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A save the planet protest sign with handcuffs around it, against a green background
Image: Archi Banal

SocietyNovember 27, 2023

Annoying or illegal? The restrictive future of climate activism

A save the planet protest sign with handcuffs around it, against a green background
Image: Archi Banal

As the climate crisis grows in urgency, environmental activism around the world is becoming increasingly frequent and increasingly disruptive. In response, the backlash from authorities is harshening. Will New Zealand follow the same path?

Parihaka, Bastion Point, the Springbok tour. The history of protest in New Zealand is strong. For decades, New Zealanders have turned to civil activism to promote positive change – and their right to do so has been fiercely protected by courts and lawmakers alike.

So when Rosemary Penwarden, a 64-year-old grandmother from Dunedin, sat down and fixed her hand to a key Wellington road one October morning during rush-hour traffic, she wasn’t thinking of the consequences.

Penwarden had earlier that month been sentenced to community service for a forgery conviction, after sending a satirical letter to speakers at an oil industry conference claiming the event had been cancelled. But she wasn’t deterred – she was there to protect her grandson from the perils of climate change. “In 2050 he’s going to be 39 years old,” she says, speaking on the phone from her Dunedin home. By this point, she was adhering to bail conditions that prevent her from leaving the house during rush-hour traffic or travelling to Wellington. “As a young adult he’s going to be living through the collapse of the society that we’ve all grown up in.”

Her grandson’s birth in 2011, coupled with attending talks by former Greens co-leader Jeanette Fitzsimons and James Hanson, then-director of Nasa’s climate science programme, awoke an activism in Penwarden that has not diminished. “I saw somebody who was terrified of the future and it triggered something in me. I had to start helping,” she says of Hanson. Now a member of activist group Restore Passenger Rail, she engages in protests often.

But on that morning in late October, Penwarden was arrested for her actions. She was charged with endangering transport – a serious offence that carries a maximum penalty of 12 years’ imprisonment – and denied bail. She spent 14 days in Arohata women’s prison.

“I think the people at Arohata were as flabbergasted as me to see me there,” she says. “With the climate crisis unfolding and the news around the world getting worse and worse, the absurdity of me being locked up was just bizarre.”

Rosemary Penwarden being arrested (Photo: Supplied)

Looking around the world, Penwarden’s protest and the subsequent response from authorities isn’t unusual. As the climate crisis grows in urgency, environmental activism is becoming increasingly frequent and increasingly disruptive. In response, the backlash from authorities is harshening.

Since 2017, At least 45 US states have passed or introduced legislation restricting the right to protest, according to the International Center for Not-for-Profit Law. In the EU, protesters have faced fines of up to €40,000 or multi-year prison sentences. Some have even been arrested for sedition – inciting a rebellion – before a protest takes place.

Under a new anti-protest law in the UK, a person who causes disruption by attaching themselves to someone or something with intent to cause disruption now faces up to a year in prison. In certain Australian states, protesters risk hefty fines for blocking public roads, rail lines, tunnels, bridges.

But in New Zealand – where our history or and respect for protest is strong – no such laws have been introduced. Kris Gledhill, a professor of law at AUT, says they might be less likely to fly here. “If you’re in Britain, [Penwarden] would be looking at [extended] jail time. But in New Zealand, where the right to protest is so important, a lot of people would say that’s extreme.

“Those other countries don’t have the same traditions because they don’t live in the same village that we do. Here, people might be more inclined to shrug and say, ‘sure, it’s annoying, but the sky’s not falling in’.”

Climate activists Marcus Decker and New Zealander Morgan Trowler were sentenced to three years in prison for scaling a bridge and shutting it down to traffic in the UK (Photo by Vuk Valcic/SOPA Images/LightRocket via Getty Images)

The long recognition and acceptance of a right to protest by New Zealanders is well-established. It is protected by the freedoms of expression and peaceful assembly provisions in the Bill of Rights Act, and the Supreme Court has ruled that it can include some disorderly behaviour. The key question, Gledhill says, is whether the protest is more disorderly or more offensive than people should be expected to tolerate in a democratic society.

That’s a tricky balance to strike. Alexander Gillespie, a professor of law at Waikato University, says there are many factors to consider. “Whether it’s reasonable or unreasonable might depend on whether it causes a permanent blockage of the road, or whether there are alternative routes for people to use,” he says. “Protests are meant to be inconvenient. But if it becomes unduly inconvenient, then you need to start considering the rights of other citizens as well.”

In Penwarden’s case, the elements of the endangering transport offence – which requires reckless disregard for the safety of others – might be met. But whether it causes a level of disruption that is unreasonable has to be considered.

“The offence is designed for people who do awful things like cutting the brakes on a car,” Gledhill says. “I’d argue on behalf of the protesters: what’s the difference between the public being disrupted by a weather event or a crash, and people protesting against something that is an existential crisis according to their view as a protester?”

Recent protest action from Restore Passenger Rail (Photos: Supplied. Design: Archi Banal)

In September, Peter Wham, also a member of Restore Passenger Rail, was charged with wilful damage for vandalising a central Wellington car dealership. “Your luxuries are killing us. The people selling these $200,000 utes and SUVs don’t care about our future,” a spokesperson for the group said at the time.

Wilful damage is a relatively minor offence, carrying a maximum sentence of three months imprisonment or a $2,000 fine. 

But recently, Wham was arrested again, this time for pasting up posters about the climate crisis. Police erroneously accused him of “encouraging or enticing illegal protest” in breach of his bail conditions, and he spent a night in jail.

The charges were thrown out the next day, but Wham is seeking compensation for undue detention. Restore Passenger Rail posted on social media in support. “This escalation by the police must be challenged. We ask the government to focus on the threat of the climate crisis, not on the public that are using peaceful civil resistance.”

According to Gillespie, police have an unenviable job dealing with disruptive protests. If a protest appears to overreach the point of reasonableness, the question then becomes how it should be penalised, he says. And that differs from country to country.

“Lawmakers might want to consider more specific rules to deal with this particular problem,” he says. “Whether or not blocking roads in a protest amounts to endangering transport… I wouldn’t want to fight that in court.”

Peter Wham, right, during the protest for which he was charged with wilful damage  (Photo: Twitter)

Gledhill agrees, in part. He says police may be relying on the “endangering transport” offence because we don’t have any suitable charges on the books that offer a middle ground between that and the minor offences in the Land Transport Act. 

It’s possible the new National-led government will remedy this. Incoming transport minister Simeon Brown introduced a member’s bill in 2022 that would create a new offence for obstructing major roads, tunnels or bridges – punishable by two years in prison, a $20,000 fine, or both. 

If such a law was passed, it would send a clear message that parliament considers the protesters’ actions to exceed the Supreme Court’s threshold of reasonable disruption. But Gledhill says the approach might not sit well with New Zealand. 

“We’d be better off modifying the endangering transport offence – adding in an exception to allow for legitimate protests to occur,” he says. “Our Supreme Court has already said, look, New Zealanders should be expected to tolerate a bit of disruption. What has changed so much since then? Did the Supreme Court get the balance so wrong that we need new laws? If that’s possible, we should get a case before the court to re-argue it.”

For Penwarden, the charges she faces don’t really matter. “Scientists are saying that we’re headed for a three-to-four-degree world – which means the end of civilisation as we know it,” she says. “So for me, getting arrested is a pretty tiny thing. It’s through disruption that change happens, so that’s why I resorted to the most peaceful disruptive thing that I could think of.”

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