Meeting:

Regional Council

Meeting Date:

12 September 2024

 

 

Item under Separate Cover

As noted on the Regional Council Agenda for the meeting on Thursday 12 September 2024, the following item is included under separate cover:

Reports

Decisions Required

Agenda Item 10.2  Adoption of the Bay of Plenty Regional Navigation Safety Bylaws                                                                      2

Attachment 1 - Final Tracked Changes Council adoption version 1.pdf                    15

Attachment 2 - Final Clean Copy Council Adoption Version 1. pdf                            79

Attachment 3 - Final Schedule 1 Navigation Safety Bylaws Maps                             118

Attachment 4 - Placeholder for Attachment 4 - The Bay of Plenty Regional Council Proposed Regional Navigation Safety Bylaws 2024 – Report and Recommendations of the Committee

(To be distributed separately following the Navigation Safety Bylaws Review Committee scheduled for 10 September 2024)                    142

 


 

 

 

 

Report To:

Regional Council

Meeting Date:

12 September 2024

Report Writer:

Toni Briggs, Senior Project Manager

Report Authoriser:

Reuben Fraser, General Manager, Regulatory Services

Purpose:

To summarise the recommendations of the Navigation Safety Bylaws Review Committee.

 

 

Adoption of the Bay of Plenty Regional Navigation Safety Bylaws

 

Executive Summary

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, 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 timeframe 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.

At the end of 2019, as an alternative to traditional Hearings panels, staff recommended that for this review a Committee of Council be made up of Councillor representatives and representatives able to provide an overall tangata whenua view.

The Bay of Plenty Navigation Safety Bylaws Review Committee now presents a new Navigation Safety Bylaws document for adoption.

 

Recommendations

That the Regional Council:

1        Receives the report, Adoption of the Bay of Plenty Regional Navigation Safety Bylaws;

2        Agrees that under s155 of the Local Government Act, a Bylaws document is the most appropriate form of regulation to address navigation safety in the region and is not inconsistent with the New Zealand Bill of Rights Act 1990;

3        Agrees with the endorsement of the Navigation Safety Bylaws Review Committee and adopts the Bay of Plenty Regional Navigation Safety Bylaws 2024;

4        Agrees that the Bylaws comes into force on 1 October 2024;

5        Agrees with the recommendation of the Navigation Safety Bylaws Review Committee to disestablish the Committee upon adoption of the Bylaws and re-establish the Committee in the near future to further review Hunters Creek/Otapu ski area;

6        Agrees with the recommendation of the Navigation Safety Bylaws Review Committee that before the next 5 yearly review of the Bylaws Council reviews:

a.   An extension of the Astrolabe Reef exclusion zone for vessels over 500 gross tonnes for the purposes of navigation safety

b.   Keep a watching brief on the East coast shipping route to investigate the use of Navigation Safety bylaw powers to enhance safety aspects of this coastal route

c.   The prohibition of anchoring within the Tauranga Harbour shipping channel

7        Authorises the Chief Executive to make minor numerical, editorial or presentation amendments prior to the final publication.

 

1.        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, 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 timeframe 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 had divided opinion in the community on a small group of topics, particularly Ohiwa Harbour jetski exclusion; Hunters Creek Ski Lane; and speed uplifting on the Kaituna river. 

Previous Hearings Panels have been composed of Councillors only (2004 and 2010) and Commissioners only (2017).

At the end of 2019, as an alternative to traditional Hearings panels, staff recommended that for this review a Committee of Council be made up of Councillor representatives and representatives able to provide an overall tangata whenua view.  This Committee, it was proposed, would meet regularly over a 12-month period and undertake the whole process of review, consultation and deliberation of a new Bylaws document.

This was due to the following reasons:

·      The need for the Committee 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 Committee will be closer to “decision-making” than “advisory”, though final adoption of a Bylaws document will need to be done by full Council as outlined in Schedule 7 of the LGA 2022.

The Committee met a number of times to work through the review of the current Bylaws and development of a new Bylaws document.

The meetings were made up of:

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

·      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.

Meeting 6:

(7 November 2023)

·      Endorse a draft Bay of Plenty Regional Bylaws for Consultation.

(Full Council adopted the final Consultation document (14 December 2023))

Hearings:

(2-4 April 2024)

·      Heard 46 groups and individuals out of 575 submitters.

Deliberations:

(30-31 July 24)

·      Staff provided an options analysis for each of the key topics and the Committee deliberated over final solutions.

The Bay of Plenty Navigation Safety Bylaws Review Committee now presents a new Navigation Safety Bylaws document for adoption.

1.1      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. The specific bylaw making power for Navigation Safety comes from section 33M of the Maritime Transport Act 1994.

Maritime Rules

Bylaws made under section 33M of the Maritime Transport Act must not be inconsistent with 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[1]

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[2]

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[3]

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:

Although the bylaw-making power is authorised under the Maritime Transport Act 1994, aspects of the Local Government Act (LGA) 2002 also apply to navigation safety bylaws.

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). Consultation has occurred as required by section 86 of the LGA. Public consultation was carried out between 18 December 2023 and 29 February 2024. 576 submissions were received. Hearings were held from 2 April to 4 April 2024.

The specific requirements of s 155 of the LGA 2002 are of note.

Under s 155(1) a local authority must, before commencing the process for making a bylaw, determine whether a bylaw is the most appropriate way of addressing the perceived problem.

If that is the case, under s 155(2) the local authority has to, before making the bylaw, determine whether the bylaw:

(a) Is the most appropriate form of bylaw; and

(b) Gives rise to any implications under the New Zealand Bill of Rights Act 1990.

 

Bylaws also cannot be inconsistent with the New Zealand Bill of Rights Act 1990 - s 155(3).

 

The Statement of Proposal prepared as part of the consultation on these Bylaws considered s 155(1) and other non-bylaw options to address maritime safety issues in the Region.  It determined that Bylaws are the most appropriate way of addressing this issue.

 

While the Statement of Proposal also assessed the remaining s 155 matters, the way that section of the LGA 2002 is framed effectively requires further analysis prior to any bylaw being made (i.e. finalised) by a local authority.

 

As such, an Options table with s 155(2) assessments was provided to the Committee for Deliberations. This assessed whether there are other less restrictive ways to regulate the issues.

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[4]. 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 previously provided the Committee with draft infringement fees. The Committee endorsed the infringement fees being submitted to the Ministry (a separate process) with two areas signalled to be explored for increases (prohibition of entry into exclusion zone, and not anchoring in front of large ships – a moving prohibited zone).

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      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

þ 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.        Adoption of the Bay of Plenty Regional Council Navigation Safety Bylaws 2024

The Bay of Plenty Navigation Safety Bylaws Review Committee now presents a new Navigation Safety Bylaws document for adoption.

The Committee consulted on the draft Bylaws over the summer season of 2023/24.  The Committee highlighted five main areas of potential change in the Statement of Proposal, providing a range of options for feedback. These areas generated a high number of submissions from the community.

There were 576 submissions, with 1040 submission points.  Hearings were held 2 – 4 April 2024, with 46 groups and individuals presenting their submissions in person.

The Committee deliberated on a draft Bylaws document considering the community submissions, staff options analysis and legislative scope of navigation safety.

2.1      Local Government Act section 155 considerations

As part of the Local Government Act Procedure for making Bylaws (section 155 – 160) Council must:

Procedure for making bylaws.

Section 155   Determination whether bylaw made under this Act is appropriate.

(1AA) This section applies to a bylaw only if it is made under this Act or the Maritime Transport Act 1994.

(1) A local authority must, before commencing the process for making a bylaw, determine whether a bylaw is the most appropriate way of addressing the perceived problem.

(2) If a local authority has determined that a bylaw is the most appropriate way of addressing the perceived problem, it must, before making the bylaw, determine whether the proposed bylaw—

(a)    is the most appropriate form of bylaw; and

(b)    gives rise to any implications under the New Zealand Bill of Rights Act 1990.

(3) No bylaw may be made which is inconsistent with the New Zealand Bill of Rights Act 1990, notwithstanding section 4 of that Act.

Essentially the Council need to answer two key questions:

·   Are the Bylaws the most appropriate way to address navigation safety issues in the region and are the Bylaws in the most appropriate form to do this?

·   Do the Bylaws give rise to any implications under the New Zealand Bill of rights?

Staff consider that the Bylaws continue to be the most appropriate way to address regional navigation safety for the following reasons:

·   The regionally focused Bylaws fill a regulatory gap for the range of local issues and situations. 

·   The Bylaws complement other navigation safety regulation and legislation i.e. Maritime Rules and The Maritime Transport Act.

·   The Bylaws are an effective and efficient mechanism for managing the use of space on Bay of Plenty navigable waters.

·   The Bylaws support alignment and consistency with other Councils’ practice, whilst allowing for bylaws that address unique, localised navigation safety issues.

·   The Bylaws document provides an inclusive set of localised rules that is easy to disseminate and read by the maritime community.

Staff also consider that the draft bylaws, as presented to Council has no implications under the NZ Bill of Rights Act. 

Under the Local Government Act, a Bylaws review must consider whether a bylaw has any implications under the NZ Bill of Rights. Legally the Bylaws may not be inconsistent with the Act.  This requires consideration of:

·   Whether a bylaw limits any rights or freedoms contained in the Act.

·   And if so, whether the limitation is ‘demonstrably justifiable’ in a free and democratic society. 

The Bylaw could potentially limit rights under the New Zealand Bill of Rights Act 1990.

For example:

·   The right to freedom of peaceful assembly (section 16) may be limited where people wish to protest in reserved areas.

·   The right to freedom of movement (section 18) may be limited where the Bylaw restricts movement or access to certain locations to manage the use of space and ensure safety for events.

·   the right to be secure against unreasonable search and seizure may be limited because the Bylaw enables the Harbourmaster remove or move a vessel if the person in charge of the vessel fails to comply with the direction of the Harbourmaster or if the owner or person in charge of the vessel cannot be located.

For a limitation to be “demonstrably justifiable in a free and democratic society” it must serve a sufficiently important purpose to justify the limitation. A limitation must be:

·   be rationally connected to its purpose.

·   not limit the right or freedom more than necessary to achieve the purpose.

·   be proportionate to the importance of the objective.

There is evidence that activities on the Bay of Plenty’s navigable waters can cause risks of damage, harm and fatalities.

Potential Bill of Rights limitations are therefore justifiable because of the potential severity of associated risk.

3.        Review of Hunters Creek/Otapu Ski Area

The Bay of Plenty Regional Navigation Safety Bylaws Review Subcommittee was established by the Regional Council, 23 June 2022; for the purpose of undertaking engagement, options analysis, submissions, hearings, and deliberations of the review process; and making a final recommendation to Council on a revised Bay of Plenty Regional Navigation Safety Bylaws 2023.

The decision-making of the Committee was outlined in the Committee Terms of Reference as:

·   The Subcommittee must seek to achieve consensus.

·   If the Chair considers that the meeting is unlikely to achieve consensus on a matter, the decision on the matter may be made only by a 75% majority of those present. The Chair may vote but does not have a casting vote.

During Deliberations, the Committee reached consensus on all the review points except one.

 The Committee considered a range of options for the Hunters Creek/Otapu area at Matakana Island, which currently has a reserved area in the form of a ski area; including referring the decision to Council, but all options were discounted.

Because the Committee was unable to reach consensus or a 75% majority on Hunters Creek/Otapu ski area they are recommending to Council that the Committee be re-established with a new Terms for Reference with the purpose of conducting a further review of Hunters Creek/Otapu.

In the interim, the Navigation Safety Bylaws will include maintaining a ski area in Hunters Creek/Otapu until a further review can be undertaken in the near future.

4.        Interim Bylaws review of East Coast Shipping Route, Anchoring in the Tauranga Harbour Shipping Lane, and extension of the Astrolabe exclusion zone.

4.1      Extension of the Astrolabe exclusion zone

Since formal consultation, it has come to light that there have been a few instances of international ships over 500 gross tonnes passing between the Rena exclusion zone and Motiti Island (the last instance was 21 Mar 24 when the cargo vessel Ken Bos inbound for POT was cautioned by Maritime NZ). In this case the ship did not breach any exclusion zone hence the Harbourmaster could not infringe the vessel. The vessel was approx. 700 – 800 m from Motiti shore when she transited the passage.

Because of this incident and the possibility that this becomes a more frequent practice, it currently poses a significant risk to our regions waters and result in another ‘Rena’ incident.

Advice from Maritime NZ suggested the best course of action was to engage with the International Maritime Organisation, as this involved international shipping lanes. 

The committee agreed that this needed addressing as soon as possible, before the next regular review of the Bylaws document in five years time; and recommended further review and consultation with the International Shipping Organisation (ISO) and Maritime NZ.

4.2      East Coast Shipping Route.

Members of the committee asked staff to investigate public feedback on the shipping route coming from Gisborne to Tauranga Harbour, as they had feedback on ships coming close to shore.  Staff investigated through Land Information NZ who release an annual Hydrographic Assessment of shipping traffic in New Zealand.

Ships moving North-South (and into/out of the Port of Tauranga) travel close to the East Coast shoreline. Current data shows this is not a significant risk – and is more of a risk for the Gisborne part of East Coast. This matter is however something to continue to monitor. If the risk was seen to increase Harbourmaster powers could be used to enhance safety aspects of this coastal route.

The committee recommended Staff keep a watching brief on LNZ data and reporting; and consider, if the situation gets riskier, that this be part of the next formal Bylaws review.

4.3      Prohibiting anchoring in Shipping Channel – Tauranga Harbour

Another issue that had surfaced after consultation is the risk of recreational vessels anchoring in the Shipping channel into Tauranga Harbour and the Port.

In the next review, it would be beneficial to make this a ‘prohibited anchorage’ zone rather than the current ‘restricted anchorage’ in clause 8.10 in the (draft) Bylaws.

Staff anticipate this could be a popular consultation topic and the Committee recommended this also be addressed before the next formal review in five years.

5.        Considerations

5.1      Risks and Mitigations

Given the legacy issues connected to this project, the project was 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      Climate Change

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

5.3      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 was important to include them in the consultation, and decision-making process.

5.4      Community Engagement

Adobe Systems

CONSULT

Whakauiuia

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

 

5.5      Financial Implications

The budget for the implementation of the Bay of Plenty Regional Navigation Safety Bylaws 2024 is included in the current Long Term Plan within the Maritime Operations Activity.

The recommended new projects are as yet unbudgeted. As part of the scoping for each, staff will undertake a full cost analysis and report back to Council.

6.        Next Steps

6.1      Implementation of the Bay of Plenty Regional Navigation Safety Bylaws 2024

6.1.1    Bylaws become operative 1 October 2024

Staff propose that the Bylaws become operative on 1 October 2024.  This is the start of the summer season which will see staff undertake a wide communications campaign on navigation safety, including dissemination of the new Bylaws document, an updated ‘Boating in the Bay’ booklet, and various media campaigns.

6.2      Further Review of Hunters Creek/ Otapu ski Lane

Staff will undertake a Scoping exercise to understand the steps, resourcing and budget needed.  The premise of the project involves significant and on-going relationship building and engagement with a number of stakeholders, utilising a number of different subject matter experts across council.

Indicative steps may be:

1.   Develop of a Project Plan and Budget.

2.   Re-establishment of the Committee (by Council).

3.   Engagement Plan (for Committee signoff).

4.   Engagement process (led by Committee).

5.   Committee recommends Bylaw amendment to Council.

6.   Special Consultative Procedure under the LGA (with targeted, minimum requirements).

7.   Council consideration of consultation outcome.

6.3      Extension of Astrolabe exclusion zone

This project would involve only limited consultation with Maritime NZ and the International Shipping Organisation (ISO) but could take some time.  Resources would be minimal for the engagement and draft steps. Scoping would need to be undertaken to confirm this.

6.4      Prohibition of anchoring in the Tauranga Harbour Shipping Lanes

This project is also likely to involve substantial engagement with affected parties, along with formal consultation.  The project steps are likely to be similar to those for the Hunters Creek project as outlined above.

For efficiency, the projects could be run in tandem, allow for one special consultative procedure and Bylaws change/adoption, for example:

 

This could still pose resourcing issues. 

Alternatively, all projects could be run consecutively.  This will be part of the scoping done first.  Options can be brought back to Council for resolution.

 

Attachments

Attachment 1 - Final Tracked Changes Council adoption version 1.pdf

Attachment 2 - Final Clean Copy Council Adoption Version 1. pdf

Attachment 3 - Final Schedule 1 Navigation Safety Bylaws Maps

Attachment 4 - Placeholder for Attachment 4 - The Bay of Plenty Regional Council Proposed Regional Navigation Safety Bylaws 2024 – Report and Recommendations of the Committee

(To be distributed separately following the Navigation Safety Bylaws Review Committee scheduled for 10 September 2024)  

 

 

 

 

 

 

 


Regional Council                                                                                              12 September 2024

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Regional Council                                                                                              12 September 2024

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Regional Council                                                                                              12 September 2024

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Regional Council                                                                                              12 September 2024

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[1] Maritime Rules Part 90: Pilotage (maritimenz.govt.nz)

[2] Maritime Rules Part 91 - Navigation Safety Rules (maritimenz.govt.nz)

[3] Maritime Rules Part 22: Collision Prevention (maritimenz.govt.nz)

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