New Zealand: New anti-protest protections for off-shore mining

Brief Counsel

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 permits.

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 offence.

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 and here. Our commentary on the new health and safety requirements for the petroleum sector is available here.

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.

Statutory context

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".

International obligations

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 here.

Our thanks to Heather McKenzie for writing this Brief Counsel.

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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