Reform mooted for Protected Objects Act

Tuesday, 3 October 2023

A legislative review could be on the cards for the Protected Objects Act after concerns about its operation were raised by officials and Māori, according to newly released documents.

The Act is administered by the Ministry for Culture and Heritage and regulates the export of protected NZ objects; the illegal export of protected NZ and foreign objects; and the sale, trade and ownership of taonga tūturu (protected objects that whakapapa to te ao Māori), including what to do if people find a Māori artefact.

The Act was last amended in 2006.

As part of those amendments, a new process was rolled out for establishing ownership of newly found taonga tūturu. It requires the ministry to notify parties that may have an interest in newly found taonga tūturu (usually iwi and hapū), and receive claims for ownership, with the final ownership determination to be made by the Māori Land Court.

But the ministry was facing resourcing issues in progressing cases in a timely manner to the Māori Land Court – due, in part, to the Act’s lack of detailed guidance to determine ownership according to tikanga.

The Act also stipulates that any taonga tūturu found anywhere in New Zealand or within its territorial waters are deemed to be, “prima facie the property of the Crown”. But Māori found the provision offensive, according to documents released to The Post under the Official Information Act.

In 2011, the Waitangi Tribunal recommended Crown ownership of newly discovered protected objects should be retained but statutorily renamed as “interim Crown trusteeship” to avoid the perception that the Crown was asserting ownership of taonga tūturu, and to more explicitly acknowledge the ongoing rangatiratanga interest.

Other concerns include there being no requirement to determine an object’s ownership through tikanga and kawa (customs); some iwi having concerns that taonga tūturu are removed from the places they are found instead of being left in situ; and people having a reluctance to register taonga tūturu because of distrust in the Crown’s interest in taonga tūturu.

The Act also posed issues for taonga that are not covered under the definition of taonga tūturu, including art objects in which significant iwi and hapū interests are apparent – for example, portraits by Charles Frederick Goldie or other historic artworks that depict Māori.

Māori documentary heritage objects (particularly photographs of tīpuna/ancestors) are similarly significant to iwi and hapū but may not meet the definition of taonga tūturu.

And the Act requires the ministry to consult with two or more experts in considering export applications for protected objects.

Traditionally, in cases regarding historic artworks depicting Māori, those experts have been art historians with curatorial expertise. But the Act’s requirements don’t easily enable iwi and hapū views to be considered in decision making, the papers say.

That’s despite the Waitangi Tribunal recommending the ministry empower a body of Māori experts to share in decision making.

There is a lack of specificity on how ministry officials should assess the validity of a claim over a taonga tūturu, prior to consideration by the Māori Land Court; and a lack of interpretive guidance around key decision making terms such as “significance” with respect to export permissions.

Finally, there are inconsistent and unclear category definitions across the nine categories of protected objects.

Some of the matters would likely require law reform – a lengthy, resource intensive process. Officials were trying to gain further understanding of the issues before presenting options to address them.

The ministry has already started engaging with iwi on export applications for taonga tūturu where there is an identified iwi or hapū interest, and started developing an iwi and hapū led process for keeping newly found taonga in place.

Officials will report back to ministers in November.