Marine Mammals Protection Act 1978: A summary of the New Zealand legislation

Michael Travis BA/LLB (Hons) Written for the Animal Rights Legal Advocacy Network Introduction 1. New Zealand has more coastline than most countries and a wider variety of marine habitats; its territorial waters stretching from the sub-tropical through to the sub-antarctic. Consequently, New Zealand also has a greater than usual diversity of marine mammals. As well as several species of pinniped (seals and sea lions), almost half the world's cetaceans (whales, porpoises and dolphins) have been reported in our waters, including some 40 species of whale and nine species of dolphin. 2. However, the populations of many species of whale (such as the southern right whale and humpback whale) and both our indigenous seals, were reduced to near extinction by commercial whalers and sealers of the past two centuries. Some are still threatened or endangered, and now face additional threats from habitat degradation, global climate change, by-catch in fishing operations and accumulation of pollutants in the oceans. For example, there are thought to be less than 150 members of a sub-species of Hector's dolphin, called Maui's dolphin, living off the west coast of the North Island. 3. Fortunately, with the passing of the Act, all marine mammals within New Zealand's 200 nautical mile Exclusive Economic Zone are now protected. The Act 4. The Act is designed to enable the Department of Conservation ("DOC") to administer and manage marine mammals and marine mammal sanctuaries in accordance with: (a) statements of general policy from the Minister of Conservation ("Minister"); (b) conservation management plans; and (c) conservation management strategies prepared and approved in accordance with the Conservation Act 1987. 5. The Act defines "marine mammal" as including: (a) specifically, all species of seal, whale, dolphin, porpoise, dugong and manatee; and (b) generally, any mammal which is morphologically adapted to, or which primarily inhabits, any marine environment. The definition also includes any part of any marine mammal (relevant, for example, in respect of the importing or exporting of animal products). Population management plans 6. Pursuant to the Act, the Minister may from time to time approve a population management plan ("Plan") in respect of one or more species (whether threatened or otherwise) of marine mammal. This may contain the following information: (a) the biology and status of the species; (b) the extent of fishing or other human-induced sources of mortality on the species; and (c) recommendations to the Minister of Fisheries for recording or mitigating the fishing-related mortality of the species. 7. The information set out in a Plan can then be used to determine the maximum allowable levels of mortality for that species (including as to specified areas within New Zealand). For non-threatened species, the level should neither cause a net reduction in the size of the population nor seriously threaten the reproductive capacity of the species. For threatened species (those designated such by the Minister), the level must allow the species to achieve non-threatened status as soon as reasonably practicable, and in any event, within a period not exceeding 20 years. 8. Plans are prepared by the Director-General of Conservation ("Director-General") in consultation with any relevant Conservation Boards and/or representatives of Maori, environmental, commercial and recreational interests. Notice of such draft Plan is then published and made available for public inspection. Written submissions are accepted, and support for such submissions can be made before the Director-General or his representatives. A summary of such submissions, together with any revision of the draft Plan, is then sent to the Minister of Fisheries and the New Zealand Conservation Authority. The Minister, with the concurrence of the Minister of Fisheries, may approve the Plan. Permits 9. A permit from the Minister is required to: (a) hold a marine mammal in captivity; or (b) take a marine mammal, whether alive or dead, from its natural habitat or any other place, except for persons who: (c) find bones, teeth, ivory or ambergris that have already been separated naturally from a marine mammal, and who notify the Director-General or a Marine Mammals Officer ("Officer"); (d) find any dead marine mammal (or part) and send it to DOC or any approved research establishment, laboratory or public museum, where authorised to do so by an Officer; or (e) import any marine mammal product for personal use or adornment, where that product was already in existence at 20 October 1978 (ie. the commencement of the Act). 10. Applications for a permit must be made in writing to the Director-General together with any prescribed fee. Applications must specify: (a) the full name and address of the applicant; (b) in the case of a research project, a full description of that project together with a complete list of sponsors, cooperating institutions and scientists; (c) in the case of a zoological display, details of those facilities together with any certificate issued under section 25 of the Animals Act 1967; (d) where a marine mammal is to be captured, the number of persons to be involved, the population or area from which it is proposed to take the mammal, and details of the proposed methods of capture and transportation; and (e) any other details the Director-General requires. 11. Applications are then forwarded to the Minister and a summary published for public submissions, unless the Minister is satisfied that the application relates to an emergency situation, or the taking of a marine mammal solely for the purposes of research (other than display). 12. In considering applications, the Minister shall have regard to: (a) the need to conserve, protect or manage any marine mammal; (b) any international agreement to which New Zealand is a party; and (c) any public submissions. 13. The Minister has sole and final discretion to refuse or grant a permit, and may attach such conditions as he sees fit. This may include conditions as to: (a) the taking of marine mammals solely for the purpose of research; (b) the taking of marine mammals for observation by the public (and the conditions of such places where the mammal is kept); (c) the methods by which any marine mammals may be managed; (d) the equipment and methods to be used in taking any marine mammal; (e) the payment of a fee or bond in respect of the performance of the permit holder's obligations under the Act or permit; and/or (f) the records that are to be kept by the permit holder. 14. The Minister may revoke permits, or amend the conditions attached to them, at any time. Permits cannot be transferred except with the written consent of the Minister, and a public register of permits is kept by the Director-General. 15. Persons must notify the Director-General upon completing any action in relation to a marine mammal, pursuant to the Act or a permit. Such notification should include information as to any injuries or deaths of marine mammals, together with: (a) dates and locations of such event; (b) cause; and (c) measures taken to avoid further injuries or deaths. Fishing 16. Fishermen must notify an Officer where they cause the accidental death or injury of any marine mammal. 17. The use of a purse seine net for the purposes of fishing is prohibited unless: (a) it has an escape panel sufficient to enable a dolphin or porpoise to exit the net, and that person follows a fishing practice acceptable to the Director-General; or (b) the Director-General has granted an exemption. Various 18. Any person may give humane assistance, care or medication to any stranded, sick or injured marine mammal without breaching the Act, provided they forward details of such event to the Director-General or any Officer. Likewise, any person may, at the direction of an Officer: (a) move any marine mammal in the interests of public safety or the wellbeing of the mammal; or (b) destroy any aged, sick, distressed or troublesome marine mammal. 19. Where any marine mammal kept pursuant to the Act or a permit is diseased, infected with any unhealthy condition or suffering from an injury or disability, an Officer, registered veterinarian surgeon or other person authorised by the Minister may seize or destroy such mammal. Costs shall be borne by the person keeping the mammal and no compensation shall be payable. 20. The Minister may, by notice, declare any place to be a marine mammal sanctuary and specify the activities that may or may not be encaged in within the sanctuary. Powers of Officers 21. Officers may: (a) board any vessels used in taking any marine mammal; (b) enter, inspect or examine any vessel where they suspect or have reason to believe a breach of the Act has been, or is being, committed; and (c) from a Justice of the Peace, Community Magistrate or District Court Judge, obtain a search warrant to search dwelling houses where there is probable cause to suspect a breach of the Act has been, is being, or is being prepared, to be committed. Officers may also remove any illegally taken marine mammals, together with any evidence of a breach of the Act. Officers are excused from proceedings where they have acted in good faith and with reasonable care. Offences 22. It is an offence under the Act to take, possess, export, import or have control of any marine mammal other than in accordance with the Act, punishable by: (a) imprisonment for a term not exceeding six months; or (b) a fine up to $250,000, plus a further fine up to $10,000 for every marine mammal in respect of which the offence was committed. Upon conviction, any equipment or apparatus used in respect of the commission of the offence is forfeited to the Crown. 23. It is also an offence to: (a) act in contravention of the Act; (b) make a false or misleading statement or material omission in respect of any communication or application under the Act; (c) refuse to provide any information required under the Act; (d) place or leave any item (including traps and chemicals) where it is likely to, or does, injure or harm any marine mammal; or (e) use any vehicle, vessel, aircraft or hovercraft to herd or harass any marine mammal. 24. It is a defence to any offence under the Act that the act or omission constituting the offence: (a) took place beyond the outer limits of New Zealand fisheries waters; (b) (other than for importing offences) involved marine mammals taken only beyond those outer limits; (c) took place in circumstances of stress or emergency and was necessary for the preservation, protection or maintenance of human life. Where a person is charged with killing or injuring any marine mammal and the above do not apply, it is a defence where such death or injury was accidental and the person notifies an Officer as soon as practicable. Application of the Act 25. As of 31 March 2004, there are two Marine Mammal Sanctuaries (Auckland Islands and Banks Peninsula) totalling 2,327,500 hectares. Although the Act does not specify any purpose for sanctuaries, the existing sanctuaries have been established "to protect critical breeding populations of threatened marine mammals" (Hector's dolphin, and the New Zealand sea lion and southern right whale respectively). 26. However, less than 0.1% of New Zealand's marine environment is currently protected, compared to about 30% of its land area. Judged against the impact of commercial fishing and mainland pollution on marine mammal populations, New Zealand still has a long way to go in order to truly deserve its reputation as a heritage nation. Further reading: The Royal Forest and Bird Protection Society of New Zealand is currently campaigning for a Threat Abatement Plan with the goal of reducing fur seal deaths to zero. Please see http://www.forestandbird.org.nz/Marine/furseals.asp Endnotes Information from Department of Conservation, www.doc.govt.nz Section 3A. Section 3B. Section 3D. Section 17F of the Conservation Act. Section 2. Section 3E. Section 3F and 3G. Section 2(3). As established under section 6L of the Conservation Act 1987. Section 4. Appointed pursuant to section 11. Section 4(5). Section 5. This does not apply to applications to take whale bone from dead whales. Section 6. Section 7. Section 8. Section 10. Section 16. Section 17. Section 18. Section 19. Section 22. Section 12. Section 13. Section 14. Section 15. Section 9. Section 23. Section 26. Mike Donoghue Pers.Comm 17/8/95, quoted at www.doc.govt.nz