Supplementary Reports Agenda of Ordinary Council Meeting

Ordinary Council Meeting Agenda

11 December 2023

6 Ngā Pūrongo / Reports

6.1 Ngakahu Steering Group Recomendations

File Number: A4475668

Author: Tanya Proctor, Assets & Planning Manager

Authoriser: Guy Holroyd, Chief Executive Officer

Take Pūrongo / Purpose of the Report

To put forward the recommendations of the Ngakahu Steering Committee to Council.

WhakarĀpopoto matua / Executive Summary

· The Ngakahu Steering Committee (“NSC”) met with the Ngakahu/Ngakohu Whanau Ahuwhenua Trust (“the Trust”) on 9 November 2023.

· A form of meeting minutes was produced from that meeting.

· The minutes are provided as an attachment to this report.

· Those minutes outline recommendations that the NSC wish to bring to Council for consideration.

· Staff have been asked to prepare a report based on the recommendations from those meeting minutes.

tŪtohunga / Recommendation

That Council:

a. provides a list of all assets that will be transferred to a Wai Tāmaki ki Te Hiku

b. refers the Ngakahu Steering Committee back to the Trust to formally record by short form settlement agreement the cancellation of the Ford Repair Agreement,

and,

c. that the Ngakahu Steering Committee and Trust will commit to openly working together in good faith. The Steering Committee will inform the Council and Chief Executive of those workings to help inform Council staff in their decision-making

d. that works regarding the decommissioning of the dam involve initial engagement with the Trust, led by the steering group.

1) TĀhuhu kŌrero / Background

The NSC met with the Trust on 9 November 2023, a document outlining the minutes of that meeting is provided by way of attachment to this report. Those minutes outline recommendations that the NSC wish to bring to Council for consideration. Accordingly, staff have been asked to prepare a report based on the recommendations from those meeting minutes.

The meeting minutes referred and provided by way of attachment is not a Council document. The substance of the minutes and resolutions drafted within do not necessarily reflect the views of Council staff.

As the meeting minutes record, there are four recommendations that the NSC seek to bring to Council. Those four recommendations are quoted as follows:

REC 1: “The Ngakahu Steering Committee formally requests a list of all 3-waters assets that have been identified for transfer to another entity.”

REC 2: “The Ngakahu Steering Committee recommends that the Ford Repair Agreement be cancelled.”

REC 3: “That the steering group and trustees will commit to openly working together in good faith and that no further actions will be taken by Council staff unless agreed jointly.”

REC 4: “That all works on the decommissioning of the Dam that haven’t been agreed to by the Steering Group and the Ngakahu Trust shall cease. This includes any engagement of consultant and contractors.

2) matapaki me NgĀ KŌwhiringa / Discussion and Options

In response to those recommendations Council staff provide the following options and amended recommendations to Council for consideration.

Recommendation 1

The NSC seek a copy of the 3-waters assets that may transfer to Entity A under the 3 waters legislation.

Central Government elections have produced Coalition agreements, on page 9 of the Coalition Agreement between New Zealand National Party and ACT New Zealand it states that a stop-work notice will be issued immediately on the Three Waters workstream. The intention being that assets will remain or be returned to council ownership.

Council has not received a stop work notice at the time of writing this report and a list of all assets intended to transfer will be provided to the NSC.

Resolution 2

The NSC propose to cancel the Ford Agreement held between the Trust and the Far North District Council. Council staff recommend that the NSC work with the Trust to sign a settlement agreement to that effect. The agreement would require that the Trust withdraws its application that is currently with the Maori Land Court. Council has incurred legal costs in its defence to date of the application, however it would not claim those costs from the Trust, the same would be expected of the Trust.

A short form agreement can be drafted for the NSC to present to the Trust.

Please note that upon cancellation of the Ford Agreement the Far North District Council will no longer have the right to use the Ford.

In light of the above, staff present two (2) further recommendations for consideration:

Option 1: That Council refers the Ngakahu Steering Committee back to the Trust to formally record by short form settlement agreement the cancellation of the Ford Repair Agreement.

Option 2: That Council do not agree to the cancellation of the Ford Repair Agreement.

Resolution 3

Define “actions”? Consider that in regard to the dam (Council owned asset) and the land the dam resides (Council owned land) that Council must make decisions in accordance with its obligations. Notifying the Trust of those actions is a step that can be taken. There may be challenge in finding agreement between three parties before action can be taken.

Council staff recommend the following options:

Option 1: That the Ngakahu Steering Committee and Trust will commit to openly working together in good faith. The Steering Committee will inform the Council and Chief Executive of those workings to help inform Council staff in their decision-making regarding ‘actions’.

Option 2: That the Ngakahu Steering Committee and Trust will commit to openly working together in good faith.

Resolution 4

The common denominator is that all parties are vested in the decommissioning of the dam. These works will likely attract a circa $2 million cost. Typically, the procurement process for these services is by open tender. Council’s principled approach is to apply the Government Procurement Rules when planning, sourcing and managing procurement, as these set the standard for good practice.

The approach to procuring goods, services and works may vary depending on the value, complexity and risk involved. Generally, we would apply the approach best-suited to the individual purchase within the framework of the Rules, encouraging competitive tendering whenever possible. Ultimately, (as our Audit suppliers will confirm) any procurement regime must assist to avoid conflicts of interest, bias and predetermination.

Other factors that can play a part in procurement are cultural sensitivities and local knowledge. If these can be demonstrated, this is where the Trust might be engaged to assist.

In regard to decommissioning the dam, prior to any procurement, the Trust could be engaged to better understand its expectations [cultural sensitivities and local knowledge], so that any RFP and contract specs can be aligned with such requirements.

Engagement with the Trust, through the NSC, prior to the procurement process is recommended. It is likely that procurement rules/principles can be met this way, as opposed to seeking agreement on tender award which could void an open, fair and transparent procurement process.

In light of the NSCs recommendation and Council’s obligation to manage an open, fair and transparent procurement process the following recommendation is proposed:

Option 1:

That works regarding the decommissioning of the dam involve initial engagement with the Trust, led by the steering group.

TAKE TŪTOHUNGA / REASON FOR THE RECOMMENDATION

The recommendations are as requested by the NSC.

3) PĀnga PŪtea me ngĀ wĀhanga tahua / Financial Implications and Budgetary Provision

There are no financial implications to this report.

Āpitihanga / Attachments

1. Ngakahu Steering group meeting 20231108 Minutes - A4475663 ⇩

Hōtaka Take Ōkawa / Compliance Schedule:

Full consideration has been given to the provisions of the Local Government Act 2002 S77 in relation to decision making, in particular:

1. A Local authority must, in the course of the decision-making process,

a) Seek to identify all reasonably practicable options for the achievement of the objective of a decision; and

b) Assess the options in terms of their advantages and disadvantages; and

c) If any of the options identified under paragraph (a) involves a significant decision in relation to land or a body of water, take into account the relationship of Māori and their culture and traditions with their ancestral land, water sites, waahi tapu, valued flora and fauna and other taonga.

2. This section is subject to Section 79 - Compliance with procedures in relation to decisions.

He Take Ōkawa / Compliance Requirement	Aromatawai Kaimahi / Staff Assessment
State the level of significance (high or low) of the issue or proposal as determined by the Council’s Significance and Engagement Policy	This report has low significance as determined by Council’s Significance and Engagement Policy.
State the relevant Council policies (external or internal), legislation, and/or community outcomes (as stated in the LTP) that relate to this decision.	There are no policies relevant to this report. The Ngākahu Steering Group was formed via Council resolution.
State whether this issue or proposal has a District wide relevance and, if not, the ways in which the appropriate Community Board’s views have been sought.	The reports resolutions are not within the Community Board delegations.
State the possible implications for Māori and how Māori have been provided with an opportunity to contribute to decision making if this decision is significant and relates to land and/or any body of water. State the possible implications and how this report aligns with Te Tiriti o Waitangi / The Treaty of Waitangi.	The recommendations do not have any implications to Māori. The decommissioning of the Kauri Dam will require continued negotiation with Ngākahu/Ngākohu Ahuwhēnua Whānau Trust as it is a significant body of water.
Identify persons likely to be affected by or have an interest in the matter, and how you have given consideration to their views or preferences (for example – youth, the aged and those with disabilities).	The Ngākohu Steering Committee has met with the Trust . There are no other interested parties to these resolutions.
State the financial implications and where budgetary provisions have been made to support this decision.	There are no financial implications to the proposed resolutions.
Chief Financial Officer review.	The CFO has not reviewed this report.