The Marine Mammal Protection Regulations 1992 aim to protect marine mammals from the day to day effects of marine mammal watching. Based initially on overseas examples, particularly from the USA and Australia, they take cognisance of the known biology and behaviour of marine mammals and have been developed through a lengthy process of consultation with commercial operators and specialists in the fields of marine mammal biology and acoustic science. The Marine Mammals Protection Regulations were originally drafted in 1990, to provide the Director-General of Conservation with the authority to control whale-watching operations at Kaikoura. They have since been revised (1992) in response to the rapid growth in cetacean watching throughout the country. A further review to fine-tune the regulations is planned.
The regulations provide two principal mechanisms for managing the level and type of activity around marine mammals. Firstly, they establish a permit system for commercial marine mammal watching. Any commercial operator who wishes to carry passengers to view marine mammals must have a permit, issued by the Director-General of Conservation, to do so. Before the Director-General signs a permit, s/he approves a detailed plan of operation for
the proposed business, including information on the type of vessel, a detailed description of the proposed operation, which species are to be viewed, and what educational material will be provided. The Director-General must be satisfied that an operation will not unduly interfere with the behaviour of marine mammals, and can if necessary declare a moratorium on the issue of further permits in any area. Any permit holder who fails to abide by the provisions of their approved plan, or breaks other permit conditions, is liable to suspension or revocation of their permit. The permit system allows for commercial effort to be controlled through restrictions on the number of operations and the amount and type of activity undertaken by each commercial operator.
The regulations also list operating conditions for commercial operators, or anyone else, when in the vicinity of marine mammals (Regulations 18-20, Annex 1). These are a minimum set of conditions and are applicable for all encounters with marine mammals. They are divided into those applying generally to all marine mammals and those specific to whales and to dolphins and seals. Special conditions can also be placed on permits, and these can be varied from area to area, in recognition of the fact that different marine mammal species respond differently to human encounters in different areas.
Most of the operating conditions in the Marine Mammal Protection Regulations pertain to approach speeds and distances, and orientation of approach. As shown in Figure 7, vessels are required to approach a whale from a direction that is parallel to, and slightly to the rear of, the whale. No more than three vessels are allowed within 300 metres of a whale and vessels are required to travel at a "no-wake" speed inside this distance. A minimum approach distance of 50 metres has also been set and vessels are required to keep out of the path of any whale. Most of these rules were introduced with sperm whales in mind, but they apply equally to all whales in New Zealand waters.
Because few large whales breed in New Zealand waters, there is not the same concern about whalewatch vessels disrupting breeding behaviour that might be found in, for example, Tonga or Australia. The need for particular care in the vicinity of large whales accompanied by their young has, however, been recognised in the regulations. The minimum approach distance to large whales with calves is 200 metres.
Swimming with whales is not encouraged; operators at Kaikoura insist that sperm whales are easily scared by swimmers. Any swimmer or diver wishing to approach closer than 100 metres to a whale requires the approval of the Director-General of Conservation.
Similar rules apply to dolphins as to whales, the major difference being that there is no minimum approach distance for dolphins and vessels can depart at greater speeds to allow the dolphins to be out-distanced (Figure 8). Vessels are also restricted from cutting through and dispersing pods of dolphins. Swimming with dolphins is permitted in most areas.
The regulations do not distinguish between the different species of dolphin. They were written primarily to deal with dusky dolphin watching in Kaikoura and are not always adequate for other species in other areas. In such circumstances it has been necessary to supplement the regulations by way of conditions on commercial permits. For example, commercial swimming with Hector's dolphins has only been allowed at Banks Peninsula where there are reasonable numbers of dolphins. Elsewhere Hector's dolphins are generally found in small scattered family groups which are territorial and usually wary of people in the water, and commercial swimming has not been permitted. In the Bay of Islands, bottlenose
dolphins occur in relatively small pods (average 8-20 individuals) and closed areas have been designated, to allow the animals opportunities to feed or rest without visits from tourist vessels.
Aircraft are not permitted to directly overfly marine mammals at altitudes of less than 600 metres, and are required to maintain a minimum horizontal approach distance of 150 metres (Figure 9). Aircraft normally circle at a much wider distance, for reasons of air safety and passenger comfort.
As more is learnt about the responses of different marine mammals to close observation, it may be possible to fine tune the regulations to be more species specific. The current regulations, for example, require contact to be abandoned if a sperm whale abruptly changes its orientation or starts to make dives of one to five minutes duration without showing its tail flukes. As noted earlier, such behaviour has been identified as a sign of distress for sperm whales. The short dives, in particular, are believed to be an evasive response.
However, while species specific regulations have a number of apparent advantages and are possible in theory, their practicability may be limited. They may make the regulations confusing and unwieldy, and, therefore, less effective. Further, species specific regulations will probably be unworkable for most recreational viewers who cannot positively identify one species from another. General restrictions that apply to readily identifiable groups of marine mammals and that err on the conservative are probably the only practical solution. These protective measures can be reinforced where necessary through specific conditions on commercial permits.