REPRESENTATION OF HERITAGE POUHERE TO BOARD OF INQUIRY FOR EAST WEST LINK PROPOSAL – DESIGNATION CONDITIONS ARCHAEOLOGY

1. This summary statement is with regards to the designation conditions as they relate to archaeology (HH.1 to HH.4). Ms Robin Byron will present a separate representation regarding built heritage.

Background

2. Heritage New Zealand Pouhere Taonga (Heritage New Zealand) has been involved in extensive and ongoing discussion, meetings and consultation with Council and the New Zealand Transport Agency (NZTA) about the East West Link proposal from a very early stage including the scoping, assessment and consenting stages.

3. The draft conditions submitted as part of NZTA’s application as they relate to archaeology were agreed between Heritage New Zealand, NZTA and Auckland Council subject to some minor changes that were then included as part of Ms Hopkin’s planning evidence. As a result of this agreement Heritage New Zealand did not feel it would be necessary to present evidence to the Board. Heritage New Zealand continues to support these conditions as they were presented to the Board by Ms Hopkins in her evidence on 19 July 2017.

4. Auckland Council have since made a late shift away from the agreed conditions. Some witnesses have provided evidence during the hearing regarding the archaeological authority process which seems to have misunderstood or misconstrued the provisions of the Heritage New Zealand Pouhere Taonga Act 2014 and how they work in practice.

5. This summary is an attempt to provide some clarification to the Board regarding the role of Heritage New Zealand and the East West link proposal in relation to archaeology that was the basis of our submission. We are unable to provide legal submissions in response to Auckland Council’s memorandum at this time but if it would assist the Board we could provide these in writing at a later time.

East West Link Conditions

6. The main focus of Heritage New Zealand with regards to the designation conditions is to ensure that situations do not arise where the heritage management plan and the archaeological authority have conditions which are contradictory, confusing, and conflicting.

7. Heritage New Zealand believes that the designation conditions as they were agreed ensured this confusion would not occur by clearly outlining what was to be the ambit of an archaeological authority, and in HH.4 what would be covered by a heritage management plan including the methodology for documentation of post-1900 historic heritage.

8. The NZTA conditions that were agreed to are not significantly different in intent from other designation and consent conditions that have been implemented elsewhere such as the Puhoi to Wellsford project. As with previous projects, those areas of the East West link proposal area that will be subject to an archaeological authority render resource consent conditions relating to archaeology unnecessary.

9. Archaeological authorities are issued subject to a suite of conditions that require archaeological monitoring, investigation, recording, analysis and reporting. The archaeological authority will provide for the conditions for all archaeological sites in the area that the archaeological authority covers.

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10. Heritage New Zealand had reviewed Dr Felgate’s Archaeological Assessment prior to this process and he clearly identifies areas where there is reasonable cause to suspect the potential for archaeological discoveries and effects on both unrecorded historic and Māori archaeological sites as a result of works. Dr Felgate identified two areas that could be considered archaeological “hot spots”: one in Sector 1 around the southern edge of Te Hopua, and another in Sector 3 around Tip Top corner. Heritage New Zealand has recommended to NZTA that an archaeological authority is sought for areas identified as having archaeological potential prior to works commencing and NZTA have agreed to do so. The remaining areas will be subject to the accidental discovery protocol.

Heritage New Zealand Pouhere Taonga Act 2014 (HNZPTA) and archaeology

11. There is no disagreement that both the HNZPTA and the Resource Management Act 1991 (RMA) are mandated with the protection of New Zealand’s heritage. The RMA enables Auckland Council to include rules in the Plan which seek to protect historic heritage and to assess the effects on historic heritage as part of the assessment of environmental effects while the HNZPTA1 provides for the regulation of New Zealand’s archaeological sites (pre-1900) – both known and unknown.

12. Heritage New Zealand believes that the HNZPTA provisions in relation to archaeological authorities for archaeological sites is comprehensive and as such there is no need to require a separate and unnecessary management process that will merely add duplication and potential confusion.

13. The HNZPTA enables the regulatory function of Heritage New Zealand to control activities that may modify or destroy archaeological sites, including all invasive archaeological, recording, sampling, excavation/investigations and scientific research. Heritage New Zealand performs this regulatory function nationwide.

14. The presumption in the archaeological authority process is that sites will be avoided in the first instance. The archaeological authority process expects applicants to have explored all practical alternatives to avoid or limit the modification or destruction of archaeological sites and seeks to achieve avoidance and protection of archaeological sites wherever possible.

15. The HNZPTA applies a general authority for known (recorded) archaeological sites within a specified area of land and or an area of land that there is reasonable cause to suspect may contain unidentified archaeological sites. Both situations require the robust identification and assessment of known or potential archaeological values, based on professional archaeological expertise. The HNZPTA also regulates for the approval of archaeologists to undertake archaeological works required as a condition of authority.

Mana Whenua

16. The archaeological authority process acknowledges the relationship of Māori, their culture and traditions with their ancestral lands, water, sites, wāhi tapu, wāhi tūpuna and other taonga where known.

17. The HNZPTA also recognises that archaeological sites are often places of historic and cultural value to Māori, and that archaeological sites can be an important source of information about the past.

1 The Heritage New Zealand Pouhere Taonga Act 2014 contains more than the provisions regarding the regulation of archaeology. The Act also promotes the identification, protection, preservation and historical and cultural heritage of New Zealand through listing, advocacy, heritage covenants, the work of the Māori Heritage Council and national historic landscapes. 2

18. Early and meaningful engagement with Mana Whenua is a requirement of an archaeological authority application for any works that may affect a site of interest to Māori. An authority application cannot and will not be accepted without proof of consultation with /hapū and the views they have expressed. Māori value assessments are also sought.

19. Heritage New Zealand works closely with applicants, landowners, iwi and hapū to develop appropriate management processes when archaeological works may affect known or suspected kōiwi tangata as part of the archaeological authority process.

20. Our office include Kaihautū and Pouarahi as part of Heritage New Zealand’s Tira unit who assess the adequacy of engagement with Māori. Our Māori Heritage Council has a statutory role to consider and make recommendations about authority applications to modify or destroy archaeological sites of Māori interest. The Māori Heritage Council also works to ensure that knowledge of the kōrero, and matuaranga Māori associated with such places sits alongside scientific assessments when heritage management decisions concerning archaeological sites are being made.

Archaeological sites and the Auckland Unitary Plan: Operative in Part

21. The definition of archaeological site contained in the HNZPTA is the same definition which is now used in the Auckland Unitary Plan: Operative in Part. The definition was deliberately changed by the Auckland Unitary Plan Independent Hearings Panel to mirror the definition in the HNZPTA as being part of good plan practice for words and phrases to be defined and used in the same way wherever the “purpose of that definition in another statute or regulation is consistent with the purpose of the Resource Management Act 1991 and the relevant context of the usage in the Plan”2.

22. The Independent Hearings Panel also sought to avoid unnecessary duplication of archaeological provisions wherever possible and to clarify the roles and responsibilities between Auckland Council and Heritage New Zealand in the Plan. So while there might be situations where rules in the plan applies to an archaeological site that was also scheduled in the Auckland Unitary Plan: Operative in Part (and therefore require consent and archaeological authority conditions), this duplication would not occur for non-scheduled archaeological sites.

23. Paragraph 3.15 of Auckland Council’s recent memorandum quotes the Unitary Plan recommendations in relation to a situation where duplication cannot be avoided. The particular paragraph quoted is in relation to scheduled historic heritage places not historic heritage more generally.

24. In reaching agreement about the conditions relating to archaeology and built heritage, Heritage New Zealand has attempted to follow the rule framework of the Auckland Unitary Plan: Operative in Part in which the precautionary approach of the notified Plan to historic heritage was deliberately deleted by the Hearings Panel. As the Panel’s recommendation report clearly says “the Panel does not support the inclusion of plan provisions relating to unscheduled historic heritage. If the Council wishes to protect historic heritage, it should follow the identification and scheduling process provided for in the regional policy statement, using the plan change procedure”3.

25. As such, the focus of Heritage New Zealand has been on archaeology as regulated by the HNZPTA or items scheduled by the Auckland Unitary Plan: Operative in Part as part of the resource management framework. NZTA in drafting the conditions acknowledged the wider

2 IHP Report to AC Topic 065 Definitions 2016-07-22 at page 9. 3 IHP Report to AC Topic 010 Historic heritage 2016-07-22 at page 5 and again at IHP Report to AC Topic 031 Historic Heritage 2016-07-22 at page 7. 3

role of Auckland Council in historic heritage more generally and included a condition regarding the recording of post-1900 historic heritage exposed during construction (HH.4 (i)).

26. An archaeological authority focuses specifically on effects on archaeological sites and the Māori values of those sites, and applies to any activities that may or will modify or destroy an archaeological site, regardless of whether they are minor in nature.

27. An archaeological authority cannot be applied for until the exact specifications of the project and effects of the project on archaeological values are known and have been assessed, for example, how much land disturbance is required in what areas. For projects of this scale, this level of detail is not usually available until after the designation and consenting process has occurred.

Information recording

28. Documentary recording of archaeological sites is part of the authority process, including an archaeological works plan which identifies the appropriate methodology to do so. All findings and archaeological authority reports in this region are provided to Auckland Council as a matter of course. Duplicating this process for archaeological sites as part of the historic management plan is unnecessary but the designation conditions had allowed for the recording of post-1900 materials not covered by the HNZPT process.

Accidental Discovery

29. An accidental discovery protocol is to alert a consent holder to requirements that exist outside of the plan (such as the Coroners Act, Protected Objects Act, HNZPTA) of who should be notified when certain items are found and when it is appropriate to resume works after such a discovery. It is not to provide a second chance resource consenting framework or to capture items that have not been scheduled through a resource management plan process.

30. If an archaeological authority is obtained for an area, on the basis of reasonable cause to suspect that archaeological sites may exist, an accidental discovery protocol is not needed to inform a consent holder of their requirements (i.e. stopping work, informing iwi and hapū of a site of interest to Māori regarding archaeological sites) because those requirements have already been carried out and processes put in place via conditions of authority to ensure appropriate outcomes.

31. For those areas of the proposal area where an archaeological authority is not applied for, the accidental discovery protocol will apply. Likewise, for the areas covered by the archaeological authority, any discovery not relating to the definition of an archaeological site will remain covered by the accidental discovery protocol.

32. Any ‘discovery’ in respect of the unexpected find of an artefact, taonga tūturu, or human remains/kōiwi tangata that is part of an archaeological site would be provided for in the conditions of the archaeological authority, but other items listed such as contaminated land or lava caves would be covered by the accidental discovery protocol.

Conclusion

33. Heritage New Zealand continue believe that the Heritage conditions presented to the Board in the evidence of Ms Hopkins on 19 July 2017 are the most appropriate in this situation and will ensure that there is no unnecessary duplication or contradictory conditions.

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