Agenda of Regional Planning Committee - Wednesday, 16 February 2022

Meeting of the Regional Planning Committee

Date: Wednesday 16 February 2022

Time: 10.00am

Venue:

Council Chamber

Hawke's Bay Regional Council

159 Dalton Street

NAPIER

Agenda

Item Title Page

1. Welcome/Karakia/Notices/Apologies

2. Conflict of Interest Declarations

3. Confirmation of Minutes of the Regional Planning Committee held on
20 October 2021

4. Welcome to Newly Appointed Tangata Whenua Representatives

5. Follow-ups from Previous Regional Planning Committee Meetings 3

6. Call for Minor Items Not on the Agenda 13

Decision Items

7. Tangata Whenua Hearing Panel Commissioners' Conflicts of Interest Management 15

8. Proposed Schedule of 2022 Council and Committee Meetings 31

Information or Performance Monitoring

9. Policy Projects Update 35

10. February 2022 Statutory Advocacy Update 41

11. Update on the Central Government Programme of Reforms

12. Discussion of Minor Matters Not on the Agenda 49

Parking

There will be named parking spaces for Tangata Whenua Members in the HBRC car park – entry off Vautier Street.

Regional Planning Committee Members

Name	Represents
Karauna Brown	Te Kopere o te Iwi Hineuru
Allanah Hiha	Mana Ahuriri Trust
Tania Hopmans	Maungaharuru-Tangitu Trust
Laura-Margaret Kele	Heretaunga Tamatea Settlement Trust
Nicky Kirikiri	Te Toi Kura o Waikaremoana
Mike Mohi	Ngati Tuwharetoa Hapu Forum
Keri Ropiha	Heretaunga Tamatea Settlement Trust
Apiata Tapine	Tātau Tātau o Te Wairoa
Theresa Thornton	Ngati Pahauwera Development Trust
Rick Barker	Hawke’s Bay Regional Council
Will Foley	Hawke’s Bay Regional Council
Craig Foss	Hawke’s Bay Regional Council
Neil Kirton	Hawke’s Bay Regional Council
Charles Lambert	Hawke’s Bay Regional Council
Hinewai Ormsby	Hawke’s Bay Regional Council
Jacqueline Taylor	Hawke’s Bay Regional Council
Jerf van Beek	Hawke’s Bay Regional Council
Martin Williams	Hawke’s Bay Regional Council

Total number of members = 18

Quorum and Voting Entitlements Under the Current Terms of Reference

Quorum (clause (i))

The Quorum for the Regional Planning Committee is 75% of the members of the Committee

At the present time, the quorum is 14 members.

Voting Entitlement (clause (j))

Best endeavours will be made to achieve decisions on a consensus basis, or failing consensus, the agreement of 80% of the Committee members present and voting will be required. Where voting is required all members of the Committee have full speaking rights and voting entitlements.

Number of Committee members present Number required for 80% support

18 14

17 14

16 13

15 12

14 11

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 16 February 2022

Subject: Tangata Whenua Hearing Panel Commissioners' Conflicts of Interest Management

Reason for Report

1. This report presents proposed guidance for the management of conflicts of interest for local Māori commissioners for the Committee’s feedback and support for implementation.

Officers’ Recommendations

2. Council officers recommend that the Regional Planning Committee considers the proposed guidance and how it can support the involvement of more local tangata whenua involvement as resource consent Hearing commissioners.

Executive Summary

3. The Hearings Committee recognises the need for local tangata whenua to sit as commissioners on resource consent Hearings Panels. This discussion looks at potential conflicts of interest and how these can be avoided. Legal advice and staff guidance is provided.

Background /Discussion

4. At a recent Hearing Committee meeting, the members noted that they wished to see local Māori appointed onto resource consent hearings panels more often. This raised the question of what happens when hapū, Taiwhenua, Post Settlement Group Entities (PSGEs) or Ngāti Kahungunu Iwi Inc (NKII) or other iwi are submitters to an application and when is a person conflicted because of their association with any of these groups such that they should not sit on the panel to decide the matter?

5. The Hearings Committee requested that this matter be brought to the Māori Committee and Regional Planning Committees to discuss and seek guidance on appointing Māori experts as commissioners for resource consent hearings and on determining when a person might be conflicted in this situation. The Resource Management Act provides for hearings for resource consent applications where they are notified, submissions are lodged, and submitters wish to be heard.

6. The Hearings Committee is delegated the function of appointing commissioners to each Resource Consent Hearings Panel. These may be Councillors or other Council committee members or they may be independent appointees. They are required to have current Making Good Decisions (MGD) accreditation.

7. Typically, staff have recommended, and the Hearings Committee have appointed a panel comprising of a commissioner with RMA expertise, a commissioner with technical expertise relevant to the proposal and a commissioner with expertise in tikanga Māori and in Māori values (a Māori expert). On occasions a resource consent application could be heard by a single commissioner where the issues are narrowed down to a few matters and on other occasions the panel could be made up of more than three commissioners.

8. There is no legislative requirement to consult with tangata whenua when appointing commissioners to a resource consent Hearing Panel. However, the HBRC Hearing Committee is made up of four Councillors and two appointees from the Māori Committee and two tangata whenua representatives from the Regional Planning Committee so by its constitution, the Hearing Committee provides the opportunity for consultation with and involvement of tangata whenua. In doing so, tangata whenua representatives are able to provide guidance and recommendations on when to appoint someone with understanding of tikanga Māori and of the perspectives of local iwi or hapū, and who would be suitable.

9. It is recognised that at times there may be conflicts of interest and it is this matter that is discussed in this report.

Options Assessment

10. Staff have sought advice from Simpson Grierson on this matter. The essence of this advice (attached and following) is that basic conflict of interest principles should apply. People appointed as commissioners should not hold a bias or an apparent bias nor should they predetermine the matter. Where there is doubt about whether a conflict of interest exists, it can be prudent to err on the side of caution and to look to another appointee.

11. Where the person is a member of an iwi/hapū or can whakapapa to parties involved in the hearing process, this alone will not necessarily raise a conflict of interest. The Office of the Auditor General Managing Conflicts: A Guide for The Public Sector provides guidance. This states:

11.1. Some cultures, including Māori culture, have a broad concept of family. In our view, a conflict of interest will not often arise where the connection is a common ancestor, such as another iwi or hapū member. Sometimes an iwi connection could create a conflict of interest in and of itself. For example, if the person is working for a public organisation on a Treaty settlement where they are likely to end up as a beneficiary, this might create a conflict of interest. In this situation, the interest is personal.

12. The advice recommends that conflicts of interest will need to be assessed on a case-by-case basis. The following circumstances are identified as risk factors for conflicts of interest or apparent bias:

12.1. If the commissioner has an official role like as a trustee or director of an iwi entity making an application or submission or was a senior member of the iwi

12.2. If the hearings panel is asked to adjudicate on issues of who holds mana whenua over an area and the commissioner is a member of one of the iwi involved

12.3. If the commissioner has a financial or property interest in the matter

12.4. If the commissioner assisted the iwi with the application or submission

12.5. If there are significant and/or direct impacts on the commissioner’s iwi.

13. The advice identifies risk mitigation measures. These include:

13.1. preparing a longlist of commissioners so there is choice and alternatives

13.2. recording the interests of commissioners on the list to help determine risk of conflict

13.3. consider providing training to help potential commissioners to identify risks of conflict

13.4. set out in the contract brief the need to avoid conflict

13.5. engage with Commissioners at appointment stage to check on any financial, property, relevant family ties (including whakapapa) and any other roles they hold (such as directorship or trustee roles)

13.6. declaring possible conflict at the time it is realised and testing acceptance of other parties

13.7. recusing appointment if possible conflict is identified and/or not accepted or dismissed as a concern by other parties.

14. While some recommendations are made, the Regional Planning Committee members may have other ideas about how this can be done differently and/or more effectively.

15. The approach going forward can be improved to enable MGD qualified Māori Committee and Regional Planning Committee members and other local tangata whenua more opportunity to sit on hearings panels. Further training could be arranged for potential commissioners if this is seen as beneficial (over and above the Making Good Decisions training).

16. It is proposed that the following staff guidance be followed for all potential commissioners. Specific questions are identified for Māori experts to check that they are not conflicted due to their association with their iwi or hapū.

Proposed guidance for staff when recommending commissioners for appointment

17. Proposed guidance for appointment of commissioners who are Māori experts:

17.1. Prepare a longlist of local people with Making Good Decisions accreditation and with Māori expertise.

17.2. Check with each potential commissioner that they don’t perceive a conflict of interest. The questions to be asked of Māori experts would include:

17.2.1. Do you have an official role (e.g. trustee, director or senior member of an iwi / hapū or other entity making an application or submission on the application)?

17.2.2. If the Hearing panel is asked to adjudicate on issues of who holds mana whenua over an area, are you a member of one of the iwi / hapū involved?

17.2.3. Do you have a financial or property interest in the matter?

17.2.4. Have you assisted the iwi with the application or submission?

17.2.5. Are there significant and/or direct impacts on your iwi / hapū or other entity of which you are a trustee, director or senior member?

17.3. Appoint a backup person in case the first person is unavailable closer to the time of the Hearing. This is standard practice for all commissioner appointments.

17.4. Include a clause in the contract (where one is required) informing the pending Commissioner that they should be familiar with the Auditor-General’s “Managing Conflicts: A Guide for the Public Sector” and that they will be required to sign a declaration that confirms that they do not consider they have any conflict of interest prior to the Hearing. This is required for all commissioners on the Panel.

17.5. Require, prior to commencing a Hearing, that Commissioners complete a Declaration of Interests form to confirm that they have considered their interests in relation to the application and the parties involved and that they do not have a conflict of interest. This is standard practice for all commissioner appointments.

Examples from other areas

18. The advice from Simpson and Grierson refers to Joint Management Agreements established between Tūwharetoa Māori Trust Board and Taupo District Council (2009) and also between Te Rununganui O Ngāti Porou Trustee Ltd and Gisborne District Council (2015) and a mana whakahono a rohe or iwi participation arrangement between Poutini Ngai Tahu and West Coast Regional Council (2020). These establish joint management agreements across a range of matters including the appointment of consent hearing commissioners.

19. Taupo and Gisborne agreements have the same conflicts of interest clause.

19.1. Conflicts of Interest shall be considered and identified at the earliest possible moment and brought to the attention of the Panel at the earliest possible time, and in accordance with the Controllers and Auditor Generals Guidelines: Managing conflicts of interest: Guidance for public entities.

20. The Gisborne agreement adds a second paragraph.

20.1. A panel member is not precluded by the Local Authorities (Members' Interests) Act 1968, or any other regulatory mechanism, from discussing or voting on a matter merely because the member has Ngāti Porou whakapapa. The conflict would have to be direct e.g. ownership of land that is subject to a consent application.

21. The West Coast protocol addresses conflict of interest with the following statement:

21.1. Where perceived conflicts of interest arise in relation to hearing commissioner appointments, the Parties agree that a registered Ngāi Tahu tribal member who is trained as a hearing commissioner will continue to sit on the hearing panel on matters related to Poutini Ngāi Tahu rights, interests and values, and that their Ngāi Tahu whakapapa does not in itself constitute a conflict of interest. It should be noted that the principles of fairness and natural justice apply to all hearings.

22. These statements incorporate and reflect the Auditor General’s guidance. The West Coast protocol is saying that if someone is conflicted, they will be replaced by another person who is a registered Ngāi Tahu tribal member.

Strategic Fit

23. The Strategic Plan emphasises the need to work together. Representation of local tangata whenua on Consent Hearings Panels will assist in making decisions that align with desired outcomes expressed in the Strategic Plan and in the RMA suite of documents that HBRC implement.

Significance and Engagement Policy Assessment

24. This is not a change of policy. Resource consent applications can be small to major in effect. Effects on Tangata whenua values and relationships must always be taken into account. Commissioners with expertise in tikanga māori and in Māori values have been appointed to Hearing Panels in the past. This discussion is around achieving more involvement of local people with expertise in tikanga Māori and in māori values in the decision-making process while avoiding any conflicts of interest.

Considerations of Tangata Whenua

25. As mentioned above this discussion is around achieving the involvement of local people with expertise in tikanga Māori and in Māori values as commissioners on resource consent Hearing panels. The aim is to develop options to facilitate their appointment while ensuring that they do not have a conflict of interest.

Financial and Resource Implications

26. There are no financial and resource implications for the Council. Hearing Commissioners are paid for their time and costs associated with preparing for, attending and deciding on a resource consent application. These costs are recovered from the applicants.

Decision Making Process

27. Council and its committees are required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

27.1. The decision does not significantly alter the service provision or affect a strategic asset, nor is it inconsistent with an existing policy or plan.

27.2. The use of the special consultative procedure is not prescribed by legislation.

27.3. The decision is not significant under the criteria contained in Council’s adopted Significance and Engagement Policy.

28. Given the nature and significance of the issue to be considered and decided, and also the persons likely to be affected by, or have an interest in the decisions made, the Regional Planning Committee can exercise its discretion and make a decision without consulting directly with the community or others having an interest in the decision.

Recommendations

That the Regional Planning Committee:

1. Receives and considers the ‘Tangata Whenua Hearing Panel Commissioners' Conflicts of Interest Management’ staff report

2. Agrees that the decisions to be made are not significant under the criteria contained in Council’s adopted Significance and Engagement Policy, and that the Committee can exercise its discretion and make decisions on this issue without conferring directly with the community or persons likely to have an interest in the decision.

3. Supports the involvement of more local tangata whenua as Resource Consent Hearing Commissioners.

4. Supports the proposed guidance to avoid conflicts of interest (with agreed amendments incorporated if required).

Authored by:

Malcolm Miller

Manager Consents

Approved by:

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

1 ⇩	Simpson Grierson Tangata Whenua Conflicts of Interest Guidance
2 ⇩	List of local tangata whenua Making Good Decsions qualified Hearings Commissioners

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 16 February 2022

Subject: Proposed Schedule of 2022 Council and Committee Meetings

Reason for Report

1. This item proposes the schedule of meetings for Council and its committees for the upcoming year for the Committee’s consideration and agreement.

Officers Recommendation

2. Staff recommend that the Committee agrees that the proposed schedule, subject to change as the tangata whenua governance model is further developed, is acceptable.

Background

3. The Regional Council traditionally adopts a Schedule of Meetings for the following year by October each year, incorporating:

3.1. One Regional Council meeting scheduled on the last Wednesday of each month

3.2. Environment & Integrated Catchments Committee (EICC) and Māori Committee scheduled every second month

3.3. Regional Planning Committee schedule at six to eight week intervals

3.4. Regional Transport Committee (RTC) meetings scheduled on a Friday, four times per year

3.5. Finance, Audit & Risk Sub-committee (FARS) meetings scheduled quarterly, to align with Risk and Audit reporting timeframes

3.6. Corporate & Strategic Committee meetings scheduled quarterly, after FARS meetings and aligned with organisational performance (including financial) reporting timeframes

3.7. HB CDEM Group Joint Committee meetings coordinated to occur on the same day as Regional Leaders’ Forum meetings, three to four times per year

3.8. Clifton to Tangoio Coastal Hazards Strategy Joint Committee meetings scheduled approximately every eight weeks

3.9. Timeframes for Annual Plan and Annual Report development, consultation and Audit.

4. The proposed 2022 schedule of meetings (attached) has been developed taking the following additional factors into consideration.

4.1. With the exception of CDEM, RTC and Joint Committee meetings, all meetings to be held on a Wednesday

4.2. One week of each school holiday period is kept free of meetings

4.3. Keep the entire July school holidays free of meetings

4.4. Audit NZ constraints and Annual Report adoption deadlines extended by Central Government as a result of Covid-19.

Discussion

5. The meeting schedule proposed today will be subject to amendment in relation to discussions at recent Strategic Governance workshops about potential changes to the way Tangata Whenua are involved in Council decision making processes.

6. If the result of further discussions and planning is to have regular All Governors hui or workshops throughout the year, staff will amend the schedule to have less frequent formal Regional Planning Committee and Māori Committee meetings. Staff will await further detailed development of the new ‘model’ prior to making any amendments (e.g. cancelling any formal meetings, or replacing any formal meetings with workshops or hui).

Next Steps

7. Tangata whenua and All Governors hui will be scheduled to facilitate discussions and development of a new ‘partnership’ governance model over the next 2-3 months. Following those hui staff will amend the schedule of meetings as necessary to implement the new ways of working through decision making processes and present that schedule for Council adoption and agreement of tangata whenua.

Decision Making Process

8. Council and its committees are required to make every decision in accordance with the requirements of the Local Government Act 2002 (the Act). Staff have assessed the requirements in relation to this item and have concluded:

8.1. The Council is required to (LGA sch.7 cl.19(1)) hold the meetings that are necessary for the good government of its region.

8.2. Adoption of a schedule of meetings is specifically provided for under Schedule 7, Part 1, Section 21.

9. Given the provisions above, the Māori Committee can exercise its discretion and make these decisions without consulting directly with the community or others having an interest in the decision.

Recommendations

That the Māori Committee:

1. Receives and notes the “Proposed Schedule of 2022 Council and Committee Meetings” staff report.

2. Agrees that the Committee can exercise its discretion and make this decision without consulting directly with the community or others having an interest in the decision

3. Accepts the 2022 Schedule of Meetings as proposed, subject to change and to agreement with the Regional Planning Committee, and advises the Regional Council accordingly.

Authored by:

Leeanne Hooper

Team Leader Governance

Approved by:

Pieri Munro

Te Pou Whakarae

Attachment/s

1 ⇩

Proposed 2022 Meeting Schedule as at 25 Jan 2022

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 16 February 2022

Subject: Policy Projects Update

Reason for Report

1. This report provides an outline and update of the Council’s various resource management projects currently underway, as well as the opportunity for staff to verbally update the Committee on the:

1.1. TANK plan change hearing

1.2. Outstanding Water Bodies plan change

1.3. Ngaruroro Water Conservation Order.

Resource management policy project update

2. The projects covered in this report are those involving reviews and/or changes under the Resource Management Act to one or more of the following planning documents:

2.1. the Hawke's Bay Regional Resource Management Plan (RRMP)

2.2. the Hawke's Bay Regional Policy Statement (RPS) which is incorporated into the RRMP

2.3. the Hawke's Bay Regional Coastal Environment Plan (RCEP).

3. From time to time, separate reports additional to this one may be presented to the Committee for fuller updates on specific plan change projects.

4. Similar periodical reporting is also presented to the Council as part of the quarterly reporting and end of year Annual Plan reporting requirements.

Decision Making Process

5. Staff have assessed the requirements of the Local Government Act 2002 in relation to this item and have concluded that, as this report is for information only, the decision making provisions do not apply.

Recommendation

That the Regional Planning Committee receives and notes the Policy Projects Update” staff report.

Authored by:

Anne Bradbury

Team Leader - Policy and Planning

Belinda Harper

Senior Planner

Ellen Robotham

Policy Planner

Approved by:

Ceri Edmonds

Manager Policy and Planning

Katrina Brunton

Group Manager Policy & Regulation

Attachment/s

1 ⇩

February 2022 RMA projects Update

HAWKE’S BAY REGIONAL COUNCIL

Regional Planning Committee

Wednesday 16 February 2022

SUBJECT: February 2022 Statutory Advocacy Update

Reason for Report

1. This item updates the status of reports on proposals forwarded to the Regional Council and assessed by staff acting under delegated authority as part of the Council’s Statutory Advocacy project.

2. The Statutory Advocacy project centres on local resource management-related proposals upon which the Regional Council has an opportunity to make comments or to lodge a submission. These include, but are not limited to:

2.1. resource consent applications publicly notified by a territorial authority

2.2. district plan reviews or district plan changes released by a territorial authority

2.3. private plan change requests publicly notified by a territorial authority

2.4. notices of requirements for designations in district plans

2.5. non-statutory strategies, structure plans, registrations, etc prepared by territorial authorities, government ministries or other agencies involved in resource management.

3. In all cases, the Regional Council is not the decision-maker, applicant nor proponent. In the Statutory Advocacy project, the Regional Council is purely an agency with an opportunity to make comments or lodge submissions on others’ proposals. The Council’s position in relation to such proposals is informed by the Council’s own Plans, Policies and Strategies, plus its land ownership or asset management interests.

4. The summary outlines those proposals that the Council’s Statutory Advocacy project is currently actively engaged in.

Decision Making Process

Recommendation

That the Regional Planning Committee receives and notes the “February 2022 Statutory Advocacy Update” staff report.

Authored by:

Nichola Nicholson

Intermediate Policy Planner

Ellen Robotham

Policy Planner

Gavin Ide

Principal Advisor Strategic Planning

Approved by: