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From issue: May 2001

Preventing the Theft of Information

by Claire Heather

When advocacy and education fail, the Turst is determined to use the full weight of the law to protect New Zealand’s archaeological sites.The recent prosecution of a Waikato bottle digger, Adam Archer, for the damage to an archaeological site that led to him being fined $6,000 has highlighted an area of heritage conservation in New Zealand that is often overlooked and seldom understood. Just why is archaeological heritage so important?

There are approximately 54,500 archaeological sites in New Zealand recorded by the New Zealand Archaeological Association and probably many more that are not recorded. From midden sites that reveal how food was prepared by iwi hundreds of years ago, to sites in rural gardens that demonstrate the product choices of a grocer in the late 1800s, archaeological sites harbour a myriad clues about the way the society of the time was functioning and developing. As well as the obvious knowledge that can be obtained from them, such as what types of food people liked to eat or what foods were most readily available, archaeological sites can also reveal evidence about shifts in particular techniques employed for various tasks, or even significant climate change, to the person who knows how to look.

Not all archaeological sites have such conspicuous surface features as these pits on a North Island hilltop. Photo: Historic Places Trust Collection

Loss of archaeological heritage is serious. This is reflected in the penalty provisions of the Historic Places Act 1993 that provide for fines of up to $40,000 for damage to or modification of archaeological sites, and up to $100,000 if such sites are destroyed. In the debate leading up to the enacting of those provisions the then Opposition spokesperson for Culture and Heritage, and now Associate Minister for that portfolio, Judith Tizard, stated in Parliament that she commended the increased fines and hoped that they would be used effectively. The Trust favours the tools of advocacy and education but reports of site damage on an ongoing basis demonstrated that these methods had their limits. So after eight years the Trust has begun enforcing these provisions to ensure the stability of its archaeological authority process and the preservation of New Zealand’s archaeological heritage.

If someone wants to modify, damage or destroy an archaeologicalsite they must first apply to the Trust for an authority to do so. The Trust receives approximately 140 applications for authorities a year and endeavours to make a decision within four to six weeks of receiving an application. Many people are complying with the law and seeking an authority, but in recent times there have been those who have failed to do so. The Trust noticed a significant increase in the number of applications it received after it successfully prosecuted a northern property development company in June last year. The company pleaded guilty and received a $15,000 fine for bulldozing a track through a pa site on its property, damaging about fifty per cent of its archaeological features.

Recently the Trust won a case against Adam Archer, a Hamilton antique dealer who was found guilty of damaging an archaeological site without authority from the Trust. The Trust presented a comprehensive case with eight witnesses against Archer, all of whom played key roles in the successful outcome — from the eyewitness accounts of property owner Mrs Jo O’Hearn to the scientific analysis of Dr Neville Ritchie of the Department of Conservation. In making his oral judgement, Judge Ellis found that Archer had “conned” Mrs O’Hearn, the owner of the 1894 bakery site in Taupiri, into allowing him to dig on the property. Archer led Mrs O’Hearn to believe that he was from the Te Awamutu Historical Society and that anything he found on her property would go to the Te Awamutu Museum. He returned many times to her property to dig for bottles and other artifacts, uncovering many objects, none of which made their way to any museum in the district. Archer floundered several times under cross examination, significantly diminishing the credibility of his version of events and leading the judge to comment that there remained in his mind a lingering suspicion that Archer had knowingly damaged the site.

When news of the conviction came through, coverage by the Waikato Times reported that “the avid bottle collector and historian, who is also a member of the Trust, feels hard done by” and featured Archer’s grievances at length on the front page. The Sunday Star-Times also remarked on Archer’s membership of the Trust in its coverage of the issue two weeks later. Interestingly, Archer has been a member of the Trust only since June last year, just months after he was approached by Kim Tatton, then the Trust’s Regional Archaeologist, in respect of the offence committed at Taupiri. The Trust has no record of his being a member prior to that. He has never sought an archaeological authority from the Trust, despite acknowledging in Court that he knew he was legally required to do so if digging on a site associated with human activity prior to1900. In Court the Trust produced articles written by Archer that give enthusiastic accounts of earlier digs he had conducted on 1860s and 1870s sites.

Dr Rick McGovern-Wilson, Senior Archaeologist at the Trust, admits that, disappointingly, the Waikato Times coverage is probably indicative of a general lack of public understanding about why Archer’s activities are so worthy of punishment. “We felt that he was given every benefit of the doubt with a fine of $6,000. So it has been interesting to watch the types of responses it has brought.” What concerns the Trust is not just the lack of understanding of those who criticise the fine but, even more importantly, the low cultural self-esteem required to dismiss the loss of information about the way this country was shaped. It is certainly hard to imagine the Waikato Times giving a convicted assailant the same kind of attention that they bestowed on Archer and yet with this conviction he is now recognised as having stolen information that belonged to all New Zealanders.

So exactly what was lost by Archer’s assault on the property at Taupiri? Judge Ellis stated that “we will never know exactly what came out of the site”. Dr McGovern-Wilson agrees and says “we can’t possibly know what questions the Taupiri site would have answered for us, not merely because we’ve lost the opportunity to evaluate the site scientifically through archaeological methods, but also because we’ve lost the significant number of cultural items that have been removed unlawfully from the site.” The Trust is working closely with its parent body, the Ministry of Culture and Heritage, to try and close some of the loopholes in the current legislative regime that protects cultural heritage items (the Antiquities Act 1975). At present the Trust has no power to seize items or claim their return once it is established that they have been unlawfully removed from an archaeological site.

Advocacy and education are still top on the Trust’s list. However, it has resolved to continue with its recent enforcement endeavours. “We were awarded the fines in our first two prosecutions and we are working on a series of relevant pamphlets funded out of that money” explains Dr McGovern-Wilson. The Trust also visited a national bottle show in Christchurch in April to talk with bottlediggers about how they can make their hobby compatible with the requirements of the Historic Places Act.

The Trust wishes to thank Mrs Josephine O’Hearn, Mr Barry Litt, Mr Richard Paul, Mr Les Vuletich, Ms Kim Tatton, Ms Alexy Simmons, Dr Rick McGovern-Wilson and Dr Neville Ritchie for the invaluable part that they all played as witnesses in securing the conviction of Adam Archer. The Trust also sincerely thanks Mr Andrew Hazelton of Hazelton & Co. whose excellent presentation of the Trust’s case was crucial to its success.

Claire Heather is the Historic Places Trust’s Legal Adviser.