A farewell to arms

The Occupy Dunedin camp has folded. Now a judge has told Auckland's version to do the same. So it goes.

The "Occupy Aotearoa" movement (if it ever really deserved such a grand title) looks to be dwindling away to nothing. Yesterday, the last few tents were taken down in Dunedin's Octagon, as the protest members decided to vacate the area to allow for unimpeded Christmas and New Years celebrations. At least, that was the reason given by the remaining few protesters - but I suspect the sheer exhaustion of a couple of months of continuous protest finally ground down the last die-hards amongst them.

And today the District Court has issued an injunction requiring the Occupy Auckland protesters to leave Aotea Square within 48 hours. While the protesters are making brave noises about still having Christmas dinner in the camp and are promising to appeal the judgment, I suspect they are whistling in the wind.

But how has it come to this? It was only a few weeks ago that there was real discussion as to whether the Occupy movement represented an epochal change moment. And what happened to the idea that protest rights taking priority over local government rules? After all, I wrote a Pundit post here about the NZ Bill of Rights Act problems with stopping the Occupy protests, a discussion I expanded on in the NZ Herald here. So what has changed?

Well, for one thing, the Councils (both in Dunedin and Auckland) have done a better job of specifying exactly what their reasons are for wanting to see the Occupy encampments ended. There is less emphasis on the unsightliness or inconvenience they pose, and more on the actual physical damage to communal property and the intrusion they are having on others' legitimate use of the public space.

Once the issue goes beyond the Councils simply seeking to enforce their rules just because they are their rules, and rather becomes Councils seeking to protect the broader common good against harm by a few (albeit well-intentioned) individuals, then you've got a balancing exercise that is worth the name.

And for another thing, the courts in Canada have on a couple of recent occasions ruled in favour of local councils over the protest rights of the occupiers. Canadian judgments in this area will be very influential for New Zealand courts because their human rights  protections were a model for our own - meaning the interpretation and application of their law is a very close match to ours. 

Indeed, I suspect one decision in particular - Batty v. City of Toronto, which ruled that the Occupy Toronto camp must come to an end - was particularly important for the District Court. This article on Stuff quotes District Court Judge David Wilson as saying in his decision:

"While Occupy Auckland proclaims its adherence to participatory democracy the evidence reveals that they do not practise what they preach. They did not do so when they decided to occupy Aotea Square. They did not ask those who live and work around Aotea Square... what they would think if Aotea Square... turned into a tent city.''

I'm assuming that Stuff has left out the judge's citations, because it is virtually a word-for-word quote from Justice Brown's ruling in the Occupy Toronto case (at para 9):

"Although proclaiming a message of participatory democracy, the evidence, unfortunately, reveals that the Protesters did not practise what they were preaching when they decided to occupy the Park.  Specifically, they did not ask those who live and work around the Park or those who use the Park – or their civic representatives – what they would think if the Park was turned into a tent city."

I have yet to see the full District Court judgment, and I'll post on it again when I do. But I have to say it was a decision I expected, and it isn't one I'm all that upset about. After all, the Occupy folks had their chance to spark something. But they didn't. And I don't think claiming a generic "right to protest" ought to act as a permanent trump card over all the other interests that a community may have in using its public spaces.

The point of protest, after all, is to serve as a catalyst for social change. Where a protest just isn't achieving that, the fact those involved in it think it is still important and remain committed to pursuing it shouldn't make it inviolable. Otherwise we as a community become hostage to the most committed and passionate amongst us.

Which, given the sorts of commitments and passions people hold, would not be a very good thing to do.