Protected Objects Amendment Bill

Hon JUDITH TIZARD (Associate Minister for Arts, Culture and Heritage) Link to this

As I was saying when the Committee rose when we were debating this issue previously, I am deeply grateful for the support of the Opposition. I found the contribution of the Hon Georgina te Heuheu to be a useful bipartisan approach to legislation that has been before the House in a variety of forms for a long time. Indeed, this bipartisan approach was promised by the present National Party spokespeople on the arts at an Auckland forum. I am relieved that, finally, their undertaking appears to be taking form.

This legislation is designed to amend and strengthen our ability under the law we have, the Antiquities Act, to prevent illicit trade in cultural objects of significant international importance here in New Zealand. I was concerned to hear some of the Opposition speakers, particularly, talking about “shrunken heads”. That indicates a strange lack of knowledge of kōiwi tangata Māori, which has been a major piece of diplomatic and cultural work by some really sincere and deeply moved New Zealanders who feel that the keeping of New Zealand ancestors’ remains in museums or in private collections around the world is deeply offensive. I have to say that this work is resulting in a worldwide movement where human remains are being repatriated and treated with the respect they deserve. So if any members want briefings on this issue, I would be happy for the staff of Te Papa to offer these. International protection is the only way to oppose this unfortunate trade, and to oppose the trade much more broadly.

Jo Goodhew appeared to be demanding retrospective expropriation of property. Although I have some sympathy with things that are of New Zealand importance, I am not in favour of that. I hope this legislation will require a new process for people who have title to property now whereby proper consideration is given on matters of New Zealand importance.

The MP Chris Finlayson referred to new sections 10B and 10C regarding the return of unlawfully exported protected foreign objects and the payment of compensation to the owners of such objects. He asked what standard of proof would be required. I think we all agree that this is basically a civil matter rather than a criminal one, so that the balance of probability standard would be in use rather than “beyond all reasonable doubt”. So I do not know whether Mr Finlayson wants to take that any further.

I would like to commend the bill to the Committee. I think we have a range of challenges before us now. Steve Chadwick talked about Hinemihi pare. It is a difficult issue when valuable and important New Zealand artefacts have been exported, legally or illegally in the past—in this case legally, as far as we know—

Hon TAU HENARE (National) Link to this

Kia ora, Mr Chairman. I want to clear up a few things that may not have been clear from the last time I spoke. I used the colloquialism “shrunken heads”. That is how people used to refer to them. I am not referring to the Labour members, I am referring to what used to be called the trade in shrunken heads. I am quite chuffed that the Protected Objects Amendment Bill is before the House because back around 1998, I travelled overseas to retrieve moko mōkai—our ancestors, so to speak—and brought them back here. As a lot of people have said in the House, if we had had something like this legislation 100 years ago, it would have been wonderful.

I also want to raise two other issues. One issue is those taonga that are in museums at the moment that were taken from urupā in the last 100 years. I refer to one specifically where there is some dispute, which is the Fraser collection. Fraser was a very interesting person up in the Whangarei area and just so happened to “find” all of these artefacts. Now they are called the Fraser collection and they are in the Auckland Museum, and I want to ask the Minister how this bill protects those artefacts.

I am absolutely overawed by the fact that now we have legislation that states that people cannot go around willy-nilly finding things and sticking them in their back pockets, and then hocking them off overseas and so on. That is good. I remember that when we were talking last week, the issue of Nazi memorabilia came up from Ron Mark. I concur with him that a lot of our soldiers came back from the Second World War with the spoils of war. Some of those spoils of war were actually what we would term now “Nazi memorabilia”; is that catered for in this bill? Also there are those spoils of war from the Korean War. I had an uncle in the Korean War and I have seen some of his stuff that he brought back. I want to know whether the bill takes care of that.

But all in all, I think this bill is a wonderful start. Maybe at a later date, when we have had time to digest and when this bill has gone through its process, we can come back and revisit some of the clauses and some of the issues that have been raised—not straightaway, but in the very near future. So I wonder whether the Minister could give us a lead on those two issues that I have raised.

SHANE JONES (Labour) Link to this

Kia ora anō tātou. Tā te mea ko te wā tēnei mō te reo Māori e tika ana kia whakatairangatia te reo Māori, māku e kōrero i te reo Māori ki a tātou e whiriwhiri ana i tēnei pire. Ērangi rawa ko ngā wāhanga e pā ana ki ngā mana tunga e kīa nei, ko ngā taonga tuku iho.

I te tuatahi, tautoko ana au i ngā whakapae me ngā āwangawanga, ērangi rawa, ko ngā māharahara a taku whanaunga a Tau Henare, ki te kitea he taonga me pēhea rānei te hapū, te iwi rānei nō rātou tērā taonga e hari i tā rātou take kia whakapūmautia ai kei a wai rānei te mana mō tērā taonga, e hari ana au ka kite au i roto i te pire nei, kua riro mā te Kōti Whenua Māori e whakatau, ā, ka āhei tātou te iwi Māori ki te haere atu ki te aroaro o te Kōti Whenua Māori, tā te mea taunga ana tātou ki ngā whakahaerenga me ngā ritenga o tērā kōti.

Te take e toe ana hei kōrerotanga māku, ki te kitea he tāonga i tāwāhi, i hea kē rānei kei raro i te ture nei e kī ana, kei te Karauna anō te mana mō ngā taonga pēnei. Pēnā e tika ana tērā kōrero me tino awhi te Karauna i ngā mātāpono o te Tiriti kia noho mārama ai te iwi, te hapū, ēnei tāonga hākoa kei raro i te taitara o te Karauna mō te wā poto, ko te mauri o ngā taonga rā kei roto i te iwi, i te hapū rānei nō rātou wērā taonga i te tuatahi. Kia ora tātou katoa.

SANDRA GOUDIE (National—Coromandel) Link to this

I am happy and very pleased to rise in support of the Protected Objects Amendment Bill, but in saying that, I raise a small concern to the Minister in the chair, Judith Tizard, and perhaps she will be able to give me an explanation. I am somewhat at a loss to understand some definitions in clause 6, the interpretation clause, in Part 1. Subclause (3) amends section 2 of the principal Act by omitting from the definition of “collector” the word “artifacts” and substituting the words “taonga tūturu”. I wonder why someone would do that when the principal Act states: “ ‘Collector’ means any person or body (whether incorporated or unincorporated), other than a licensed auctioneer, a licensed secondhand dealer, or a public museum, possessing one or more artifacts:”. I would have thought that the words “protected object” would be a more general or more appropriate term than just “taonga tūturu”. I wonder whether the Minister could take a call, or get some advice from her officials, and explain which one is the more appropriate term. That might help to clarify matters for me. I just thought that people may want to refer to protected objects in general, rather than just taonga tūturu.

Clause 6(3) further amends section 2 of the principal Act by omitting from the definition “found” the word “artifact” in each place where it appears, and substituting in each case the words “taonga tūturu”. I wonder again when the principal Act states “found” and the explanation is “in relation to any artifact”, and as “artifact” is changed to “taonga tūturu”, then one is saying “in relation to any taonga tūturu” instead of protected object. The definition of “found” in section 2 of the principal Act goes on to state: “means discovered or obtained in circumstances which do not indicate with reasonable certainty”, etc. Certainly, the term “taonga tūturu” is not inappropriate and it does not incorporate the general term “protected object”. I wonder whether that is an oversight or whether it is something I do not understand.

Clause 6(3) further amends section 2 by omitting from the definition “replica of an artifact” the words “an artifact”, and substituting the words “a taonga tūturu;”—yet again. So one could have replicas of other artefacts that are not necessarily taonga tūturu. I wonder whether the words “protected objects” might have been appropriate in that context as well.

My concerns are about changes to the definitions and the way in which they are being used to amend the principal Act by referring to “taonga tūturu” and not the general term “protected objects”, and whether, in fact, “protected objects” should be a part of that as well. I ask the Minister to please give us an explanation, certainly in discussion of Part 1, and clarify that matter, so that we know whether “protected objects” should be a part of the definition of “collector” in the principal Act rather than just “taonga tūturu”. The same goes for the definition of “found” where the term “artifact” is changed to “taonga tūturu” and not the words “protected objects”. I wonder whether the Minister can give us an explanation. I note the officials are looking at that. I would be happy to rescind part of my—

DIANNE YATES (Labour) Link to this

I move, That the question be now put.

Hon TAU HENARE (National) Link to this

I want to raise briefly with the Minister in the chair, Judith Tizard, something about the return of moko mōkai. The reason why they were brought home was to return them to the rightful people so they could be back with their whānau. To this day, I think, they still languish in Te Papa, and there is no mention of a regime whereby they are brought home and the rightful owners found. So I thought I would take a moment just to ask the Minister whether in future there would be some sort of working party that would try to figure out what we should do with the repatriated remains.

I have thought of one more issue and that is to do with our soldiers buried overseas. Not a day goes by without there being a request from whānau from somewhere throughout the country asking whether they can bring home uncle so and so, who may be buried in a Commonwealth grave overseas. I am not sure about this Government, but it has always been an issue—

TIM BARNETT (Labour—Christchurch Central) Link to this

I move, That the question be now put.

Hon GEORGINA TE HEUHEU (National) Link to this

I want to talk about ngā taonga tūturu and the role of the Māori Land Court in establishing ownership and custody of artefacts. One of the first questions I want to ask—and I had a discussion with one of my Māori colleagues from the other side of the House—is about the use of the term “taonga tūturu”. Although I can absolutely appreciate that term, I wondered whether any thought had been given to the use of the phrase “ngā taonga tuku iho”. On the one hand, some might say that “taonga tūturu” imports the same meaning, but because it is “taonga tūruru” and the other one is “taonga tuku iho”, there is a difference.

Taonga tuku iho has the sense of the obligation to pass things down to succeeding generations. I know that that is certainly one of the underlying sentiments that can be gleaned from the bill, but I wondered whether the Minister in the chair, Judith Tizard, might like to take a call and indicate whether the use of “ngā taonga tuku iho” was considered and how it was that “ngā taonga tūturu” is the sentiment that is expressed. I am sure other Māori members who are far more fluent than I am might have a contribution on this particular issue, and I think their contribution, if they feel so minded to make one, would be interesting.

Ngā tūturu, of course, is about the essence of something. That in itself is very, very important. So I certainly support the change from “artefact” to “ngā taonga tūturu”. But I would have thought that maybe “ngā taonga tuku iho” gave that important component of the obligation of current generations to make sure that taonga pass on to succeeding generations. If that indeed is the sentiment that is in the bill—and I am sure the Minister will say it is there, anyway—then we understand very, very clearly why this bill is so important, because if we do not take steps to make sure that these taonga, these treasures, are properly looked after and cared for and that they remain here in Aotearoa, then current generations are failing in their obligation to make sure that they are passed on to our successors. So that is an issue around the definition.

Then there is the issue of the role of the Māori Land Court in determining ownership. Before I come to that, I want to say to the Minister that it is very proper that Māori phraseology has been inserted into the bill, especially in these times when we as New Zealanders are all so much more aware of the need to protect our treasures and of the importance of protecting taonga Māori, Māori treasures. These things belong to all of us as New Zealanders and they help to underpin our identity and our feeling of nationhood, one with the other.

Coming to the role of the Māori Land Court—and I was not on the select committee—I note that one submitter noted that section 11 of the principal Act provides for the Māori Land Court to take an active role in the authentication of artefacts found since 1976. Apparently, a suggestion was made that museums already perform the role that the Act reserves to the Māori Land Court, but the response to that was that the role played by museums is different. Determination of ownership, of course, is the preserve of the Māori Land Court—that is, ownership in a customary sense. So it does make sense for the role of the Māori Land Court to be confirmed, and it does make sense for museums to do the work they do, which is to record details relating to newly found artefacts and authenticate them. That is a proper role for museums—that is their role. It is good, as well as different to the role of ownership of artefacts, and it is proper that the Māori Land Court does that.

I have to say—and I am not sure whether any thought was given to this; maybe the Minister might also think it is worth making a comment on—that these days so much more work is being given to the Māori Land Court. Although provision has apparently been made for the appointment of more judges, will proper provision be made for appropriate resourcing for the Māori Land Court to do all of the work it has traditionally done and also, should there be an increase in activity in this area—and there may well be—for it to take upon itself such activity? Has thinking been given to the fact that resourcing is all-important to all our courts, not least of which is the Māori Land Court, to make sure that they can perform their role properly? Otherwise, of course, giving more responsibility to a court without proper resourcing is just a waste of time. If we are serious about authentication and making sure that ownership is established properly, then I would like to think that the officials and those who were responsible for putting this bill together have thought about that.

Coming back to the general thrust of the part, I say that it is very important and proper, and we in National are very pleased to see it. I am very pleased, as a Māori, that we as a nation now see the importance of incorporating some of these descriptions in a way that gives proper recognition to the fact that they are part of tikanga Māori and that it is proper to use the terms that more appropriately capture the essence of these treasures—these things—that are important.

I just want to refer briefly to the pare, the carved piece, that comes from the meeting house Hinemihi in Te Arawa—I am Te Arawa as well as Tūwharetoa. Although that meeting house found its way legitimately—I guess—overseas and probably does not fall into the category being dealt with here, the fact that that pare, the carved piece above the doorway of that revered meeting house, is now on sale internationally at figures of $1.9 million to $2 million again underpins, I think, just how important this bill is and how important taonga tūturu are. In fact tūturu, I suppose, very well encompasses the symbolic component of Hinemihi. That is a taonga—that meeting house, not to mention the pare above the doorway. If we are talking about tūturu, that should be here in New Zealand. That is tūturu. That object—that meeting house—is home on the land where it belongs. That is the meaning of tūturu as well.

So, as I say, if we had known to do these things earlier we might have, but it is not a minute too soon that this Committee gets a chance to debate these matters. As I say, I am looking forward to hearing from one or two of the other Māori members—in addition to my colleague Tau Henare, who is raring to go again, and that is great—who might have a chance to say something as well.

Hon TAU HENARE (National) Link to this

I too want to broach the subject of ngā taonga tūturu. Clause 15(1) states: “The heading to section 11 is amended by omitting the word ‘artifacts’, and substituting the words ‘ngā taonga tūturu’.” Does that mean that the word “artifacts” goes completely? If it does, I am not that happy about it, because I believe that one should have both. “Artifacts” means exactly what it means; it is an artefact. But I think we would be better off leaving both of the words in there so it is quite clear, rather than to say that “ngā taonga tūturu” is a translation of “artifacts”—because that is what it means to remove the word “artifacts” and put in the words “ngā taonga tūturu”. I am not a fan of removing one and replacing it with the other. I think there is every reason to actually have both Māori and English in the provision, rather than trying to translate and interpret what one Māori concept is as opposed to an English concept; one has them both there so there will not be any hassle down the road. So if the Minister in the chair, Judith Tizard, could enlighten the Committee that would be a miracle.

Hon JUDITH TIZARD (Associate Minister for Arts, Culture and Heritage) Link to this

Part 2, “Ngā taonga tūturu ownership and Maori Land Court”, is a relatively small part of this legislation. I appreciated, as always, the useful and searching questions from the Hon Georgina te Heuheu. She asked whether the definition of “ngā taonga tuku iho” had been considered. My understanding is that we have had a great deal of consultation on this legislation and the alternative was not put forward. What we are doing here is trying to determine the ownership of found artefacts, not of heirlooms or owned property. That issue would have to go to a court. But I have to say that I have had a number of questions from Māori constituents concerned, for example, about a situation whereby a family member who has custodianship—kaitiakitanga—of ngā taonga tuku iho, has, for example, changed religions and destroyed them. I am very pleased to see that under this legislation it will be an offence to destroy artefacts, but I think it is very much a family and legal issue and is not one for the Crown to deal with in terms of found objects.

The member’s second question was around the resourcing of the Māori Land Court. Sadly that is not dealt with in this legislation, but if at any stage I had any information I would keep an eye on it. Where I felt that the Māori Land Court was being overwhelmed with this work, I would certainly make urgent representations to the Minister with responsibility for resourcing courts.

Tau Henare asked about the issue of artefacts. Again, it was an issue where there was a significant amount of consultation. A Māori reference group was established to advise on this amendment and others around the bill. There were no submissions to the select committee on the inclusion of artefact. Although I hate to stray into earlier parts that we have covered, if the member looked at those definitions he would find that the definition is quite wide. This terminology was proposed by the reference group and has gone through the select committee process, and I am very satisfied with that.

The other question raised by Tau Henare related to the issue of how the land court would operate. As I understand it the Registrar of the Māori Land Court will make ownership determinations to avoid going through the full court process where all parties agree on ownership. My observation is that although I know there was some issue around the assertion in the legislation that the Crown would retain ownership until ownership had been debated, that is a device, and increasingly museums—particularly Te Papa, but all museums around New Zealand—are taking the role not of owners but of caretakers orkaitiaki.

I think we are seeing, with the kōiwi repatriation, and the repatriation of human remains to other countries including Australia, that museums around the world are increasingly respecting artefacts, particularly human remains, for their cultural and personal importance to the descendants of the people. Sometimes it is not possible for Te Papa to establish where kōiwi have come from. They may have been taken into collections overseas and sometimes bought and sold, and when they are returned it is not always possible to know where they have come from, but there is a group advising Te Papa and if any member of Parliament or of the public wanted more information about that, I would be very happy to provide it. I know that Te Papa is trying not only to be very open but also to acknowledge that these are the remains of ancestors of New Zealanders and must be treated as such, not as artefacts, or, in the words of Tau Henare, as shrunken heads.

I thank members again for their, I am sure, sincere appreciation. But in relation to DNA tests, I think of an expression that I received from my Scottish ancestors, which is that it is a wise man who knows his father. I leave that with the Committee.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Kia ora e te Heamana, kia ora tātou te Komiti. Ehara i te mea ki a mātou o te Pāti Māori ngā kōrero katoa. Kei te Kāwanatanga te mana mō ngā taonga tūturu nei. I hangaia te Kāwanatanga i tētahi atu rōpū Māori, arā, ko te Kaunihera Māori o Aotearoa. He aha te take e kore rātou e whakaae kia tuku tēnei mana ki te kaunihera?

He take anō, e tautoko ana a au i te kōrero a Tau Henare. E rerekē ana te taonga tūturu ki ngā taonga a tauiwi. Ngā taonga tūturu, ngā taonga i tuku iho mai i te ao Māori. Ko ngā taonga a tauiwi nā rātou anō te mana. E kohikohi i ngā taonga rere kē nei ki roto i te pouaka kotahi. Tuku atu ngā taonga a tauiwi ki ngā kōti a tauiwi, tuku atu ngā taonga tūturu ki te Kōti Whenua Māori.

Hei kōrero whakatika, e hē ana te kōrero a Tau Henare mō te hokinga mai o ngā kōiwi. E rerekē atu tērā kaupapa ki ngā tikanga o tēnei pire. E tautoko ana mātou hoki i te kaupapa mā te Kōti Whenua Māori te mana tirohanga ki te ngā tāonga tūturu nei, me te tautoko anō hoki i te īnoi a Georgina te Heuheu kia tuku pūtea atu ki te Kōti Whenua Māori hei kawe tika i taua mahi. Kia ora tātou katoa.

SANDRA GOUDIE (National—Coromandel) Link to this

Actually, I thought we were on Part 3, but if we are on the title then that is fine. The title Protected Objects Amendment Bill is, I would suggest, a bit of a misnomer, because the bill is really more about taonga tūturu as opposed to protected objects. I challenge the Minister in the chair, Judith Tizard, to take a call and answer the question of how people are going to know, when they find taonga tūturu, that they will be subject to a fine of $10,000 to $20,000 if they do not identify those objects to the appropriate authority. What sort of education will be provided to the public about their responsibilities in regard to taonga tūturu?

I put it to the Minister that I doubt whether any consideration has been given to any sort of public awareness campaign so that the public—and landowners—will know that they now have some responsibilities following the discovery of taonga tūturu. Nothing has been talked about in terms of how the Government is going to educate the public so that people will know, if they find any of these protected objects—which are taonga tūturu—they will be fined $10,000 to $20,000 if they do not then front up to the proper authority and declare those objects. I put it to the Minister that barely a landowner in this country knows that he or she will have those sorts of responsibilities and will be subject to that sort of a fine. Perhaps, this time, the Minister may like to take a call and explain to me what the Government is going to do in terms of a publicity campaign in that regard. In the principal Act, the fine was absolutely miniscule. It has gone up from something like $500 to $10,000 to $20,000, which is absolutely extraordinary. That is a huge leap and a huge onus of cost on people who, in all innocence, are unaware of the provisions of this legislation. They can be pinged by people who will not give them any due consideration and will find them guilty, regardless of their absolute innocence and unawareness, or lack of knowledge, of this situation.

If one finds any taonga tūturu, that is OK; one has to go and notify the general authority. But if one finds a protected object or a European artefact—if one could call it an artefact, because the word “artifact” is used in the bill only in relation to Māori objects—nobody cares. It is a case of finders keepers—people can destroy the object or do whatever they like with it. But if the object happens to be a taonga tūturu, well, hey, one has to go and notify the appropriate authority or one could be fined $10,000 to $20,000. Yes, if it is a Māori taonga tūturu, if it belongs to Māori, then there is that fine to make sure that the finder does what he or she is told to do: go and see the appropriate authority, or lose $10,000 to $20,000. But, hey, if the object is a European artefact, it does not matter. That is a situation of finders keepers. The finder may burn a European artefact or throw it away; it does not matter.

That is one of the concerns that I have about this bill. It throws out the principle of finders keepers in terms of taonga tūturu, but we still have finders keepers in terms of anything that is a European object or is not classed as taonga tūturu according to the definition in this bill. That concerns me, and it concerns me particularly when such a massive fine is being imposed on unsuspecting landowners who may actually happen to find a taonga tūturu that will now come under the definition of an artefact in the context of this new legislation. Although we are happy to support the protection of taonga tūturu and protected objects, we just wonder how far this bill goes. We wonder what the Minister intends to do about educating the public, and about the potential for massive fines for any landowner in this country—fines landowners can ill afford—who may actually happen to find one of those objects. I do not believe anybody in this country, other than those of us in Parliament, is aware of the significance of this legislation.

I would just like to reacquaint the Committee with the matter that I brought to the Minister before, in relation to the term “artifact” now being changed to “taonga tūturu”. On looking at the definitions in the principal Act, one sees that those definitions are now to be changed. Instead of the definition of “artifact”, we will now have only the words “taonga tūturu” and not the words “protected New Zealand object”. That quite clearly shows that only taonga tūturu, which are Māori protected objects and not New Zealand protected objects, are protected in this instance. In the context of the bill, protected New Zealand objects in the wider sense do not seem to matter as much as taonga tūturu. The elevation of Māori taonga tūturu is huge in comparison with other protected objects.

Hon JUDITH TIZARD (Associate Minister for Arts, Culture and Heritage) Link to this

I really wish honourable members would read the bill that is before the Committee. This legislation will become known as the Protected Objects Amendment Act 2006. It covers protected New Zealand objects, which are defined in clause 6—as we have already debated—as “… part of the movable cultural heritage of New Zealand that—(a) 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; …”. It also includes stolen protected foreign objects. As the previous speaker mentioned, taonga tūturu are a new introduction.

The point of the bill we are in the process of passing, which has been considered in great detail over many years by the House, is that we are recognising a range of protected objects—Pākehā, Māori, introduced foreign objects—and we will have to set out to explain to New Zealanders this reasonably modest change to the law. The Government has set aside $185,000 in the 2005-06 Budget for implementation, of which $100,000 is one-off funding for initial implementation costs, with an additional $85,000 appropriated for out-years on an ongoing basis to cover the expected increased administration costs of the Protected Objects Act. The extra $100,000 in the first year is to be spent developing a communications strategy with information reprints, publicity, and website development; training New Zealand Customs Service staff about the new regulations and establishing a national register of protected objects; and identifying and engaging expert examiners.

We recognise that this measure is slightly new, but I have to say that most New Zealanders take a very responsible attitude when they find objects that are obviously of value. Most people take them to their local museum. That is a very good thing for people to do and they should continue to do that, because that is the place where most New Zealanders—who do not have a venal view of our collected heritage, regardless of whether it is Māori or Pākehā—go to view those objects.

The legislation also means that New Zealanders and foreigners will not be able to collect up New Zealand objects and export them. This is an exciting new development. As my friend and colleague Harry Duynhoven has pointed out, this will mean, for example, that vintage tractors and vintage sports cars will not be able to be exported in the rather casual way they have been. They are important parts of New Zealand’s technological heritage.

I am very satisfied with the bill, and I look forward to working with members across the Chamber to make sure that people across New Zealand have good information about this exciting legislation. The bill, of course, is also joining New Zealand up to two major international covenants, which will mean that when New Zealand cultural objects are exported illegally, we can have them returned to New Zealand. That is a very exciting thing. It means that we also have similar obligations to other countries.

TIM GROSER (National) Link to this

I am not going to go into the detail, although just on that last point I think the Minister might want to refresh her memory on the definitions of “substantially physically authentic”; I think it might be a little bit different in terms of vintage cars. But, as we are looking at the title, I want to just step back and look at the broader purposes of the legislation. I will not try to go through like a school-ma’m, marking people for their speeches, but I thought that the debate we had when we first went into Committee on this bill was quite interesting, especially to me as a new member of the Parliament. In this rather strange dialectical process on which this is modelled, from time to time one can feel the House come together quite genuinely, I think—not just in a formalistic sense. I had a strong sense of that when we were first in Committee on this bill, and I thought that was noteworthy. We listened to one member tell us, with a degree of justifiable emotion, I thought, about her community’s attempt to get back a treasured taonga for the community—unfortunately unsuccessfully. I think that is the sort of issue we are dealing with.

I agree with the Minister that the bill is related in its broader purpose to New Zealand’s national identity. I have always felt that this country—the last place suitable for human habitation on a large scale in the world, and that was inhabited by human beings—must be considered, above all other countries, as a work in progress. I just have a feeling that the kind of coming together we had in the Chamber on this debate on the last occasion we were in Committee on the bill probably would not have happened 15 years ago. There is a growing consensus about this issue, of which this is merely one part—but, I think, an important part—and it struck me very much at the time.

The National Party is very happy to support the bill. We support the objectives, although, as members will have heard, some of us have questions in our minds about certain definitions. Sensible compromises generally have been struck over some issues that are not necessarily straightforward, such as the definition of “comparable examples” dealt with in clause 6, and the matter I referred to earlier about “substantially physically authentic” in new section 7A of new Part 1 inserted by clause 9.

Although the bill may not be perfect—because some of those definitional boundaries, I guess, are always a little bit hard to draw—we think it is a good one. We think it will do the business. It will bring the terminology up to date with recent legislation and will put in place appropriate penalties for serious breaches. I hope some common sense will be applied by those responsible for that process in the future. It does, indeed, provide a proper process for the registration of protected objects. Some of us have had time to look at the detailed provision on the role of experts and the very important exemption they have from any legal liability for giving their best-endeavours assessment of the historical significance of a contested, protected object. I think there is some reasonable, sound stuff in the bill, which serves the country well.

I am also pleased that the legislation is applicable to foreign protected objects. I have not yet, because of clash of opportunity, been to see the Constable collection—

Hon GEORGINA TE HEUHEU (National) Link to this

I am very pleased to take a call on the title and commencement. I hope a number of New Zealanders are listening to this debate—this might be one debate they are interested in. I know from comments I get from outside, in real New Zealand land, that in terms of a lot of the debates that go on in here, a lot of our fellow citizens have no idea, some of the time, what we are going on about. But I think each and every New Zealander has a stake in the Protected Objects Amendment Bill. The things we seek to protect and to forbid the illegal export of, and the penalties we make sure we have for people who deal with our things of value in ways that are not amenable to the protection of our heritage, are, I am sure, of importance to each and every New Zealander. It might be, for a change, that those listening will appreciate what we are doing this evening.

The bill will become the Protected Objects Amendment Act, which will replace the Antiquities Act 1975. I guess, when we think about it, the word “antiquities” is in itself a bit of an antiquity. As long as we have made sure that nothing that was protected in the original Act has been left out by our changes in the current bill, then, hopefully, we will do ourselves, as New Zealanders, and our fellow countrymen and women, a favour. So it will be good when this legislation finally comes into force.

As I have already said, I commend the Government for bringing this bill forward. Our heritage, culture, identity, and sense of nationhood are all tied into the underlying principles of this legislation. I made the comment in an earlier speech that in a time of globalisation, when we are all suddenly becoming as one—but, thank goodness, we are not—those things that we consider unique to ourselves as New Zealanders become all the more important, and it becomes all the more important that we take proper steps to protect them.

I look at schedule 4. The Minister in the chair, Judith Tizard, made some mention of it in giving some level of comfort to my colleague Sandra Goudie, who expressed concerns. I may not get this right, but she seemed to think that all things Māori were protected, and she asked about all things other. As a person who descends from both heritages—my mother’s father was English—I feel proud and privileged to be the inheritor not only of the Māori tradition but also the great tradition of the British. Some people may think, since most of my speeches to this bill have concerned Māori custom and taonga Māori, that I am worried only about taonga Māori, but that is not the case. I was at the opening of the Constable exhibition, as well. It is such a splendid exhibition. I urge those colleagues who are able to go and see it during the time it is at Te Papa to do so. I consider that exhibition to be part of my heritage and my culture vis-à-vis the good fortune of having had a Pākehā—English—grandfather. If that collection belonged to us, I would be as equally concerned that it be protected under this bill as I would be about any of the taonga Māori that I am also fortunate to be a part of through my Māori heritage.

Schedule 4, “Categories of protected New Zealand objects”, refers to archaeological, ethnographic, and historical objects of non - New Zealand origin that relate to New Zealand, and to art objects, including fine, decorative, and popular art. Those are all included and protected in this legislation. I say that just so that my colleague Sandra Goudie feels a measure of comfort. The schedule also refers to documentary heritage objects and ngā taonga tūturu, which latter have been the subject of a lot of the discussion tonight.

CHRISTOPHER FINLAYSON (National) Link to this

I do not want to disagree with other honourable members, especially with my learned friend who has just spoken and for whom I have enormous respect and affection, but I thought that the Constable exhibition was pretty boring and chocolate boxy myself. But there we are; I have to admit I am a philistine.

As Mr Groser has said, National supports this bill. It amends and improves the Antiquities Act, which provides for a system of domestic control over only the export of cultural heritage objects, but, as the Minister has indicated, does not provide the means to recover objects that have been illegally exported. That is why, as Mr Groser said, the Unesco convention provides specific structures for international cooperation in the cross-border recovery of items that are significant in terms of New Zealand’s cultural heritage. That is also why the International Institute for the Unification of Private Law (UNIDROIT) convention complements the Unesco convention and allows for a person to sue in a foreign court for the return of stolen cultural objects.

This is a very interesting issue, which I am pleased the New Zealand legislature has finally addressed. In previous speeches I have referred honourable members to decisions of the English Court of Appeal and the House of Lords in a very interesting case called Attorney-General for New Zealand v . In that case, the then Attorney-General—I think it was Jim McLay—sought possession of a Māori carving and an order for delivery up of that carving. It had been sold to an Englishman and was found to be for sale in London.

But the Court of Appeal in England held that forfeiture to the Crown under the relevant section of the New Zealand Historic Articles Act, which was the precursor of the Antiquities Act 1975, was not automatic, and the act had not happened here. Secondly, the English Court of Appeal stated that the section was, in any event, unenforceable in England. The House of Lords stated that no seizure had taken place by the New Zealand Customs Service or the New Zealand Police and, therefore, the Crown was neither the owner of the object nor entitled to possession of the article in question—although the House of Lords declined to embark upon the difficult discussion of whether the Historic Articles Act was a public law that could not be enforced in England because it was an Act done in the exercise of sovereign authority that would not be enforced outside New Zealand.

It was interesting to observe that almost 30 years ago Lord Denning, in the English Court of Appeal, concluded his judgment by stating: “The retrieval of such works of art must be achieved by diplomatic means. Best of all, there should be an international convention on the matter, where individual countries can agree and pass the necessary legislation. It is a matter of such importance that I hope steps can be taken to this end.”

Actually, Lord Denning’s comments on the issue were themselves the subject of comment by the former President of the New Zealand Court of Appeal in the famous “Spycatcher” case, which was heard in New Zealand in early 1988, and I must say that I have always preferred Sir Robin Cooke’s approach. In that case, Sir Robin stated that the MI6 agent Mr Peter Wright owed allegiance to the Crown in right of the United Kingdom, that New Zealand has the same sovereign as the United Kingdom, and that the Queen’s courts should protect their interests wherever they originate. If that approach to the law had been taken, then that would have been very welcome in this area, especially as between England, Australia, Canada, and New Zealand. But, unfortunately, that is not the way that New Zealand law—and English law—has developed. Hence we have the need for international conventions, incorporating not only Commonwealth countries but other countries, as well. So that is the rationale behind why we have needed an international convention—because otherwise international law would get in the way.

My concluding comments deal with clause 2 of the bill, which deals with the commencement provisions. Subclause (1) provides: “Section 13 comes into force on a date appointed by the Governor-General by Order in Council.” Of course, that is the part that implements the two international conventions. The rest of the legislation comes into force on a specified date. We have just heard from the Minister that that date will be in November, although we do not know when the Order in Council will be signed by the Governor-General.

Members should note also that the new regime has no retrospective effect—and that point was made by Mr Mark the other night. It takes effect only from the date appointed by the Governor-General. Presumably that is the way it will also be enacted in reciprocating States, which means that many valuable objects are already lost to New Zealand and will not be recovered. But from what I can see—and I am sure that the Minister will agree with this—there is no way around that problem. One can only hope that this legislation and the structure it implements will in the future prevent a repeat of the very unfortunate facts that gave rise to the Ortiz litigation.

As I said, National supports this legislation, and the sooner it is in force, the better it will be.