Draft Submission on Heritage New Zealand Pouhere Taonga Bill
9 June 2012
The New Zealand Archaeological Association (NZAA) is an independent national
organisation representing the archaeological community in New Zealand. We are an
incorporated society with a membership spanning internationally respected academics,
professional archaeologists, and institutions involved or interested in archaeology, as well as
students and amateurs. The NZAA is a constituent organisation of the Royal Society of New
Zealand. The objectives of the NZAA are to promote and foster research into the archaeology
of New Zealand and advocate for the conservation of archaeological sites. NZAA manages
the national Archaeological Site Recording Scheme, that has provided the information base
for archaeological site management since the introduction of archaeological provisions in the
Historic Places Act in 1975. NZAA has considerable collective professional experience
relating to the archaeological and heritage provisions of the Historic Places Act 1993 (HPA)
and Resource Management Act 1991 (RMA). Its professional members are responsible for
undertaking the archaeological assessments on which the decisions of the New Zealand
Historic Places Trust (HPT) and local authorities are based, and must abide by our Code of
Ethics.
NZAA fully supports Government’s intention to simplify and streamline the archaeological
authority processes of the HPA and bring them into alignment with the processes of the
RMA. We are pleased to note that extending or reducing the protection afforded to
archaeological sites is not the intention of the Bill. However, in some key areas the Bill does
not achieve these objectives and, if passed into Law, the effect would be an increased
bureaucratic burden on private landowners, with an administration that would be slower than
it currently is, and provisions that are potentially confusing.
Our submission contains the following:
1. Identification of the main elements of the Bill that are strongly supported by the
NZAA.
2. Identification of key elements of the Bill that NZAA opposes on the grounds that they
are either detrimental to the protection of archaeology and heritage, create a negative
public perception of archaeology and the role of Heritage New Zealand Pouhere
Taonga (HNZPT), or complicate the archaeological authority process and increase
compliance requirements.
3. Detailed comments on clauses of the Bill which the NZAA would wish to see
changed to address the key concerns outlined, or where ambiguous or incorrect
wording occurs.
4. Conclusion
1 Elements of the Bill supported by NZAA

NZAA supports the authority provisions that provide initial protection to all
archaeological sites pre-dating 1900, and require that the values of archaeological
sites are assessed and appropriate actions taken if they are to be modified.
Reason: New Zealand has a unique archaeological heritage relating to settlement by
Maori and later by European, Chinese and other populations. Archaeological sites
contain information that is important to our sense of national identity, our economic
and cultural well-being and our understanding of how human activity in New
Zealand gave shape to the nation. Once destroyed this heritage it is irrevocably lost. It
is necessary, then, that significant sites are either protected in situ, or the information
1
they contain is recorded before they are damaged or destroyed, consistent with
international best practice.

NZAA supports the proposed requirement for HNZPT to consult on and prepare a
general policy statement relating to the administration of the archaeological
provisions of the Act.
Reason: NZAA supports this proposal because it should clarify and resolve issues of
interpretation which would otherwise create uncertainty and in some cases add to
compliance costs, and improve transparency and consistency with current
administrative law standards.1

NZAA supports changes proposed in the Bill requiring that all applications affecting
sites of interest to Maori are to be referred to the Maori Heritage Council. The Bill
clarifies the role of the Council, which we support.
Reason: NZAA supports the involvement of Maori in decisions relating to their
heritage, and notes that the existing Act does not require all applications relating to
sites of interest to Maori to be referred to the Maori Heritage Council.

NZAA supports combining the two main types of archaeological authority for landuse purposes (previously separate under sections 11 and 12 of the HPA), to simplify
the authority process.

NZAA supports reducing the statutory timeframes for processing authority
applications, bringing them into alignment with RMA provisions.

NZAA supports the introduction of a timeframe for processing applications to carry
out scientific investigations unrelated to land-use.

NZAA supports the proposed increase in fines for offences under the Act.

NZAA supports the proposed transferability of authorities from one land-owner to the
next.

NZAA supports the proposal that an applicant who has previously provided
information about archaeological sites for the purposes of an application under the
RMA, may provide the same information to HNZPT as part of the information
requirements for an authority application.
2 Key Elements of the Bill opposed by NZAA
2.1 Definition of an Archaeological Site
The Bill amends the definition of an archaeological site in cl. 6 to include ‘any building or
structure (or part of a building or structure) that was associated with human activity that
occurred before 1900 … and is or may be able, through investigation by archaeological
methods, to provide evidence relating to the history of New Zealand.’
While ruined or abandoned structures and buildings have been recognised as archaeological
sites by all parties under the existing Act, the wording in the Bill would extend the net of
archaeological regulation to cover the destruction of, damage to, and alteration of all or part
NZAA recommended a policy statement for these reasons in its ‘Position Paper on Government Review of
Archaeological Provisions under the Historic Places Act 1993 and Resource Management Act 1991’ (May
2010).
1
2
of any pre-1900 building or structure, including buildings currently in use. NZAA does not
support this for the following reasons:

It would extend existing levels of archaeological site protection well beyond what
NZAA and most members of the public would consider practical and reasonable, to
the detriment of public support for archaeology. There are many thousands of pre1900 buildings in use in the country, many of which are likely to be highly modified
and of little archaeological significance.

It would require archaeological authorities to be obtained for any internal renovations
or alterations of pre-1900 buildings, and would place an unreasonable burden on
home-owners.

It would be impossible to enforce the requirement under cl. 41 to obtain an authority
for alterations to a pre-1900 building in any consistent way, especially as many
modifications to pre-1900 buildings do not require resource consent under the RMA.

There is already provision under the RMA to protect significant buildings currently in
use through scheduling in District Plans, and the definition as it stands in the Bill
would duplicate processes.
The NZAA would therefore wish to see the inclusion of ‘any building or structure (or part of
a building or structure)’ in the definition in the Bill qualified with the words ‘that is ruined,
abandoned or proposed for demolition’ in relation to any building or structure, or part of a
building or structure. This would be consistent with current HPT practice and would be seen
as reasonable by the public.
For the avoidance of doubt, should any change to the pre-1900 date be proposed or
considered, NZAA would oppose any such change, and supports the existing date of 1900,
which ensures that archaeological sites from periods crucial to the development of New
Zealand are protected.
2.2 The new definition of Exploratory Investigation
The Bill introduces a new type of archaeological investigation defined as ‘exploratory
investigation’ in cl. 6 and a new power in cl. 54 both to authorise persons to carry out an
exploratory investigation, and to allow HNZPT to carry out an exploratory investigation.
An exploratory investigation is defined in cl. 6 as ‘an investigation of any site or locality to
determine whether the site or locality is an archaeological site, and, if so, the nature and
extent of the archaeological site.’
This definition and the associated power in the Bill would considerably extend the net of
archaeological regulation so that establishing the presence of an archaeological site in the
first instance – through any form of subsurface testing, however minor – would require
authorisation from HNZPT, subject to timeframes and appeal periods. NZAA would oppose
this for the following reasons:

The proposed authorisation in cl. 54 is essentially a new form of authority with set
timeframes, an appeal period and fines for non-compliance. It adds complexity and
inefficiency to archaeological consenting processes rather than streamlining them.

To require an authority to confirm whether or not a site is present in the first place is a
new power that would considerably delay archaeological assessment carried out for
land-use purposes and would entail significant costs in time and money for no
commensurate benefit.
3

By separating what was formerly ‘archaeological investigation’ under the Historic
Places Act into ‘exploratory’ and ‘scientific’ investigation, the involvement of Maori
in decisions relating to their heritage is reduced, as there is no requirement to gain the
consent of the relevant iwi authority for exploratory investigation (unlike scientific
investigation).

It is unnecessary to create a separate category of investigation that does not require
iwi consent. If the purpose of an ‘exploratory’ investigation is to protect a site from
inappropriate land use, consent is unlikely to be withheld.

Identifying sites in the first instance during archaeological survey and assessment,
through minor subsurface investigations which cease when sites are identified, is a
standard archaeological practice, which does not cause any significant damage to
sites. This would be in breach of the provisions currently proposed in the Bill.

The current approach to subsurface testing has never required authorisation from
HPT, is consistent with international practice, and complies with current HPT
guidelines which specifically exclude archaeological reconnaissance to locate sites
from any authority requirements.2

It is already well understood that once sites are discovered it is unlawful to investigate
further, and this provides sufficient protection to archaeological sites.

If exploratory investigation on a larger scale to investigate the nature and extent of a
recorded site is desirable, it can be carried out under existing provisions for ‘scientific
investigation’, making both the definition and cl. 54 unnecessary.

The power allowing HNZPT to carry out an exploratory investigation in cl. 54(a) is
also unnecessary as this is already provided for in cl. 13, which would give HNZPT
power to enter land for the purpose of carrying out an investigation to determine
whether there is an archaeological site on the land, and in cl. 55, which would provide
for HNZPT to carry out an investigation to establish whether an authority is required.
NZAA submits that ‘exploratory investigation’ should be removed from cl. 6 and that cl. 54
should be deleted. These proposals in the Bill would significantly complicate the
archaeological provisions, contrary to the stated intentions of the Bill. They would increase
complexity, inefficiency and costs for landowners without any gain in archaeological site
protection.
2.3 Definition of Authority
The Bill defines Authority in cl. 6 as ‘an authority granted by Heritage New Zealand
Pouhere Taonga under section 46 to undertake an activity that will or may harm an
archaeological site.’
The activities listed in cl. 42 for which an authority to harm an archaeological site would be
required include both land-use activities and scientific investigations unrelated to land-use
activities.
This attempt to combine all the regulatory provisions in a single process and to categorise all
activities affecting archaeological sites as ‘harm’ has created complexity, confusion and lack
‘A section 18 authority is not required for the purposes of identifying an archaeological site in the first
instance, defining the extent of an archaeological site in areas where it does not appear to exist, or confirming
that an archaeological site does not exist’. From Guidelines for Section 18 Authorities, Historic Places Act
1993, p.2. New Zealand Historic Places Trust Pouhere Taonga, Archaeological Guidelines Series No. 4, 8 May
2008.
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4
of clarity in the Bill, and devalues the legitimate and necessary practice of archaeological
excavation for the purposes of research. It also devalues projects designed to enhance and
protect the heritage values of a site. NZAA notes that the Cabinet Paper on the Reform of
Archaeological Consenting Processes (the Cabinet Paper) did not propose combining
authorities for scientific investigation with authorities for land-use activities affecting
archaeological sites.
NZAA opposes the use of the word ‘harm’ in the definition of Authority for the following
reasons:

It is a negative term that does not reflect the range of circumstances for which
authorities may be required. Authorities are often granted for conservation and site
protection purposes which will benefit rather than harm sites.

Scientific investigation is included among the activities requiring an authority to
‘harm’ sites, whereas appropriate scientific investigation is recognised internationally
as a public good. Nor does all scientific investigation significantly damage sites – it
can be undertaken for interpretation and protection purposes.
NZAA opposes the combining of authorities to ‘harm’ sites for land-use purposes (cl.
42(1)(a) and (b)) with authorities to undertake scientific investigations (cl. 42(1)(c)) for the
following reasons:

It represents a significant change to the existing Act, where the two processes are
separate.

Categorising scientific research as ‘harm’ is contrary to international policy which
recognises the benefits of scientific research,3 and is detrimental to the public image
of archaeology.

The purpose behind undertaking archaeological work in mitigation of site
modification arising from land-use activities is quite distinct from the purpose of
undertaking archaeological work for scientific research. In the former the authorityholder is the landowner or their agent and not the person undertaking the
archaeological work; in the latter the authority holder is the person undertaking the
archaeological work. In either instance, processes of land-owner consultation, iwi
consultation and application to HNZPT for an authority are distinct, and the
conditions in any authority will also be distinct.

Combining the two processes is cumbersome and has created unnecessary complexity
and confusion in the Bill. For example, the word ‘activity’ is variously used to
describe (1) the land-use activity which affects an archaeological site; (2) the
archaeological work required by HNZPT as a condition of an authority for land-use;
and (3) the scientific investigation of a site. This has resulted in apparent nonsensical
requirements in the Bill, for example that HNZPT must approve persons carrying out
land-use activities, and that land-use activities must conform to accepted
archaeological practice (cl. 45 and cl. 49(1)(b)).
NZAA therefore submits that the word ‘harm’ in the definition of an authority in cl. 6 should
be replaced by a more appropriate term such as ‘modify.’ This in turn can be defined in cl. 6
to include alteration, damage or destruction.
3
The International Charter for Archaeological Heritage Management (ICAHM), adopted by ICOMOS (the
International Council on Monuments and Sites) in 1990.
5
NZAA further submits that the provisions for authorities relating to scientific investigations
should be separated from those relating to land-use activities, reverting to the provisions of
the existing Act (in this regard), to avoid confusion, reduce complexity and ensure that
legitimate scientific investigation is not viewed in a negative way.
NZAA further submits that the term ‘activity’ be clarified throughout the Bill so that land-use
activities (e.g., earth working for land development) are distinguished from archaeological
work (scientific investigation).
3 Detailed Comment
We provide detailed comment below on the clauses of the Bill which we submit should be
changed, and the reasons for our submissions. Some of these changes are proposed to address
the key issues identified in Section 2 of our submission. Others address additional points.
6
Clause
Existing Wording
Proposed Change
Explanation/Comment
4(c)
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
What this Act does
...
(d) consolidates the provisions
under the [HPA] relating to the
protection of historic places
(excluding archaeological sites) ...
archaeological site –
(a) means any place in New
Zealand, including any building or
structure (or part of a building or
structure) that –
(c) the principle that there is value in
central government, Heritage New
Zealand Pouhere Taonga, local
authorities, corporations, societies,
and individuals working
collaboratively in respect to New
Zealand’s historical and cultural
heritage

This is a new principle which NZAA supports, but it has
omitted mention of central government and HNZPT.

It would be appropriate for them to be included in the list
because of the collaborative functions of HNZPT listed in cl.
11(1) of the Bill, which include providing information, advice,
and assistance and fostering public interest and involvement.
Delete ‘(excluding archaeological
sites)’

This statement does not appear to be correct. Protection
provisions for historic places (i.e., heritage orders, cl. 12(1)(j),
and heritage covenants, cl. 37–38) do not exclude
archaeological sites and can be used to protect them.
archaeological site –
(a) means any place in New
Zealand, including any building or
structure (or part of any building or
structure) that is ruined, abandoned
or proposed for demolition, that –

The existing wording would extend the net of archaeological
regulation to cover the destruction of, damage to, and
alteration of all or part of any pre-1900 building or structure.

This would extend existing levels of archaeological site
protection well beyond what NZAA and most members of the
public would consider practical and reasonable, to the
detriment of public support for archaeology.

There are many thousands of pre-1900 buildings in use in the
country, many of which are likely to be highly modified and of
little archaeological significance.

It would be impossible to enforce the requirement under cl. 41
to obtain an authority for alterations to a pre-1900 building in
any consistent way, especially as most modifications to pre1900 buildings do not require resource consent under the
RMA.

The pre-1900 date (later in the definition) should be retained
because it ensures that archaeological sites from periods
5
6
7
crucial to the development of New Zealand are protected.
6
6
exploratory investigation means
an investigation of any site or
locality to determine whether the
site or locality is an archaeological
site, and, if so, the nature and
extent of the archaeological site
authority means an authority
granted by Heritage New Zealand
Pouhere Taonga under section 46
to undertake an activity that will or
may harm an archaeological site
Delete this clause
authority means an authority
granted by Heritage New Zealand
Pouhere Taonga under section 46 to
undertake an activity or scientific
investigation that will or may modify
an archaeological site
Change ‘harm’ to ’modify’
throughout the Bill
8

This is a new concept which, in combination with cl. 54 (see
below), would considerably extend the net of archaeological
regulation to include establishing the presence of an
archaeological site in the first instance.

By separating what was formerly ‘archaeological investigation’
under the Historic Places Act into ‘exploratory’ and ‘scientific’
investigation, the involvement of Maori in decisions relating to
their heritage is reduced, as there is no requirement to gain
the consent of the relevant iwi authority for exploratory
investigation (unlike scientific investigation).

It is unnecessary to create a separate category of
investigation that does not require iwi consent. If the purpose
of an ‘exploratory’ investigation is to protect the site from land
use, consent is unlikely to be withheld.

It represents a departure from standard archaeological
practice, where the presence of archaeological sites is
confirmed (or otherwise) by minor subsurface testing that
does not require an authority. This practice would be in
breach of the Act under the current definition.

It is unnecessary, as any exploratory investigation on a larger
scale to investigate the extent and nature of a recorded site is
already provided for under clauses relating to ‘scientific
investigation’.

In combination with cl. 54 it adds complexity, delays and costs
to archaeological consenting processes rather than
streamlining them.

Harm is a negative term that does not reflect the range of
circumstances for which authorities may be required.
Authorities are often granted for conservation and site
protection purposes which will benefit rather than harm sites.

Scientific investigation is included among the activities for
which applications for authorities may be made (cl. 42).
Scientific investigation, although recognised internationally as
a public good, is therefore put into the category of harm to
archaeological sites.
6
6
A more appropriate term that encompasses both adverse and
positive effects on sites should be used.
harm in relation to an
archaeological site, historic place,
historic area, wahi tapu, or wahi
tapu area (as the case requires),
includes –
(a) destruction of that site, place
...[etc]
(b) damage to, or other
modification of, that site, place ...
[etc]
(c) alteration of that site, place
...[etc]
modify in relation to an
archaeological site, historic place,
historic area, wahi tapu, or wahi
tapu area (as the case requires),
includes –
(a) destruction of that site, place
...[etc]
(b) damage to, or other modification
of, that site, place ... [etc]
(c) alteration of that site, place
...[etc]

Harm is a negative term that does not reflect the range of
circumstances for which authorities may be required.
Authorities are often granted for conservation and site
protection purposes which will benefit rather than harm sites.

Scientific investigation is included among the activities for
which applications for authorities may be made (cl. 42).
Scientific investigation, although recognised internationally as
a public good, is therefore put into the category of harm to
archaeological sites.
A more appropriate term that encompasses both adverse and
positive effects on sites should be used.
scientific investigation means
archaeological investigation

work undertaken on any
archaeological site using
archaeological methods to obtain
information relating to the history
of New Zealand
means work undertaken on any
archaeological site using
archaeological methods to obtain
information relating to the history of
New Zealand
The Bill should define and use the term ‘archaeological
investigation’ instead of ‘scientific investigation.’ The definition
of an archaeological site in cl. 6 includes the words ‘through
investigation by archaeological methods’, so the language in
the Bill should more accurately reflect this definition.

It is unnecessary to separate ‘archaeological investigation’ as
used in the Bill into ‘exploratory’ and ‘scientific’ investigation,
for the reasons presented above (under ‘exploratory
investigation’).

Note that we refer to ‘scientific investigation’ throughout this
submission to avoid confusion.

The Treaty clause in the present Act (section 115) is a
stronger statement.

NZAA is not aware of any instances where the Treaty clause
in the present Act has created a difficulty.

The way HPT currently runs, with both its Board and its Maori
Heritage Council, in a parallel structure which is retained in
the Bill, is as an exemplar of giving effect to the principles of
the Treaty.
Other clauses where ‘scientific
investigation’ should be changed to
‘archaeological investigation’ are: cl.
7(g); cl. 18(2)(c); cl. 42(1)(c); cl.
43(3); cl. 49(2); cl. 56(2)(d); cl. 61
throughout
7

In order to recognise and respect
the Crown’s responsibility to
give effect to the Treaty of
Waitangi (Te Tiriti o Waitangi), this
Act provides—
This Act must continue to be
interpreted and administered to give
effect to the principles of the Treaty
of Waitangi (Te Tiriti o Waitangi),
unless the context otherwise
requires. In particular, this Act
provides—
…
9

NZAA submits that cl. 54 referred to should be deleted (see
below).

Cl. 13 provides HNZPT with the power to undertake an
investigation for the purpose stated, and the reference to cl.
54 is unnecessary.

Cl.55 also provides HNZPT with the power to carry out an
investigation to ascertain whether an authority is required,
also making cl. 54 redundant.
Replace subparts 3 and 4 of Part 3
with subparts 2 and 3 of Part 3

This appears to be a drafting error – there is no subpart 4 of
Part 3.
...
(b) state the general policy –
(i) for the administration of
archaeological sites under
subparts 3 and 4 of Part 3
Replace subparts 3 and 4 of Part 3
with subparts 2 and 3 of Part 3

This appears to be a drafting error – there is no subpart 4 of
Part 3.
Archaeological sites not to be
harmed
Unless an authority is granted
under section 46 in respect of an
archaeological site, no person may
harm ... the whole or any part of
that site, if that person knows or
has reasonable cause to suspect
that it is an archaeological site
Archaeological sites not to be
modified
(1) Unless an authority is granted
under section 46 in respect of an
archaeological site, it shall not be
lawful for any person to modify ...
the whole or any part of that site, if
that person knows or has
reasonable cause to suspect that it

We have submitted above (cl. 6) that the word ‘modify’ should
be used instead of ‘harm’.

It is not explicit that modification of an archaeological site
without authority from HNZPT is unlawful, as it is in the
current Act.

It is not explicit that scientific investigation without an authority
is unlawful, as it is in the current Act.

The distinction between modification of a site for land-use
Rights of entry onto land
(1) Any employee of, or person
authorised by, Heritage New
Zealand Pouhere Taonga may
enter onto any land, with any
assistants through necessary, for
the purposes of –
(a) carrying out an investigation
under section 54 to determine
whether there is an archaeological
site on the land and whether an
authority is necessary
General policy for historic
places and archaeological sites
....
(2) Not later than 12 months after
the commencement of this Act,
Heritage New Zealand Taonga
must consult on and adopt 1 or
more statements of general policy
for the administration of subparts
3 and 4 of Part 3
Delete ‘under section 54’
15 (1)(a)(b)
41
13
14
10
is an archaeological site.
(2) Unless an authority is granted
under section 46 it shall not be
lawful for any person to carry out a
scientific investigation of any
archaeological site
42(1)(b)
and related
clauses
42(1)(c)
(b) an application for an authority
to undertake an activity that will or
may harm a recorded
archaeological site, if the effects of
that activity on the site will be no
more than minor, as assessed in
accordance with section 44(5)
[s.44(5) relates to the significance
of the site and the extent of harm]
Consider deleting this clause
Applications [for authorities]
...
Remove (c) from section 42 and
place in a separate clause relating
to scientific investigation, as under
the existing Act
(c) an application for an authority
to conduct a scientific investigation
of an archaeological site
11
purposes and archaeological investigation for scientific
research purposes is important and should be preserved.

We support the principle of fast track authorities for genuinely
minor effects.

However, it may be difficult for HNZPT to determine whether
the effects of a proposed activity are minor within the
proposed 5 days, and to determine the application within the
requisite days, especially where consultation with tangata
whenua and/or the Maori Heritage Council becomes complex.

If this provision is too problematic, we note that guidelines for
time-saving and cost-saving procedures in processing
authority applications could be set out in the proposed
statement of general policy, rather than be included in the
legislation.

Combining authorities to ‘harm’ sites for land-use purposes
(cl. 42(1)(a) and (b)) with authorities to undertake scientific
investigations (cl. 42(1)(c)) represents a significant change to
the existing Act, where the two processes are separate, and
goes beyond what was proposed in the Cabinet Paper

Categorising scientific research as ‘harm’ is contrary to
international policy which recognises the benefits of scientific
research, and is detrimental to the public image of
archaeology. Nor do all scientific investigations ‘harm’
archaeological sites, but may be carried out to interpret and
protect them.

Combining the two processes is cumbersome and has
created confusion in the Bill. For example, the word ‘activity’ is
used variously to describe (1) the land-use activity which
affects an archaeological site; (2) the archaeological work
required by HNZPT as a condition of an authority for land-use;
and (3) the scientific investigation of a site. This has resulted
in apparent nonsensical requirements that HNZPT must
approve persons carrying out land-use activities, and that
land-use activities must conform to accepted archaeological
practice (cl. 45 and cl. 49(1)(b)).
42(2)
43(2)

Confusion is also evident in cl. 49 setting out the conditions
that authorities are subject to, as some of these would apply
only to scientific investigations (cl. 49(1)(a) and (b)).
... recorded archaeological site
means an archaeological site for
which the location is recorded on a
database identified by Heritage
New Zealand Pouhere Taonga as
the national inventory of
archaeological sites
... recorded archaeological site
means an archaeological site
recorded on a database identified by
Heritage New Zealand Pouhere
Taonga as the national inventory of
archaeological sites, which meets
the definition of an archaeological
site in Section 6

The existing national database of archaeological sites
(established and managed by NZAA) includes numerous sites
which do not meet the definition in the Bill, being of 20th
century date, or botanical sites, etc. These would not require
an authority from HNZPT, and this definition should therefore
be clarified as suggested.

The locations of sites recorded on the existing national
database are of variable accuracy, and it would therefore be
better to refer to the site recorded on the database rather than
the locations of the sites recorded on the database, as
suggested.
Information that must be provided
with application for an authority
...
(b) if the applicant is not the owner
of the relevant land,
proof of the owner’s consent to the
proposed activity;
and
(c) a description of any recorded
archaeological site to which the
application relates and the location
of any such site; and
(d) a description of the activity for
which the authority is
sought; and
(e) the name of the person who, if
approved by Heritage
New Zealand Pouhere Taonga
under section 45, is to
carry out an activity in relation to
(b) if the applicant is not the owner

Cl. 43(2) uses the term ‘activity’ to cover three different things:
(1) the land-use activity that will result in modification to a site;
(2) the archaeological work required by HNZPT as a condition
of an authority for land-use; and (3) the scientific investigation
of a site. This has resulted in apparent nonsensical
requirements that HNZPT must approve persons carrying out
land-use activities, and that land-use activities must conform
to accepted archaeological practice ( see also use of ‘activity’
in cl. 45 and cl.49(1)(b)).

In cl. 43(2)(e) it should be made clear that it is the name of the
person undertaking the archaeological work required by
HNZPT, rather than the name of the person undertaking the
land-use activity, that is intended.

In cl. 43(2)(c) the requirement should be for a description of
‘any archaeological site’, not ‘any recorded archaeological
site’. As the requirements are currently worded, only
information about recorded sites must be included in an
application. This is inconsistent with section 41, where an
authority is required for any work that may harm any site,
of the relevant land,
proof of the owner’s consent to the
proposed activity or scientific
investigation;
and
(c) a description of any
archaeological site to which the
application relates and the location
of any such site; and
(d) a description of the activity or
scientific investigation for which the
authority is
sought; and
(e) the name of the person who, if
approved by Heritage
New Zealand Pouhere Taonga
under section 45, is to
carry out the archaeological work in
relation to any authority granted;
12
45
any authority granted;
and
(f) a description of the harm to the
archaeological site that
will result from the proposed
activity;
and
(f) a description of the modification
to the archaeological site that
will result from the proposed activity
or scientific investigation;
Approval of persons to carry out
activity
(1) Heritage New Zealand Pouhere
Taonga must ...determine whether
to approve the person specified
under section 43(2)(e) to carry out
an activity under an authority, if
granted.
(2) A person must not be approved
to carry out an activity unless
Heritage New Zealand Pouhere
Taonga is satisfied that the person
–
(a) has sufficient skill and
competency and is fully capable of
ensuring that the proposed activity
is carried out to the satisfaction of
Heritage New Zealand Pouhere
Taonga; and
(b) has appropriate access to
institutional and professional
support and resources
Approval of persons to carry out
archaeological work
(1) Heritage New Zealand Pouhere
Taonga must ...determine whether
to approve the person specified
under section 43(2)(e) to carry out
any archaeological work under an
authority, if granted.
(2) A person must not be approved
to carry out archaeological work
unless Heritage New Zealand
Pouhere Taonga is satisfied that the
person –
(a) has sufficient skill and
competency and is fully capable of
ensuring that the proposed
archaeological work is carried out to
the satisfaction of Heritage New
Zealand Pouhere Taonga; or
(b) has appropriate access to
institutional and professional support
and resources
‘Archaeological work’ should also
replace ‘activity’ in cl. 43(2)(e); cl.
45(1); cl. 45(2); cl. 48(3); cl.
13
recorded or not.

It is possible that an authority may be sought for an activity on
land where unrecorded, but known, sites are located.
Information about such sites should be included in any
application.

There is often reasonable cause to suspect that unrecorded
sites may be encountered during land-use activities, and
those should also form part of the information provided where
relevant.

NZAA supports the principle that the person carrying out any
archaeological work should have either the appropriate skills
or sufficient institutional support to carry out any scientific
investigation

NZAA supports the principle that the applicant’s choice of an
archaeologist must be approved by HNZPT.

NZAA also supports the general principle that the person
required to comply with a statutory decision should be
responsible for engaging and paying for any services
necessary to achieve compliance.

The word ‘activity’ is used variously in the Bill to describe (1)
the land-use activity which affects an archaeological site; (2)
the archaeological work required by HNZPT as a condition of
an authority for land-use; and (3) the scientific investigation of
a site.

This creates considerable confusion, in particular in cl. 45,
which should to relate to approval of an archaeologist to
undertake work, but instead has the effect of requiring HNZPT
approval for all activity affecting a site, whether archaeological
or related to land-use.

The existing wording requires that HNZPT must approve
persons carrying out land-use activities and that that anyone
carrying out land-use activities must be a skilled and
competent archaeologist.

A clear distinction must be made between the land-use
49(1)(b); cl. 49(1)(c); cl. 54(5)(c); cl.
56(2)(b); cl. 59(3); and ‘work’ in cl.
44(2)(a) .
49(1)
49(3)
activity that modifies an archaeological site, and the
archaeological work that is carried out as a condition of an
authority or for scientific investigation purposes.
Imposition of conditions on
authorities
(1) Applications granted under
section 46 are subject to the
following conditions:
(a) the site must be returned as
nearly as possible to its former
state (unless otherwise agreed
with the owner of the site on which
the site is located); and
(b)any activity undertaken at the
site must conform to accepted
archaeological practice; and
(c) Heritage New Zealand Pouhere
Taonga, or the person approved
under section 45 to carry out an
activity, must provide a report on
any activity .....
Either separate the conditions
applicable to scientific investigation
from those applicable to modification
for land-use purposes.
Or amend as follows:
Imposition of conditions on
authorities
(1) Applications granted under
section 46 are subject to the
following conditions:
(a) in the case of scientific
investigations, the site must be
returned as nearly as possible to its
former state (unless otherwise
agreed with the owner of the site on
which the site is located); and
(b) any archaeological work
undertaken at the site must conform
to accepted archaeological practice;
and
(c) Heritage New Zealand Pouhere
Taonga, or the person approved
under section 45 to carry out
archaeological work, must provide a
report on the archaeological work
.....

Cl.49 mixes together conditions applicable to authorities to
modify sites for land-use purposes, and authorities to carry
out scientific investigations, and applies them to both. This is
confusing, as not all conditions can be applied to both.

Cl.49(1)(a) applies to authorities for scientific investigation,
not to land-use authorities, and this must be clarified.

There is confusion between the land-use activity which
modifies a site and the archaeological work that is carried out
as a condition of an authority or for scientific investigation
purposes, which needs to be clarified for reasons given in
relation to cl. 45.

Cl.49(1)(c) requires a report on the ‘activity’ which implies the
activity carried out by the landowner for land-use purposes. It
should be clarified that the activity on which a report is
required is the archaeological work carried out.
If a condition of the kind referred to
in subsection (2) is imposed, the
rights conferred on any person by
the authority granted under section
46 must not, unless Heritage New
Zealand Pouhere Taonga specifies
Review and clarify the meaning of
this clause

The existing wording in the Bill is very unclear and it is not at
all apparent what is intended.

The proposed 20 working day period in cl. 49(3)(b) implies
that the authorised person may exercise their rights without
notifying HNZPT of compliance with the conditions.

The proposed 20 working day period in cl. 49(3)(b) makes
14
otherwise, be exercised until
whichever of the following is the
later:
(a) Heritage New Zealand Pouhere
Taonga is advised in writing by the
holder that the condition has been
fully complied with:
(b) 20 working days have elapsed
since the date that the authority
was granted by Heritage New
Zealand Pouhere Taonga.
53
54
(1) An authority granted under this
subpart, for the time that it is
current,—
(a) runs with the land to which it
applies; and
(b) is not affected by any change
in the ownership of the land or in
the lease or licence under which
the land is held.
(2) If there is a change of owner,
lessee, or licensee of land over
which a current authority applies,
the new owner, lessee, or licensee
must—
(a) give notice to Heritage New
Zealand Pouhere Taonga of the
change of ownership; and
(b) give contact details of the new
owner, lessee, or licensee of the
land.
Exploratory investigation of site
or locality
(1) Heritage New Zealand Pouhere
Taonga may, as far as is
consistent with the purpose of this
Act, –
little sense, as a scientific investigation is unlikely to be
carried out within this period of time, taking into account the
standard 15 day appeal period, and as the archaeological
work may not be scheduled for some time after the authority
is granted.

There is no provision, as under the existing Act, for HNZPT to
review the conditions of the authority if a site of high
significance is found.
(3) The obligation to give notice
under cl. 53(2) is a deemed
condition of an authority.

As drafted, failure to give notice under cl. 53(2) has no
consequence. This could encourage land transfer without
giving notice to avoid the obligations of an authority, which
might be left with an entity without means.
(4) Until notice of the change of
holder is given under cl. 53(2) the
holder of the authority continues to
be responsible for meeting its
conditions.

Proposed change (3) is suggested to bring the matter within
the scope of the penalties, and

Proposed change (4) is suggested to give a positive incentive.
Delete this clause and all reference
to section 54 throughout the Bill
(including the whole of cl. 87)

The proposed written authorisation in cl. 54 is effectively a
new form of authority, with set timeframes, an appeal period
and fines for non-compliance.

It would considerably extend the net of archaeological
regulation to include establishing the presence of an
archaeological site in the first instance.
15
(a) carry out an exploratory
investigation of any site or locality:
(b) authorise in writing persons
who apply to carry out an
exploratory investigation of any
site or locality, subject to the
conditions it thinks fit
.......
4

It represents a departure from standard archaeological
practice, where the presence of archaeological sites is
confirmed (or otherwise) by minor subsurface testing that
does not require authorisation from HPT. This standard
practice would be in breach of the Act under the current
definition.

The current approach to subsurface testing is consistent with
international practice, and complies with NZHPT guidelines
which specifically exclude archaeological investigation to
locate sites from any authority requirements.4

Cl. 54 is unnecessary, as any exploratory investigation on a
larger scale to investigate the nature and extent of a recorded
site is already provided for under clauses relating to ‘scientific
investigation’.

An authorisation to confirm whether or not a site is present
would delay archaeological assessment carried out for landuse purposes.

Cl.54 adds complexity, delays and costs to archaeological
consenting processes rather than streamlining them.

The power in cl. 54(a) allowing HNZPT to carry out an
exploratory investigation is also unnecessary as this is
already provided for in cl. 13 and cl. 55, which give HNZPT
the power to enter land for the purpose of carrying out an
investigation to determine whether there is an archaeological
site on the land and ascertain whether an authority is
required.

By separating what was formerly ‘archaeological investigation’
under the Historic Places Act into ‘exploratory’ and ‘scientific’
investigation, the involvement of Maori in decisions relating to
their heritage is reduced, as there is no requirement to gain
the consent of the relevant iwi authority for exploratory
investigation (unlike scientific investigation).
A section 18 authority is not required for the purposes of identifying an archaeological site in the first instance, defining the extent of an archaeological site in areas where
it does not appear to exist, or confirming that an archaeological site does not exist’. From Guidelines for Section 18 Authorities, Historic Places Act 1993, p.2. New Zealand
Historic Places Trust Pouhere Taonga, Archaeological Guidelines Series No. 4, 8 May 2008.
16
61
Condition requiring scientific
investigation [under Emergency
Authorities]
(1) If Heritage New Zealand
Pouhere Taonga is satisfied on
reasonable grounds that a
scientific investigation ought to be
carried out on a site for which an
emergency authority is sought, an
emergency authority may be
granted subject to a condition
requiring such an investigation.
(2) If subsection (1) applies
Heritage New Zealand Pouhere
Taonga must –
(a) complete the scientific
investigation and issue its
decision, –
(i) in the case of an archaeological
site that is above ground level, not
later than 14 days after the date
that the emergency authority is
issued; and
(ii)for any other archaeological site,
within the time specified in the
authority; and
.....
(3) If a condition of the kind
referred to in subclause (1) is
imposed, the emergency authority
may be exercised only to the
extent that it does not interfere with
Subsections (2) and (3) are
confusing and should be clarified
17

It is unnecessary to create a separate category of
investigation that does not require iwi consent. If the purpose
of an ‘exploratory’ investigation is to protect the site from land
use, consent is unlikely to be withheld.

In subclause (2) the relationship between the completion of
the scientific investigation and the HNZPT’s decision is
unclear. Normally the decision on the authority, including any
condition relation to scientific investigation, would be made
first, but the opposite is implied by the wording.

Subclause (2) also implies that HNZPT must carry out the
scientific investigation, but this is apparently contradicted in
subclause (3)(a), where the HNZPT must be notified that the
scientific investigation is completed.

There is reference to subclause rather than subsection in cl.
61(3).
the scientific investigation until –
(a) Heritage New Zealand Pouhere
Taonga has been notified that the
investigation has been completed;
and
....
18
Conclusion
In general, NZAA supports the intentions of the Heritage New Zealand Pouhere Taonga Bill
to simplify and streamline the archaeological authority processes of the HPA and bring them
into alignment with the processes of the RMA. However, we have concerns that, in some key
areas, the Bill does not achieve these objectives and, if passed into Law, the effect would be
an increased bureaucratic burden on private landowners, with an administration that would be
slower than it currently is, and provisions that are potentially confusing.
NZAA supports measures that protect the nation’s unique heritage, bring archaeological
management in line with international best practice, clarify the role of the Maori Heritage
Council and simplify the archaeological authority process, in particular:

providing initial protection to all archaeological sites pre-dating 1900, and requiring
that their values are assessed and appropriate actions taken if they are to be modified.

the requirement for HNZPT to consult on and prepare a general policy statement
relating to the administration of the archaeological provisions of the Act.

changes proposed in the Bill requiring that all applications affecting sites of interest
to Maori are to be referred to the Maori Heritage Council .
Our major concerns are around:
1. The definition of an archaeological site (cl. 6), particularly where this includes ‘any
building or structure (or part of a building or structure).’ We are concerned that this
extends the provisions of the Bill to 19th century houses that are currently occupied
and prevents home-owners from altering their own dwellings without authority from
HNZPT. These restrictions would be more onerous than under the RMA and would
duplicate some of its processes.
We propose that the definition in the Bill be qualified with the words ‘that is ruined,
abandoned or proposed for demolition’ in relation to any building or structure, or
part of a building or structure.
2. The new concept of Exploratory Investigation (cl. 6 and 54) whereby HNZPT may
carry out or allow other persons to carry out an exploratory investigation, defined as
‘an investigation of any site or locality to determine whether the site or locality is an
archaeological site, and, if so, the nature and extent of the archaeological site.’ This
is a new form of archaeological authority that considerably extends the net of
archaeological regulation to include establishing the presence of an archaeological site
in the first instance. The Bill would require the written approval of HNZPT for
standard archaeological survey techniques used to identify sites, and would therefore
hamper assessment for land-use purposes. It would place an extra burden of costs and
time delays on private landowners, without any gain for archaeological site
protection. It would add complexity to archaeological consenting processes rather
than streamlining them, and would also reduce the involvement of Maori in decisions
relating to their heritage.
These clauses are unnecessary as investigation of a site on any significant scale can
already be carried out as a ‘scientific investigation’ and because HNZPT already has
the powers to enter onto land to determine the presence and significance of any
archaeological site through archaeological investigation under cl. 13 and cl. 55.
We submit that ‘exploratory investigation’ should be removed from cl. 6 and that cl.
54 should be deleted.
19
3. The definition of Authority in cl. 6 as ‘an authority granted by Heritage New Zealand
Pouhere Taonga under section 46 to undertake an activity that will or may harm an
archaeological site.’ Two terms here are of concern: ‘harm’ and ‘activity.’
Harm is an entirely negative term that does not reflect the range of circumstances for
which authorities may be required, such as conservation, site protection or scientific
investigation.
We propose that the word ‘harm’ in the definition of an authority in cl. 6 and
throughout the Bill should be replaced by a more appropriate term such as ‘modify.’
The term ‘activity’ in cl. 6 and elsewhere is variously used to describe (1) the land-use
activity which affects an archaeological site; (2) the archaeological work required by
HNZPT as a condition of an authority for land-use; and (3) the scientific investigation
of a site. This creates considerable confusion and some apparently nonsensical
requirements. We propose that the term ‘activity’ be clarified throughout the Bill so
that land-use activities are distinguished from archaeological investigations or
archaeological work required as a condition of an authority, as appropriate.
We also submit that provisions relating to authorities for land-use purposes and
authorities to permit archaeological investigation should be separated out (as under
the present Act) to improve clarity and reduce confusion. We note that combining
them in cl. 42 and related clauses was not proposed in the Cabinet Paper.
20