There is a dispute out in the sea. The police must be able to arrest someone ... musn't they?

Here is what I understand to be happening at present on the seas far off the East Cape. A seismic testing vessel, the Orient Explorer, is under contract to Brazilian petrol giant Petrobras to conduct a survey of the Raukūmara Basin seabed. It's doing so pursuant to a permit issued back in the middle of last year by then Energy and Resources Minister Gerry Brownlee.

However, Greenpeace and at least some of the local iwi, te Whanau a Apanui, are not that happy about the prospect of deepwater oil wells one day working off the coast. So they have sent a gaggle of little ships out to protest this activity. The protest involves interfering with the Orient Explorer's navigation lines by placing swimmers in its path, thus forcing it to change direction (which, as I understand it, stuffs up the data record and makes the survey useless). As a result, the ship has suspended its operations for the moment.

Then cry 'Havoc', and release the dogs of war!

It's "economic sabotage" cries the Petroleum Exploration and Production Association, which says the Government should use either the Police or Navy to ensure that Greenpeace activists don’t further disrupt the vessel. It's getting in the way of "better jobs and better incomes" for New Zealanders, says John Key. (Better not tell Bill English, though - he'd be gutted to learn one of our key competitive advantages over Australia is under threat!) Judith Collins reportedly has "sought advice from Crown Law on the incident and the option of sending in the Navy had not been ruled out."

I don't claim to have any expertise on the issue of deep water oil production, and I've no special insight into the best energy path for New Zealand's economy in the next few decades. In so much as I've paid any attention to the topic, Rod Oram's Sunday Star-Times opinion piece from the weekend strikes me as pretty sensible - leading me to think that maybe Petrobras shouldn't be allowed to do what it wants to do in our seas. But let's put the substance of that argument to one side - Petrobras does have a permit to survey and the protestors are interfering with that activity ... so what now?

First up, the politicians should stf up. Or rather, they may by all means purse their lips and tut-tut at the economic recklessness of environmental activists and their foolish notions. But making comments such as "if the protest was happening on dry land, police would be able to do something about it" (John Key) crosses the line. Just in case there's any doubt about how things stand, let me set it out in bold: The Government cannot tell, and should not be seen to be telling, the police which potential offences they should investigate and which they should leave alone. But don't just take my word for it ... here's a judge saying the same thing;

"[L]ike every constable in the land, the Commissioner should be, and is, independent of the executive .... I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one .... The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone."

(Lord Justice Denning, in R v Commissioner of the Metropolis, ex parte Blackburn [1968] 2 QB 118 at 135.)

Now, I know the "John Key brand" is central to National's ongoing popularity, and I know Prime Ministers are expected to have an opinion on everything and be seen to be on top of all problems, but someone needs to take John Key aside and give him a good talking to about the concept of operational independence and the associated constitutional restraints on what he ought to speak about. Because this isn't the first time he's made this sort of slip, and even his fans think it isn't wise for him to do so.

Next thing, just because the protestors are interfering with something that Petrobras are legally entitled to do doesn't necessarily mean that the protestors are acting unlawfully. Or, to put it another way, acting Minister of Energy and Resources Hekia Parata is plain wrong to claim that “Democracy protects the right to protest but not to the extent of interfering with others’ rights".

Here's the legal position, as best I can untangle it in a couple of hours research. (So please, if I've messed up or missed something, tell me about it below!)

Petrobras' exploration permit exempts them from the general prohibition on exploring for petroleum under the Crown Minerals Act. So it provides a "right" (actually, in technical legal terms a "privilege") to conduct seismic testing, insofar as an otherwise existing legal duty ("do not explore for petroleum") has been lifted from them. But that right (actually, privilege) does not in and of itself confer any duties on any other person not to interfere with their testing. There is nothing, for example, in the Crown Minerals Act that says "it is an offence to hinder a permit holder when conducting a seismic survey", or the like.

So while Petrobras are engaged in a lawful activity - exercising their rights (actually, privileges) under law - so what? Because it also is lawful to sail a boat on the high seas, and to leap from that boat into the ocean (if you so choose) ... the default position in NZ is "unless the law says you can't, you can". Which means that, in and of themselves, the actions of Greenpeace and their allies also are an exercise of rights (actually privileges) under law. So what we have here are the exercise of two rights (actually, privileges) under law that have come into conflict. And that's all without having to talk about "the right to protest" or invoke the New Zealand Bill of Rights Act, or anything else of that nature.

(The above also means John Key's comment that "if this was happening on dry land, the police could intervene" is completely misleading. On land, the land owner (who would be allowing Petrobras to survey) would be able to tell the protestors to get the hell off that land ... and the protestors would have a duty to comply, which the police could enforce as a matter of trespass. On the high seas, no-one can tell a New Zealand boat or individual to get off it, so the situation is completely different.)

So, given that both Petrobras and the protestors are exercising legal rights (actually privileges), how might the conflict between them be mediated by the law? The usual hook on which such matters are hung does not seem to be available here - alleging the protestors are engaged in "disorderly behaviour" under the Summary Offences Act won't work as by no stretch can the open sea some 35 nautical miles off the coast be called a "public place".

Well, there is a general prohibition in the Maritime Transport Act on "do[ing] any ... act in respect of any ship or maritime product in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs." But I'm not sure that this will cover the protestors' actions - the only real danger or risk created by their actions is to themselves, not anyone else.

So perhaps it will fall back on the police's general function under the Policing Act to "maintain public safety". If the the situation just gets "too dangerous", perhaps necessity will require the police to move in to remove the protestors (purely for their own good, of course). Well, OK ... but perhaps someone might remind the police of this new paternalist approach the next time someone announces their intention to embark on a rowing trip from New Zealand to South America, or wherever the "challenge" lies. Because otherwise the suspicion might arise that the police's concern about "safety" is all rather convenient.

Or, alternatively, the Police may decide that what is happening out in the ocean is something that doesn't actually involve them at all, because there is no legal basis for them to act - as opposed to the obvious political desire to see some pesky eco-freaks get out of the way of our glorious economic future. In which case, it will come down to a test of wills between Petrobras' deep pockets and the protestors' dedication to their cause. After all, not every dispute has to have a legal answer.

Or, alternatively, the Government may just rush through a law under urgency to make the protest unlawful.