Like wearing multiple Condoms

Lynton Diggle.

Legislation regarding our historic shipwrecks is a mess. No fewer than seven departments have regulations affecting the ability to excavate our ‘historic’ shipwrecks, creating a web of complexity. While our wrecks may be historic, few are significant. A shipwreck like the Tasmania, built in 1883 and wrecked in 1897, may be historic in a New Zealand context, but by no means significant. The plans are available, as is its cargo manifest! It’s just another wreck.

Heritage New Zealand requires a permit to excavate, "the site of the wreck of any vessel where that wreck occurred before 1900" and "provides or may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand." I believe very few wrecks in New Zealand would fit those criteria. Years of research into our shipwrecks’ history and writing the books have come only from diligent research in libraries, newspapers and archives. To date no excavation of a wreck has added to that. Should a wreck that predates Tasman’s arrival be discovered, such as a Portuguese wreck that would then fit the criteria. Identifying an unknown wreck would add to our history.

Heritage New Zealand, Ministry for the Environment, Regional Councils, the Conservation Department, Maritime New Zealand and the New Zealand Police, all believe they are doing God’s work in protecting our maritime heritage. They have succeeded, collectively thwarting the legal excavation of our shipwrecks. It’s like wearing multiple condoms. Also as many wrecks get washed well inland, particularly on the North Island’s west coast, some could finish up on Maori land, but let’s not go there.

New Zealand's legal regime

“New Zealand Law relating to wrecks developed out of the English law and until recently New Zealand followed the same Receiver of Wreck tradition as in England. The problem is that as New Zealand Law developed separately it has had a piecemeal approach with no great coherence. Consequently there are different statutory regimes the strands of which do not connect up. The Maritime Transport Act 1994 deals primarily with salvage and modern wrecks and material coming ashore from the wreck of a vessel, and only applies to vessels within or brought within the territorial waters of New Zealand. It does not apply to wrecks that sank and remain beyond the 12 nautical mile limit. The traditional powers of the Receiver of Wreck were transferred to the Director of Maritime New Zealand and the Police in 1999 by the Maritime Transport Amendment Act 1999. This means that a local police station may be presented with an artefact rescued from the sea and will simply be perplexed about what to do next. A second strand of legislation includes the Heritage New Zealand Pouhere Taonga Act 2014, which covers archaeological sites "in New Zealand" and this can include "the site of the wreck of any vessel where that wreck occurred before 1900" and "provides or may provide, through investigation by archaeological methods, evidence relating to the history of New Zealand." (Section 6) Alternatively a wreck may be declared an archaeological site under Section 43(i) as the "Ventnor" (sunk in 1902) was.”

Marine sites, of both Maori and European origin, have been largely neglected in favour of terrestrial sites due to a dearth of experienced marine archaeologists as well as a lack of concentration on and funding for underwater exploration and preservation. (Piers Davies, Maritime Lawyer.)

Department of Conservation

Their Policy 17. Historic heritage identification and protection in their coastal policy statement 2010 reads.

Protect historic heritage9 in the coastal environment from inappropriate subdivision, use, and development by:
a. identification, assessment and recording of historic heritage, including archaeological sites;
b. providing for the integrated management of such sites in collaboration with relevant councils, heritage agencies, iwi authorities and kaitiaki;
c. initiating assessment and management of historic heritage in the context of historic landscapes;
d. recognising that heritage to be protected may need conservation;
e. facilitating and integrating management of historic heritage that spans the line of mean high water springs;
f. including policies, rules and other methods relating to (a) to (e) above in regional policy statements, and plans;
g. imposing or reviewing conditions on resource consents and designations, including for the continuation of activities;
h. requiring, where practicable, conservation conditions; and
i. considering provision for methods that would enhance owners’ opportunities for conservation of listed heritage structures, such as relief grants or rates relief.
j. (This also affects historic wrecks buried on beaches and sand dunes.)

Ministry for the Environment and local authorities

The Resource Management Act 1991 also places an obligation on local authorities to protect historic heritage. The act states that “Historic heritage must be recognized and provided for.” However Councils are free to decide what they list as historic sites, including shipwrecks, meaning there is no consistency. Some list shipwrecks, some don’t. “The meaning of ‘recognise and provide for’ is a legal question and it is not the role of the Ministry to provide legal advice or a legal interpretation. An opinion from a legal expert in resource management law on the interpretation of ‘recognise and provide for’ may be a more appropriate avenue if you have questions about this.” (Ministry for the Environment.) More lawyers to consult!!

Wreck and Underwater Cultural Heritage come under the definition of “historic heritage” and there is no requirement that the wreck occurred pre 1900. Section 12 of the Act provides Councils with the ability to include rules in the regional plans for the modification of or removal of a shipwreck, where it has been specifically identified as historic heritage. Several Regional Councils have listed their local wrecks, including many post 1900 wrecks not protected by Heritage New Zealand. “There are consenting requirements for modification, archaeological investigation, taking of samples and a wide range of other activities in relation to wreck sites” (Noel Reardon Heritage Manager, Auckland Council.) He suggested should I need Council’s consent, I should employ a consultant. Northland Regional Council has a more enlightened attitude and is listing wrecks of significance but do not wish to usurp HNZ’s role in the issue of permits. No Resource Consent required.

Wellington Regional Council’s initial fee for a Resource Consent is $1,555.75. They have some 24 listed wrecks including the 1982 wreck of a squid boat, the Yung Pen! Should a Resource Consent be granted, they would require a report, photographs and list of recovered items, thus effectively charging the applicant to provide the information. All their listed wrecks are tagged with. “The listed wrecks have a high value when considered as part of a rapidly disappearing group of 19 century shipwrecks in the Wellington region.” This would seem to indicate that objects need to be recovered before they disappear completely. Given the prohibitive cost of compliance with the requirements of this Regional Council, these wrecks will not be legally investigated and are certain to, “rapidly disappear”, especially as the majority lie close to our coast and are being destroyed by the elements.

Occupational Health and Safety

No maritime archaeologist or diver can be employed to dive a wreck below 30 meters without OSH requirement to have an on board decompression chamber and back up divers. No one has that kind of money, so all wrecks below that depth can only be examined by amateur divers, as was the case on the Ventnor.

Heritage New Zealand

Historic heritage— means those natural and physical resources that contribute to an understanding and appreciation of New Zealand's history and cultures. I believe few of our known wrecks fit those criteria.

Disturbing a shipwreck that sank pre 1900 requires a permit from Heritage New Zealand. There is no cost. There is nothing significant about 1900 other than it is easy to remember. A mantra espoused by some ‘experts,’ is, artefacts should be left in situ to be preserved. I ask, preserved for who, preserved for when? At the recent talkfest in Tauranga, maritime consultant Andy Dodd even suggested the Rena remains should be left and declared a heritage site. Pam Bain, senior archaeologist with Heritage New Zealand, disagreed. Most of the wrecks are along our coast and subject to the ocean’s washing machine effect, with many artefacts being destroyed. How ironic that a competent organization like the Underwater Heritage Group would need to spend thousands to comply with all these regulation then pay for the cost of conservation of recovered items. Many wrecks appear on a beach after a storm scours the overlying sand. No time to get a permit to recover or gain a Resource Consent before it is again covered in twenty feet of sand. Another piece of maritime history lost. A Resource Consent could be granted by a Regional Council but Heritage New Zealand could deny granting a permit. Alternatively, Heritage New Zealand could grant a permit, but a Regional Council could refuse a Resource Consent. This is like having to go to two different garages to get a warrant of fitness. Unsurprisingly, to date no Regional Council has had an application for a Resource Consent to disturb a wreck due to the financial constraints. A person may undertake the salvage or recovery operation of a shipwreck (including the General Grant) in the marine reserve of the Auckland Islands but requires approval of both the Director General of Conservation and Heritage New Zealand.

Maritime New Zealand

As we no longer have a Receiver of Wreck, Maritime New Zealand places responsibility for wreck items washed ashore or historic wreck material brought ashore, on the police. Not a lot of policemen know that, however the Minister of Transport confirms there are no plans to change the legislation.

It seems obvious this was meant only to protect items washed ashore from a wreck, such as the Rena, from plunder by the locals, (one plunderer was arrested) not being aware that it also captures items of ancient wreckage recovered.

Local police stations would be highly embarrassed if a piece of ancient timber, covered in rotting barnacles, where placed on their desk. However that is the law and local police have generally only protected the owner’s rights from items washed ashore from a recent shipwreck.

Since ancient times, particularly in Europe, plundering wreckage and cargo was a common pastime. Remember the film Whisky Galore and the 25000 bottles arriving ashore to the delight of the locals and in 2007, the MSC Napoli was wrecked at Devon where locals took possession of 17 BMW motorcycles.

August 1886, the iron barque Lyttelton was wrecked at Timaru. Amongst the first items to come ashore were several casks of spirits, one of which soon had its head knocked in. With no glasses available the looters used their hats but the arrival of the police soon put a stop to what promised to be a free and drunken orgy to an end. More recently, in 1983, the Japanese tuna boat Minato Maru was wrecked on Shearer Rock in the Hauraki Gulf. Local divers recovered a considerable cargo of Suntory whisky and other expensive liqueurs. Legally, the whisky should have been handed to a local police station who then would have been obliged to advertise, possibly even in Japanese papers, to find any claimants. Cabins and the duty free store on the Mikhail Lermontov were plundered for jewellery. The Ministry for Cultural and Heritage advertised for claimants to items recently recovered from the Ventnor.

England appears to have an excellent regime for material recovered from their wrecks. They reward the finder with a sum equal to the item’s value, provided they notify the authorities within 28 days. They also have the laudable concept of protecting wreckage that has an artistic value, such as wrecks that are the subject of paintings and photographs. In New Zealand, given the financial constraints of conforming to the rules of multiple agencies it is no wonder they are generally ignored. None of these departments have the finances, the equipment, the expertise or inclination to dive our shipwrecks, nor do they have any conservation facilities. Whereas the Maritime Archaeological Society have an excellent conservation facility on board the Hikitia crane moored in Wellington harbour, while the Underwater Heritage Group have fully trained divers, metal detectors, magnetometers, an underwater robot and conservation expertise, plus they fund their own research. Many have completed a marine archaeology course, NAS 1 and 2 through the Nautical Archaeology Society.

Such was the lack of interest to protect items from our shipwrecks that Kelly Tarlton’s collection from his Shipwreck Museum was sold and the items spread throughout New Zealand and even in America. If another shipwreck museum was built, I believe much of Kelly’s collection would be donated, plus other items from private collections.

Desperately needed in New Zealand is a new shipwreck museum like Kelly’s. Common sense was the missing ingredient when the seven agencies sat down to write rules governing our shipwrecks. They now need to talk to each other. Perhaps the Law Commission could look at this? That’s their job.

Hopefully Heritage New Zealand will eventually be the only agency with sole prerogative to issue permits; in the meantime many divers will continue to ignore the rest. One day, these various agencies must realize the mess they have made by preventing access to our shipwrecks and their history, however I fear effecting change would be like trying to teach quantum mechanics to wombats. I don’t hold my breath.

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