The legislation relevant to Dutch archaeological practice is about to change as a result of the preparation of two new laws, the Heritage Act (Erfgoedwet) and the Environment and Planning Act (Omgevingswet). According to the legislature, these laws will unify the codification of rules and regulations that are currently distributed across a multitude of acts and will maintain or in some cases improve the level of protection compared to the current situation. The desired level of protection is to be accomplished while explicitly taking into account a fair balance between the interests of the owners of heritage and the national interests. Finally, the Acts are designed to ensure that the Netherlands fulfils its obligations under several treaties. To supplement these goals, the Heritage Act involves a reorganisation of the way in which archaeological activities are supervised.
The Heritage Inspection is to be abolished in favour of a system of quality control through certification by commercial parties. The certification of archaeological work requires the parties involved to acquire a certificate proving their competence. A notable exception will be made for municipalities, even though they formulate the requirements for any archaeological work to be undertaken. They will not need to prove their competence in archaeological practice, even though a recent survey showed that one out of three municipalities do not possess archaeological expertise. This will hardly ensure the same level of protection afforded by the current system and the quality of archaeological research is likely to deteriorate. The result might be, albeit unintentionally, that in practice the level of protection will not suffice and will violate the standards of the Valletta treaty. We examine two cases to consider whether the situation would improve under the new legislation: Firstly a case about a ‘chance discovery’ (Den Bosch) and secondly a case about the destruction of known archaeological values (Delft).
According to the current Monuments Act, authorities have the competence to stop building work to allow for archaeological research in the case of a ‘chance discovery’. This happened recently when a Neanderthal campsite was discovered during the construction of a parking garage in Den Bosch. Building activities were halted by the municipality while The Minister of Education, Culture and Science determined that the ‘chance discovery’ was of national importance and options to recuperate the materials were explored. In the end, the research strategy recommended by the National Heritage Agency was dismissed by the municipality, as it was 10 times more expensive than the chosen method of collecting the finds in sieves at the sediment dump and no national funding to cover these costs was available. This method hardly lives up to standards of best practices if the goal is to determine Neanderthal lifeways. A national “emergency fund” could remedy this.
In our view, the legislation in the new Heritage Act represents a decrease in the current level of protection. Instead of the Minister, the municipality itself is tasked with determining whether the find is sufficiently important to warrant the suspension of activities to enable archaeological research. At the same time the municipality itself is also responsible for the financial loss incurred by the builders. Therefore, there is a strong incentive for municipalities to determine that finds are not of general importance. Only if a find is deemed to be of national importance can the Minister step in, but the explanatory text accompanying the new Heritage Act states that the Minister is to exercise restraint in using this competence. Also, the determination that finds are of national importance is moot, because there will be no extra funding available for research in such cases. This is also illustrated by a similar recent case in Dalfsen.
New Church in Delft
Even more worrying is that in situations where expected finds are suspected of being ‘relatively precisely predictable’, parties planning to destroy archaeological deposits can limit themselves to budgeting for the documentation of only a small part of the finds that they know are there. This was the case in the application for a building permit for the renovation of the royal crypt and the building of a separate cellar to facilitate commercial events underneath the New Church (Nieuwe Kerk) in Delft (the church where Hugo Grotius is also buried). The church has been used as a burial ground for centuries and it can be predicted how many graves will be encountered in the course of the building activities (approximately 2100 from the period 1400-1800). These graves represent a valuable source of information on life in the city in a crucial period of Dutch history. Still, the church administration budgeted to research only 10% of the graves that will be disturbed in the building of the commercial cellar. The remaining 90% will be deposited in a mass grave and left unresearched. Because of the grave consequences of such an approach, the municipal archaeological service advised withholding the building permit. But the municipality, valuing the Church as a tourist attraction, decided to grant the permit regardless. Strongly disagreeing with this action because archaeological values were obviously not sufficiently taken into account, the Delft section of the Organisation of Archaeological Volunteers (AWN) has decided to sue the municipality. The responsible Court has suspended the activities provisionally for the duration of the proceedings on the merits. The final outcome of this case may be pivotal for the future of Dutch archaeology (practices).
We would argue that granting the permit despite the insufficient budgeting and the extreme loss of archaeological data violates the commitments the Netherlands made by ratifying the Valletta treaty which requires archaeological research to be performed when archaeological monuments are destroyed. The treaty requires the costs of the research to be borne by the destroying party (although it explicitly allows states to assist in the case of “excessive costs”). The situation will remain largely similar under the new legislation and since current practice does not suffice, an opportunity to improve the level of protection of archaeological finds will be missed.
Excavation, interpretation, radiocarbon dating, preservation, ancient DNA analysis and other archaeological activities cost money. In most projects, archaeological finds are relatively sparse, and therefore the (archaeological) costs will be low. However, in rare cases, important finds require huge sums of money. By regulating archaeology at the municipal level and not requiring the municipal regulators to have any archaeological expertise, the proposed legislation will place Dutch archaeological heritage in a more dire situation than it currently is.