Cultural Heritage Management

The extent to which cultural heritage matters arise through the RMA varies considerably in different parts of the country, depending on the attitude of regional and territorial councils to including cultural heritage in their RMA policies and plans. Historic heritage is protected to some degree under a separate act, the Historic Places Act 1993 (HPA). It is the interaction of protection under this act and the RMA which complicates the matter.

Historic Places Act protection

The HPA offers different sorts of protection to Historic Places, Wahi Tapu and to archaeological sites.

• Historic Places may be land, buildings or both and may be archaeological sites.
• Wahi Tapu are places sacred to Māori.
• Archaeological Sites are places which may be shipwrecks or sites of human activities, from before 1900 AD, able to be investigated by archaeological methods and capable of providing evidence on the history of New Zealand. 

There are also provisions for historic areas and wahi tapu areas.

Historic Places and Wahi Tapu

Anyone may propose a place or area to the HPT for recognition as an historic place or area or as a wahi tapu. The process which the HPT follows for considering these includes public notification and notice to people with an interest in the affected land.

Historic Places, Wahi Tapu, Historic Areas and Wahi Tapu Areas, if accepted by the Trust, go onto the HPT Register.  A listing of these is available at www.historic.org.nz/register.html, but note, it is not complete. Absence from the web version does not mean a place is not registered. The register can also be inspected at the Trust's offices. Councils may not necessarily include information on these places in land information memoranda. 

In the process of registration of Historic Places or Wahi Tapu notice must be given to relevant territorial authorities and to the land owner. This is not a requirement for Historic Areas or Wahi Tapu Areas but the Trust's practice has been to give notice.  

Historic Places are classified as Category I or II depending on their significance. The HPT applies these criteria reasonably consistently. However the Trust has not undertaken surveys of a scale that would ensure all places worthy of registration are included.

The HPA itself gives no particular protection to registered places. However under the RMA (s66 and s74) councils making plans must consider registered sites.  Also under the RMA (s93), when a consent application affects a place on the register, or land subject to a heritage order or to a requirement for a heritage order, then, if the consent is to be notified, the Historic Places Trust must also be notified. The Trust will usually make a submission on these applications,. However, some councils copy all consent applications to the HPT irrespective of whether or not they affect registered places, or are notifiable. This practice swamps the Trust's limited resources and is unhelpful. 

The HPA has the power to grant interim registration to an Historic Place or Wahi Tapu (HPA s26), but not Historic Areas or Wahi Tapu areas. The effect of interim registration is the same as a notice of requirement for a heritage order. While under notice of a requirement, the property owner may make no changes to the property without the approval of the requiring authority, in this case effectively the HPT (RMA s194). However this protection lapses when the requirement is resolved. Usually this will only happen by either purchase of the property or purchase of some protection right over the property. Interim registration is infrequently used but has been invoked over buildings under immediate threat of demolition.

The Trust is by statute a requiring authority for heritage orders under the RMA.

Archaeological sites

All archaeological sites meeting the HPA definition are protected under the HPA and may not be damaged, destroyed or investigated archaeologically other than with an authority from the HPT. While some archaeological sites are registered as Historic Places they are a tiny minority of the known sites. 

The national register of archaeological sites is kept by the New Zealand Archaeological Association (NZAA). There are regional sub-files of this site recording scheme. It is often stronger on Māori prehistoric sites than historic or non-Māori ones but there are regional exceptions to this. It is the primary resource used by the HPT in respect of managing archaeological sites. Sites are not classified in terms of their importance and the register is all-inclusive of sites from their most minimal form. 

Sites which have not been recorded are still protected under the HPA and the Trust has power to stop work which uncovers an archaeological site, while an HPA authority is sought.

This NZAA scheme, by design, retains records of sites which have been destroyed, and also by design includes sites younger than 1900 AD. It is not sufficiently tied to cadastral surveying to identify whether sites lie on particular land parcels and is not a complete national survey. It records only one spot point for a site. Some sites can be very extensive. It does not often cover buildings or structures that are still in their original use. Hence the scheme is a guide to the presence of sites only and field work by an archaeologist is usually needed to confirm the presence, extent, significance and likely age of sites. Absence of archaeological site records from an area is not reliable evidence of the absence of sites.

Anyone may submit records to the NZAA scheme. There are recording standards to be met before they are accepted. The scheme operates for the entire land area of New Zealand including offshore islands and coastal waters covered by New Zealand Mapping Scheme 260 mapping scheme - that is the familiar 1:50,000 topographic maps.

The Trust only rarely refuses authorities to destroy sites, but will require tangata whenua consultation and may require mitigation, investigation or monitoring. The cost and delay of this is an incentive for applicants to design projects that avoid interfering with archaeological sites. The granting of authorities does not include a public process.. The Trust has no legal ability to delegate the granting of authorities to local government. This means that there is no mechanism for joint hearings between the HPT and councils where a project requires consent under the RMA and HPA.

When granting an authority, the HPT usually imposes a condition that it may not be actioned unless the recipient also holds the necessary RMA consents for the project. If not exercised, authorities expire after two years.

Protection under the RMA

Historic Heritage is a section 6 matter of national importance since the amendment of the RMA in 2003. In the RMA  Historic Heritage:

"(a) means those natural and physical resources that contribute to an understanding and appreciation of New Zealand history and cultures, deriving from any of the following qualities:

1. archaeological;

2. architectural;

3. cultural;

4. historic;

5. scientific; 

6. technological; and

(b) includes -

1. historic sites, structures, places and areas; and

2. archaeological sites; and

3. sites of significance to Māori, including wähi tapu; and

4. surroundings associated with the natural and physical resources."

The relationship of Māori with ancestral lands, water, sites, waahi tapu and other taonga is a matter of national importance in the RMA (s6). The different spelling of waahi tapu and wähi tapu in this act from the HPA is of no consequence. 

In the past Councils in their regional policy statements or regional or district plans always cited the s6 direction on the relationship of Māori with their ancestral lands etc. However this did not always translate into useful information for people inspecting the plan, or effective processes for protecting sites or waahi tapu. This in some cases was because of poor information but in others because of undervaluing of this relationship.  With the elevation of Historic Heritage to s6 it can be expected Councils will give the matter more comprehensive attention.

Councils must take into account Iwi Management Plans in preparing policies and plans (RMA s61, s66, s74). Iwi plans are increasingly covering heritage matters. This provision was strengthened in the 2003 amendment to the RMA. 

Some Councils have effective policies and plan provisions to protect the heritage values of sites including Māori sites. They may schedule sites in appendices to the plan and / or show them on maps. To overcome the uncertainty of extent of some archaeological sites, these may be shown in a more indicative way on maps, as a warning of the likely presence of sites.

Other Councils, believing the intent of Parliament was that archaeological sites in particular be protected under the HPA rather than the RMA, decline to give any attention to archaeological sites in their plans, restricting listings to non-archaeological heritage sites. There is little justification to do this now that Historic Heritage is listed in s6.

Regional Coastal Plans can include archaeological and historic sites in the areas they apply to. There is specific direction in the Act on Historic Heritage in respect of the Coastal Marine Area. Section12(1)(g) prevents destroying or damaging foreshores or seabed in a manner likely to have an adverse impact on historic heritage, other than if it is allowed by a resource consent or by a rule in a coastal plan.

Where Councils enter sites in their plans they must have a defensible process for the selection of the sites listed. Prior HPA registration assists in this. Being recorded in the NZAA site recording scheme is not sufficient for archaeological sites as the scheme does not discriminate sufficiently for this purpose. The best approach is a council heritage survey and heritage register for the area covered, from which sites can be evaluated for listing. In the Auckland Region for instance there is a regional cultural heritage inventory run by the Auckland Regional Council. See Here

Councils with policies and plans giving value to historic heritage, will require it to be given attention in Assessments of Environmental Effects under the RMA.

Where archaeological sites feature in policies and plans it is much more likely that the local council will decline a consent to modify them, than the HPT decline an authority. Likewise a council is more likely to decline a consent to change or destroy a non-archaeological place, than the HPT is to use the interim registration process of protection.

Councils may use abatement notices to prevent further damage to heritage sites where the protection of these is covered by plan provisions.

A consent from a council in respect of an archaeological site does not remove the obligation to seek an authority from the HPT.

Councils granting consents often note in general the provisions of the HPA in respect of archaeological sites, and where they are aware of a site, they may make the consent conditional on obtaining an HPT authority.

Local Government Act 2002

A purpose of local government is to promote the cultural wellbeing of communities in the present and for the future (s10(b)). 

Local governments are required to prepare Long Term Community Plans which must describe the community outcomes desired (s93(6)(b)). They must consult in preparing these. 

There is clearly potential for long term community plans to be significant in cultural heritage protection and for communities to be active in promoting this in their preparation.

In decision making, local governments must consider options and if any of the options identified involves a significant decision in relation to land or a body of water, it must take into account the relationship of Māori and their culture and traditions with their ancestral land, water, sites, waahi tapu, valued flora and fauna, and other taonga (77(iv)(c)). This may prove significant in relation to Māori cultural heritage sites.

Protection of particular places

The following can be considered:

• Seeking HPA registration as an historic place, historic area, wahi tapu or, wahi tapu area.
• Seeking a heritage order under the RMA (the consequence may be the requiring party has to purchase).
• Recording sites in the NZAA site record scheme for archaeological sites.
• Listing in the RMA regional and/or district plans on their preparation or review.
• Listing a place in RMA plans by way of a plan change request to the council (this may be tortuous and expensive).
• Advocating protection through a submission on a resource  consent application.
• Advocating the inclusion of a place in any public reserves created as a condition of a  subdivision consent through the RMA submission process (or put under a QEII Trust covenant).
• Advocating protection during  reserve management plan preparation for sites already in reserves.

Protection for historic heritage at large

The following can be considered: 

• Giving attention to historic heritage in RMA policies and plans at the time of their preparation or review.
• Giving attention to historic heritage in RMA policies and plans by way of a plan change request to the council. 
• Getting protection of heritage as a community outcome stated in the Council Long Term Community Plan under the Local Government Act 2002 (s93(6)(b)).
• Gaining commitment to council heritage surveys and registers in RMA plans through council annual plans.
• Comprehensive surveys for registration by HPT.
• Comprehensive surveys and updates of archaeological site records for filing in the NZAA site recording scheme.
• Listing Māori heritage sites in Iwi Management Plans to get attention to them in policy and plan preparation.

Where can you get further information?

• The HPT has information on heritage protection at http://www.historic.org.nz/heritage/heritage_index.html
• The ARC has information on heritage management at http://www.arc.govt.nz/arc/index.cfm?652A6791-0412-4A14-B23E-C0D7634863B3
• The New Zealand Archaeological Association has information on the Site Recording Scheme at http://www.nzarchaeology.org/recording.htm
• The Parliamentary Commissioner for the Environment's Historic and Cultural Heritage Management, Local Authority Good Practice Guide (1996) is available at http://www.nzarchaeology.org/HTGPG.DOC (Word download)
• The New Zealand Historic Places Trust's Cultural Heritage Planning Manual (1994)
• Local councils often have iwi liaison officers who can advise where advice on Māori values should be sought.
• Harry Allen, Protecting Historic Places in New Zealand,  (1997). Auckland University Anthropology monograph.
•  QEII Naitonal Trust http://www.nationaltrust.org.nz/

Relevant Legal Decisions

Pokeno Kaitiaki Society Incorporated V Franklin District Council and Winstone Aggregates  (Court reference number: AP52/02), considered the nature of waahi tapu, finding them to be small specified places, not an entire area of use of a hapu.

What costs are involved?

NZAA charges a search fee for accessing its information. HPT has the ability to charge for processing authorities but currently does not.  Professional assistance is likely to be needed when preparing requests for HPA registration, applications for HPA authorities and AEEs covering historic heritage. Iwi may charge for advice given in respect of Māori values.

How can you contact HPT?

The Trust has regional offices with people with building, Māori heritage and archaeological expertise.

Garry Law is the author of this page.

Updated: Sept 03, 2006