Greenpeace activists’ ‘offence’ enacted only recently
The judge sentencing two Greenpeace activists for interfering with a seismic survey last year says the court can’t ignore the fact that the offence they are charged with was enacted only recently.
Judge Arthur Tompkins told counsel for Greenpeace executive director Russel Norman and activist Sara Howell that the normal sentencing approach would require the court to acknowledge such a change, just as it would if Parliament increased the maximum sentence for an offence.
“Parliament has specifically seen fit to insert into the Crown Minerals Act this offence provision - relatively recently.”
“To what extent do I have to recognise that, by inserting this provision, there’s a Parliamentary expression of intent that this action should be taken perhaps more seriously than it has been in the past?”
In late April, Norman and Howell changed their plea to guilty on a charge of interfering with the Amazon Warrior, a 21,000-tonne seismic vessel, while it was surveying for Schlumberger off the East Coast in April last year.
They each face a potential $50,000 fine or a year in prison after getting into the water about two kilometres ahead of the vessel and forcing it to stop work and change course. The vessel, which costs about $400,000 a day to run, took eight hours to complete a 360 degree turn and resume its work.
A third activist, Gavin Mulvay, was granted diversion by the court last year after he apologised for his actions and the increased health and safety risks the protest posed to workers on the Warrior and its support vessels.
The prosecution of Norman and Howell is the first under a 2013 amendment to the Crown Minerals Act which made it an offence to interfere with the operations of a vessel undertaking exploration work.
The pair sought a discharge without conviction, which is being opposed by the Ministry of Business, Innovation and Employment. MBIE has dropped an earlier bid for $150,000 of reparations.
Ron Mansfield, counsel for the activists, told the court that the former National government supported the oil industry and introduced the new penalty to halt such protests. The Crown’s initial difficulty charging the skipper of vessel involved in a similar protest off East Cape in 2011 may have also been a factor, he said.
He suggested to the court that the provision was “likely to be revoked” by the new Government – a claim challenged by the judge, who observed that he must deal with the law “as it is”.
Mansfield suggested the fact the new Government has stopped issuing offshore exploration permits “might also provide some indication” for the court.
More than 20 of the public – mostly Greenpeace supporters – attended the hearing in the Napier District Court last week. Banners and floats outside the court called for an end to oil exploration, action on climate change and the defence of the right of protest.
Mansfield told the court that the risks to safety claimed by the Crown had been overstated.
The protest last year was planned and premeditated, but that was as much to manage the safety risk as to ensure an effective protest against the real dangers of climate change and the hydrocarbon industry’s role in that.
“Their entire action was designed to limit risk. It was designed for disruption, to bring attention to the issue, but to limit risk.”
Mansfield urged the court not to enter convictions, given they would have a chilling effect on the “low level civil disobedience” that society relies upon and which had brought about positive change in New Zealand – such as votes for women and homosexual law reform.
A conviction would also have real impacts on the defendants’ future employment prospects and their right to travel.
Howell, a 26-year-old Welsh national, had already had a working holiday visa revoked because of her involvement in the protest and may well not have her temporary visa extended in the event of a conviction.
Judge Tomkins noted that there seemed to be little case law to support a discharge in this sort of case. He noted that Greenpeace’s blocking of a coal ship in Lyttelton harbour in 2009, the 2012 occupation of the Noble Discoverer drillship in Port Taranaki, and a 2015 protest at Parliament, had all resulted in convictions.
Mansfield said that some authorities did appear to be taking a tougher line, but he also said many such protest cases didn’t get to court as the police properly used their discretion to grant diversion instead.
In this case, Norman and Howell had also wanted to take diversion but felt they could not accept MBIE’s terms from a position of their own honesty and their future credibility.
Mulvay’s diversion had included a $1500 donation and Mansfield offered a $3000 donation from each of his clients to the Coast Guard to assist the court’s consideration.
Crown prosecutor Cameron Stuart told the court the sea is an inherently dangerous place and the protestors had been “fundamentally naïve” to think their actions, and the responses from the Warrior and the other vessels, would all be flawless.
He said the case was not about morality of the law, oil or climate change, but the consequences of offending.
MBIE recognised the right to peaceful protest, but that does not extend to breaking the law or interfering with the lawful activities of others, he said.
Nor was a conviction considered a real threat to the pair’s employment, given they both work for Greenpeace.
Stuart noted that Greenpeace had taken every opportunity to broadcast their protest and had since cast themselves as victims of an unjust prosecution.
“Having used the court as a platform to publicise their views they now seek the indulgence of the court to avoid a conviction,” he said.
“While the defendants may have a clear conscious, they must also recognise that they cannot break the law with impunity.
“The defendants went into this with eyes wide open and accepted the consequences and took that risk.”
Greenpeace New Zealand had previously faced fines of up to $200,000 for its part in the protest. MBIE dropped those charges after the pair pleaded guilty.
Stuart described their offending as “mid-level” and suggested a substantial fine and/or some community service would be a suitable penalty.
After the hearing, Norman told journalists he didn’t intend to take part in a similar protest. The Government’s ban on offshore exploration meant he no longer needed to.
The hearing was adjourned until September 24.
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