Wāhi tapu and heritage protection

Wai 898: Te Mana Whatu Ahuru – Report on Te Rohe Pōtae Claims Part IV

 “That, while the RMA and the New Zealand Historic Places Trust Act 1993 have improved the situation, the statutes have not provided sufficient protection for important taonga sites and are in their present format therefore inconsistent with the principles of the Treaty with respect to the Crown’s duty to actively protect taonga.” (p 497)

“One of the main issues, as previous Tribunals have found, lies in the RMA as far as Treaty principles are concerned. Section 8 needs to be amended to reflect wording more akin to that in section 9 of the State-Owned Enterprises Act 1986. Alternatively, it should be integrated into section 5 of the RMA. Left as it is the RMA is incapable of ensuring that the Crown’s Treaty guarantees to Māori are honoured. Furthermore, the Crown’s heritage system while improved to that which existed before the Historic Places Act 1993, continues the ad hoc approach to the protection of all sites important to the claimants. The problem is that registration under the Historic Places 1993 and its link to the RMA, recognises only a small proportion of their sites and their experience has been that protection for those sites registered is not guaranteed.” (p 394)

“The Crown, as part of this recognition and the development of these co-management regimes, should proactively look to restore taonga sites where practicable. These sites should be identified in conjunction with Te Rohe Pōtae Māori and may include wetlands, forests, wāhi tapu, or any other sites of environmental or heritage value.”  (p 501)

“Some newer legislations, such as the Heritage New Zealand Pouhere Taonga Act 2014, have the potential to address environmental issues in the district, particularly regarding consultation, but they still do not go far enough. Under the RMA, for example, consultation for the completion of a resource consent application is not mandatory either by an applicant or local authority and this provision was enacted as late as 2005.” (p 504)

Wai 796: The Report on the Management of the Petroleum Resource

“Recommendation: The Crown produce National Policy Statements and National Environmental Standards to provide guidance to territorial authorities on enhancing and protecting taonga and wāhi tapu.”

Wai 215: Tauranga Moana 1886-2006 - Report on the Post-Raupatu Claims Volume 2

“In 1992 the Te Roroa Tribunal provided a sustained analysis of the proper role of tangata whenua and the Crown in the management of Māori cultural heritage. That Tribunal found that Māori participation in what others decide to do with their taonga is not the proper partnership envisaged by the Treaty:

Wahi tapu are taonga of Maori, acknowledged as such in article 2 of the Treaty. The role of the department and Historic Places Trust in the ‘partnership’ is not a decision making role or being ‘included’ in what is not theirs. Rather, it is to assist Te Roroa by the provision of services and advice when they are sought, to enable them to protect and care for the wahi tapu.” p291

“That Tribunal further proposed that the Crown:

re-affirms the traditional and Treaty rights of tangata whenua to control and protect their own wahi tapu and requires the Department of Conservation and other of its agents concerned in the management of national and cultural resources to give practical effect to this commitment.” p 292

“We endorse these findings of the Te Roroa Tribunal. The issue is whether Crown legislation and policy has since evolved to enable Tauranga Māori to exercise rangatiratanga (authority and control), and act as kaitiaki (protect and care for) over their cultural heritage.”

“Before we address this issue however, we need to make clear that the capacity of the Crown to enable Māori to exercise rangatiratanga and to act as kaitiaki will differ depending on the specific category of land at issue, for example, Crown land, public land owned by local authorities, and private land. The latter categories present particularly complex problems of how to best reconcile public rights of access and enjoyment, or the legitimate property rights of private landowners, with the equally legitimate right of tangata whenua to retain links to their significant sites within their ancestral landscape. These issues are further complicated in situations where Māori have lost their ancestral lands in ways inconsistent with the principles of the Treaty. We acknowledge the complexity of the issues involved but consider that the Crown and Māori must not resile from cooperating to find avenues for the expression of Māori rangatiratanga and the exercise of kaitiakitanga”

“To this day neither the Historic Places Act nor the Resource Management Act provide Tauranga Māori with any straightforward mechanisms to exercise rangatiratanga and act as kaitiaki over their ancestral places on any of these categories of land. One mechanism which might come closest is the possibility, under both the Historic Places Act and Resource Management Act, that Māori groups might become heritage protection authorities, able to issue heritage protection orders. Under the Resource Management Act, an iwi authority, Māori trust, or incorporation, can in theory become heritage authorities if constituted as a body corporate, and if the Minister for Culture and Heritage accepts their application.”

“The Te Roroa Tribunal commented that there may be several issues for Māori in considering undertaking this process. First, that Tribunal felt that the requirement to be a body corporate was inappropriate, since the trustees who administer marae, the cultural foci of Māori communities, do not constitute a body corporate. We note, however, that trusts and incorporations established under Te Ture Whenua Māori Act 1993, and Māori trust boards, are body corporates. Secondly, disclosing the location of wāhi tapu and scrutiny at public hearings could pose threats to their security. Thirdly, and most significantly, substantial costs are involved in making a heritage order, including one-off costs for applying (and a high likelihood of appeal) and ongoing costs in processing resource consent applications. In particular, landowners can apply for compulsory purchase and compensation by the heritage authority if they cannot sell or use their land in a reasonable manner. Making a heritage order therefore inevitably involves significant delays, financial costs, and considerable risks ; as the Parliamentary Commissioner for the Environment noted in 1996, it is a last resort option for protection.” (p 295)

Wai 686: The Hauraki Report Volume 3

“We acknowledge the role of the Resource Management Act in the protection of wahi tapu and taonga, and appreciate that this Act is an attempt by Government to provide a holistic approach to the management of resources and taonga. But we also consider that it should be noted that the legislation is complex, and specialist legal advice is currently required for access to the full range of legislative protections on offer. The various protective options provided by the Act are not used consistently by territorial authorities nationwide.”

“We suggest that, for the Resource Management Act to be a more consistently effective tool for Maori (which the Crown has conceded is not always the case), the Government, local authorities, and Maori should work together to ensure an understanding of the processes on offer, as well as a consistent approach to their application. We acknowledge that the Resource Management Act already makes provision for these parties to work together, and we encourage the use of these available provisions for protection of wahi tapu to the fullest extent possible. Use of the existing provisions under the Resource Management Act should be carefully monitored, so that the Crown can put in place effective mechanisms should the existing provisions be less than fully adequate. In the Report on the Manukau Claim of almost 20 years ago, the Tribunal observed, and we agree, that wahi tapu protection procedures must be publicised. We note that such a step appropriately involves the full participation of both Crown and Maori as Treaty partners.” (p 965) 

“Use of the existing [Wahi tapu]provisions under the Resource Management Act should be carefully monitored, so that the Crown can put in place effective mechanisms should the existing provisions be less than fully adequate” (p965)

Wai 38: Te Roroa Report

“To fulfil its obligations under the Treaty, we do not consider that the procedure under the Resource Management Act for the creation of heritage protection authorities is an option to be adopted by the Department of Conservation. We accept the claimants’ submission that it would be a violation of their rangatiratanga.” [More extensive section on wahi tapu]

Wai 215: Tauranga Moana 1886–2006 – Report on the Post-Raupatu Claims Volume 2

However, a number of the key recommendations of the reviews that we have summarised have not been implemented. In particular, despite the unanimity of the reviews on these key points, there is still no standalone Māori heritage agency, and there is still no national policy statement for heritage management. Other areas where significant issues remain almost entirely unaddressed include: the continuing ambiguity about the role of, and funding for, the trust’s register; the lack of incentive funding at the local authority level; and the lack of funding to assist iwi and hapū to create heritage databases.”