Most Read Contributor in New Zealand, September 2016
The Crown Minerals Amendment Bill will provide new protections
for deep sea mining operations against protest activities.
These are in addition to the existing provisions in the Maritime
Transport Act (MTA), which the High Court has recently
confirmed apply to New Zealand registered vessels beyond New
Zealand's territorial seas.
This Brief Counsel looks at the new summary offences in the Bill
and at the High Court's findings regarding the MTA. Chapman
Tripp will produce a separate commentary in the next few days on
the transitional arrangements in the Bill as they affect petroleum
New protections for miners in the Crown Minerals Bill
The Bill makes it an offence intentionally to engage in conduct
that results in damage or interference to any structure or ship and
to any associated equipment or activities used in off-shore mining
operations or for processing, storing or transporting minerals.
These are summary offences, meaning that it is not necessary for
the prosecution to prove that the person intended to commit the
The Bill also provides that the Chief Executive of the Ministry
of Business, Innovation and Employment (MBIE) can specify
a "non-interference zone" by notice published in New
Zealand Notices to Mariners. Enforcement officers will have the
power to prevent persons or ships from entering, and to stop and
detain vessels or people within, such zones.
These provisions were introduced to the Bill during the
committee stages in the House, via a Supplementary Order Paper.
Chapman Tripp's earlier commentaries on the new two-tier
regulatory regime for mining established by the Bill are available
here. Our commentary on the new health and safety requirements
for the petroleum sector is available
The application of the MTA
The incident which sparked the High Court litigation occurred in
the Raukumara Basin off the East Coast in 2011 when a protest boat
skippered by Elvis Teddy for Greenpeace and East Cape iwi sailed
within about 20 metres of the bow of the Orient Explorer, which was
surveying the area for Petrobras.
The police boarded the vessel but Teddy refused to relinquish
the wheel, alter course or comply with police instructions. He was
arrested and charged with offences under the MTA, and for resisting
arrest. But the District Court threw out the charges on the basis
that the MTA did not apply beyond the 12 mile limit.
The police appealed to the High Court.
The High Court found that, although the MTA did not expressly
state that it had jurisdiction, it must do "by necessary
implication" because of the statutory context and because of
New Zealand's international obligations.
The Court found:
"...it would be an odd
result, and inconsistent with Parliament's intention, for an
Act specifically regulating maritime offences to not apply beyond
New Zealand's territorial sea when New Zealand's general
criminal law applies beyond the territorial sea to all acts
occurring on Commonwealth ships".
One of the MTA's objectives was to ensure that New
Zealand's obligations under the United Nations Convention on
the Law of the Sea (UNCLOS) were implemented. The MTA
could not achieve this unless it had extraterritorial effect.
Chapman Tripp's commentary on the (unsuccessful) judicial
review into the Minister's decision to grant Petrobras deep
water exploration rights in the Raukumara Basin is available
Our thanks to Heather McKenzie for writing this Brief
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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The Court in this Judgment has exhaustively addressed the issue of legitimacy of claims raised by the mining leaseholders to recommence mining operations...
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