Why is it much, much worse for protesters to interfere with oil exploration at sea than on the land?
A couple of years ago I wrote this post about the attempts to stop Petrobras surveying for oil in the seas off East Cape. The gist of it was that I couldn't see the legal basis for the Police intervening to stop the protestors' actions, insofar as they didn't seem to be committing any offence by simply sailing ships/taking swims in the open ocean even where this had the effect of interfering with the Petrobras survey.
The post then sparked some excellent discussion from some very smart people who knew more about the subject than me (some of whom, I note, seem to have become collateral damage in Pundit's never-ending war on spammers ... please rejoin!!!!). That discussion eventually worked out what law the Police were relying on in order to intervene in the matter: maritime safety regulations. But it's fair to say there remained some scepticism as to whether this provided a solid legal basis for their actions.
Then, in July last year, the District Court threw out the charges brought against one of the protest flotilla skippers on the basis that as the activities happened outside the limits of New Zealand's 12 mile territorial sea, New Zealand courts have no jurisdiction over the matter. That ruling was then reversed by the High Court, which found that there is jurisdiction over the matter and ordered that a defended hearing on the charges take place. However, we've yet to see whether, in fact, any actual offences were committed during the protest.
All of which means that there's still a measure of legal uncertainty as to exactly what actions are and are not lawful when protesting against oil exploration in the high seas. And, as we all know, business hates uncertainty. And, as we all know, oil and gas are going to be the saviours of New Zealand's economy, so the Government hates what business hates. Which is why my last words in the original post on the Petrobras protests were:
[A]lternatively, the Government may just rush through a law under urgency to make the protest unlawful.
It turns out that this was unnecessarily cynical of me. Because the Government isn't using urgency to rush through such a law. Instead, it's using a Supplementary Order Paper to do so, thereby inserting the measure into a Bill after the select committee stage (when the public gets the chance to comment on the proposal) and also avoiding any formal New Zealand Bill of Rights Act scrutiny under section 7.
So, that's a much better process, then. Sorry that I ever doubted you.
Putting the small matter of good legislative practice to one side, what does the proposed new offence provision actually say? I don't know for certain, as the SOP isn't up on Parliament's website yet, but here is how the Minister responsible (Simon Bridges) described it on TVNZ's Q&A:
SIMON So we are acting, and so two offences are going to be put into the Crown Minerals Bill. Look, the first of those is truly criminal offence. Effectively, what it says is that it will be stopping people out there at deep sea, in rough waters, dangerous conditions, doing dangerous acts, damaging and interfering with legitimate business interests with ships, for example, seismic ships, and what they're doing out there.
JESSICA What fines are we talking about there?
SIMON Well, for that one, 12 months' imprisonment, or $1000 (please note: the minister meant $100,000 not $1000) or $50,000 fine, depending on whether you're a body corporate or an individual. Then a lesser, more infringement offence, really, strict liability offence for entering within a specified area, probably up to 500 metres within that ship, again because of the dangers associated with doing that.
Let's first focus on the measures it is proposing to combat the evil of high-seas protest activity. Jumping into the water in the path of a ship whilst clad in a survival suit could put you in jail for up to a year and cost you as an individual up to $50,000. That's a pretty heavy consequence to face, demonstrating just how vitally important the activity of surveying and drilling for oil and gas must be.
Except ... now consider this case. A company is going to drill into some land in Taranaki and "frack" it to produce oil, under a permit granted under the Crown Minerals Act 1991. So an anti-mining group decides to protest this activity by forming a human chain to block the only road to the land, thus preventing the company from moving its machinery to the site on heavy trucks.
Well, the protestors are blocking a road, so they could be arrested for "obstructing [a] public way" under the Summary Offences Act. Which could result in them ... being fined $1000. Or, because the protestors are stopping the company from being able to carry out their mining, they may be "wilfully obstruct[ing], hinder[ing], resist[ing], or deceiv[ing] any person in the execution of any powers conferred on that person by or under [the Crown Minerals Act]." That particular offence may result in them ... being fined $1500. Although, to show how seriously this sort of thing is viewed, the Government (and Parliament's Commerce Committee) propose doubling that fine to $3000.
Which seems a little odd. Why is it that stopping an oil and gas company from carrying out its lawful business on land attracts but a fraction of the possible sentence that doing so at sea will?
The issue of "safety" seems too weak a hook on which to hang the matter. After all, sitting in a roadway in front of a big truck is a pretty risky thing to do. And in any case, since when did a National Government committed to "individual freedom and choice" and "personal responsibility" become so concerned with subjecting people to heavy criminal sanction simply because they are doing something that might hurt themselves? (Note: I get that the reason for criminalising protests at sea isn't just about safety - I'm interested here in why there are such markedly different penalties for protesting on sea from on land.) Furthermore, if "you might hurt yourself" is reason enough for stiffening the criminal penalties that apply to protestors in the open ocean, why do we still let people travel through those oceans in small rowboats and kayaks ... without even having to wear a lifejacket (although you do have to have one stowed somewhere on board). It seems the Nanny State is getting very concerned with some forms of risk, but not with others.
So forgive me if I end on another slightly cynical note. I can't help but wonder if the reason why the Government is cracking down so heavily on sea-bourne protests against oil exploration is because they actually worked - and so the Government wants to make sure that there aren't any more in the future.