New Zealand Journal of Environmental Law
Last Updated: 21 January 2023
The Last 55: A Critical Analysis of the Regulatory Framework to Protect and
Preserve Maui’s Dolphin in New Zealand
The situation facing Maui’s dolphins is dire. There are estimated to be 55 breeding adult Maui’s dolphins left in the world and they are found off the west coast of the North Island in New Zealand. The threats that currently face the species include commercial fishing, recreational fishing, marine mining, pollution and habitat destruction. All of these factors have contributed to the significant decline in the species’ population over the past 50 years. Whilst New Zealand has a range of pieces of legislation relevant to the conservation of Maui’s dolphins, there are shortcomings in the regulatory framework. The most recent issue within the regulatory framework was the proposal to offer permits for oil and gas exploration in areas that are part of the habitual range of Maui’s. Given the severe threat of extinction that looms over the species, proposals such as these have raised concerns about the framework and its efficacy. The following are the recommendations that this article provides to improve the conservation measures relevant to Maui’s dolphins:1
*This article has been adapted from a paper completed for an environmental course Laws 490 14B at the University of Waikato supervised by Trevor DayaWinterbottom. Email contact: mrj. firstname.lastname@example.org.
1 For more detail on the recommendations see part 7 below.
The population of Maui’s dolphin is at a level where they are now critically endangered and face imminent extinction. The population of Maui’s dolphin has declined dramatically from a number of 1800 in 1970 to a mere 55 dolphins one year and older today.2 Of these 55, only 15 are breeding females which means the future prospects for the species are dire.3 The public spotlight has recently fallen on the species with oil and gas exploration proposed in their habitual range. This has sparked outrage both in New Zealand and internationally about the proposal and led to questions about the efficacy of the legal framework that protects this species.
As such, this article will analyse the legal framework and consider whether it provides adequate protection for Maui’s dolphin. In doing so, the current outlook for the species will be discussed including the range of the dolphin and the major threats that it faces. The third part will explore the regulatory framework that is currently in place in New Zealand including legislation, regulations and policy documents. The fourth part will review the regulatory environment in Queensland, Australia. This is because Queensland is home to an endangered dolphin species and provides a good point of reference in a comparable jurisdiction. To complete the analysis of legal instruments
that may influence New Zealand, relevant international law instruments and bodies will be outlined in the fifth part. The sixth part will draw together the previous analysis to critically review the efficacy of New Zealand’s regulatory framework. In the seventh part, the areas of the framework found to be inadequate will be addressed with recommendations to improve them, followed by the conclusion.
2. BACKGROUND AND CONTEXT
Maui’s dolphins have only recently been found to be a separate subspecies of Hector’s dolphin.4 Hector’s dolphins, and their subspecies Maui’s dolphin, are New Zealand’s only endemic cetaceans. Maui’s are found off the west coast of the North Island between Oakura Beach in Taranaki and Maunganui Bluff in Northland with the highest density of dolphins found between Manukau and Port Waikato.5
Currently, a number of threats face the species and humanrelated activity contributes significantly to their mortality. The most recent International Whaling Commission (IWC) report on Maui’s dolphins estimates that 95.5 per cent of the humaninduced mortality of the dolphins arises as a result of gillnetting and trawling.6 Even though fishing methods contribute significantly to the mortality of Maui’s, 85 per cent of the habitual range of the species remains unprotected to fishing. The other 4.5 per cent of humaninduced mortality of the dolphins is caused by pollution, marine mining, boat strikes, disease and tidal energy production.7
Recently, the New Zealand government has opened up over 3,000 square kilometres off the west coast of the North Island for oil and gas exploration.8 This area is also home to the West Coast North Island Marine Mammal Sanctuary where a number of Maui’s dolphins are found. The tension between development and conservation is very real in this instance given the significant economic benefits that exist in the area as well as the real risk of harm that
The Guardian (online ed, London, 15 August 2014).
could result to Maui’s dolphin along with other marine species. The risks that arise from oil and gas exploration can be grouped into four main effects:9 acoustic disturbance, benthic disturbance, increased turbidity, and pollution. These will be considered in turn.
Acoustic disturbance arises during oil and gas exploration from a number of sources that are used as part of the exploration process. For example, underwater acoustic disturbance is produced by sonar, drilling, suction sampling, dredging and also seismic surveying. The effects of this interference on marine mammals can be drastic as it can affect their ability to locate prey, communicate with other dolphins, and may result in mass strandings.10 One author suggests that a single seismic survey can cause noise disturbance that extends to a volume of 300,000 km3 and can cause changes in the ambient noise level for a period of days.11 Furthermore, lasting effects may result from the increased level of noise such as permanent damage to hearing which will harm the chances of the dolphins finding a mate or finding food.
Benthic disturbance refers to disturbance that occurs in the bottom part of the ocean including the seabed.12 This disturbance can suspend materials which may then smother reef structures as well as marine flora. Such disturbance may be caused by suction sampling, sand dredging and core sample drilling. This can have the effect of altering the structure of the local ecology and may reduce the abundance of food sources for certain organisms. Thompson notes:13
It is likely that there will be a number of cumulative impacts on higher trophic levels as a result of the bottomup effects induced by altering the community composition of benthic fauna.
Related to this concern is the likely increased turbidity of the water column as a result of the exploration. Turbidity refers to the suspension of fine particles in the water column as a result of seabed disturbance.14 This disturbance may occur for reasons indicated earlier such as dredging and core sampling. This can affect marine species by reducing biomass and altering its composition.
14 At 27.
Moreover, increases in turbidity can result in decreases in fish fitness given they have to work harder to swim which reduces their wellbeing.
The final concern is the increase in the pollution of the area being explored. Thompson indicates that seabed mining might disturb previously undisturbed pollutants.15 These pollutants, particularly heavy metals, once they enter the ecosystem will remain there for a long time as it is passed in tissue from prey to predator. This may mean that these heavy metals could enter the human food chain which would cause adverse health consequences. Thompson states “Maui’s dolphins, like all odontocetes, are vulnerable to bioaccumulating toxins persisting in their environment”.16
As the preceding analysis indicates, the effect of oil and gas exploration upon Maui’s dolphin and other organisms that form part of their ecosystem could be quite serious. Unfortunately, Maui’s are not found in any other part of the world which means that significant damage to areas of the west coast of the North Island could be fatal for the species. This incident is also alarming for the fact that the protection afforded by the West Coast North Island Marine Mammal Sanctuary appeared to be highly ineffective in this instance. In light of this matter, the following part considers the current regulatory framework for Maui’s dolphin and the level of protection it affords the species.
3. NEW ZEALAND REGULATORY FRAMEWORK AND LEGISLATION
A variety of pieces of legislation are relevant to this discussion given that both fishing and extractive industries will be considered in the discussion. One policy document relevant to both parts of the subsequent discussions is the New Zealand Coastal Policy Statement 2010 (NZCPS). The NZCPS is an important policy statement as regional councils must give effect to it under the Resource Management Act 1991 (RMA) in creating their own regional plans.17 The NZCPS applies to the coastal marine area which is defined as the area between the mean highwater mark and the outer limits of the territorial sea. 18 Policy 11 relates to indigenous biological diversity and stipulates that activities should be avoided where they create adverse effects for species that are threatened. The examples
15 At 27.
16 At 32.
listed include Maui’s dolphin. Given that Maui’s dolphins are threatened species under the IUCN classification system this policy statement provides a clear direction to policymakers to avoid adverse effects on this species. In considering how the NZCPS has been implemented, the regional policy statements that are relevant to Maui’s dolphin will be evaluated. The Waikato
Regional Policy Statement states that:19
[t]o maintain biodiversity, the life supporting capacity of habitats of the populations making up that diversity and ecosystems must be protected. The range and number of habitats supporting indigenous species have already been severely reduced. Effort must be made to reverse this trend.
From this statement, the Regional Council adopted the broad objective to maintain or enhance the biodiversity within the region. However, in the implementation of the policy statement, the Council acknowledges that there is going to be use and development of natural resources. Thus, the policy also requires that adverse effects on biodiversity are avoided, mitigated, or remedied. A number of methods for implementation are provided in the policy.
A recent development in relation to Maui’s dolphin which adds another layer to the conservation framework is the Waitangi Tribunal claim by Ngāti Te Wehi. The claim has been advanced under the Te Tiriti o Waitangi on the basis that the Crown has failed to actively protect a taonga (treasure), Maui’s dolphin. This claim argues that Te Tiriti o Waitangi protects tino rangatiratanga, or chiefly rule, which would have been exercised over the dolphins which are themselves a taonga which is also protected by Te Tiriti. Ngāti Te Wehi argues that the regulations proposed under the Threat Management Plan (TMP) by the Department of Conservation (DOC) are inadequate given the gravity of the situation facing the species. Overall, they seek a recommendation from the Waitangi Tribunal that the Crown must “immediately implement far greater protective measures that remove the risk of the Maui’s dolphin’s [sic] being killed by humaninduced means and becoming extinct”.20
3.1 Fishing Regulatory Framework
The Fisheries Act 1996 is the central piece of legislation that regulates the fisheries industry in New Zealand. The broad purpose of this Act is “to provide for the utilisation of fisheries resources while ensuring sustainability”.21 The Act defines ensuring sustainability as:22
(a) maintaining the potential of fisheries resources to meet the reasonably foreseeable needs of future generations; and
(b) avoiding, remedying, or mitigating any adverse effects of fishing on the aquatic environment.
The second part of the definition of sustainability is that which is most relevant to this article given that Maui’s dolphins do not form part of New Zealand’s fisheries, yet are part of the aquatic environment. Interestingly, the second part of the definition is written in absolute terms and does not provide discretion to the regulator about their approach to adverse effects of fishing on the aquatic environment. The Supreme Court in New Zealand Recreational Fishing Council Inc v Sanford Ltd found that section 8(1) “expresses a single statutory purpose” in which there is a tension between utilisation and sustainability.23 Elaborating on this, the Court said that the terms outlined in section 8(2) “are to be accommodated as far as is practicable in the administration of fisheries”.24 Overall, this discussion is relevant to species not included in the fisheries such as Maui’s dolphins as “[f]isheries are to be utilised, but sustainability is to be ensured”.25
Decisionmakers under the Fisheries Act 1996 must also account for the environmental principles contained in the Act. These principles require associated or dependent species to be maintained at a level to ensure their longterm viability, that biodiversity of the aquatic environment should be maintained, and that habitats of particular significance for fisheries should be protected.26 Section 10 of the Fisheries Act deals with the degree to which decisionmakers must consider information under the Act. Interpreting this section, the Court of Appeal in Squid Fishery Management Co Ltd v Minister of Fisheries found that when interpreting information to make a decision that involved a value judgment, a precautionary approach should be taken to the information.27 The precautionary approach was confirmed by Mallon J in the High Court in a decision related to fishing regulations enacted to protect Maui’s and Hector’s dolphins.28 This case was a review of the prohibitions on set netting and trawling in various parts of New Zealand that were established to protect the endangered Maui’s dolphin. The precautionary principle is important
in the case of Maui’s dolphin given that DOC is unsure about the range of the species and the areas in which there is greater density in their distribution.29
Whilst the Fisheries Act is important in relation to the management of fisheries, other pieces of legislation are relevant in the operation of fisheries once they are authorised. As was noted at the outset of this article, 95.5 per cent of the humaninduced mortality of Maui’s dolphins arises as a result of trawling and gillnetting conducted by the commercial fishing industry. One fishing practice that has been banned in New Zealand is driftnetting.30 The definition of driftnet in the Driftnet Prohibition Act 1991 includes gillnets. However, for a gillnet to fall within the prohibition under this Act, it must exceed 1 kilometre in length either singly or when tied together with other nets. The 1-kilometre specification is overly long and also unfortunate given that it is alleged that 60 per cent of humaninduced Maui’s deaths result from them drowning in gillnets.31
Another important part of the regulatory framework that was introduced to protect Maui’s dolphins is the protections set out in the TMP. These regulations are permitted under the Fisheries Act 1996, s 15 given that they seek to avoid, remedy, or mitigate the effects of fishing on a protected species: Maui’s dolphin. The TMP establishes prohibitions on set nets and commercial trawling in areas where Maui’s are found. The Fisheries (Commercial Fishing) Regulations 2001, cl 3 define set net as including “a gill net or other sort of net that acts by enmeshing, entrapping, or entangling fish; but does not include a fyke net or hinaki”. Currently, a commercial and recreational setnet ban exists from the mean highwater mark out to 7 nm in the area from Maunganui Bluff to Pariokariwa Point. From Pariokariwa Point to Hawera the same restriction applies but only to a distance of 2 nm from the coast. In this area, commercial set-net restrictions exist from a distance of 2 nm to 7 nm with fishing only permissible when a Ministry for Primary Industries (MPI) observer is on board the vessel. Furthermore, a variable trawling prohibition is in force offshore to 2 nm from Maunganui Bluff to Manukau Harbour, 4 nm from Manukau to South Waikato River Mouth, and 2 nm from this point to Pariokariwa Point. The set net ban also extends to the entrances of Kaipara and Raglan harbours as well as the lower part of Port Waikato. The setnet ban has also been extended further into Manukau Harbour. These restrictions are depicted in Figure 1 below:32
Figure 1: Fishing restrictions, west coast North Island.
Under the Marine Mammals Protection Act 1978
Commercial and Recreational Set Net Prohibition (2nm to 7nm) Pariokariwa Point to Waiwhakaiho River
Marine Mammal Sanctuary
Under the Fisheries Act 1996
Commercial Trawl Restrictions (2nm and 4nm)
Commercial and Recreational Drift Net Restriction Waikato River
Commercial and Recreational Set Net Restrictions (7nm) Maunganui Bluff to Pariokariwa Point
Commercial and Recreational Set Net Restrictions (2nm) Pariokariwa Point to Hawera
Commmercial Set Net Restrictions (2nm to 7nm) (Unless a MPI Observer is onboard) Waiwhakaiho River to Hawera
New Plymouth Oakura Beach
0 5 10 20 nm
Protection measures for Maui’s Dolphin on the West Coast North Island
DOC makes no express or implied warranties as to the accuracy or completeness of the data or information. DOC will not accept liability for any direct, indirect,
special or consequential damages, losses or expenses howsoever arising and relating to use, or lack of use, of the data or information supplied. Crown Copyright Reserved.
Related to the above discussion is the presence of a marine mammal sanctuary. The West Coast North Island Marine Mammal Sanctuary was established in 2008 under the Marine Mammals Protection Act 1978. This sanctuary extends from the mean highwater mark to the 12 nm limit and from
Maunganui Bluff in the north to Oakura Beach in the south and prohibits both commercial and recreational set netting. The prohibition on set nets has been in place for six years and to date there has been no evidence about the success or otherwise of this sanctuary. Although in light of the precautionary principle discussed above, any attempt to alter the restrictions without clear evidence to indicate that it will not harm Maui’s dolphin would be a bold move indeed. Regulations also exist under the Marine Mammals Protection Regulations 1992 that regulate how vessels are to operate when in proximity to dolphins. According to these provisions, vessel operators should not make loud or disturbing noises near to dolphins or travel within 300 metres of a pod of dolphins where a pod is defined as three or more dolphins.33 Arguably under these regulations, if a single Maui’s dolphin was encountered there would be nothing to stop a vessel operator coming within 300 metres of the dolphin or otherwise operating in a manner that would bring a dolphin into danger. Whilst the precautionary principle operates in the Fisheries Act and related legislation to some degree, the recent announcement to open up parts of the West Coast North Island Marine Mammal Sanctuary to oil and gas exploration appears to fly in the face of the protection the sanctuary affords Maui’s. The following
subpart will consider the regulatory framework related to marine mining.
3.2 Mining Regulatory Framework
The broad policy regime overseeing mineral extraction in New Zealand is driven by the Crown Minerals Act 1991. Given that the Crown owns a majority of naturally occurring minerals, oil and gas, there is a need for those wishing to explore and extract these materials to apply or tender for a permit.34 The most recent round of permits opened for tender, Block Offer 2014, controversially includes part of the West Coast North Island Marine Mammal Sanctuary.35 Once a permit is acquired, a consent to undertake activities is also needed. In evaluating the consenting procedure, a distinction will be drawn between “inshore” and “offshore” permitting which falls under the RMA and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012 (EEZA) respectively.
The Marine Mammals Protection (West Coast North Island Sanctuary) Notice 2008, cls 5 and 6 regulate and restrict seismic surveying along with mining in the marine mammal sanctuary off the west coast of the North Island. Seismic surveying cannot occur unless the party intending on conducting the surveying has informed DOC and also given an undertaking to report on
interactions with cetaceans after the surveying has occurred. During surveying, there must be at least one qualified marine observer on board the vessel and on watch when the acoustic source is operating. During poor visibility there is a requirement that the qualified observer conduct passive acoustic monitoring (PAM) given that visual observations may be inadequate.36 The regulations also detail the procedure for starting acoustic surveying and what an operator must do if a cetacean comes within a certain range of the vessel. One area of relevance to the recent proposed exploration of the sanctuary is the restriction on mining. The regulations provide that:37
No person may carry out mining in the part of the sanctuary created by clause 4(1) described in Schedule 3 unless it is—
(a) mining for petroleum; or
(b) a minimum impact activity.
The two exceptions to the prohibition on mining leaves the sanctuary open to exploration and extraction in two instances. This has been the method by which the Crown is able to circumvent the statutory protection afforded to Maui’s to allow for oil and gas exploration to proceed in the area.
The RMA regulates activities which occur within the territorial sea: the area between the mean highwater springs and 12 nm out to sea. Under the RMA, a coastal permit is required to carry out restricted activities in an area and this is granted by the regional council.38 Restricted activities are described in regional coastal plans, and under the Waikato Regional Coastal Plan disturbance of the foreshore or seabed is a discretionary activity that requires a resource consent.39 When determining whether to grant such a consent there are a number of considerations that are relevant to the decision including how the activity will harm neighbouring flora and fauna as well as the cumulative effects on the coastal marine area (CMA). The policy does have shortcomings given that the Waikato Regional Council does not need to give specific consideration to threatened species when making such decisions. It is noted that specific consideration is needed of how an activity may affect dotterel breeding sites but no such consideration is required for the significantly endangered Maui’s.40 More discussion will be provided on this matter in the recommendations part of this article.
The EEZA is a recent addition to New Zealand’s statutory framework that regulates extractive processes in the EEZ. This means that EEZA has
jurisdiction in the area between the territorial sea and the 200 nm limit.41 The EEZA, s 20(1) outlines the activities that cannot be undertaken without a consent which include: construction, placement, alteration, or extension of a structure on the seabed; removal of nonliving material from the seabed; disturbance of the seabed that is likely to have an adverse effect on the seabed; and the destruction, damage, or disturbance of the seabed that has adverse effects on marine species or their habitat. Furthermore, if an operation in the marine environment causes vibrations that may be harmful to marine life or causes an explosion then a marine consent is required.42
The marine consent application and decision process is overseen by the Environmental Protection Authority (EPA).43 In the case of exploratory or routine operations within the EEZ, the application process is non-notified which means that the EPA cannot consider public submissions or information in making its decision. Instead, the EEZA requires that those applying for a consent provide an environmental impact assessment of the proposed activity as well as any other information the EPA may require. A range of factors must be considered by the decisionmaking body in considering a marine consent which are outlined in EEZA, s 59. What is interesting about these mandatory relevant considerations is that a majority of them relate to the environment and how the activities may impact on the natural environment both now and into the future. It is suggested that the underlying thrust of decisionmaking under the EEZA is a pragmatic and environmentally conscious one of which economic concerns only comprise a small part of the matrix of considerations. Importantly for threatened species such as Maui’s dolphin, the protection of their habitat is one of the mandatory relevant considerations under the Act.44
Recently, TransTasman Resources Ltd (TTR) applied to the EPA for a consent to conduct iron ore mining in the South Taranaki Bight, an area within the historic range of Maui’s dolphins. The consenting authority refused the consent application on the grounds that there was the potential for significant adverse environmental effects that may result from the proposed operation. The EPA recognised that under EEZA, s 61(2) it had a duty to favour environmental caution and protection and applied this approach when considering the evidence surrounding the Maui’s. There was debate among experts as to whether the area in which the proposed activity would occur was part of the range of the
marine mammal. However, the EPA stated that a “very cautious approach needs to be taken to prevent any further loss of habitat”.45 As such, the EPA recognised the importance of allowing a corridor between the North and South Islands to exist to allow the dolphins to move without impediment and that the proposed activity could impede such movement as well as adversely affecting the species. This decision shows that endangered species such as Maui’s are expressly considered when decisions about them are made in the processing of marine consents. Nevertheless, the legislation itself limits the ability of the EPA to elevate concerns about endangered species higher than other matters. Whilst the EEZA has been relatively effective thus far in protecting Maui’s, there will be some discussion about how the Act could be improved to better protect endangered species in future. This matter is now on appeal to the High Court which has not made a ruling as at the time of writing.
The final matter to be considered in this part of the article is the Seismic Code of Conduct (SCC). The SCC is a code that was developed between DOC and stakeholder groups such as the Petroleum Exploration and Production Association of New Zealand (PEPANZ). The Exclusive Economic Zone and Continental Shelf (Environmental Effects — Permitted Activities) Regulations 2013, cl 7 gives the SCC legal effect by stating that a seismic survey is a permitted activity so long as the SCC is complied with. The SCC seeks to minimise the disturbance that is created in the marine environment from seismic surveys. In the context of the proposed oil and gas exploration, the SCC requires that if a seismic survey is to be conducted in a marine mammal sanctuary, the surveyor must: inform the DirectorGeneral of Conservation; undertake an environmental impact assessment; and comply with any conditions imposed by the DirectorGeneral.46 Furthermore, there is a requirement that observers be present aboard the ship to oversee the operations during the seismic surveying including looking for marine mammals. If cetacean species are observed within certain distances from the acoustic source then the observer can require that the operation be shut down.47 The distance which triggers the shutdown will depend on whether a Level One, Two or Three survey is being conducted.
The various levels refer to varying intensities of acoustic disturbance. What must be noted at this stage is that acoustic disturbance from these operations is likely to extend beyond the range at which cetacean observations require operations to cease.48 It is accepted that it is difficult to identify cetacean species beyond certain distances with current technology and in such instances it could
47 Rule 4.1.4.
48 See Weilgart, above n 11.
be argued that a precautionary approach should be taken particularly in areas known to contain cetaceans. Overall, these regulations place some safeguards in operations that may adversely affect cetaceans such as dolphins and are a good step forward in this respect. Further discussion about whether the SCC goes far enough will be developed later in this article in light of the framework both internationally and in Queensland.
The following part outlines the Queensland regulatory framework for protecting marine mammals. Particular emphasis is placed upon how this framework protects the endangered Australian snubfin dolphin.
4. QUEENSLAND REGULATORY FRAMEWORK AND LEGISLATION
Australia operates as a federation. This means that both Commonwealth and State legislation will need to be reviewed. The Australian snubfin dolphin is listed as near threatened by the IUCN and rare within Queensland.49 The species has a very large range which extends from Broome, Western Australia along the northern coast of Australia to the Brisbane River, Queensland. To date, there is no reliable estimate of the population of the snubfin. However, some estimate that there is a global population of around 10,000 and a population of 1,000 in Queensland.50 Most of these are said to live in small groups in the coastal or estuarine environment particularly around river mouths and in depths shallower than 20 metres.51 There is also some evidence to suggest that the dolphins are found up to 25 km from the coast.52 Although, as noted above, data on this species is relatively scant which makes assessing the range of it difficult.
Given that the species lives close to the shore there are a greater number of threats to it than Maui’s dolphin. The interaction between the terrestrial and marine environments has a significant effect on the snubfin. For example, dredging, land reclamation and nutrient runoff from agriculture all degrade the environment of the species. Another consequence of its proximity to the coast is the presence of antishark nets which kill 1.3 dolphins per annum in
Queensland.53 Set nets are used in Queensland to catch barramundi and other estuarine species which has resulted in snubfin being caught accidentally. Finally, there are a large number of vessels which operate near the coast of Queensland which has the obvious consequence of increasing the prospects of boatstrike occurring.
Some research has indicated that the frequency of the whistles produced by the dolphins falls within a similar range to that produced by vessels. This may cause the species to develop an avoidance behaviour which can adversely affect their life expectancy and occupancy of certain areas.54 The threats facing this species are slightly different to those facing Maui’s, yet in many respects they are very similar, and as a result, consideration will be given to the regulatory framework that seeks to protect the snubfin dolphins in Australia. Overshadowing these issues is a lack of statistical, ecological and biological information about the snubfin across its range. This makes the role of policy- making difficult, particularly in outlining what are the most pressing and greatest threats that face the species.55
4.1 Commonwealth Framework
Central to the Commonwealth framework in Australia is the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). The EPBCA establishes the Australian Whale Sanctuary that operates in the Commonwealth marine area of Australia. This covers the area with its landward boundary 3 nm from the coast and its seaward boundary 200 nm from the coast.56 The only exception to this Act is the Great Barrier Reef Marine Reserve Park which creates a marine park extending seawards from the low water mark.57 EPBCA, s 229 makes it an offence to kill or injure a cetacean in the Whale Sanctuary with a possible penalty of no more than two years’ imprisonment or a fine not exceeding 1,000 penalty units. The EPBCA also gives the Minister the authority to declare an area an important cetacean habitat area.58
58 Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 228A.
Mining in the EEZ in Australia is regulated by the Commonwealth Offshore Minerals Act 1994. This regulates areas under Commonwealth jurisdiction which are, by and large, those which are on the continental shelf extending 3 nm from the lowwater mark. After a marine mining permit is applied for, a number of bodies are consulted to comment on various matters related to marine mining. Importantly, the Department of Environment, Water, Heritage and the Arts comments on applications in relation to the environmental concerns and any potential conditions that it would seek to impose on the proposal. The Act allows the decisionmaker to grant a licence subject to “whatever conditions the Joint Authority thinks appropriate” and can include conditions to protect wildlife, minimise environmental damage and rectify environmental damage.59 Under the EPBCA, various policy documents operate to regulate a number
of activities. One such policy document is the EPBCA Policy Statement 2.1
— Interaction between offshore seismic exploration and whales: Industry guidelines. The policy has “the goal of minimising the likelihood of injury or hearing impairment of whales”.60 However, the policy states that it does not apply to smaller dolphins, citing the fact that they communicate at much higher frequencies than oil and gas exploration which use frequencies lower than 200 Hz. Yet the policy statement does not define what it means by smaller dolphins. Of note is the fact that some small dolphins, Maui’s included, do communicate at frequencies lower than 200 Hz which means that under this policy statement, some cetacean species may not be adequately protected.61 As a result, this policy will be explored.
Similar to the New Zealand framework, the Australian Commonwealth framework requires a variety of responses depending on the proximity of cetaceans to the acoustic source surveys. If the vessel produces more than 160 decibels/second (dB/s) in acoustic disturbance then the following actions must be taken: an observation zone occurs +3 km from the acoustic source; a low power zone if a cetacean comes within 1 km of the acoustic source; and a shutdown zone if a cetacean comes within 500 metres of the source.62 If the
acoustic disturbance exceeds 160 dB/s the following actions must be taken: an observation zone occurs +3 km from the acoustic source; if a cetacean comes within 2 km of the acoustic source, a lowpower zone is required; and if a cetacean comes within 500 metres of the source the operation must shut down. Unlike the New Zealand regulations, Australia does not require there to be observers on board acoustic surveying vessels and instead requires “trained crew” to conduct observations continuously during daylight. However, if, during the application process, it is decided there is a moderate to high likelihood of encountering cetaceans then marine mammal observers may be required on vessels.63 Furthermore, increased buffer zones and aerial spotter aircraft may also be required. Unlike New Zealand where PAM is compulsory, Australia only requires this as an additional requirement in sensitive cases.
The discussion above flows into the permitting regulations in Australia for mining and fishing in the EEZ. These will be considered in turn. In the case of oil and gas exploration in the marine environment, the EPBCA is again the relevant piece of legislation. Under the EPBCA, the Commonwealth government is able to create marine reserves in which a variety of activities are permitted, regulated, or excluded. Marine mining is only permitted within Multiple Use zones (IUCN VI) and some Special Purpose zones (IUCN VI).64 Currently in the area off the coast of Queensland there are eight Commonwealth marine reserves of which six contain areas in which marine mining is permitted so long as permits are obtained.65 When permits are sought for marine mining in these areas, the Director of National Parks has authority to grant such permits.66 In terms of commercial fishing in these areas, it is permitted except in Marine National Park (IUCN II) zones. However, depending on the zone that is being fished in, different equipment is allowed. The various equipment and
fishing techniques that are allowed are outlined below in Figure 2:67
63 At 13.
Figure 2: Commercial fishing practices in Commonwealth Marine Reserves.
As can be seen in Figure 2, a variety of different fishing techniques and equipment are allowed to be used depending on the nature of the marine reserve that is being fished in. Of note in the above table is the fact that gillnets are banned across all parts of the marine reserve network given their detrimental effect on by-catch species. Overall, this framework provides a flexible response to different ecological pressures that are faced in different marine reserves. This is important, particularly when sensitive areas such as marine reserves are at issue. The following subpart outlines the framework for protecting the snubfin dolphin in Queensland. Unlike the previous subpart which took a broader
approach, this subpart focuses specifically on the snubfin.
4.2 Queensland Framework
In analysing the Queensland framework, regulations related to fishing and mining are discussed. The jurisdiction of the Queensland State government is from the lowwater mark with a seaward boundary of 3 nm. Queensland currently has three State marine reserves established under the Marine Parks Act 2004 (Qld). These reserves are arranged into zones which permit different activities. The four zones are: general use, habitat protection, conservation park, and marine national park. These zones are important as they regulate activities close to the coast. This is also the habitat of the snubfin.
The largest part of the Queensland framework for protecting the snubfin is the Great Barrier Reef Marine Park (GBRMP) that covers 344,400 km2 and 6,000 km2 of seagrass beds.68 This area is controlled by Commonwealth
<http://www.gbrmpa.gov.au/about the reef> .
legislation and also constitutes a World Heritage Site. The area is a significant site and the habitat for a vast number of animal and plant species. This area also forms an integral part of the snubfin habitat given that they forage in the seagrass beds for food. Of concern in the GBRMP framework is the fact that there are corridors that exist between the coast and the main reef structure in which more invasive fishing techniques are permitted. This is an issue as it may threaten species such as snubfin when travelling from the coast to the seagrass beds on the reef proper. The GBRMP contains a range of zones which permit different activities within them. These zones are: Preservation, Marine National Park, Scientific Research, Buffer, Conservation Park, Habitat Protection, General Use, Commonwealth Islands, and Estuarine Conservation zones.69 The types of activities that are permitted in the main zones in the GBRMP are depicted in Figure 3 below:
Figure 3: Permitted Activities in the GBRMP.
<http://www.gbrmpa.gov.au/visit the reef/zoning/zoning guide to using the marine park/ interpreting zones> .
As Figure 3 indicates, the different zones that operate in the GBRMP alter the types of activities that can be conducted in these zones depending on the level of conservation sought. Given that this area is a World Heritage Site and a place of significant natural wonder and beauty the need for variable conser- vation levels is necessary. Additional to the zones listed above, the GBRMP contains special management areas (SMAs) which can be implemented to protect a particular species. In these areas, the Great Barrier Reef Marine Park Regulations 1983 apply and they contain specific provisions for the interaction of humans and cetaceans. For example, these provisions specify the speed and proximity to which a vessel can travel when near to a cetacean.70 Furthermore, specific regulations indicate how vessels are to react when a calf approaches or with regard to whalewatching activities.71
Furthermore, sharkprevention nets still exist within Queensland to protect bathers and are known to be a cause of human-induced snubfin mortality.72 The Australian Commonwealth government is considering phasing out the existing shark nets and replacing them with drum lines to reduce the incidence of this mortality.73 Yet drum lines themselves are a source of controversy given the large numbers of sharks that they kill.74 An alternative may need to be sought to achieve preservation of both sharks and dolphins as well as protecting bathers who also enjoy the marine environment.
Another important part of the Queensland framework for protecting species such as the snubfin is the Nature Conservation Act 1992 (Qld). The Nature Conservation Act, s 4(1) balances the ability for people to use and enjoy conservation areas in a way consistent with the cultural and natural values of the areas. The dual approach here is somewhat similar to that taken in the Resource Management Act 1991. This is an important matter to consider when considering fishing, mining, and coastal development. Another important function that is created under the Act is the ability to classify species as endangered, vulnerable, or near threatened.75 The classification of animals in such a manner requires the State to take steps in the management of national parks to control threatening processes. These matters will be important to bear in mind when the State fishing and mining legislation is considered.
There are a number of commercial fisheries that operate in the Queensland area. One of note for this article is the East Coast Inshore Fin Fish Fishery. Interestingly, there are a number of equipment specifications that are regulated in this fishery including: the distances between nets, size of net mesh, maximum and minimum net sizes, and net attendance requirements. All of these regulations have been enacted under the Fisheries Act 1994 (Qld) and Fisheries Regulations 2008 (Qld) in an effort to ensure that bycatch is limited, and where possible, harm to not targeted species is reduced. To date, Queensland and Commonwealth fisheries still operate using pelagic gillnets which are known to be an indiscriminate method of fishing in terms of the by-catch of other species. Mitigation of the indiscriminate nature of this fishing method is achieved in part by the requirement for observers to be present when nets are set.
Mineral prospecting and extraction in Queensland is overseen by the Mineral Resources Act 1989 (Qld). Mining activity has a broad definition in the Act and includes: prospecting, exploring, mining, processing minerals, or any activity associated with these that may cause environmental harm.76 When a mining activity is proposed, an environmental authority is required and the nature of this authority will depend upon whether the activity is a standard or nonstandard mining activity.77 A lowimpact mining project is one that complies with the Code of Environmental Compliance and can be authorised with standard conditions. However, a noncompliant proposal will need to submit an environmental management plan (EMP) that outlines the particular environmental impacts of the proposal. The public may submit an EMP. On major mining projects, there may be a requirement for a proposer to provide an environmental impact statement (EIS) which is an indepth version of the EMP. The triggers for such a requirement are outlined in the Environmental Protection Act 1994 (Qld), s 143. The EIS and EMP processes are designed to force decisionmakers to recognise the potential environmental impacts of their proposed activities including on marine mammals such as snubfin. Once identified, the EIS and EMP must then provide a discussion of methods for avoiding, remedying, or mitigating the adverse effects of the activities.
The following part analyses the relevant pieces of international law pertaining to the preservation of endangered species as well as the regulation of activities that occur in the marine environment. These include fishing and mining activities.
5. INTERNATIONAL LAW
The United Nations Convention on the Law of the Sea (UNCLOS), to which New Zealand and Australia are signatories, regulates a number of matters relevant to the marine environment. At the third Conference of Parties to the Convention, a number of important provisions were introduced. Many of these have already been discussed and include the setting of sea areas such as: territorial waters, the contiguous zone, exclusive economic zone, and international waters. These zone definitions are important for setting the jurisdiction for states over their species, and whilst beyond the scope of this article, they are also relevant for establishing the point at which international mining and fishing frameworks become relevant.78
Relevant to the preservation and conservation of biodiversity such as the snubfin and Maui’s dolphin is the Convention on Biological Diversity (CBD) to which New Zealand and Australia are also both signatories. The preamble of the CBD states that “the conservation of biological diversity is a common concern of mankind”. An important theme that is stressed in the CBD is that sustainable development and conservation should be incorporated into relevant planning instruments.79 Moreover, as part of sustainable development, it is incumbent upon the state to monitor the components of biological diversity to aid with evidencebased policymaking. Article 14 relates to impact assessment and minimising adverse impacts from development which places the onus on the state to take steps to account for the consequences of environmental harm.
An important international body that deals with cetaceans is the Inter national Whaling Commission (IWC). The IWC was established under the International Convention for the Regulation of Whaling in 1946 whose preamble states that one purpose of the Convention is the “proper and effective conservation and development of whale stocks”. Dolphins occupy a somewhat tenuous position when considered in light of the 1946 Convention. As a result, the IWC investigated the taxonomy of whale species and defined which species would be included within the jurisdiction of the body.80 These have been included in an annex to the original Convention. As a result, the Convention now includes whales, porpoises and dolphins.
The IWC produces regular reports about particular themes, issues and countries, some of which have been cited at the start of this article. This advocacy function is important for bringing pressure to bear on nationstates to take action to conserve a particular species or address certain issues. A sub-committee of the Scientific Committee prepares such reports and one of
80 International Whaling Commission “Lives of Whales / Taxonomy” <http://iwc.int/lives> .
its terms of reference is to report on the effectiveness of bycatch mitigation measures that reduce the number of small cetaceans caught in nets.81 These reports have had some sway in New Zealand and brought considerable pressure to bear upon the current government in relation to the proposed mining off the west coast of the North Island.
One matter that is not addressed at international law is the regulation of acoustic disturbance. McCarthy suggests that regulation of underwater sound is a complex matter given that it involves transboundary movements of energy and little information is available about its effects.82 This gap in the international regulatory framework poses problems, particularly as humans look to the seabed as a source of oil, gas and minerals.
Overall, the international legal framework for protecting small cetaceans is quite weak. There is little in the way of “hard” international law that requires states to prevent harm that may occur to endangered cetaceans. Greater discussion about this will be provided in the following parts, particularly in the recommendations of part 7. The next part compares the New Zealand regulatory framework with that of the frameworks at international law and in Queensland to outline some areas for improvement.
6. COMPARATIVE ANALYSIS OF THE NEW ZEALAND FRAMEWORK WITH
QUEENSLAND AND INTERNATIONAL LAW
There are a number of similarities between the frameworks in Queensland and New Zealand. Given that this article focuses on the recommendations for improvement in New Zealand, the similarities between New Zealand and Queensland will not be discussed. Instead, the comparative focus is on the differences between the two frameworks.
The biggest difference that exists between the AustralianQueensland framework and that of New Zealand is that the space in between 3 nm and 200 nm from the coast is designated as the Australian Whale Sanctuary. This means that the overwhelming majority of water under the jurisdiction of Australia is a Whale Sanctuary. This imposes significant obligations on all who operate in these waters to ensure that they do not interfere with, kill, or injure marine mammals. This sanctuary ascribes a different approach to conservation than in New Zealand whereby all waters are deemed important for the conservation of cetaceans and that development may proceed, but only subject to the constraints imposed by the sanctuary.
81 International Whaling Commission “Small cetaceans” <http://iwc.int/smallcetacean> . 82 McCarthy, above n 10, at 142.
One manner by which this difference in approach is observed is in terms of the liability that arises from harming or killing a cetacean. Under the EPBCA, s 229, it is an offence to kill or injure a cetacean, with strict liability being imposed for offences committed in the Australian Whale Sanctuary. This differs to the position in New Zealand where the liability for injuring or killing a marine mammal only applies where that person does not inform the relevant authority of the offence.83 As such, the action of injuring or killing the mammal of itself is not an offence.
The approach to regulation of activities in the EEZ in Australia also appears to be more pragmatic than that in New Zealand. Regulation of fishing activities in the EEZ in New Zealand appears to be an “all or nothing” scenario. As a result of this approach, where there is a problem, such as the threat to Maui’s dolphin, regulators will respond with regulations to prevent damage from occurring further. This is more of a reactive, rather than proactive, approach. However, in Australia, the range of different marine reserve zones allows the regulator to be more pragmatic and proactive in their approach by assessing the sensitivity of the area and responding with a particular zone. These zones regulate what activities are permitted in the area and can be highly restrictive in areas of particular sensitivity.
Given that sharks are found near a number of popular recreational beaches, there may be some concerns about these animals attacking humans. Shark nets are one method of prevention that can be used. However, employing such nets creates risks for Maui’s dolphins becoming entangled in them and being killed as a result. Shark nets have already been used in New Zealand at Brighton Beach near Dunedin and could be used at other recreational beaches. Whilst there are no specific regulations of these nets in New Zealand, it would be likely to be a matter controlled by the RMA consenting procedure. Australia is currently reviewing whether to ban these nets given that they indiscriminately kill a number of other species. Given that global warming is raising ocean temperatures, we could find sharks more populous in areas where they would not otherwise have lived. Any decisions to implement shark nets in areas where Maui’s live would have to be carefully considered as they could pose a risk to this species as they have done to the snubfin in Queensland.
One matter in which there is a difference between how Queensland and New Zealand regulate the interaction of humans with dolphins is around the regulation of vessels when in proximity to dolphins. In Queensland, the regulations apply regardless of whether one or many cetaceans are encountered, which differs when compared to New Zealand where three or more dolphins must be encountered. Whilst both jurisdictions have the same distance at which vessels cannot come closer to a cetacean, Australia additionally imposes
83 Marine Mammals Protection Act 1978, s 16(4).
the speed at which vessels must move away from approaching cetaceans. Furthermore, under regulations in Queensland, a different procedure is required when a calf is encountered whereby the vessel must be turned off. A similar procedure does not currently exist in New Zealand.
The following part draws together the preceding discussion and provides recommendations for improving the framework to protect Maui’s dolphins in New Zealand.
7. RECOMMENDATIONS FOR IMPROVEMENT IN NEW ZEALAND
The major recommendation provided in the IWC report on Maui’s dolphin was to extend the area protected against gillnets and trawling to a contour depth of 100 metres.84 This recommendation is also advocated for in this article given that Maui’s are found at these depths. The current regulations extend protection based upon the distance from the lowwater mark to 2 nm, 4 nm and 7 nm, which is a slightly artificial and arbitrary method of protecting Maui’s. Instead, applying the regulations to a contour depth of 100 metres will mean in some areas the protection of the species will extend further than its current position.
The need for information to assist in directing conservation regulations for the dolphins is a necessity. One recommendation to assist with acquiring greater information about the species would be for the dolphins to be tagged and tracked. This has been trialled in New Zealand in 2005 for the Hector’s dolphins and this study provided indepth information about the range of the species and did not appear to have adverse health effects for them either.85 Tagging dolphins would allow researchers to investigate the extent of the range of the species as well as identifying areas of possible concentration where more rigorous regulation is needed. As is noted in the case of the snubfin in Australia, little is known about the movements of the dolphins in Queensland and this makes the role of the regulator very difficult. This is especially an issue when greater amounts of regulation harm commercial fishing and reduce revenues for this important industry. Regulation cannot be made on a whim and thus credible, timely and reliable evidence of Maui’s dolphins would be very useful to better direct regulations to conserve the species whilst retaining an appropriate balance with the use and development of the marine environment.
One way in which greater amounts of information could be used to better target regulations towards Maui’s would be for areas of high concentration of the dolphins to receive greater levels of protection and vice versa. To address differing concentrations of the dolphin, a regulator could impose different zones of regulation within the marine mammal sanctuary off the west coast of the North Island. As such, if greater concentrations of Maui’s are found in certain areas, then the regulator could impose stricter controls, and vice versa in areas of lesser concentration.
The Driftnet Prohibition Act 1991 is a piece of legislation that could be reformed to be more effective. The current requirement that a net, or combi nation of nets, is 1 km or longer in length for the prohibition to become effective is overly onerous. Moreover, these nets have significant adverse consequences on marine mammals such as Maui’s dolphins. It is recommended that the length at which the prohibition comes into effect be shortened to a distance less than 1 km. This is a matter that would need to be discussed in consultation with the fishing industry to identify a reduction in length that minimises the harm to the industry whilst maximising the benefit to Maui’s.
Some concern has been raised by the IWC about the presence of Maui’s in harbours such as Manukau, Raglan and Kawhia. As noted earlier, the regulation of vessels in terms of their speed when in proximity to cetaceans differs greatly to that in Australia. A recommendation that could be implemented to reduce the risk for Maui’s when in these harbours could be to require that vessels reduce their speeds to 6 nm/hour when cetaceans come within 300 metres. Furthermore, if a Maui’s calf is found within 300 metres then vessels must turn off. Implicit in such a policy is a need to educate recreational and commercial operators to understand what Maui’s look like and how to distinguish an adult from a calf.
It is known that Maui’s live close to the coast and are particularly vulnerable to shipstrike and getting snared in nets close to the coast. The IWC report specifically suggests that the set-net ban from Pariokariwa Point to Hawera, the most recent addition to the sanctuary, be extended from 2 nm to 4 nm from the lowwater mark.86 Furthermore, within the area of 4 nm and 7 nm from the coast, it is suggested that no commercial set nets can be used without an observer on board the vessel. These observers would have the role of looking out for dolphins and could then inform the captain of the vessel so that they could keep beyond the 300 metres prohibition noted above or to check the nets to ensure the dolphins had not become ensnared. This could be a method of introducing variable zones into New Zealand much the same as operates in Queensland.
One recommendation that could be implemented into the Waikato Regional Council Coastal Plan could be to include a mandatory relevant consideration of Maui’s dolphin when people are applying for a resource consent for an activity in the coastal environment. Currently, the migratory dotterel is a relevant consideration under the coastal plan and there are no requirements to provide an explanation of how Maui’s will not be adversely affected. This could be extended into the other regional plans for the relevant regional councils along the west coast of the North Island. Given that Maui’s dolphins are significantly endangered this could be one method by which decisionmakers are forced to incorporate these dolphins into the decisions and plans.
One recommendation that is relevant to activities within the EEZ would be some reform of the EEZA. The EEZA is a good piece of legislation and does provide good protection for the environment as the TTR decision shows. However, one area in which the current framework could be improved would be by including a need to consider how a proposed activity would affect a threatened species. Currently, the Act requires consideration of how it will affect the habitat of a threatened species but not how it will affect the species themselves. Whilst a subtle addition to the current framework, this could be important for threatened species, particularly as the government seeks to open up more of the EEZ for oil and gas exploration.
Finally, in relation to marine mining, some amendment to the Marine Mammals Protection (West Coast North Island Sanctuary) Notice 2008 is also recommended. Specifically, it is recommended that the exception to the restriction on mining in cl 6 of the regulations be removed. Instead, this clause should read: “No person may carry out mining in the part of the sanctuary created by clause 4(1) described in Schedule 3.” This would prevent activities such as the proposed oil and gas exploration from occurring in the area.
The lingering question at the end of this article is whether any amount of regulation will be enough to save Maui’s dolphin. The fact that the species can only sustain one humanrelated death every 14 years means that there is a high probability of the species becoming extinct in the nottoodistant future. To stave off extinction, some fairly drastic policy measures would need to be implemented. However, as always, a balance between the different interests at play would need to be constructed. As the species teeters on the brink of extinction, decisionmakers cannot sit on their hands or turn a blind eye hoping that things will improve. The time is now for action rather than omission, and boldness rather than passivity. Let us hope that we can say to our grandchildren, we were the generation that saved Maui’s dolphins.