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Several New Zealand statutes contains specific references to, and protections for, Māori sacred areas and cultural artifacts. Two of the key statutes for the protection of areas of interest to Māori, the Heritage New Zealand Pouhere Taonga Act 2014 and the Resource Management Act 1991, refer to the Treaty of Waitangi of 1840 and provide for processes to involve Māori in decision making related to developments that could impact such areas. In addition, the Protected Objects Act 1975 regulates the handling of Māori artifacts and provides a process for determining ownership of such items, including collective ownership. These statutes can be seen in the context of legal developments regarding land and resource rights and a shift to a government policy of biculturalism that started in the 1970s and 1980s, with current Māori-government relations policies involving principles of partnership and a duty to act in good faith, as well as redress for past breaches of the Treaty.

Heritage New Zealand Pouhere Taonga (HNZPT) guidance on the discovery of human remains states that anyone who discovers what appear to be Māori ancestral remains should contact the police, local public health units, HNZPT, and local Māori people with a connection to the relevant place. Different statutes could apply in this context, including those regulating archeological sites and burials.

I. Legal Framework

Various New Zealand laws and government entities are relevant in the protection and preservation of Māori sacred areas, cultural artifacts, and human remains. In practice, these laws and entities interact and there are certain protocols and guidelines in place for ensuring that appropriate measures are taken and that Māori are involved in decision-making processes.

A. Heritage New Zealand Pouhere Taonga Act 2014

The Heritage New Zealand Pouhere Taonga Act 2014 (HNZPT Act),[1] which replaced the Historic Places Act 1993, sets out the functions and powers of Heritage New Zealand Pouhere Taonga (HNZPT), continues the role of the Māori Heritage Council, and defines certain terms and processes with respect to the protection of Māori sacred and historic sites.[2]

Under the Act, HNZPT is required to recognize certain principles in performing its functions:

(a) the principle that historic places have lasting value in their own right and provide evidence of the origins of New Zealand’s distinct society; and

(b) the principle that the identification, protection, preservation, and conservation of New Zealand’s historical and cultural heritage should—

(i) take account of all relevant cultural values, knowledge, and disciplines; and

(ii) take account of material of cultural heritage value and involve the least possible alteration or loss of it; and

(iii) safeguard the options of present and future generations; and

(iv) be fully researched, documented, and recorded, where culturally appropriate; and

(c) the principle that there is value in central government agencies, local authorities, corporations, societies, tangata whenua, and individuals working collaboratively in respect of New Zealand’s historical and cultural heritage; and

(d) the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tūpuna, wāhi tapu, and other taonga.[3]

The interpretation section of the Act defines several of the terms used above with respect to Māori culture and heritage, which are also relevant to this report:

tangata whenua means, in relation to a particular place or area, the iwi [tribe] or hapū [subtribe] that holds, or at any time has held, mana whenua [customary authority over a place or area] in relation to that place or area
. . .
wāhi tapu means a place sacred to Māori in the traditional, spiritual, religious, ritual, or mythological sense
wāhi tapu area means land that contains 1 or more wāhi tapu
wāhi tūpuna means a place important to Māori for its ancestral significance and associated cultural and traditional values, and a reference to wāhi tūpuna includes a reference, as the context requires, to—
(a) wāhi tīpuna:
(b) wāhi tupuna:
(c) wāhi tipuna

The word “taonga” can be defined as “treasure” or “anything prized”[4] and is used in various New Zealand statutes in relation to items or features of significance to Māori.

The HNZPT Act also includes a provision related to the Treaty of Waitangi, which was signed in 1840 by representatives of the British Crown and Maori chiefs (see below, Part II). The HNZPT Act’s Treaty provision lists various sections of the Act that are intended to “recognise and respect the Crown’s responsibility to give effect” to the Treaty.[5] This includes the appointment of at least three members of the board of HNZPT “who are qualified for appointment having regard to their knowledge of te ao Māori [the Māori world] and tikanga Māori [Māori customs or behavioral guidelines]”;[6] the power of HNZPT to delegate functions and powers to the Māori Heritage Council, as well as the functions and powers of that Council with respect to the protection of wāhi tūpuna, wāhi tapu, wāhi tapu areas, historic places, and historic areas of interest to Māori;[7] and sections that provide for “the measures that are appropriate to support processes and decisions relating to sites that are of interest to Māori or to places on Māori land.”[8]

One of the core functions of HNZPT is to “identify, record, investigate, assess, list, protect, and conserve historic places, historic areas, wāhi tūpuna, wāhi tapu, and wāhi tapu areas or enter such places and areas on the New Zealand Heritage List/Rārangi Kōrero.”[9] It may also enter into a “heritage covenant” with the owner of a particular place or area for the protection, conservation, and maintenance of that place or area.[10] In addition, certain historic places may be owned or controlled by HNZPT, or vested in it to ensure their protection, preservation, and conservation.[11] The HNZPT Act contains offenses with respect to modifying or destroying property or land that is vested in HNZPT or subject to a covenant.[12]

Various provisions and criteria apply with respect to considering entries for the New Zealand Heritage List/Rārangi Kōrero, including provisions that specifically relate to wāhi tapu areas.[13] Information about places and areas on the list, and any covenants that have been entered into, is provided to the appropriate local authorities.[14]

The Māori Heritage Council is assigned the task of considering and determining applications to enter wāhi tūpuna, wāhi tapu, and wāhi tapu areas on the New Zealand Heritage List/Rārangi Kōrero, and can also propose “historic places and historic areas of interest to Māori” for entry on the list.[15] More generally, among several other functions, the Council seeks to “ensure that, in the protection of wāhi tūpuna, wāhi tapu, wāhi tapu areas, and other historic places and historic areas of interest to Māori, Heritage New Zealand Pouhere Taonga meets the needs of Māori in a culturally sensitive manner.”[16]

B. Protected Objects Act 1975

The Protected Objects Act 1975 regulates the export of protected New Zealand objects, establishes and records ownership of “ngā taonga tūturu,” and controls the sale of ngā taonga tūturu within New Zealand, among other matters.[17] “Taonga tūturu” (“ngā” denotes the plural form of this term) means an object that

(a) relates to Māori culture, history, or society; and

(b) was, or appears to have been,—

(i) manufactured or modified in New Zealand by Māori; or
(ii) brought into New Zealand by Māori; or
(iii) used by Māori; and

(c) is more than 50 years old[.][18]

Ngā taonga tūturu is one of the categories of “protected New Zealand object,” which broadly means an object forming part of the movable cultural heritage of New Zealand that . . . is of importance to New Zealand, or to a part of New Zealand, for aesthetic, archaeological, architectural, artistic, cultural, historical, literary, scientific, social, spiritual, technological, or traditional reasons.”[19]

The Act is administered by the Ministry for Culture and Heritage.[20]

C. Laws Related to Human Remains and Burial

1. Coroners Act 2006

The Coroners Act 2006 establishes the coronial system in New Zealand, including the functions and powers of a coroner, requirements with respect to reporting certain deaths to a coroner, and death investigation procedures. It requires, for example, that “[a] person who finds a body in New Zealand must report the finding to a Police employee as soon as practicable unless the person believes that the finding is already known to the New Zealand Police, or will be reported to a Police employee by another person.”[21]

2. Burial and Cremation Act 1964

The Burial and Cremation Act 1964 contains various provisions related to cemeteries and burial grounds and cremation and burial requirements. It states, for example, that “[i]t shall not be lawful to remove from its burial place any body, or the remains of any body, buried in any cemetery, Maori burial ground, or other burial ground or place of burial, without licence under the hand of the Minister, and except in accordance with such conditions as he may prescribe.”[22]

D. Land Use and Conservation Laws

1. Resource Management Act 1991

The Resource Management Act 1991 (RMA) is New Zealand’s core environmental legislation and regulates the use, development, and protection of natural and physical resources, including historic heritage. It includes the following matters as being of national importance, which must be recognized and provided for by anyone exercising functions under the Act:

(e) the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga:
(f) the protection of historic heritage from inappropriate subdivision, use, and development:
(g) the protection of protected customary rights:[23]

It also requires that those exercising functions under the RMA must take into account the principles of the Treaty of Waitangi.[24]

Under the RMA, planning documents are developed by local authorities, with the process involving consultation with affected communities.[25] Persons who wish to develop or use land or resources must apply for “resource consents,” unless the activity is permitted by the relevant plan.[26] The RMA contains provisions that enable local authorities to make heritage orders in their planning documents to give effect to a requirement made by a heritage protection authority (including HNZPT).[27] Such orders, which “protect the heritage qualities of a particular place or structure,” affect how a place can be used.[28]

2. Conservation Act 1987

Under the Conservation Act 1987, the functions of the Department of Conservation include managing “for conservation purposes, all land, and all other natural and historic resources, for the time being held under this Act” and “to advocate the conservation of natural and historic resources generally.”[29] “Historic resources” refers to any historic place within the meaning of the HNZPT Act.[30]

3. Reserves Act 1977

The Department of Conservation administers the Reserves Act 1977 for the purpose of, among others, “providing, for the preservation and management for the benefit and enjoyment of the public, areas of New Zealand possessing . . . natural, scenic, historic, cultural, archaeological, biological, geological, scientific, educational, community, or other special features or value.”[31]

4. Te Ture Whenua Maori Act 1993

The Te Ture Whenua Maori Act 1993 (alternatively, the Maori Land Act 1993), “provides the rules around land dealings that change the ownership status of Māori land.”[32] Among the principles of the Act, set out in its preamble, is that it is

desirable to recognise that land is a taonga tuku iho of special significance to Maori people and, for that reason, to promote the retention of that land in the hands of its owners, their whanau [family], and their hapu, and to protect wahi tapu: and to facilitate the occupation, development, and utilisation of that land for the benefit of its owners, their whanau, and their hapu.[33]

The Act provides for any urupā (Māori burial ground) and wāhi tapu on Māori freehold or general land to be set apart as a Māori reservation through a notice in the government gazette.[34]

5. Marine and Coastal Area (Takutai Moana) Act 2011

The Marine and Coastal Area (Takutai Moana) Act 2011 is intended to, among other purposes, “recognise the mana tuku iho [inherited status] exercised in the marine and coastal area by iwi, hapū, and whānau as tangata whenua” and “provide for the exercise of customary interests in the common marine and coastal area,” as well as to acknowledge the Treaty.[35] It includes provisions related to the inclusion, either in an agreement or customary marine title order, of recognition of a wāhi tapu or a wāhi tapu area.[36] It also modifies the application of the Protected Objects Act 1975 with respect to any taonga tūturu found in a customary marine title area.[37]

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II. Māori-Government Relations and Policy

The Treaty of Waitangi is considered New Zealand’s founding document and in modern times is described as a “broad statement of principles on which the British and Māori made a political compact to found a nation state and build a government in New Zealand.”[38] Waitangi Day, the date on which the Treaty was signed, is New Zealand’s national day.[39]

The history of the relationship between Māori and the New Zealand government since the signing of the Treaty is complex,[40] involving land wars in the 1860s,[41] various government and settler actions that resulted in widespread land alienation,[42] a policy of assimilating Māori into colonial society,[43] and later a shift to a policy of biculturalism, beginning in around the 1980s.[44]

The 1970s through the 1980s is considered a period of “renaissance” in terms of Māori culture, language, and political awareness,[45] as well as continuing the protest movement that started in the 1960s in relation to land rights and broader calls to “honour the Treaty.”[46] This period saw multiple legal developments with respect to Maori rights to land, resources, and the protection of cultural heritage. For example, Te Reo Māori (the Māori language) was made an official language of the country in 1987.[47] Other developments during this time, and subsequently, included making Waitangi Day a public holiday in 1974,[48] the establishment of the Waitangi Tribunal in 1975,[49] and the creation of Māori-language immersion preschools and elementary schools during the 1980s.[50]

In late 2018, the current government established a new office within the Ministry of Justice, the Office for Māori Crown Relations: Te Arawhiti. This agency is responsible for negotiating Treaty settlements on behalf of the government and ensuring the implementation of the government’s settlement commitments, among other functions.[51]

There are currently twenty-nine Members of Parliament, out of 120, who are of Māori descent.[52] This includes MPs elected to serve seven Māori electoral districts. Such seats have been a feature of the political system since 1867, and Maori can choose whether to be on the general electoral roll or the Maori electoral roll (allowing them to vote for representatives in the Māori electorates).[53]

The relationship between Māori and the government today involves multiple elements, including continuing the negotiation of redress actions to settle breaches of the Treaty of Waitangi,[54] recognition at both the national and local levels of various Māori rights with respect to resources, different approaches to involving Māori in decision making, and a commitment to reflecting the principles of the Treaty in various policy areas. Although there is no complete and final list of principles, one is considered to be a partnership while others include a duty to act in good faith and actively protect Māori interests.[55] Such notions of partnership, consultation, and self-determination or self-management can be seen in the various laws and processes related to Māori heritage protections, although these are also the subject of criticism, as discussed below.

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III. Protection of Wāhi Tapu and Other Sites of Interest to Māori

In January 2017, the Māori Heritage Council of HNZPT published a bilingual document titled Tapuwae (meaning “sacred footprint”), which contains the Council’s statement and vision with respect to Māori heritage.[56] The document states, for example, that

[a]n awareness of Māori heritage places amongst land owners, land developers and those who exercise authority over and make decisions about land development is vital for the prevention of damage to and destruction of heritage places. This need underpins Heritage New Zealand activities such as entering Māori heritage places on the New Zealand Heritage List/Rārangi Kōrero, engagement in statutory advocacy processes for the protection of cultural sites, and the preservation and conservation of significant Māori heritage buildings and structures.[57]

In addition to protecting Māori heritage places through entering them on the New Zealand Heritage List/Rārangi Kōrero or taking other protective measures, HNZPT and the Council have various functions and powers in relation to archeological sites and contributing to decision making under the RMA.

A. Archeological Sites

With regard to archeology and Māori heritage places, Tapuwae provides a detailed explanation of the statutory framework and how HNZPT regulates archeological sites in practice. For example:

Archaeological sites, whether or not they are identified or recorded, have, in the first instance, protection under the Heritage New Zealand Pouhere Taonga Act 2014. Heritage New Zealand is empowered by the Act to exercise regulatory authority (kāwanatanga) regarding archaeological sites. It is a crime to modify or destroy an archaeological site without authority from Heritage New Zealand to do so. The archaeological authority process administered by Heritage New Zealand regulates the extent to which land development or any activity may be permitted to have an impact on archaeological sites.[58]

As indicated in this paragraph, the protection of archeological sites applies whether or not the site is entered on the New Zealand Heritage List/Rārangi Kōrero.[59] The HNZPT Act defines “archeological site” as being any place associated with human activity that occurred before 1900.[60] HNZPT may also, by a notice in the government gazette, declare a place to be an archeological site if it was associated with human activity in or after 1900 and “provides, or may be able to provide, through investigation by archaeological methods, significant evidence relating to the historical and cultural heritage of New Zealand.”[61]

HNZPT has published a “statement of general policy” on the administration of the archeological provisions in the HNZPT Act.[62] The document contains various references to archeological sites of interest to Māori and approaches to working with Māori with respect to such sites. For example, it includes the following policies under the objective that “Māori cultural values are respected and taken into account”:

2.1 HNZPT will ensure Māori cultural values associated with archaeological sites of interest to Māori are considered alongside archaeological and other relevant values when archaeological authority decisions are being made, where information about those values has been provided with the application.
2.2 HNZPT encourages iwi and hapū to engage in the archaeological authority process so that their cultural values can be considered in the determination.
2.3 In advance of an authority application, HNZPT encourages applicants and iwi and hapū to formalise protocols on agreed cultural processes for archaeological authorities which relate to sites of interest to Māori, so long as the legal requirements of the HNZPTA are met.[63]

The document also lists principles and policies related to consultation with iwi and hapū; HNZPT’s maintenance of relationships with iwi, hapū and whānau, as appropriate; and encouraging collaboration between Māori and archeologists.[64]

B. Land Use and Development

With regard to land use, development, and the utilization of natural resources, HNZPT has roles, under both the HNZPT Act and the RMA, related to “[s]tatutory advocacy in support of whānau, hapū and iwi on RMA-related matters.”[65] For example, the HNZPT Act states that, “[i]n respect of a wāhi tapu area entered on the New Zealand Heritage List/Rārangi Kōrero, the Council may make recommendations to the local authorities that have jurisdiction in the relevant area as to the appropriate measures that those local authorities should take to assist in the conservation and protection of the wāhi tapu area.”[66] The Council must recognize the interests of the owner of the area, and local authorities must have “particular regard” to the Council’s recommendation.[67] Local authorities notify HNZPT when they receive resource consent applications in respect of wāhi tapu areas. HNZPT must then refer the matter to the Council and consult with relevant parties before it takes any action in respect of such an application.[68]

HNZPT staff therefore become involved in RMA processes when these “potentially or actually impact on Māori heritage places or areas on the New Zealand Heritage List/Rārangi Kōrero.”[69] Tapuwae notes that

Heritage New Zealand staff are experts in various fields relevant to heritage and the RMA, and are regularly called upon to give evidence at hearings or before the Environment Court. Often the evidence provided directly supports a hapū or iwi position on a matter and is prepared in close conjunction with hapū or iwi.[70]

C. Criticism of Current Approach

The current system for the protection of Maori heritage sites was recently criticized in a January 2019 article published in the New Zealand Listener. The article stated, for example, that while the HNZPT Act protects sites where there is evidence of pre-1900 human activity, this “does not cover more-intangible historic landscapes, wāhi tapu (places sacred to Māori) and wāhi tupuna (places with ancestral significance).”[71] Furthermore, the listing of such heritage places on the New Zealand Heritage List/Rārangi Kōrero “does not afford automatic protection – rather it serves as an acknowledgement the site is worth protecting and can trigger opportunities to discuss options with the landowner.”[72] The article goes on to state that,

[w]hereas in many countries a permit is required before any work on an archaeologically significant site can be undertaken, the onus in New Zealand is on the landowner to request authority to undertake earthworks that could modify or destroy an archaeological site. Even then, under the 2014 legislation, HNZPT is expected to consider the interests of property owners, as well as heritage and cultural values.

Applications are rarely refused. On average, 496 out of every 500 applications are successful. HNZPT senior legal adviser Geraldine Baumann says this number doesn’t tell the whole story. In the process of application, she says, the agency will discuss options with the iwi and the owner or developer in a bid to reduce the scope of any modification.
. . .
Ultimately, protection of historic places, in particular those “big picture” landscapes and wāhi tapu and wāhi tupuna areas, depends on the provisions of each district plan. Local authorities are expected to include a schedule of heritage buildings, archaeological sites and heritage precincts in their district plans, with appropriate rules for their protection, but here again there are limitations. Although the Resource Management Act recognises the importance of ancestral lands and the need to protect heritage from inappropriate use, these considerations do not give automatic right of veto when weighing up sustainably managed developments.
. . .
Even when historic sites are listed on district plans, there is the risk, says University of Otago archaeologist Richard Walter, that local authorities will look at the plan, see isolated sites, “then let people go ahead with their development activities”.[73]

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IV. Processes and Protocols on Discovery of Kōiwi Tangata/Human Remains

In 2014, HNZPT published guidance related to kōiwi tangata/human remains.[74] This document sets out the legislative framework, key agencies and responsibilities, the significance of kōiwi tangata/human remains in the New Zealand context, and guidelines for how to proceed in different circumstances, including guidelines for the general public, police, developers, consultant archeologists, the Department of Conservation, and tangata whenua. It also provides information regarding reinternment of remains of Māori origin, as well as setting out cultural considerations and other information. The guidelines

provide advice for a culturally responsible mechanism for the management of koiwi tangata/human remains that have been either uncovered through accidental discovery or deliberately excavated/exhumed in emergency response situations, or as a result of natural processes e.g. coastal erosion. In the majority of cases it will be found that these koiwi tangata/human remains are Maori in origin, so these Guidelines have a deliberate focus in that direction, and recognise the kaitiaki [guardian] role that Maori play in determining what happens in the management of the discovery of koiwi tangata/human remains.[75]

The guidelines state that “[m]ore than one Act may apply in discovery of koiwi tangata/human remains.”[76] As noted above, any person who finds a body, in whatever circumstances, is required to report the find to the police under the Coroners Act 2006. The police are then responsible for determining whether or not the site is a crime scene. The Burial and Cremation Act 1964 makes it an offense to remove any body without a license issued by the relevant Minister. This legislation is administered by the Ministry of Health, and Public Health Units will determine if a disinternment license is required.[77] The HNZPT guidelines state that, even when a disinternment license is not required, “it is good practice to contact the local Public Health Unit so that they are aware of the situation.”[78]  

As also noted above, HNZPT has regulatory powers with respect to archeological sites, and unless authority is granted, “no person may modify or destroy, or cause to be modified or destroyed, the whole or any part of that site if the person knows, or ought reasonably to have suspected, that the site is an archaeological site.”[79] HNZPT therefore advises that “in all circumstances involving the care and management of koiwi tangata/human remains, that the police, Heritage New Zealand, local public health unit, and tangata whenua are notified in the first instance.”[80] It emphasizes that

[t]he majority of cases of discovery of koiwi tangata/human remains are of tangata whenua derivation. It is essential, therefore, that hapu/iwi are contacted immediately following discoveries to ensure cultural protocol is adhered to and decisions for exhumation and reinterment are culturally appropriate.[81]

The HNZPT policy statement related to the administration of the archeological provisions in the HNZPT Act also contains a section specifically on kōiwi tangata that provides as follows:

Kōiwi tangata (human skeletal remains of any race) may be unexpectedly uncovered during earthworks, as a result of natural processes such as coastal erosion or as part of the archaeological authority process.

Unexpected finds of kōiwi tangata are most often of Māori origin (kōiwi tangata Māori). Kōiwi tangata are of special significance to all descendant groups and HNZPT will work closely with them to ensure appropriate processes are followed. The place of interment may also be significant and should be respected.

Other legislation which must also be considered when kōiwi tangata are uncovered includes the Coroners Act 2006, the Burial and Cremation Act 1964, the Protected Objects Act 1975 and Te Ture Whenua Māori Act 1993.[82]

The policies listed under the objective that “[k]ōiwi tangata are treated in a sensitive and culturally respectful manner” are as follows:

6.1    HNZPT recognises the need for urgency when kōiwi tangata are discovered.
6.2    HNZPT notifies iwi and hapū when discovery of kōiwi tangata Māori are reported.
6.3    HNZPT recognises the role iwi and hapū must have in decisions relating to the treatment of kōiwi tangata Māori.
6.4    HNZPT encourages iwi and hapū to consider protocols for when more than one burial or a urupā is identified.
6.5    HNZPT supports tikanga Māori protocols advised by iwi and hapū in all cases when kōiwi tangata Māori are identified.
6.6    Kōiwi tangata will not be held at any HNZPT office or property.
6.7    HNZPT will engage in processes relating to kōiwi tangata in accordance with the requirements of other relevant legislation.
6.8    HNZPT encourages dialogue with the Ministry for Culture and Heritage and iwi and hapū, prior to undertaking archaeological work to develop processes for the management of taonga tūturu when located with kōiwi tangata Māori.
6.9    HNZPT will work closely with applicants, landowners, iwi and hapū, to develop appropriate management processes when archaeological work may affect known kōiwi tangata as part of the archaeological authority process.[83]

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V. Protection of Taonga Tūturu/Cultural Artifacts

Under the Protected Objects Act 1975, “all taonga tūturu found are in the first instance (prima facie) Crown owned to allow claims for ownership to be heard by the Māori Land Court.”[84] The Act requires that

[e]very person who, after the commencement of this Act, finds any taonga tūturu anywhere in New Zealand or within the territorial waters of New Zealand shall, within 28 days of finding the taonga tūturu, notify either the chief executive [of the Ministry for Culture and Heritage] or the nearest public museum, which shall notify the chief executive, of the finding of the taonga tūturu:

provided that in the case of any taonga tūturu found during the course of any archaeological investigation authorised by Heritage New Zealand Pouhere Taonga under section 48 of the Heritage New Zealand Pouhere Taonga Act 2014, the notification shall be made within 28 days of the completion of the field work undertaken in connection with the investigation.[85]

Once notified, the chief executive must take appropriate action to provide for the examination, care, recording and custody of the item; notify any interested parties; and publish a public notice calling for claims of ownership to be lodged with the chief executive.[86] If only one claim is registered, and if the chief executive is satisfied that the claim is valid, the chief executive applies to the Registrar of the Maori Land Court for an order confirming ownership of the item.[87] If two or more claims are lodged, the chief executive must consult the claimants. If the competing claims are resolved, the chief executive can seek an order from the Court, but if they are unresolved the chief executive may, if requested by a claimant, “facilitate the applications of any or all of the claimants to the Maori Land Court.”[88] The legislation states that “ownership” includes collective or joint ownership.[89]

The Māori Land Court’s jurisdiction with respect to determining ownership of taonga tūturu is established in the Protected Objects Act 1975. It is able to make various orders with respect to an item, including vesting in any person as trustee any taonga tūturu for safekeeping and preservation, prohibiting any person from dealing with the item, and prohibiting any offering for sale or parting with possession of the item.[90] Other provisions in the Act related to taonga tūturu govern the sale and trade of such items.[91]

In addition to the provisions in the Act, taonga tūturu protocols may be entered into between the Crown and individual iwi as part of Treaty settlement redress. These relationship agreements may cover, for example, the administration of the Act, iwi engagement in policy and legislation reviews, registration of iwi as expert examiners and collectors of taonga tūturu, and the provision of cultural practices and professional services by iwi.[92]

The Ministry for Culture and Heritage has published detailed guidance on taonga tūturu, including the process for “newly found” items.[93] The Ministry also states that

[k]nown and suspected archaeological sites are protected by the Heritage New Zealand Pouhere Taonga Act and must not be deliberately disturbed in order to find taonga tūturu.  If taonga tūturu are partially exposed and not in any immediate danger, Heritage New Zealand Pouhere Taonga should be contacted right away and the taonga tūturu left in the site.

If the taonga tūturu is in danger of being lost or destroyed, carefully remove it from the site and notify the Ministry of the find and Heritage New Zealand Pouhere Taonga of the potential damage to the archaeological site.[94]

HNZPT’s policy statement regarding the administration of the HNZPT Act provisions on archeological sites includes policies regarding the recovery of archeological material and taonga tūturu. This includes that “HNZPT encourages archaeologists to work with the Ministry for Culture and Heritage, iwi and hapū, applicants, and landowners to develop appropriate processes, prior to and during analysis, for the storage of material uncovered as part of an archaeological authority.”[95] It also states that HNZPT works with the Ministry “to support the processes of the Protected Objects Act 1975.”[96]

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Prepared by Kelly Buchanan
Foreign Law Specialist
March 2019


[1] Heritage New Zealand Pouhere Taonga Act 2014 (HNZPT Act), http://www.legislation.govt.nz/act/public/ 2014/0026/latest/whole.html, archived at https://perma.cc/QR8X-3UK3.

[2] See Heritage New Zealand Pouhere Taonga Act – What’s New?, Heritage New Zealand Pouhere Taonga (HNZPT), http://www.heritage.org.nz/about-us/heritage-new-zealand-pouhere-taonga-act (last visited Jan. 24, 2019), archived at https://perma.cc/E9HW-KLUG.

[3] HNZPT Acts 4.

[4] See Taonga, Māori Dictionary, https://maoridictionary.co.nz/search?keywords=taonga (last visited Jan. 24, 2019), archived at https://perma.cc/ZP64-JE9A.

[5] HNZPT Act s 7.

[6] Id. ss 7(a) & 10. See Tikanga Maori, Te Taura Whiri i te Reo Māori, http://www.tetaurawhiri.govt.nz/maori-language/tikanga-maori/ (last visited Jan. 24, 2019), archived at https://perma.cc/LP36-K77Z.

[7] HNZPT Act ss 7(c) & (d), 27 & 28.

[8] Id. s 7(f).

[9] Id. s 13(1)(a).

[10] Id. s 39.

[11] See id. s 13(1)(f).

[12] Id. ss 85 & 86.

[13] Id. pt 4 subpt 1.

[14] Id. s 76.

[15] Id. ss 68 & 27(1)(f) & (g).

[16] Id. s 27(1)(a).

[18] Id. s 2.

[19] Id. s 2 & sch 4.

[20] See Protected Objects, Ministry for Culture and Heritage, https://mch.govt.nz/nz-identity-heritage/ protected-objects (last updated Sept. 11, 2018), archived at https://perma.cc/CH8M-SD5S.

[24] Id. s 8.

[25] See generally Plan Making, Ministry for the Environment,http://www.mfe.govt.nz/rma/processes-and-how-get-involved/plan-making (last visited Jan. 31, 2019), archived at https://perma.cc/D6XH-2MJ2.

[26] See generally Resource Consents, Ministry for the Environment,http://www.mfe.govt.nz/rma/processes-and-how-get-involved/resource-consents (last visited Jan. 31, 2019), archived at https://perma.cc/U68X-YRD6.

[27] RMA ss 187–189.

[28] Heritage Orders in District Plans, Ministry for the Environment,http://www.mfe.govt.nz/rma/rma-processes-and-how-get-involved/heritage-orders-district-plans (last updated Oct. 26, 2018), archived at https://perma.cc/L7ZT-KZGE.

[30] Id. s 2.

[32] Māori Land FAQs, Land Information New Zealand, https://www.linz.govt.nz/kb/849 (last updated Dec. 3, 2018), archived at https://perma.cc/M2TQ-LZYH.

[34] Id. s 338.

[35] Marine and Coastal Area (Takutai Moana) Act 2011 s 4, http://www.legislation.govt.nz/act/public/2011/ 0003/latest/whole.html, archived at https://perma.cc/NG5V-V4EL.

[36] Id. s 78–81. 

[37] Id. s 82.

[38] The Treaty in Brief, New Zealand History, https://nzhistory.govt.nz/politics/treaty/the-treaty-in-brief (last updated May 17, 2017), archived at https://perma.cc/U3LF-NAMD.

[39] See Kelly Buchanan, New Zealand’s National Day – Controversy and Celebration, In Custodia Legis (Feb. 7, 2011), https://blogs.loc.gov/law/2011/02/new-zealands-national-day/.

[40] See Kelly Buchanan, Indigenous Rights in New Zealand: Legislation, Litigation, and Protest, In Custodia Legis (Nov. 18, 2016), http://blogs.loc.gov/law/2016/11/indigenous-rights-in-new-zealand-legislation-litigation-and-protest/.

[41] See The Treaty in Practice: Slide To War, New Zealand History, https://nzhistory.govt.nz/politics/treaty/ the-treaty-in-practice/slide-to-war (last updated July 7, 2014), archived at https://perma.cc/2EVM-ZFFJ.

[42] See The Treaty in Practice: Obtaining Land, New Zealand History, https://nzhistory.govt.nz/politics/treaty/ the-treaty-in-practice/obtaining-land (last updated Jan. 13, 2016), archived at https://perma.cc/Y7AP-2A82.

[43] See The Treaty in Practice: Introduction, New Zealand History,https://nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/early-crown-policy (last updated Apr. 15, 2016), archived at https://perma.cc/7JLL-H8TK.

[44] See Janine Hayward, Story: Biculturalism, Te Ara – The Encyclopedia of New Zealand (June 20, 2012),https://teara.govt.nz/en/biculturalism, archived at https://perma.cc/P84X-MH23.

[45] See Mark Derby, Story: Māori–Pākehā Relations, Page 6. Maori Renaissance,Te Ara – The Encyclopedia of New Zealand (May 5, 2011), https://teara.govt.nz/en/maori-pakeha-relations/page-6, archived at https://perma. cc/68HF-Y42N; Richard S. Hill, Maori and the State: Crown-Maori Relations in New Zealand/ Aotearoa, 1950-2000, at 149–53 (2009), available at http://nzetc.victoria.ac.nz/tm/scholarly/tei-HilMaor-t1-body-d7-d1.html, archived at https://perma.cc/Q7ZJ-ALE5.

[46] See Basil Keane, Story: Ngā Rōpū Tautohetohe – Māori Protest Movements, Page 1. Historic Māori Protest, Te Ara – The Encyclopedia of New Zealand (June 20, 2012), https://teara.govt.nz/en/nga-ropu-tautohetohe-maori-protest-movements/page-1, archived at https://perma.cc/B65A-C8WM. Information about Māori protest movements and the increasing recognition of tikanga Māori in New Zealand law is contained in Kelly Buchanan, Legal Research Guide: Māori Customary Law (Law Library of Congress, July 2013), https://www.loc.gov/law/help/maori-customary-law.php.

[47] Māori Language Act 1987, http://www.legislation.govt.nz/act/public/1987/0176/latest/whole.html, archived at https://perma.cc/GA2G-J45S; Te Wiki o Te Reo Māori - Māori Language Week, Page 2History of the Māori Language, New Zealand History, https://nzhistory.govt.nz/culture/maori-language-week/history-of-the-maori-language (last updated Oct. 10, 2017), archived at https://perma.cc/8YQS-UC2Q.

[49] Waitangi Day Act 1975, http://www.legislation.govt.nz/act/public/1975/0114/latest/whole.html , archived at https://perma.cc/H8ZZ-DBN5; Homepage, Waitangi Tribunal,https://www.waitangitribunal.govt.nz/ (last updated Dec. 4, 2018), archived at https://perma.cc/YUR4-A4PF.

[50] History, Te Kōhanga Reo National Trust,https://www.kohanga.ac.nz/history/ (last visited Feb. 5, 2019), archived at https://perma.cc/TZ4N-TPDP.

[51] About Us, Te Arawhiti,https://tearawhiti.govt.nz/about-us/ (last visited Feb. 5, 2019), archived at https://perma.cc/Q43M-MRGM.

[52] Tepara Koti, Who Are Our Māori Members of Parliament Now,Māori Television(Sept. 24, 2017), https://www.maoritelevision.com/news/politics/who-are-our-maori-members-parliament-now, archived at https://perma.cc/C6Y2-8M3Q.

[53] Māori Representation, Electoral Commission,https://www.elections.org.nz/voting-system/maori-representation (last updated Aug. 14, 2018), archived at https://perma.cc/UCV2-U7TJ.

[54] See Settling Historical Treaty of Waitangi Claims, New Zealand Government, https://www.govt.nz/browse/ history-culture-and-heritage/treaty-of-waitangi-claims/settling-historical-treaty-of-waitangi-claims/ (last visited Feb. 5, 2019), archived at https://perma.cc/8ADM-QDZA.

[55] See Janine Hayward, Principles of the Treaty of Waitangi – Ngā Mātāpono o te Tiriti, Te Ara – The Encyclopedia of New Zealand (June 20, 2012), https://teara.govt.nz/en/principles-of-the-treaty-of-waitangi-nga-matapono-o-te-tiriti/print, archived at https://perma.cc/L3MC-JUEQ; Principles of the Treaty, Waitangi Tribunal, https://www.waitangitribunal.govt.nz/treaty-of-waitangi/principles-of-the-treaty/ (last updated Sept. 19, 2016), archived at https://perma.cc/8L9Q-MNBY.

[56] HNZPT, Tapuwae: Nā te Kaunihera Māori mō te Pouhere Taonga Māori; The Māori Heritage Council Statement on Māori Heritage (Jan. 2017), http://www.heritage.org.nz/resources/-/media/bfa29419db7 f42beaaeebc831193de67.ashx, archived at https://perma.cc/W9LA-FGRT.

[57] Id. at 10.

[58] Id. at 16. The role and powers of HNZPT with respect to archeological sites are contained in sections 42–59 of the HNZPT Act. See generally Archaeology, HNZPT, http://www.heritage.org.nz/protecting-heritage/ archaeology (last visited Jan. 31, 2019), archived at https://perma.cc/WP25-N3NA.

[59] HNZPT Act s 42.

[60] Id. s 6.

[61] Id. s 43.

[62] HNZPT, Statement of General Policy: The Administration of the Archeological Provisions Under the Heritage New Zealand Pouhere Taonga Act 2014 (Oct. 29, 2015), http://www.heritage.org.nz/resources/-/media/7b4f5a79a0be40d697e8bbfe4409bab8.ashx, archived at https://perma.cc/38C8-JMHH.

[63] Id. at 7.

[64] Id. at 7–8.

[65] Tapuwae, supra note 56, at 19.

[66] HNZPT Act s 74(2).

[67] Id. s 74(3) & (4).

[68] Id. s 75.

[69] Tapuwae, supra note 56,at 19.

[70] Id. at 20.

[71] Sally Blundell, What Ihumātao Reveals About NZ’s Protection of Māori Heritage Sites, New Zealand Listener (Jan. 26, 2019), available at https://www.noted.co.nz/currently/social-issues/ihumatao-maori-heritage-sites-nz-protection/, archived at https://perma.cc/U773-6RQ5.

[72] Id.

[73] Id.

[74] HNZPT, Archeological Guidelines Series: Koiwi Tangata/Human Remains (Aug. 25 2014), https://www.heritage.org.nz/~/-/media/a483bc2fdcf14f1aa67dd84e3e16b80d.ashx, archived at https://perma.cc/9Z3C-KUSR.

[75] Id. at 4.

[76] Id. at 8.

[77] Id. at 9.

[78] Id. at 6.

[79] HNZPT Act s 42; Koiwi Tangata/Human Remains, supra note 74, at 7.

[80] Koiwi Tangata/Human Remains, supra note 74, at 8.

[81] Id. at 9.

[82] Statement of General Policy: The Administration of the Archeological Provisions Under the Heritage New Zealand Pouhere Taonga Act 2014, supra note 62, at 12.

[83] Id.

[84] Taonga Tūturu, Ministry for Culture and Heritage, https://mch.govt.nz/nz-identity-heritage/protected-objects/taongatuturu (last updated Feb. 21, 2018), archived at https://perma.cc/QWL2-4TUM. See also Protected Objects Act 1975, s 11(1).

[85] Protected Objects Act 1975, s 11(3).

[86] Id. s 11(4).

[87] Id. s 11(5).

[88] Id. s 11(6) & (7).

[89] Id. s 11(8).

[90] Id. s 12.

[91] Id. ss 13–16.

[92] Taonga Tūturu Protocols, Ministry for Culture and Heritage, https://mch.govt.nz/nz-identity-heritage/taonga-tuturu-protocols (last updated Nov. 20, 2018), archived at https://perma.cc/Z3T6-AVAJ.

[93] Ministry for Culture and Heritage, Protected Objects Act 1975: Guidelines for Taonga Tūturu (last updated Dec. 20, 2010), https://mch.govt.nz/sites/default/files/Taonga Tuturu Guidelines Feb 2018 (D-0760408).PDF, archived at https://perma.cc/VU32-FPLM.

[94] Taonga Tūturu, supra note 84.

[95] Statement of General Policy: The Administration of the Archeological Provisions Under the Heritage New Zealand Pouhere Taonga Act 2014, supra note 62, at 13.

[96] Id.

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Last Updated: 12/30/2020