The Occupy Dunedin camp has folded. Now a judge has told Auckland's version to do the same. So it goes.

The "Occupy Aotearoa" movement (if it ever really deserved such a grand title) looks to be dwindling away to nothing. Yesterday, the last few tents were taken down in Dunedin's Octagon, as the protest members decided to vacate the area to allow for unimpeded Christmas and New Years celebrations. At least, that was the reason given by the remaining few protesters - but I suspect the sheer exhaustion of a couple of months of continuous protest finally ground down the last die-hards amongst them.

And today the District Court has issued an injunction requiring the Occupy Auckland protesters to leave Aotea Square within 48 hours. While the protesters are making brave noises about still having Christmas dinner in the camp and are promising to appeal the judgment, I suspect they are whistling in the wind.

But how has it come to this? It was only a few weeks ago that there was real discussion as to whether the Occupy movement represented an epochal change moment. And what happened to the idea that protest rights taking priority over local government rules? After all, I wrote a Pundit post here about the NZ Bill of Rights Act problems with stopping the Occupy protests, a discussion I expanded on in the NZ Herald here. So what has changed?

Well, for one thing, the Councils (both in Dunedin and Auckland) have done a better job of specifying exactly what their reasons are for wanting to see the Occupy encampments ended. There is less emphasis on the unsightliness or inconvenience they pose, and more on the actual physical damage to communal property and the intrusion they are having on others' legitimate use of the public space.

Once the issue goes beyond the Councils simply seeking to enforce their rules just because they are their rules, and rather becomes Councils seeking to protect the broader common good against harm by a few (albeit well-intentioned) individuals, then you've got a balancing exercise that is worth the name.

And for another thing, the courts in Canada have on a couple of recent occasions ruled in favour of local councils over the protest rights of the occupiers. Canadian judgments in this area will be very influential for New Zealand courts because their human rights  protections were a model for our own - meaning the interpretation and application of their law is a very close match to ours. 

Indeed, I suspect one decision in particular - Batty v. City of Toronto, which ruled that the Occupy Toronto camp must come to an end - was particularly important for the District Court. This article on Stuff quotes District Court Judge David Wilson as saying in his decision:

"While Occupy Auckland proclaims its adherence to participatory democracy the evidence reveals that they do not practise what they preach. They did not do so when they decided to occupy Aotea Square. They did not ask those who live and work around Aotea Square... what they would think if Aotea Square... turned into a tent city.''

I'm assuming that Stuff has left out the judge's citations, because it is virtually a word-for-word quote from Justice Brown's ruling in the Occupy Toronto case (at para 9):

"Although proclaiming a message of participatory democracy, the evidence, unfortunately, reveals that the Protesters did not practise what they were preaching when they decided to occupy the Park.  Specifically, they did not ask those who live and work around the Park or those who use the Park – or their civic representatives – what they would think if the Park was turned into a tent city."

I have yet to see the full District Court judgment, and I'll post on it again when I do. But I have to say it was a decision I expected, and it isn't one I'm all that upset about. After all, the Occupy folks had their chance to spark something. But they didn't. And I don't think claiming a generic "right to protest" ought to act as a permanent trump card over all the other interests that a community may have in using its public spaces.

The point of protest, after all, is to serve as a catalyst for social change. Where a protest just isn't achieving that, the fact those involved in it think it is still important and remain committed to pursuing it shouldn't make it inviolable. Otherwise we as a community become hostage to the most committed and passionate amongst us.

Which, given the sorts of commitments and passions people hold, would not be a very good thing to do.

Comments (7)

by Brendon Steen on December 22, 2011
Brendon Steen

I agree. I think the heart of the decision is less a legal outcome and more a practical one. The protesters failed. They failed to get their message out, failed to engage the wider community, failed to foster the conversation that was their only chance of success and, most importantly for their legal position, failed to demonstrate why occupation in their specific case had any meaningful connection with expression.

Anyway, the full decision (and some other related bits and pieces) is here if anyone's interested.

by Matthew Percival on December 22, 2011
Matthew Percival

As an aside does the occupation of Wanganui's Moutua gardens some years ago set any sort of precedent? I can't recall off the top of my head what the council tried to do (or not do) to move those protestors on.

by Andrew Geddis on December 22, 2011
Andrew Geddis


Thanks - I'll be reading this and posting on it tonight (I hope).


The Moutoa Gardens (Pakaitore) occupation ended after the High Court issued an injunction - it was based on questions of land ownership/trespass rather than general protest, but.

by HIlary Stace on December 27, 2011
HIlary Stace

"After all, the Occupy folks had their chance to spark something. But they didn't."

It would be interesting to review this comment in a couple of years time. If we went back in time we could have found similar dismissive comments about women's suffrage, homosexual law reform, disability rights or any other movement that took a while to gain sufficient momentum to change the political landscape. The main purpose of Occupy Aotearoa is the same as the other 2500 or so centres around the world, which is to show there is a global movement saying 'stop' to a situation whereby a small entrenched elite controls the world's wealth and power, and groups of citizen tents in public places are just one visual symbol. NZ is firmly part of this movement. Every time the words or themes '99%' or '1%' or 'Occupy' are mentioned, or even rubbished, the movement's initial success is reflected. The tent cities might have moved on from many places as they outgrow that stage, but the protest movement which was sparked by Occupy Wall Street  is evolving and strengthening. Those involved are fond of quoting the words of an earlier world-changer, Gandhi: 'First they ignore you, then they laugh at you, then they fight you, then you win'.

This post shows NZ is coming up to stage two, while in the US they are well into stage three and on the way to stage four.

by Andrew Geddis on December 29, 2011
Andrew Geddis


My comment on "sparking something" was meant in relation to the actual form of protest itself, not the broader ideas behind the Occupy movement. Rather than growing in numbers and attracting a greater range of participants, the Occupy settlements were static at best and declining at worst. Even in Auckland, the most populated of the protest sites, the large majority of tents were a symbolic presence - not actually "occupied" overnight . In this sense, the protest had become more about the (few hundred at very most) participants interacting with one another than a rallying point for the broader community to join. This, I suggest, diminishes the reasons why that broader community should allow the encampment to monopolise the communal space. Which is what my post was about.

As for "The tent cities might have moved on from many places as they outgrow that stage, but the protest movement which was sparked by Occupy Wall Street  is evolving and strengthening", that is great! The nature of such movements is that they must grow or die - which is why we now remember the fight for homosexual law reform, and not so much attempts to have Esperanto adopted as a global language. So onwards and upwards, I say ... but I still think the court was right to call time on stage one.

by Royton De'Ath on January 03, 2012
Royton De'Ath

Thank you, Sir. This is, literally, a fabulous post.

Mr Steen goes to the heart of the matter, I believe. These people are failures, who have failed on so many fundamental fronts. They have failed to maintain full occupancy of the tents; failed to engage the community in an absolutely complete and all-encompassing way; failed to protest properly (i.e. change social conditions and evolve into something "more" before Christmas arrived) and, not least, they failed miserably in adopting an appropriate title for their protest, one that reflected both its geographical scale and their proper place in Our Great Society.

More importantly these protestors have failed to be succesful like Us, probably failed to get jobs and, even more importantly, failed to get Us to give up any tax cuts, tax breaks or entitlements whatsoever. And despite comments hinting at a contrary perspective, these people have completely failed to be on the Right side of history

The brightness in this sorry mess of failure? Its pleasing to note that our judges don't have to do too much heavy-lifting intellectually; the near perfect word-for-word phrasing from the Canadian judgment(s) saves the NZ taxpayer a bundle in judicial writing-time (the hourly rates must be horrendous).

The savings pile up even more when Wilson DM (at [124] 21/12/11) notes that the Ontario Superior Court had already provided a legal decision that the Auckland protestors can protest. This is international co-operation at its best; we can save even more money if the Canadians, with their friendly mining laws, can provide Us with legal decisions for mining in NZ's conservation estate before We start digging. I assume that Our Government has this matter well in hand, as it is undoubtedly an important plank in its growth/austerity mandate.

But, Wilson (at [125]) really stuck it to these failures-as-protestors when their hypocrisy was brought fully into the glare of public punditry. All that preaching, and no participatory democracy. Ha! That was a "gotcha" of stupendous proportions. Thank goodness Our political parties are never so hypocritical. The GST thing last year, for example, was just a slip. Our Wonderful Government, which comprises a superb body of non-failures, just forgot to ask (they are just human for goodness sake)  whether all of us wanted such a thing; nonetheless, having been involved in participatory democracy at election time surely that's quite enough for the hoi-polloi?

Thank you for the illumination about the collective concern for the Greater Good that is so embedded in local government. I must admit I had missed the Thomist/Aristotlean perspectives in the newsletters and rate demands provided by my local council. Although, when I think about it, the pay-rise given to the Christchurch City Council CEO is plainly an active expression for the Greater Good being endorsed and supported by Councillors of an Aristotlean persuasion. 

I must admit to having been mystified by the Hemingway allusion in the title of the post. I initially thought that the exhaustion, futility, tragedy and despair that Hemingway describes in that romance, must have been the protestors' - being the failures that they are. But, of course, Hemingway was on the Winning Side. So, the exhaustion, futility etc was Ours all along, of course! All that blogging, being held hostage by their protesting, the inconvenience and unsightliness, the inability to use communal property just as We want to, all had a price on Us. And the exhaustion caused by all that passion and commitment! Thank goodness, we have next to none (other than for being successful, and that seems to take no effort at all).

Thank you again, Sir. A most Telling post.

by Andrew Geddis on January 03, 2012
Andrew Geddis


Oh, I get it. You didn't like my post!

Tell me - is your tone typical of the interactions between members of Occupy Auckland? Or is there one special way of discussing things between those "in the group" and another to be used for the rest of the world? Perhaps you might note that bit in the judgment about participatory democracy and have a think about what it really means (as opposed to getting what you want just because you really, really, really know you are right).

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