Protection of historic heritage is a factor for assessing the benefit of overseas investments in sensitive land under section 17(1)(d) of the Overseas Investment Amendment Act 2021.
Overseas Investment Amendment Act 2021, section 17(1)(d)
'Historic heritage' is broadly defined, and a range of measures may be adopted to protect it. Some examples are provided in the Act and discussed below, but applicants may also rely on other measures if they will have the effect of protecting the historic heritage.
Examples of how the investment could protect historic heritage include:
- agreement to execute a heritage covenant (or comply with existing covenants)
- agreement to support entry to wāhi tūpuna, wāhi tapu, or wāhi tapu areas on the New Zealand Heritage List/ Rārangi Kōrero
- taking other actions under the Heritage New Zealand Pouhere Taonga Act 2014 to recognise or protect heritage values
- agreement to land being set apart as a Māori reservation
Applicants should identify specific areas of historic heritage on the land, describe the proposed measures and explain how those measures will protect the historic heritage.
The measures must be:
- additional to any protections for historic heritage that already exist, or
- a continuation of existing protections only if those protections are likely to be lost without the investment.
Note that if the land includes a site of national significance, or if an application raises Treaty of Waitangi issues, a national interest assessment may be required.
Historic heritage refers to natural and physical resources that contribute to an understanding and appreciation of New Zealand’s history and cultures, deriving from archaeological, architectural, cultural, historic, scientific or technological qualities. It includes:
- historic sites, structures, places and areas
- archaeological sites
- sites of significance to Māori, including wāhi tapu
- surroundings associated with the natural and physical resources.
Historic heritage may be identified in a sensitive land certificate but will not be in every case. The definition of historic heritage is not limited to historic places or areas that are entered on the New Zealand Heritage List / Rārangi Kōrero or for which there is an application that is notified under section 67(4) or 68(4) of the Heritage New Zealand Pouhere Taonga Act (as in, a land sensitivity contained in tables 1 and 2 of Schedule 1 of the Act).
Identifying historic heritage
An applicant should obtain all available information about the relevant land and any historic heritage. This includes contacting the following entities (where appropriate) to identify any historic heritage within the relevant land:
- relevant local authorities to obtain a Land Information Memorandum and any other information they have in relation to the relevant land
- Heritage New Zealand Pouhere Taonga in relation to any registered places
- the New Zealand Archaeological Association in relation to archaeological sites
- local iwi for knowledge about any other historic heritage that may not have been identified or recorded, including wāhi tūpuna, wāhi tapu, and wāhi tapu areas
- the vendor.
Physical inspections or archaeological surveys are also tools that may be used to identify historic heritage on the relevant land.
Protecting historic heritage
Relevant protections include measures to preserve, maintain or restore areas of historic heritage so as to safeguard their historical and cultural values.
Generally, the benefit associated with enduring mechanisms such as heritage covenants are given greater weight than temporary measures.
A commitment to implement specific mechanisms will be given greater weight than an agreement to consult with a relevant entity or group.
Agreement to execute a heritage covenant or comply with existing covenants
A heritage covenant is an agreement between Heritage New Zealand Pouhere Taonga and a property owner for the purpose of protecting, conserving and maintaining a historic place, historic area, wāhi tapu, or wāhi tapu area (as defined in the Heritage New Zealand Pouhere Taonga Act). It places conditions on the management and use of the place or wāhi tapu.
Heritage New Zealand Pouhere Taonga Act
A heritage covenant is usually permanently registered against the land title, although it can have effect for a specified period by agreement. It protects the historic place or wāhi tapu and is legally binding on subsequent owners.
The terms of the covenant and its duration will affect the weight given to the benefit.
Agreement to comply with an existing heritage covenant can generally only be claimed as a benefit if the covenant is not being complied with by the current owner.
Agreement to support entry to wāhi tūpuna, wāhi tapu, or wāhi tapu areas on the New Zealand Heritage List / Rārangi Kōrero
Where the relevant land includes wāhi tūpuna, wāhi tapu, or wāhi tapu areas, a benefit may be established if the applicant agrees to support the inclusion of those areas on the New Zealand Heritage List / Rārangi Kōrero.
- Wāhi tapu means a place sacred to Māori in the traditional, spiritual, religious, ritual or mythological sense. A wāhi tapu area is 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.
- The New Zealand Heritage List / Rārangi Kōrero is maintained by Heritage New Zealand Pouhere Taonga and identifies significant and valued historical and cultural heritage places. It informs and notifies owners, the public, community organisations, government agencies and local authorities about significant heritage places, and is a source of information for the purposes of the Resource Management Act 1991. For more information see Heritage New Zealand.
Other actions under the Heritage New Zealand Pouhere Taonga Act to recognise or protect heritage values
Other actions under the Heritage New Zealand Pouhere Taonga Act may also provide a benefit under this factor. Examples include:
- supporting the declaration of an archaeological site on the land
- supporting the inclusion of a place of outstanding national heritage value on the National Historic Landmarks list.
Agreement to land being set apart as a Māori reservation
A Māori reservation can be established over Māori freehold or general land under Te Ture Whenua Māori Act 1993, on application to the Māori Land Court. It is possible to set only part of a block apart as a Māori reservation.
Reservations may be set aside over land that is culturally, spiritually or historically significant to Māori. This could include papakainga, marae, urupa, church sites, sports and recreation grounds, and wāhi tapu.
Māori reservations are held for the common benefit of an identified group, usually named as members of a hapū or several hapū. While land is set apart as a reservation it cannot be sold or otherwise alienated.
Consultation with Heritage New Zealand Pouhere Taonga or local iwi
Where the relevant land contains historic heritage (which can include sites of significance to Māori, including but not limited to wāhi tapu) and the applicant intends to develop the land or implement mechanisms to protect historic heritage, the applicant is encouraged to contact Heritage New Zealand Pouhere Taonga or the local iwi (as appropriate) before making an application to help identify the most appropriate protective mechanisms. Heritage New Zealand Pouhere Taonga should also be consulted if there is an archaeological site on the land.
Making a claim
To claim protection of historic heritage as a benefit, an applicant should provide the following information:
- Historic heritage: A description of the historic heritage on the relevant land.
- Current state: Details of any current measures in place to protect the historic heritage.
- Method: The measures the applicant intends to take to protect historic heritage and how they will be implemented.
- Benefit to New Zealand: The significance of the historic heritage to New Zealand and the benefits likely to flow from protecting it.
- Expenditure: The capital expenditure (if any) required.
- Timeframe: When the protection of the historic heritage is likely to occur.
- Uncertainties: Anything that may prevent the protection of the historic heritage (for example, consents or approvals).
Conditions of consent
An applicant’s claims under this factor are generally the subject of an associated condition of consent and post-consent monitoring by the Overseas Investment Office.
Where the Overseas Investment Office considers that this factor is relevant to an application, we may consult Heritage New Zealand Pouhere Taonga or another appropriate entity or group. The outcome of this consultation will be discussed with the applicant where relevant, including any potential conditions of consent.