Heirlooms of a nation

Press, 26 April 1983, Page 14

Heirlooms of a nation

New Zealand has lost a five-year battle to have returned to* it a valuable and significant Maori artefact that was exported illegally 10 years ago. The carved Maori storefront, or pataka, was shipped from New Zealand in 1973 without the permission necessary under the Historic Articles Act. Later in 1973 it was sold to a Bolivian tin magnate for $65,000, coming to light again when it was put up for auction at Sotheby’s, of London, in 1978.

The New Zealand Government successfully sought an injunction to prevent its sale and since then the legal battle has continued, ending in an appeal to the House of Lords. Last week, the five Law Lords delivered their judgment and declined to order forfeiture of the pataka. The sale can proceed.

Costs of the proceedings have been awarded against the New Zealand Government. They have yet to be determined, but are expected to be considerable. Of course, the Government is entitled to bid for the pataka to ensure its eventual return to New Zealand. The view might be taken that the costs incurred already make the carving the most expensive example of pre-European Maori art to date and that further expense is not warranted. Something far more valuable than the pataka itself was at stake in the legal action, however. What was being tested was New Zealand’s ability to protect artefacts that are part of the country’s heritage. The Lords’ decision shows that present measures are inadequate.

Lord Brightman, delivering the Lords’ judgment, said he had every sympathy with New Zealand’s claim. The appeal snowed that “New Zealand has been deprived of an article of value to its artistic heritage in consequence of an unlawful act,” he said. Nevertheless, the claim must fail because of a deficiency in New Zealand’s laws. In essence, the pataka would have been liable for forfeiture if it had been seized by the New Zealand customs or police before it had left the country. Once that surveillance had been evaded successfully, the provisions of the New Zealand law no longer applied.

Many Maori artefacts reside in museums and private collections overseas. Most of them

left the country decades ago, before a law to prohibit their export existed; or they have been moved through authorised exchanges, or as gifts, between museums here and overseas. Apart from the intrinsic value of the pataka, considered by experts to be one of the most Valuable Maori artefacts offered for sale, it also represented the biggest single failure of New Zealand law to protect such heirlooms. New Zealand is not alone in this; many other countries wish to protect their national treasures. International agreement on how this can be best achieved is hard to get.

Many countries co-operate readily on matters such as extradition of wanted persons, or on double taxation agreements; but a mutual and reciprocal arrangement to enforce laws covering the smuggling of artefacts remains elusive. An international convention to achieve this exists. It was drawn up under the auspices of the United Nations Educational, Scientific, and Cultural Organisation with widespread verbal support. It is ineffective because too few countries adhere to it. Even within the Commonwealth, it is difficult, if not impossible, to persuade courts in other countries to give effect to the law of a different jurisdiction.

Commonwealth law Ministers discussed artefact smuggling and the possibility of mutual laws to prevent it when they met in Sri Lanka in February. The topic was raised on the initiative of New Zealand’s Minister of Justice, Mr McLay. Although matay more pressing issues, such as drug laws and copyright laws, dominated the discussion, the readiness of the Ministers to find a solution to artefact smuggling was promising. Tricky questions remain, such as that of compensation for an unwitting and bona fide buyer. Any Commonwealth agreement would be only a stepping stone because the hungriest markets for such items are outside the Commonwealth. In the present instance, a Commonwealth agreement might have helped New Zealand to regain possession of the pataka. Although it would be only part of the answer, a Commonwealth agreement is worth pursuing. It might encourage other countries to follow the example and support a measure such as the U.N.E.S.C.O. convention with more than just words.