates the consenting functions from the advocacy and education functions and recommends broadening HNZ s jurisdiction. The approach would reduce inefficiencies and duplication while increasing the scope of heritage recognised and provided for. Bios Jill Gregory is a senior solicitor at Chapman Tripp in the Resource Management team. Over the past 10 years Jill has worked on a number of large infrastructure projects, on plan change and resource consent appeals, and provided advice to developers, councils and infrastructure providers. Jill is particularly interested in the interface between the RMA and other legislative regimes such as the Local Government Acts and the Heritage New Zealand Pouhere Taonga Act. Amanda Stoltz is a fourth year Solicitor in the Resource Management Team at Chapman Tripp. Amanda regularly advises private and public clients on environmental issues applications associated with property developments, infrastructure projects, due diligence investigations and land transport matters