Agenda of Bay of Plenty Regional Navigation Safety Bylaws Review Committee

Item No.	Subject of each matter to be considered	Reason for passing this resolution in relation to each matter	Grounds under Section 48(1) for the passing of this resolution	When the item can be released into the public
10.1	Public Excluded Bay of Plenty Regional Navigation Safety Bylaws Review Committee Minutes - 27 April 2023	As noted in the relevant Minutes.	As noted in the relevant Minutes.	To remain in public excluded.

Bay of Plenty Regional Navigation Safety Bylaws Review Committee Minutes

27 April 2023

Bay of Plenty Regional Navigation Safety Bylaws Review Committee

Ngā Meneti

Open Minutes

Commencing: Thursday 27 April 2023, 9.30 am

Venue: Council Chambers, Regional House, 1 Elizabeth Street, Tauranga

Heamana

Chairperson: Cr Andrew von Dadelszen – Bay of Plenty Regional Council Toi Moana (BOPRC)

Ngā Kopounga

Members: Bay of Plenty Regional Council Toi Moana (BOPRC)

Cr Jane Nees

Cr Kevin Winters

Tangata Whenua Representatives

Raewyn Bennett

Micah Tawhara – via Zoom

Patrick Young

In Attendance: Reuben Fraser - General Manager, Regulatory Services, Toni Briggs – Senior Project Manager, Stephen Lamb – Environmental Strategy Manager, Matt Hunt – Communications Team Leader, Monique Brookes – Legal Counsel, Claudia Cameron – Committee Advisor.

Ngā Hōnea

Apologies: Cr Toi Kai Rākau Iti (BOPRC) for absence and Patrick Young (Tangata Whenua Representative) for late arrival.

1. Karakia Whakatuwhera
Opening Karakia

A karakia was provided by Raewyn Bennett.

2. Ngā Hōnea
Apologies

Resolved

That the Bay of Plenty Regional Navigation Safety Bylaws Review Committee:

1 Accepts the apologies from Cr Toi Kai Rākau Iti for absence, and Patrick Young for late arrival, tendered at the meeting.

von Dadelszen/Winters

CARRIED

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

In relation to Agenda Item 10.1 and Minute Item 6.1 from 15 February 2023 meeting minutes - Raewyn Bennet declared her whānau position as shareholders in the TAHEKE 8C land block.

In relation to Agenda Item 10.1 - Cr Kevin Winters declared his position as Treasurer of Coastguard Rotorua Lakes.

4. Minutes

Minutes to be Confirmed

4.1	Bay of Plenty Regional Navigation Safety Bylaws Review Committee Minutes - 15 February 2023 Matters Arising In relation to Minute Item 5.1: · Infringement fees were in line with other Councils and less than $1000, as set out in the Maritime Transport Act 1994. However, the significant risk associated with a bylaws breach in the Tauranga Harbour necessitated investigation into higher infringement rates. Fees over $1000 required Council to advocate to the Minister of Transport for approval.
9.44 am – Patrick Young entered the meeting.
	In relation to Minute Item 6.1: · Suggested Tikanga principles be appropriately embraced during engagement with hapū impacted by legacy issues. Highlighted the importance of the Committee and Staff listening to the stories of those affected.
	Resolved That the Bay of Plenty Regional Navigation Safety Bylaws Review Committee: 1 Confirms the Bay of Plenty Regional Navigation Safety Bylaws Review Committee Minutes - 15 February 2023 as a true and correct record. Winters/Nees CARRIED

5. Verbal Updates

5.1

Q & A follow up: Workshop Items

Presentation: Meeting Presentation - 27 April 2023: Objective ID A4364491

Presented by: Toni Briggs - Senior Project Manager

Key Points:

· Wake surfing behind purpose built wake-boats had increased in popularity. Clauses would be developed to encompass this sport as it did not involve a person being towed.

In Response to Questions:

· New clauses which related to evolving vessels, such as personal sail boards with foils and paddle/surf boards with engines, would be based on safety recommendations from Maritime NZ.

5.2

Ramping Report - Update from Previous Workshop

Presented by: Toni Briggs - Senior Project Manager

Key Points:

· River ramping involved opening river gates to increase water flow to manage lake levels

· A combination and cumulation of factors, including natural processes and recreational activities, exacerbated bank erosion. Erosion would not be significantly reduced through the removal of an individual factor

· The BOPRC rivers and drainage team monitored banks and erosion rates.

6. Reports

Decisions Required

6.1

Options for Consultation

Presented by: Toni Briggs – Senior Project Manager

Key Points:

· A synopsis of each option would be presented alongside a map of the corresponding area

· The goal was to gain broad feedback, not present only the ‘best’ option to the public

· Kaituna Speed Uplifting:

o Potential passive recreation (swimming) areas were to be confirmed via consultation with Iwi/hapū, enforcement of these areas was considered achievable

o The Kaituna River Document was taken into consideration when developing options

o Spring Loaded Fun Park held a perpetual consent but was currently not operating

· Tarawera River Speed Uplifting:

o Impacted parties were included in the stakeholder list for consultation

· Ōhiwa Harbour:

o A legislative change had removed the bylaws’ ability to exclude personal water craft/jet ski from Ōhiwa harbour, therefore a bylaws change was required

o A local bylaw or Resource Management Act transfer agreement with Ōpōtiki District Council and Whakatāne District Council was required to maintain status quo

o A third option restricting vessels to 5 knots for the two hours before and after low tide, to mitigate risk to kai moana gatherers, would be presented

· Buoyed Swim Lane in Pilot Bay - feasibility was being investigated:

o Some swing moorings would require removal

o Businesses which launched vessels from Pilot Bay would be impacted as the lane would be exclusive to swimmers

· Compulsory day Skipper licence - feasibility was being investigated:

o Required for 12 metre vessels or larger, with the course conducted online

o Maritime NZ were currently investigating nationally, pre-empted potentially unsafe situations comparable to compulsory life jackets

o Inclusion for consultation was to gauge public appetite for change

· Third party insurance:

o Removed from consultation as insurance companies were unwilling to offer cover.

Key Points - Members:

· Recommended the Hunters Creek/Otapu Ski Area consultation material include a map of the Tauranga Harbour identifying ski lane locations

· The next five years of regional intensification, technological developments and environmental changes, e.g. increased population density, changes to water usage and weather events causing river features to change, must be taken in consideration when developing the bylaws.

In Response to Questions:

· The statement of proposal within the consultation document would clearly identify the scope of the bylaws

· Council co-governance committees to be notified and/or consulted included: Rotorua Te Arawa Lakes Strategy Group, Rangitāiki River Forum, Te Maru o Kaituna River Authority, Tarawera Restoration Strategy Group, Ōhiwa Harbour Implementation Forum and Tauranga Moana Advisory Group

· A blanket ban of boats from an area was not within the scope of the bylaws mandate.

Resolved

That the Bay of Plenty Regional Navigation Safety Bylaws Review Committee:

1 Receives the report, Options for Consultation;

2 Approves the approach to providing a range of options to the community for consultation;

3 Agrees with the proposed process for engagement and consultation.

Nees/Winters

CARRIED

11.08 am – The meeting adjourned.

11.23 am – The meeting reconvened.

7. Public Excluded Section

Resolved

Resolution to exclude the public

1 Excludes the public from the following parts of the proceedings of this meeting as set out below:

The general subject of each matter to be considered while the public is excluded, the reason for passing this resolution in relation to each matter, and the specific grounds under section 48(1) of the Local Government Official Information and Meetings Act 1987 for the passing of this resolution are as follows:

Item No.	Subject of each matter to be considered	Reason for passing this resolution in relation to each matter	Grounds under Section 48(1) for the passing of this resolution	When the item can be released into the public
7.1	Internal Legal Opinions for discussion	Withholding the information is necessary to maintain legal professional privilege.	48(1)(a)(i) Section 7 (2)(g).	On the Chief Executive's approval.

Nees/Winters

CARRIED

8. Karakia Kati
Closing Karakia

A karakia was provided by Patrick Young.

11.42 am – the meeting closed.

Confirmed

Cr Andrew von Dadelszen

Chairperson, Bay of Plenty Regional Navigation Safety Bylaws Review Committee



Pūrongo Ki: Report To:	Bay of Plenty Regional Navigation Safety Bylaws Review Committee
Rā Hui: Meeting Date:	7 November 2023
Kaituhi Pūrongo: Report Writer:	Toni Briggs, Senior Project Manager
Kaiwhakamana Pūrongo: Report Authoriser:	Reuben Fraser, General Manager, Regulatory Services
Kaupapa: Purpose:	To present a draft Bylaws document to the Committee for endorsement.

Endorsement of a draft Bay of Plenty Regional Navigation Safety Bylaws 2024 for consultation

Whakarāpopototanga
Executive Summary

Early in 2022 staff undertook an internal review of the Bay of Plenty Regional Navigation Safety Bylaws 2017.

The Bylaws are reviewed every five years to ensure on-going effectiveness, and to confirm the Bylaws reflect the most up to date legislation, maritime regulations and rules, and current regional risks and issues.

Overall, staff considered that the 2017 Bylaw rules were effective for the protection of maritime safety in the Bay of Plenty. There were a number of minor technical amendments that staff consider should be made as soon as practicable to improve implementation of the Bylaws, and further, there were four legacy issues that have been identified as being of continuing concern to members of the community that will need to be addressed:

· Ongoing concerns by Matakana Island, Rangiwāea 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.

Throughout the first half of 2023 the committee examined these issues in more detail. A Participate webpage was also set up to gauge whether the public thought these were still the most significant issues. This was borne out by the feedback received and presented to the committee at its 15 February 3023 meeting.

These topics are now our main consultation questions and are highlighted in our Statement of Proposal. The public will also have the opportunity to comment on any change in the draft document.

The committee are asked to endorse the attached Statement of Proposal and draft document. Full Council can then adopt the draft Bylaws for consultation under Schedule 7 s32 of the Local Government Act, at the 14 December Meeting.

Formal Consultation will occur from 18 December 2023 to 29 February 2024. Submissions will be received via the Participate webpage; (electronic); or printed form (hardcopy).

Hearings are planned for March 2024 with deliberations in April 2024 and final adoption by Full council in June 2024.

Ngā tūtohutanga
Recommendations

That the Bay of Plenty Regional Navigation Safety Bylaws Review Committee:

1 Receives the report, Endorsement of a draft Bay of Plenty Regional Navigation Safety Bylaws 2024 for consultation;

2 Endorses the draft Bay of Plenty Regional Navigation Safety Bylaws;

3 Recommends to Regional Council they adopt the draft Bay of Plenty Regional Navigation Safety Bylaws for consultation.

1. Kupu Whakataki
Introduction

This committee meeting is an opportunity to summarise the process we have undertaken to develop a draft Regional Navigation Safety Bylaws 2024 for consultation, discuss the draft document itself and develop a recommendation to full Regional Council to adopt the attached Statement of Proposal and draft Regional Navigation Safety Bylaws 2024.

The agenda pack contains:

· The proposed draft document developed by staff, given the feedback from the committee; feedback from subject matter experts; and Maritime New Zealand.

· The draft Statement of Proposal document that introduces the consultation process and key changes to the public.

· A table outlining the changes and rationale for each clause.

· An overview of the consultation plan over summer 23/24.

You will recall that over the last 18 months staff have provided information that should help you with the discussion. Due to the time gap between the last committee meeting and this one it is recommended by staff that committee members re-visit the Agenda packs and full minutes records for each committee meeting to familiarise themselves with specific discussion points.

As a summary:

Pre-Committee:

· Background information on Maritime history and development of maritime legislation in New Zealand.

· General Bylaws introduction

· Excerpts from the Maritime Transport Act 1994 and relevant Maritime Rules

· A copy of the current Nav Safety Bylaws

· Synopses on legacy issues that were most likely to generate submissions.

Meeting 1:

(26 Jul 22)

An introduction to the Regional Navigation Safety Bylaws and the importance of having localised regulation of navigation safety.

Meeting 2:

(25 Aug 22)

Further supporting discussion on:

· Clarification of legal concepts and influencing regulation

o Position on ‘nuisance’ discussion.

· Background on Bylaws and their specific purpose.

Meeting 3:

(20 Sep 22)

· Understanding the technical and operational aspects of Navigation Safety.

· A discussion from Maritime staff on the local operational aspects of managing navigation safety.

· Discussion on Moorings.

Meeting 4:

(15 Feb 23)

· Presentation from Maritime Staff on aspect of managing specific areas of the Bay of Plenty.

· Challenge areas for the review.

· Presentation of summer 21/22 and 22/23 data and Breach of Bylaws (BoB’s) and infringements issued.

· A tiered approach to decision-making on specific elements of the Bylaws was agreed.

· An engagement and communications update.

Workshop

(14 Mar 23)

· Indicative issues and options for consultation discussed in detail.

Meeting 5:

(27 Apr 23)

· Decision made by Committee to consult on all proposed options for substantive changes to the draft bylaws.

· Consultation options agreed by Committee.

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 Maritime New Zealand under the Maritime Transport Act 1994.

Maritime Rules relate to the safety of ships (vessels) 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.

· Maritime Rules – Part 22: Collision Prevention

Part 22 outlines the navigation safety rules (and gives effect to the Convention on International Regulations for Preventing Collisions at Sea). These rules outline the standardised (international) system for prevention of collisions and apply to all watercraft, including ships, pleasure craft, and seaplanes. The rules outline international conventions around steering and sailing, and the use of lights and sound for collision avoidance.

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 bylaws cannot be delegated by Council to a Committee, so the Committee ‘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 Maritime Transport Act, Regional Council can set infringement fees by Order in Council^{^[1]}. At present we have 2017 regulations, which outlines offences under the Bay of Plenty Region Navigation Safety Bylaws 2017 and the fees applicable for those offences. These will need to be updated through a separate process of application to the Minister of Transport. Staff have provided draft infringement fees as part of the rationale table attached (see section 4 below).

1.1.4 Other Legislation:

Staff have also ensured 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 marine titles and protected 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

Low - Positive

þ Social

Low - Positive

¨ Economic

Low - Positive

The review of the Navigation Safety Bylaws 2017 will affect all the well-beings directly. A significant focus is put on the safety of the community on all navigable waters in the region.

2. Statement of Proposal

A Statement of Proposal (SOP) is prepared under section 83 of the Local Government Act 2002 (LGA). This document is a legislative requirement, with section 155 of the LGA outlining the mandatory content that council must consider when reviewing bylaws.

This document also introduces the draft Navigation Safety Bylaws document, with presentation of the proposed options to the substantive topics. The SOP provides an overview of the consultation process and how community members can submit on the changes to the Bylaws.

3. Draft Bay of Plenty Regional Navigation Safety Bylaws 2024

3.1 Document

As can be seen from the accompanying draft document (Appendix 1) and the table of changes (Appendix 2), the document has undergone several fundamental changes, though most of the actual clauses remain the same or similar in intent, there have been updates throughout the document. Please note that at the time of writing the report the draft maps were still being finalised. These will be tabled in full to the Committee at the meeting.

3.1.1 Layout changes

The layout to the document has been rearranged to bring focus to those clauses that are regionally important, for example, the Harbourmaster powers and other administrative clauses have been brought to the beginning of the document.

Clauses have been moved and collected based on a more rationale layout and some of the more localised clauses re-worded.

Of note are rearrangement of clause into new sections. Particularly, Water skiing and Towing; Temporary or Permanent Access lanes, Reserved Areas and Speed Upliftings; Reserved areas; Moorings; and Tauranga Harbour, Approaches and Pilotage Area. These changes will be discussed further at the Committee Meeting.

3.1.2 Technical changes

There are a number of procedural and technical changes made to:

· improve the flow of the document.

· Improve the readability of the clauses.

· Any reference to damage (that does not cause a hazard) has been taken out.

Reserved Areas:

It should be noted that we have re-named “Special Designated Areas’ back to ‘Reserved Areas’.

The permanent Reserved Areas (draft Clause 7.4.5) are outlined in the clause, with the specific rules applying to each area. Specific Area are highlighted on updated maps in Schedule 2. These changes will be discussed further at the Committee Meeting.

3.1.3 Main Consultation Questions

The Statement of Proposal and the draft document outlines options for the each of main consultation areas. As discussed at a committee workshop 14 March 2023, Committee members wished staff to provide all options to the public. Each option has been outlined with indicative maps accompanying each option. Specific consultation questions will be posed as part of the submission process to gather specific comments for these areas.

3.2 Peer Reviews

The draft document has undergone peer reviews from several perspectives. Internally these have included a legal review, a policy review, and an operational review.

Externally, Maritime New Zealand reviewed the document and recommended some changes recommendation changes. See Appendix 3.

As of the writing of this paper we have contacted Maritime New Zealand seeking clarification of some of their recommendations and have yet to receive this. Any response will be presented to the Committee at the meeting, as this may have a bearing on the final document.

4. Infringement Fees

The infringement fees attached to the clauses have also been reviewed. The new schedule of fees however, must undergo a different process than the draft Bylaws. Council must consult directly with the Minister for Transport to obtain a new Order in Council.

Therefore, Council will request from the Ministry for Transport, that the Maritime Transport (Infringement Fees for Offences—Bay of Plenty Regional Navigation Safety Bylaw 2017) Regulations 2017 be replaced with 2024 proposed infringement offences and fees. Appendix 4 – draft letter to Ministry for Transport.

A review of the infringement fees relating to the navigation bylaws was undertaken, using the "Effective Transport Financial Penalties Policy Framework" published by the Ministry of Transport Aug 2021.

As well as the need to update the fees in line with several new or updated clauses in the draft Bylaws, the region’s proposed fees are based on a number of further prudent principles:

· Appropriate punitive measures are based on risk of human harm and safety.

· That a financial penalty is a meaningful deterrent that holds an offender to account and sends a proportionate message of denunciation for the behaviour.

· That the financial penalty is at an appropriate level as to dis-incentivise behaviour leading to risk of harm materialising.

· That the level of financial penalty provides a societal 'signal' of how seriously an offence is considered.

· That for businesses (i.e. shipping companies) the penalties serve as a genuine deterrent rather than just the cost of doing business.

Once accepted, a new Maritime Transport (Infringement Fees for Offences—Bay of Plenty Regional Navigation Safety Bylaw 2017) Regulations 2024 will be gazetted and added to the Bylaws document.

5. Ngā Whakaarohanga
Considerations

5.1 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 was built into the project management of the review and any new issues and risks that affected the decision-making of the Committee were presented to the Committee at the earliest opportunity.

5.2 Huringa Āhuarangi
Climate Change

Climate change has an impact on all Council does and is considered in all that we do, and the effects are considered across the length of the project.

5.3 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 consultation, and decision-making process.

5.4 Whakawhitiwhiti ā-Hapori
Community Engagement

CONSULT

Whakauiuia

To obtain input or feedback from affected communities about our analysis, alternatives, and /or proposed decisions.

5.4.1 Consultation Plan

Consultation will be undertaken using the formal consultation procedure as prescribed by section 83 of the Local Government Act 2002. The consultation period will be undertaken over the 23/24 summer period to take advantage of the boating season. It will run until the end of February 2024 to allow for those on holiday to return home; and to leverage off summer maritime patrols being able to spread the consultation messages.

Staff will still be available to engage with specific groups if needed to talk through particular areas in interest or concern.

5.5 Ngā Pānga ā-Pūtea
Financial Implications

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

6. Ngā Mahi Whai Ake
Next Steps

Regional Council meeting 14 December 2023 for adoption of the endorsed draft for formal consultation.

A formal engagement process will begin on 18 December 2023 and run until 29 February 2024.

Hearings are set for March 2024, with exact dates being communicated to the Committee closer to the time.

Deliberations are planned for April 2024, with final adoption planned for June 2024.

Attachments

Attachment 1 - Draft Committee Copy 30 Oct 23 Version ⇩

Attachment 2 - Draft Document 'Changes per Clause' ⇩

Attachment 3 - 2024 Navigation Safety Bylaws Statement of Proposal DRAFT 1 ⇩

Attachment 4 - Toni Briggs BoP Regional Council re Proposed BoP Navigation Safety Bylaw 202 REPLY TO MARITIME NZ FEEDBACK ⇩

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

Chairperson	Cr Andrew von Dadelszen
Members	Bay of Plenty Regional Council: Cr Toi Kai Rakau Iti (Deputy Chair) Cr Jane Nees Cr Kevin Winters Tangata Whenua Representatives: Raewyn Bennett Micah Tawhara Patrick Young
Ex Officio	Chairman Doug Leeder
Quorum	Four members, consisting of a minimum of two tangata whenua members and two councillors
Meeting frequency	As required in agreed work programme