Delahunty Catherine: Heritage New Zealand Pouhere Taonga Bill — First Reading 
Text is incorporated into the Bound Volume 
Delahunty Catherine: Heritage New Zealand Pouhere Taonga Bill — First Reading 
[Sitting date: 08 May 2012. Volume:679;Page:2061. Text is incorporated into the Bound Volume.] 
CATHERINE DELAHUNTY (Green) 
: 
 Tena koe Mr Deputy Speaker. Tena koutou e te Whare. The Green Party is supporting the referral of the Heritage New Zealand Pouhere Taonga Bill to the Local Government and Environment Committee because it is generally consistent with Green policy and makes some useful reforms. We do support the name change and some of the key provisions—some but not all. We are very supportive of the continuation of the Maori Heritage Council with delegated powers including the powers to excavate and of the affirmation of Te Tiriti o Waitangi responsibilities. Few bills are so clear that the Crown must give effect to te Tiriti which is not surprising given that this bill deals with wahi tapu and taonga katoa which are guaranteed to tangata whenua in article 2 of Te Tiriti o Waitangi. However I do note that Te Puni Kokiri has expressed some concerns about these clauses and I would be interested in finding out what those are before we go through to the next reading.  
However in supporting this bill’s referral to the select committee we need to flag some concerns. We would like to hear from the public at the select committee about the disestablishment of branch committees of the former Historic Places Trust. We know they are variable in their effectiveness but we know some communities have regarded them very highly. They may well be redundant from a national perspective but we would like to hear from those citizens who are active in heritage issues as to their views of these proposed changes.  
As I said before the new Treaty clauses appear much stronger on te Tiriti issues and responsibilities and the requirement that local authorities must have particular regard to recommendations made by Heritage New Zealand Pouhere Taonga or the Maori Heritage Council is long overdue. Local authorities do have a responsibility to assist in the protection of wahi tapu and with wahi tapu areas and these changes are needed. In my direct experience there have been councils that have no heritage plan and no records of wahi tapu and that have taken no responsibility for the protection of these vital heritage areas.  
However we do have one more concern and this is the greatest concern that we have at this stage of the first reading. It is associated with the clauses related to archaeological sites. I want to address a clause that we would argue must be changed at the select committee. It is clause 42(1)(b). This clause states that if an effect of an activity on a site will be “no more than minor” then it appears the developer is exempt from consulting with tangata whenua. There is no definition in this bill as to what is minor. How will this be defined and by whom? Even if an archaeologist does an initial survey they are often not in a position to determine whether the development activity on a site will have a minor effect or not because the status of many sites cannot be determined until their archaeological work has been carried out. 
 So the 5-day decision-making process and the use of the minor activity clause could be disastrous for some significant sites of vital importance to tangata whenua who do not even have to be informed according to clause 42(1)(b) if this is invoked. Clause 43 then clearly lays out the proper process that should be followed for consultation on sites except if they are exempt under clause 42(1). We have great concerns about that exemption and that word “minor”. If we have understood this correctly it could be a fast-track nightmare that could destroy heritage and avoid consultation which could be music to the ears of some developers but not a protection of heritage.  
I want to give examples of this. My partner was a professional archaeologist in Te Tai Rawhiti for a number of years. These issues I am referring to were a daily source of contention as he sought to work alongside tangata whenua while being employed under contract by developers who wanted him to find as little as possible and to hurry up about it. One site that could be used as an example of this is one where it could have been judged that the activity would have a minor effect so I will just paint the picture of what I mean by this. It was a small shell midden just a small site on a piece of private land that a developer wanted to turn into holiday homes on the Mahia Peninsula. This shell midden looked like nothing very significant. You could have walked past it and just seen a few shells. We see that all the time—you walk past some sand with some shells. But the extraordinary thing about it is that after the process was well under way with full consultation and full tangata whenua involvement—who actually worked on the dig itself with my partner—it turned out to be a unique 14th century shellfish-drying hangi site. It was very rare and very far from minor in its significance. This new bill could have seen that destroyed without either consultation with or recognition of the tangata whenua.  
Another example also on the East Coast was a housing development in the settlement of Okitu just north of Gisborne where my partner found some prehistoric gardens and terracing that looked to the untrained eye like nothing much at all. But this was a rare site because most gardening sites on the East Coast have already been destroyed and have been ploughed in. There was going to be a road put through the middle of these prehistoric gardens. If the archaeologist had been acting under this law and had decided that the proposed effects of a road on what looked like some faint terracing were no more than minor then that site would be gone. It would have been destroyed. So we are very concerned about that. The “no more than minor” clause needs to go and the whole issue of who decides what is minor is problematic. We have seen that with the Resource Management Act with the issue of the word “significance”. Who decides what is significant? We are setting up another real problem for ourselves in the use of that word “minor”.  
The payment issue is very significant in relation to these clauses. Who pays the archaeologists must be addressed. This is an opportunity—and I welcome the bill because it is an opportunity—to make these things work better for the benefit of the heritage of this country. The payment would be better managed by a heritage body that could charge the developers for the work then remove the inbuilt conflict of interest for archaeologists. At the moment if an archaeologist from a Pakeha perspective who is not particularly te Tiriti orientated is hired by the contractor who is encouraging them to find nothing then nothing can be found but that does not mean that nothing is actually there. I have witnessed this a number of times in my own experience working alongside people and often tangata whenua themselves who have not known whether or not a site is significant. So this whole issue of payment must be organised better. The heritage body would be a logical place to do it because it is removing that inbuilt conflict.  
The final issue that I want to raise at this stage of the process of the law is the choice of archaeologist. Currently a developer chooses a contract archaeologist; therefore they get to decide when working with a Maori site—and I am talking mainly about Maori sites here. The tangata whenua get no right to choose who will work with their heritage. It is not up to them; they do not have any say. This may be an ancient site of particular significance to the hapu but they have no power to decide how that site will be dealt with; it is up to the contractor. Of course in my experience of this sector there are some archaeologists who will fast track your development for you and there are others who will not. Therefore the conflict of interest is really problematic. We believe that mana whenua should have the power to choose who is going to do that work and perhaps the safest way is via the Maori Heritage Council which the Minister has quite rightly maintained as a key part of making sure this bill is culturally appropriate. I believe this is giving effect to the clause relating to Te Tiriti o Waitangi.  
We are very keen to see this bill supported but we must have these changes. We must make sure that it fulfils the functions of protecting Maori heritage which is actually a highly political and contested issue. If you have not worked in this field you might think this is an area of minor contention but it is not minor. This is a battlefield between people trying to protect their history and heritage and their whakapapa and their wahi tapu versus people who want to fast track development. If you are the archaeologist in the middle of it it has not been a pretty sight. It has had huge issues that have been fought through the courts. The previous speaker referred to the bad old days when we struggled in front of Judge Sheppard. I personally have experienced that as well. So what the Greens are asking for is a change on that issue of “minor”. It needs to go from the bill. It needs a recognition of tangata whenua having the choice of archaeologists because that is what those Treaty clauses mean. Giving effect to Te Tiriti o Waitangi means giving the power to hapu to make some decisions about their heritage.  
We want to continue to support the bill but we will be looking at the select committee to hear from people who have raised these issues with us about these clauses because it is too important to write a bill and take this opportunity to improve the law as the Government has done in many aspects but then allow an inbuilt contradiction between more effective administration of our heritage and more facilitation and fast tracking of development through the use of a word like “minor”. These words are contested in the courts daily so we really need to do this. I would like to see it supported. We will be supporting this bill provided these changes can be brought in. Kia ora tatou.