Navigation Safety Bylaw Subcommittee Rārangi Take (Agenda)

NOTICE IS GIVEN that the next meeting of Navigation Safety Bylaw Subcommittee will be held in Council Chambers, Regional House, 1 Elizabeth Street, Tauranga and via Zoom on:

Tuesday 26 July 2022 COMMENCING AT 09:30 am

 

Fiona McTavish

Chief Executive, Bay of Plenty Regional Council Toi Moana

15 July 2022



Bay of Plenty Regional Council - Toi Moana

Governance Commitment

mō te taiao, mō ngā tāngata - our environment and our people go hand-in-hand.

 

 

We provide excellent governance when, individually and collectively, we:

·        Trust and respect each other

·        Stay strategic and focused

·        Are courageous and challenge the status quo in all we do

·        Listen to our stakeholders and value their input

·        Listen to each other to understand various perspectives

·        Act as a team who can challenge, change and add value

·        Continually evaluate what we do

 

 

TREAD LIGHTLY, THINK DEEPLY,
ACT WISELY, SPEAK KINDLY.


Navigation Safety Bylaw Subcommittee                                                                          26 July 2022

Recommendations in reports are not to be construed as Council policy until adopted by Council.

Rārangi Take
Agenda

1.       Karakia Whakatuwhera
Opening Prayer

2.       Ngā Hōnea
Apologies

3.       Wāhanga Tūmatanui
Public Forum

4.       Ngā Take Tōmuri
Items not on the Agenda

5.       Raupapa o Ngā Take
Order of Business

6.       Whakapuakanga o Ngā Take Whai Taha-Rua
Declaration of Conflicts of Interest

7.       Verbal Update - Chair’s Introduction

8.       Reports

Decisions Required

8.1      Terms of Reference for the Navigation Safety Bylaws Review Subcommittee                                                                                          1

Attachment 1 - Local Government Official Information and Meetings Act 1987         1

Attachment 2 - Draft Terms of Reference                                                                         1

8.2      Introduction to the Regional Navigation Safety Bylaws Review Subcommittee                                                                                          1

9.       Presentations

9.1      Presentation: Introduction to the Bylaws

10.     Ngā Take Tōmuri Hei Whakaaroaro
Consideration of Items not on the Agenda

11.     Karakia Kati
Closing Prayer


 

 

 

Pūrongo Ki:
Report To:

Navigation Safety Bylaw Subcommittee

Rā Hui:
Meeting Date:

26 July 2022

Kaituhi Pūrongo:
Report Writer:

Toni Briggs, Senior Project Manager

Kaiwhakamana Pūrongo:
Report Authoriser:

Reuben Fraser, General Manager, Regulatory Services

Kaupapa:
Purpose:

To finalise the Terms of Reference for the Subcommittee.

 

 

Terms of Reference for the Navigation Safety Bylaws Review Subcommittee

 

Whakarāpopototanga
Executive Summary

The Terms of Reference (TOR) establishes the Subcommittee and details the specific authority the committee has act.

It clearly sets out the purpose, scope, responsibilities, role, decision-making powers, in accordance with any specific Local Government Act requirements and Good Governance best practice.

A specific Terms of Reference gives context, certainty and clarity of objectives to ensure outcomes are fit for purpose.

 

Ngā tūtohutanga
Recommendations

That the Navigation Safety Bylaw Subcommittee:

1        Receives the report, Terms of Reference for the Navigation Safety Bylaws Review Subcommittee;

2        Agrees with the purpose and the scope of the Subcommittee;

3        Approves the following amendments be made to the draft Terms of Reference at this meeting.

 

That the Navigation Safety Bylaw Subcommittee:

4        Recommends to Regional Council, adoption of the final Navigation Safety Bylaws Subcommittee Terms of Reference.

 

1.        Kupu Whakataki
Introduction

The Terms of Reference (TOR) establishes the Subcommittee and details the specific authority the committee has act.

It clearly sets out the purpose, scope, responsibilities, role, decision-making powers, in accordance with any specific Local Government Act requirements and Good Governance best practice.

The attached draft Terms of Reference have been adopted by full Council in principle, allowing for consideration of additions to the TOR by the Subcommittee at its first meeting.

1.1      Pou Tarāwaho ā-Ture
Legislative Framework

1.1.1    The Local Government Act 2002:

Regional Council generally works under the Local Government Act 2022.  Under Schedule 7 (s 32), a Council of the whole can delegate any responsibilities, duties or powers to a committee or subcommittee.  However, the power to make a Bylaw still has to sit with a council of the whole.  But Schedule 7 (s 30(6)) protects decisions made by subcommittees from being vastly changed at whole council level after a thorough subcommittee process. 

In order to ensure an efficient and effective process, local government best practice recommends a comprehensive Terms of Reference be developed to provide certainty.

1.1.2    Local Government Official Information and Meetings Act 1987:

The LGOIMA provides for best practise meeting procedures and transparency regulation.  Standard practice for Local Government meetings is for all to be open to the public.  The local authority has the right to exclude the public only in certain circumstances – these criteria is set out in Part 7 of the Act (see attachment 1).

1.2      Te Hāngai ki te Pou Tarāwaho Rautaki
Alignment with Strategic Framework

 

Safe and Resilient Communities

We support community safety through flood protection and navigation safety.

The Maritime Operations Activity, through the Long Term Plan, provides a 24/7 navigation safety and maritime oil spill response across the region, as required by regulations and Regional Council requirements. This involves operating an around-the-clock call centre and duty roster, administering moorings and commercial/event licences, and maintaining navigational aids, lights, and beacons around the region.

The Activity promotes navigational safety through a combination of regulation, enforcement, and education with an aim to ensure people are kept safe on the water and our maritime environments are protected from spills. The Navigation Safety Bylaws is a key component of this work.

1.2.1    Community Well-beings Assessment

Dominant Well-Beings Affected

þ Environmental

Low - Positive

þ Cultural

Medium - Positive

þ Social

Low - Positive

þ Economic

Low - Positive

 

The review of the Navigation Safety Bylaws 2017 will affect all of the well-beings directly.

 

2.        The Terms of Reference for the Navigation Safety Bylaws Review Subcommittee

2.1      Agreeing to the Terms of Reference

The Terms of Reference has remained in draft form for consideration by the Subcommittee.  This is to allow the members to be comfortable with their role, committee scope and shared decision-making ability before it is adopted.

2.1.1    Reasons for excluding the Public from meetings

Standard practise for local government meetings is to have every meeting open to the public “…to promote the open and public transaction of business at meetings of local authorities, in order—

·      to enable more effective participation by the public in the actions and decisions of local authorities; and

·      to promote the accountability of local authority members and officials —

and thereby to enhance respect for the law and to promote good local government in New Zealand.”[1]

There are some circumstances the public may be excluded from meetings to protect certain information.  These criteria are set out in Part 7 of the Act (see attachment 1).

Staff recommend confirming this in the statement within the Terms of Reference.  This supports the concept of clarity and purpose and allows the opportunity to exclude the public under the criteria.

2.1.2    Quorum

In the case of subcommittees, the standard quorum requirement is two members, unless otherwise stated.[2]

Staff would recommend that the quorum also specifies the presents of “…at least two tangata whenua members…” as part of the quorum to ensure the Te Ao Māori perspective remains consistent within the solutions development.

3.        Ngā Whakaarohanga
Considerations

3.1      Ngā Mōrea me Ngā Whakangāwaritanga
Risks and Mitigations

Given the legacy issues connected to this project, the project is considered to be high risk. Detailed risk analysis and management has been built into the project management of the review and any new issues and risks that affect the decision-making of the sub-committee will be presented to the sub-committee at the earliest opportunity.

3.2      Huringa Āhuarangi
Climate Change

The matters addressed in this report are of a procedural nature and there is no need to consider climate change impacts.

3.3      Ngā Pānga ki te Māori
Implications for Māori

The Treaty principles and the partnerships upon which they are founded are an established part of our local government framework. As Treaty partners, Māori hold a unique role in shaping and contributing to regional leadership and direction.

As some of the legacy issues are of particular importance to tangata whenua it’s important to include them in the design, consultation, and decision-making process.

As outlined in the Bay of Plenty Regional Policy Statement Policy IW 2B, we must recognise matters of significance for Māori.

3.4      Whakawhitiwhiti ā-Hapori
Community Engagement

 

Adobe Systems

INVOLVE

Whakaura

To work directly with affected communities throughout the process to ensure that their issues and concerns are consistently understood and fully considered in Council’s decision making.

 

A detailed Communications and Engagement Plan has been developed for the Navigation Safety Bylaws Review project.  This specifically outlines the pre-engagement and consultation aspects of the project.

Due to the complex nature of the legacy issues in particular, we will need to work directly with some affected stakeholders.  Communication and engagement will need to use a range of consultation, engagement and involvement techniques that can be tailored for specific groups and issues

3.5      Ngā Pānga ā-Pūtea
Financial Implications

There are no material unbudgeted financial implications and this fits within the allocated budget. 

4.        Ngā Mahi Whai Ake
Next Steps

Once the subcommittee decide on the recommendations above, the final Terms of Reference will go back to full council for final adoption at the 11 August 2022 Council meeting.

 

Attachments

Attachment 1 - Local Government Official Information and Meetings Act 1987

Attachment 2 - Draft Terms of Reference   


Navigation Safety Bylaw Subcommittee                                                                26 July 2022

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Navigation Safety Bylaw Subcommittee                                                                26 July 2022

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Pūrongo Ki:
Report To:

Navigation Safety Bylaw Subcommittee

Rā Hui:
Meeting Date:

26 July 2022

Kaituhi Pūrongo:
Report Writer:

Toni Briggs, Senior Project Manager

Kaiwhakamana Pūrongo:
Report Authoriser:

Reuben Fraser, General Manager, Regulatory Services

Kaupapa:
Purpose:

To introduce the work programme of the Subcommittee.

 

 

Introduction to the Regional Navigation Safety Bylaws Review Subcommittee

 

Whakarāpopototanga
Executive Summary

The Bay of Plenty Regional Council has a statutory role in ensuring maritime safety in its region by developing Navigation Safety Bylaws under section 33M in the Maritime Transport Act 1994. The Bay of Plenty Regional Navigation Safety Bylaws are in place to minimise the risk of fatalities, injuries, nuisance, accidents, collisions, and damage in the Bay of Plenty navigable waters.

The Local Government Act 2002 requires Council to undertake a comprehensive review of its bylaws ten years after it was last reviewed; and within a two-year time frame from that review date. Bay of Plenty Regional Council generally reviews the Bay of Plenty Regional Navigation Safety Bylaws every five years to ensure that the Bylaws reflect the most up to date legislation, Maritime regulations and rules, and current regional risks and issues.

The Bylaws were previously reviewed and revised in 2017. There are a number of minor technical amendments that staff consider should be made as soon as practicable, but there is also an opportunity to address some more significant legacy issues.  Due to the ongoing challenges of these issues Council has engaged the Regional Navigation Safety Bylaws Review Subcommittee to support developing ways forward.

 

Ngā tūtohutanga
Recommendations

That the Navigation Safety Bylaw Subcommittee:

1        Receives the report, Introduction to the Regional Navigation Safety Bylaws Review Subcommittee.

 

1.        Kupu Whakataki
Introduction

Bay of Plenty Regional Council has a statutory role in ensuring maritime safety in its region by developing Navigation Safety Bylaws under section 33M of the Maritime Transport Act 1994.  The Bay of Plenty Regional Navigation Safety Bylaws are in place to minimise the risk of fatalities, injuries, nuisance, accidents, collisions, and damage in the Bay of Plenty navigable waters.

The Local Government Act 2002 requires Council to undertake a comprehensive review of its bylaws ten years after it was last reviewed; and within a two-year time frame from that review date. Bay of Plenty Regional Council generally reviews the Bay of Plenty Regional Navigation Safety Bylaws every five years to ensure that the Bylaws reflect the most up to date legislation, latest best practice, up to date maritime regulations and rules, and current regional risks and issues.  This last full review was in 2017.

Previous Bylaws reviews have developed divided debate in the community.  Previous committees have been composed of Councillors only (2004 and 2010); Commissioners only (2017).  Issues and challenges continue to exist in some areas.

As an alternative to tradition Hearings panels for Bylaws Review, staff recommended that for this review a Subcommittee be made up of Councillor representatives and representatives able to provide an overall tangata whenua view.  This was due to the following reasons:

·      The need for the Subcommittee to meet on the issues and to develop a relatively deep understanding, balanced with efficient decision-making.

·      The need for tangata whenua to input into the decision-making process as some of the legacy issues directly affect mana whenua.

·      As a consequence of the complexity of the legacy issues, the view is that the Subcommittee will be closer to “decision-making” than “advisory”, though final adoption of the 2023 Bylaws document will need to be done by full Council as outlined in Schedule 7 of the LGA 2022.

1.1      Pou Tarāwaho ā-Ture
Legislative Framework

1.1.1    The Maritime Transport Act 1994

Under Part 3A of the Maritime Transport Act 1994, Regional Council is mandated to ensure maritime safety in its region by appointing Harbourmasters, making Bylaws and carrying out enforcement on offences.

Maritime Rules

While the Maritime Transport Act stipulates broad principles of maritime law, the rules contain detailed technical standards and procedures. Compliance with the rules is required because they form part of New Zealand maritime law. Failure to comply with the rules may be an offence under the Act.

The maritime rules are statutory instruments (or secondary legislation) made by the Minister of Transport under the Maritime Transport Act 1994.

Maritime rules relate to the safety of ships and people. The rules prescribe requirements for ship design, construction, equipment, crewing, operation, tonnage measurement, and for the carriage of passengers and cargoes. Many of the standards are based on international ship safety conventions.

Of particular importance to Regional Councils are:

·      Maritime Rules – Part 90 – Pilotage

Maritime Rules Part 90 specifies compulsory pilotage areas and thresholds for pilotage. It also covers qualifications and training for pilots and pilotage exempt masters, and the issue of pilot licences and masters’ pilotage exemption certificates (PECs) by the Director of Maritime New Zealand. This is of particular importance for the Port of Tauranga.

·      Maritime Rules – Part 91 – Navigational Safety

Part 91 outlines navigation safety rules, specifically for personal floatation devices, anchoring and mooring, give way rules, wakes and proximity to oil tankers and ships carrying dangerous goods.

1.1.2    The Local Government Act 2002:

Regional councils make bylaws under the LGA 2002 under the general procedure for making bylaws (sections 155-161) and consult on bylaws using the special consultative procedure (section 86). Adopting a bylaw cannot be delegated by Council to a Committee, so the Subcommittee ‘recommends’ a course of action to Council for adoption.

1.1.3    Marine Transport (Infringement Fees for Offences – Bay of Plenty Regional Navigation Safety Bylaws 2017) Regulations 2017:

Under section 33O of the Marine Transport Act, Regional Council can set infringement fees by Order in Council[3]. At present we have 2017 regulations, which outlines offences under the Bay of Plenty Region Navigations Safety Bylaws 2017 and the fees applicable for those offences.  These will need to be updated.

1.1.4    Other Legislation

Staff will also ensure that any other legislation that may affect the legitimacy of the new Bylaws is considered.  For example, one key influence will be from the Marine and Coastal Area (Takutai Moana) Act 2011 and the recognition of customary rights.

1.2      Te Hāngai ki te Pou Tarāwaho Rautaki
Alignment with Strategic Framework

 

Safe and Resilient Communities

We support community safety through flood protection and navigation safety.

The Maritime Operations Activity provides a 24/7 navigation safety and maritime oil spill response across the region, as required by regulations and Regional Council requirements. This involves operating an around-the-clock call centre and duty roster, administering moorings and commercial/event licences, and maintaining navigational aids, lights, and beacons around the region.

The Activity promotes navigational safety through a combination of regulation enforcement and education with an aim to ensure people are kept safe on the water and our maritime environments are protected from spills. The Navigation Safety Bylaws is a key component of this work.

1.2.1    Community Well-beings Assessment

Dominant Well-Beings Affected

þ Environmental

Low - Positive

þ Cultural

Medium - Positive

þ Social

Low - Positive

þ Economic

Low - Positive

 

The review of the Navigation Safety Bylaws 2017 will affect all of the well-beings directly.

2.        Review of 2017 Bylaws

An internal review of the effectiveness of the existing Bylaws has been carried out.  Overall, staff consider that the current Bylaw rules are effective for the protection of maritime safety in the Bay of Plenty. However, there are a number of minor technical amendments that staff consider should be made as soon as practicable to improve implementation of the Bylaws.

Further, there are four legacy issues that are continually challenging to Council that will need to be addressed:

·      Ongoing concerns by Matakana Island and Motuhoa Island residents over ski lane areas in Tauranga Harbour, particularly Hunters Creek Ski Lane.

·      Speed uplifting rules and the impact jet boats have on areas on the Kaituna River.

·      Speed uplifting rules and the impact jet boats have on areas on the Tarawera River, through Kawerau.

·      Prohibition of Personal Watercraft (PWC), especially jetskis from most of Ōhiwa Harbour.

It is these legacy issues that will be the main focus of the Subcommittee. 

A critical element of the Bylaws review process is ensuring that robust public consultation is undertaken, particularly as these Bylaws have the potential to affect many individuals.

Staff are proposing a pre-engagement and consultation process that includes an informal non-statutory component as well as a statutory consultation period, as set out in the Local Government Act’s Special Consultative Procedure (s 83).  The pre-engagement session will take place with specific community groups, land trustees and iwi and sub-regional communities.  The Subcommittee members will be an integral part of this engagement – a plan for this will be discussed in Meeting 2.

Pre-engagement will include summer media campaigns to gauge community support (or not) for some potential changes around the identified issues. Staff will also undertake summer consultation campaigns on the potential changes to the Bylaws using the Participate pages on our website.

Staff are involving tangata whenua in a number of monitoring programmes over summer (2022/23) to provide information to support decision making around potential changes to the Bylaws.

All of this engagement will inform the eventual options analysis and decision-making around the legacy issues, mentioned above, in order for Council to make decisions around any changes to the 2017 Bylaws.

3.        Ngā Whakaarohanga
Considerations

3.1      Ngā Mōrea me Ngā Whakangāwaritanga
Risks and Mitigations

Given the legacy issues connected to this project, the project is considered to be high risk. Detailed risk analysis and management has been built into the project management of the review and any new issues and risks that affect the decision-making of the Subcommittee will be presented to the Subcommittee at the earliest opportunity.

3.2      Huringa Āhuarangi
Climate Change

The matters addressed in this report are of a procedural nature and there is no need to consider climate change impacts.

3.3      Ngā Pānga ki te Māori
Implications for Māori

The Treaty principles and the partnerships upon which they are founded are an established part of our local government framework. As Treaty partners, Māori hold a unique role in shaping and contributing to regional leadership and direction.

As some of the legacy issues are of particular importance to tangata whenua it is important to include them in the design, consultation, and decision-making process.

As outlined in the Bay of Plenty Regional Policy Statement Policy IW 2B, we must recognise matters of significance for Māori.

3.4      Whakawhitiwhiti ā-Hapori
Community Engagement

 

Adobe Systems

INVOLVE

Whakaura

To work directly with affected communities throughout the process to ensure that their issues and concerns are consistently understood and fully considered in Council’s decision making.

A detailed Communications and Engagement Plan has been developed for the Navigation Safety Bylaws Review project.  This specifically outlines the pre-engagement and consultation aspects of the project.

Due to the complex nature of the legacy issues in particular, we will need to work directly with some affected stakeholders.  Communication and engagement will need to use a range of consultation, engagement and involvement techniques that can be tailored for specific groups and issues.

3.5      Ngā Pānga ā-Pūtea
Financial Implications

There are no material unbudgeted financial implications and this fits within the allocated budget. 

4.        Ngā Mahi Whai Ake
Next Steps

The indicative work programme for the Subcommittee is as follows. Dates will be confirmed at Meeting 2.

We will also be discussing a plan for engagement in Meeting 2, that will solidify some of staffs thinking around engagement specifically with trusts and iwi directly affected by the legacy issues.

 

Meeting 1:

Terms of Reference adoption; Standing Orders; meeting calendar; Voting Chair and deputy chair; introduction to Bylaws and process.

Meeting 2:

Maritime Laws and Bylaws; Bylaws history; legacy issues; proposed changes; proposed engagement calendar.

Meeting 3:

Understanding the stories – listen to those affected (may be more than one meeting/ at more than one site.

Meeting 4:

Balancing competing water activities - policy at work.

Meeting 5:

Legacy issues.

Meeting 6:

Options Workshop.

Meeting 7:

Recommendations for draft Navigation Safety Bylaws for consultation – final document completed.

Formal Consultation

Formal Hearings

Deliberations:  

Recommendations to Council.

Adoption:

Regional Navigation Safety Bylaws 2023 (Nov 23).

 

  



[1] Local Government Official Information and Meetings Act 1987

 

[2] Clause 23(3)(b) Schedule 7, LGA 2002

[3] An Order in Council means this regulation must go through Parliament to provide the legal force (see MTA 1994 s33O).