Underwater Cultural Heritage Legislation in New Zealand

In mid-March 2013 my 15 month research stay at the University of Waikato, Te Piringa – Faculty of Law began under the supervision of Dr. Till Markus from the University of Bremen and Prof. Dr. Alexander Gillespie from the University of Waikato. The primary aim of my research stay is to conduct an analysis of New Zealand’s legal framework governing the limited resource of underwater cultural heritage.

Underwater cultural heritage, on international level is defined as “all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years” (Art. 1 para. 1 (a) UNESCO Convention on the Protection of Underwater Cultural Heritage 2001) is a finite resource that is often underestimated. Entire cities, sunken ships and remains of hunter-gatherer communities are situated on the ocean floor, usually far better conserved as archaeological sites on land. Underwater cultural heritage sites provide testimony to the various periods and aspects of human history and are not only of research value, but can be of spiritual and symbolic significance, can be used to promote nationalist concepts or in political arguments, and create large economic value when traded or used to foster tourism.

From the first Polynesian explorers onwards, New Zealanders have always relied on the ocean as a travel and trading route, as a food source, or for recreational purposes. It is not surprising that the coastal environment forms an essential part of New Zealand’s national identity and that New Zealand’s underwater cultural heritage resources provide essential insights on the country’s occupation and unique bicultural history. Next to over 2500 documented shipwrecks, the majority of which have not been accurately located, port and navigation infrastructure, aircrafts, and traces of human settlements can be found in New Zealand’s waters. Yet, the cultural resource of New Zealand’s seabed is not comprehensively researched or mapped.

Moreover, underwater cultural heritage is threatened as a result of technological progress. Nearly every site can be detected and visited nowadays, given the sufficient financial means. Treasure hunters detect underwater cultural heritage to loot what can be sold on antiquarian markets, sometimes making enormous profit. Many hobby divers collect “souvenirs” from sites in shallow waters and tidal areas and thereby interfere with the unity of the site. Together, treasure hunters and souvenir hobby divers place a serious threat to underwater cultural heritage. Moreover, commercial activities in the offshore area, such as marine mining, incidentally affect sites. On the other hand, underwater cultural heritage like sunken World War I tanker ships, loaded with bunker fuel, oil and gas pose a risk to the marine environment. Overall, there is a need for regulating the different activities and interests in order to protect the ocean’s cultural resource.

No single statute specifically tailored for underwater cultural heritage exists in New Zealand. There are rather statues, administered by various authorities, which regulate or affect different aspects of underwater cultural heritage. These are general heritage statutes (Heritage New Zealand Pouhere Taonga Act 2014 and Protected Objects Act 1975), maritime law statutes (Admiralty Act 1973 and Maritime Transport Act 1994), and environmental law statutes (Resource Management Act 1991, Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 and Marine Reserves Act 1971). There is a dearth of New Zealand legal writing on underwater cultural heritage; a thorough analysis of this legal framework does not exist. I’m working on a contribution to close this research gap and have therefore been conducting a comprehensive analysis of the New Zealand law governing underwater cultural heritage.

Through the visit to the University of Waikato my research did not only benefit from the full access to literature on New Zealand’s domestic law, but from essential insights into New Zealand’s historically bicultural society, and the implications that the essentially different world views Māori and Pākehā have on cultural heritage legislation. In late March 2015, I conducted interviews with specialists on cultural heritage management at Heritage New Zealand Pouhere Taonga, based in Wellington. I would like to thank Pam Bain and Te Kenehi Teira from the senior management team of Heritage New Zealand Pouhere Taonga as well as Andy Dodd, one of the few maritime archaeologists in New Zealand, for sharing their expert knowledge and insider experience in New Zealand’s underwater cultural heritage management so openly with me.