How best to stop killing Hectors dolphins
The intersection of marine wildlife protection with New Zealand law is a wide and deep ocean.
It’s wide because there’s work to do in so many areas: marine protected areas, decision-making about core fishing issues like quotas, direct fisheries bycatch work, tricky enforcement work. The list goes on. It’s also deep water because virtually all of the ENGO effort in recent years has gone into law reform – what isn’t working well. Think of things like EDS’s series on oceans law.
The result is that very little of the current law – settings presumably chosen at least in part because they might work well for marine life – has been well tested in New Zealand law, except by a traditionally aggressive fishing industry. What cases there have been on the environmental side have been very good as far as they have gone. But, like the Tarakihi case about rebuilding overfished stocks, they focussed overmuch on detail and didn’t squarely hit core issues like the purpose of the Fisheries Act. Or, like the Motiti litigation concerning using the RMA for marine protection, they fell prey to foreseeable institutional limitations and bureaucratic machinations.
This is a shame because the relative stability of New Zealand oceans law, borne largely of the 1990s fisheries Treaty settlement, also makes it in-principle an attractive area for environmental litigation. But as previously mentioned in this series, a big part of my past few years’ work has been work on improving this situation - in order that existing oceans law might be better implemented. A big part of that work came to be about protecting rare and declining marine wildlife using litigation.
Though I have not said it until now, like many in the marine protected species world, a big part of my personal life has been to fall in love with sailing. This is an interesting week for New Zealanders in the middle of that Venn diagram, with Sail GP axing its Christchurch contract.
Bycatch
Nearly two years of my recent work life came to be dominated by a single case. Colleagues and I developed a judicial review on many aspects of the legal arrangements for fisheries bycatch. The bycatch case was of two halves.
The first half was about whether a flow of true bycatch information came off the sea to policy-makers. We focussed on the mechanics of the information flow infrastructure, and looked in particular at the role of a wholly industry-owned outfit called “FishServe” within this infrastructure. FishServe had managed to insert itself in to the “registry services” process around 2000. Registry services are basically the accounting function underwriting the integrity of the Quota Management System or QMS. We found that FishServe had gradually subsumed the bycatch reporting function into its work. Was bycatch reporting a fairly related function to QMS integrity? Or had a simple a fox/henhouse situation been allowed to develop in Wellington shadows? On questioning these things we found very acute and ongoing sensitivity – indicating as ever in litigation a place to linger.
The second half of the case was about how policy-makers made decisions in light of the information to hand. For example, a common complaint is a lack or paucity of bycatch information to introduce protections. Yet there seemed to be ample opportunity to get and verify true information using current legal tools. Were interruptions in the information flow a real and legitimate issue for various actors, each in their own way? Or were they mere opportunities for every actor - each admittedly with limited capacities - to pass the buck around?
The bycatch case was motivated by some very basic questions.
One of these was that if fishers seem to be required to report seabird bycatch to DOC Rangers within a set timeframe, and failure to report was an offence liable to a $10,000 fine, what was going on with Fisheries New Zealand, or FNZ, getting the reporting via a private intermediary in Fishserve, on unclear timeframes to boot? Was FNZ giving DOC bycatch reporting information, or if not had DOC been insisting on getting it from FNZ? What information was exchanged? Could some breakdown in the information flow have to do with the low rates of bycatch reporting, the “observer effect” where bycatch rates seemed go to up if an observer was on board a fishing boat? Could such a breakdown have to do with the low rates of prosecutions for bycatch misreporting, or for both FNZ and DOC failure to implement its possible legislative tools to reduce fishing bycatch? How could such arrangements have been allowed to solidify over 20 years into “the only option” when bycatch rates themselves were leading to demonstrable protected species population risks, on FNZ own information?
Put next to the declining and in places dire state of marine protected species, the sheer basic nature of these questions – and the inadequacy of officials’ answers – indicated a story in fisheries bycatch that has only really been nibbled at, despite journalists’ and ENGOs best efforts.
I’ll give a full telling of that case another time. It is interesting to put next to the separate announcement this week that FNZ has adopted rules requiring “best practice” or “three from three” seabird bycatch mitigation measures (a decision deliberately kept away from Minister Shane Jones, and one not even announced by him on beehive.govt.nz). The time for a full telling is not yet, because justice can be slow: the case was heard in August 2023 but a decision is still yet to come.
For now I’ll just say that a major feature of the bycatch story seems to be a protracted and systematic effort from FNZ and predecessor agencies to marginalise DOC’s position – such that DOC is now information starved and powerless to use the tools it actually has. As a result, DOC cannot cajole FNZ into better protective efforts, and is itself forced to obfuscate – which naturally provides a distracting lightening rod to some environmentalists, and helps shield FNZ from the bluntest scrutiny. A welcome outcome, mid case, was to secure a DOC-MPI MOU under which it seemed DOC would get a good flow of information. This MOU had apparently been in the making for many years, the timing of its completion a mere coincidence. It’s unclear if anyone is actually implementing this MOU, and that might be something for a journalist to look into.
Hectors dolphins
We kept asking questions, and one of the more disturbing areas related to Hector’s dolphins.
Hectors dolphins and their Maui subspecies are endemic to New Zealand waters. There are only about 16,000 Hectors remaining across a number of genetically distinct sub-populations. Hectors are classified as Nationally Vulnerable. Maui are almost (or perhaps literally) vanishingly rare. They are classified as Nationally Critical.
FNZ will point to all sorts of action on Hectors and Maui Dolphins: there are various iterations of a “Threat Management Plan”. There’s a “Bycatch Reduction Plan” for South Island Hectors, complete with an “escalating response” framework if a capture occurs. There has been the very long-awaited installation of cameras on inshore fishing boats from May 2022. There’s been the imposition of fishing-related mortality limits for various dolphin populations. There have been various other regulatory initiatives such as set-net ban areas, some with almost amusingly arbitrary shapes. And on and on.
All this heat and light, and about the only thing that hasn’t happened is a halt in the rate of dolphin captures. In fact, since the introduction of cameras, this rate seems to have gone up - another version perhaps of the “observer effect” mentioned earlier.
Perhaps this was a reason FNZ officials felt a need to stonewall enquiries about a hector’s dolphin capture off the Otago Coast on 10 November 2023. The mortality limit for fishing related deaths in Otago waters is 2 dolphins each fishing year, and because the area is so poorly monitored, the high likelihood with one capture was that this limit was breached.
Breaches of mortality limits aren’t matched in section 15(2) of the Fisheries Act – like you’d perhaps think they sensibly should be – with a Ministerial obligation to close a fishery. So despite the likelihood of a breached mortality limit in Otago, FNZ obfuscation ensued. Instead of a closure, a voluntary FNZ/industry deal was made behind some closed Port Chalmers doors.
Since November 2023, there have been so many camera-observed Hectors catches up and down the east coast of the South Island that FNZ has stopped publishing the data (it seems that captures only to 31 December 2023 are online).
All this is to say that New Zealand’s native dolphins are in serious trouble, due in measurably large part to fishing related mortality. Regulatory efforts on this have been many and varied, particularly in recent years. The reluctance seems to be to follow through with enforcing these efforts. The FNZ game seems now to imagine new ways to add to the number and manner of increasingly improbable contortions to avoid such enforcement.
Sailing
Six months of FNZ obfuscation and obstruction on Hectors-related enquiries trailed behind me in March 2024. Together with the gurgling wake of a Whiting 29, running deep before an easterly off Godley Head, thoughts of this time formed the soundtrack in my head on the afternoon of Sunday 24 March. It was then with friends and family that I enjoyed my very first personal encounter with Hectors dolphins.
The day prior, Saturday 23 March, Sail GP NZ edition had been stopped due to a “mammal on course”. Someone I know had been on the “dolphin watch” boat that made the Hectors sighting and stopped racing. The reaction from Sail GP boss, the Dunedin born and since globetrotting Russell Coutts, is now well known.
Our little sail that Sunday put the icing on the cake of a great summer. A few local guys and I had gone in together and raced an Etchells named Rancho Relaxo each Thursday evening. The chance to get more involved with different people sharing a common love of sail was equally as good as getting to know the subtleties of the Lake breezes better.
The desire to do all this came on the back of some long memories.
First, for me, there had been pandemonium in the Octagon in 1995: Black Magic had beaten Young America. One of my early memories was seeing the boys of Otago Boys’ High School give a haka in welcome to one of their (and later to me “our”) favourite sons home with the America’s Cup.
Scenes of the same depth and vividness repeated in the years following, albeit now probably distorted by the passage of time. With the victory over Luna Rossa in 2000, right about when FishServe was formed, there was that kind of formative elation a young kid can get watching sport. I got in an Optimist about then. Disappointment with what then seemed a new mercenary dimension, and later straight deflation, came against Coutts’ Alinghi in 2003. I got into sailing our Laser Terminator at that time – but it was clear I was too light to ever really control her. 2007 brought a rematch against Alinghi. As a university student, it also brought lessons on the way the whims of wind shifts can change life. Sheer heartbreak came to our office staff room in 2013, as well as many others’ no doubt. Team New Zealand’s loss in San Fransico seemed to underscore a need to keep evolving. But San Fransisco’s wrong was made joyously right against Team USA four years later in 2017. I enjoyed the raw redemption of that victory appropriately: by scratchy AM car radio turned up loud on the street, ending up bear-hugging a stranger walking his dog. 2021 brought the thrill of watching two beautiful craft - virtually spacecraft - go toe to toe. One day family and I had the special privilege to see and hear them up close on the “Back Paddock” of Tamaki Strait. Honours were even that day, and the cliffhanging drama was both timeless and never-seen-before.
My point is that sailing was a part of growing up for me, it’s brought many occasions to reflect and learn, and I love it for that. In turn that’s part of why I’m still out there doing it.
Sail GP 2024, Christchurch
Readers may have guessed that I was on the waters of Whakaraupo / Lyttleton Harbour for Sail GP NZ, 2024. Sail GP is not the America’s Cup, and both have their many virtues and faults. That’s another discussion. But as Sail GP crowds and viewership show in Christchurch and elsewhere, it’s not really arguable that fleet racing almost identical boats to those used in the 2017 America’s Cup has a unique and electric appeal for many.
As I mentioned, someone I knew had been on the “dolphin watch” boat, the one that made the Hector’s dolphin observation leading to Saturday’s cancellation. Some environmentalists celebrated, and are celebrating again with this week’s announcement. A veritable chorus of voices expressed some version of disappointment or dismay at the time, and are doing so again.
To me almost everybody has missed the point.
Let’s start with Coutts. Sail GP agreed to a dolphin protocol. In principle it accepted a limit on, a boundary for, its event. Given the rarity and decline of the Hectors, some of which we saw above, that was a commendable position. But if one accepts a limit or boundary, and that limit or boundary comes, the only thing to do is to accept it. Failing to do so is to go back on one’s word. And that is to disrespect the integrity of an important social institution. Either that or Sail GP never really meant what it said. Either way, are we looking at a trivial act, or something more?
Thorough planning for the possibility of dolphin cancellations would have involved allowances in financial planning, advertising, competition scheduling and the like. Jumping up and down in response to the cancellation of the Saturday racing was unbecoming on Coutts’ part. Being charitable, it seems to reflect embarrassment at poor preparation.
A mature response would have involved asking whether indeed the Saturday sighting did pose an actual risk to dolphins or to Sail GP yachts, or whether it was a more automatic adherence to protocol (as many said). The possibility was to establish whether the limit or boundary was appropriately set. If not the possibility was to modify the procedure for 2025.
Factually, I understand that underwater noise is a key marine mammal issue, and that Sail GP boats, or indeed any hydrofoil, create underwater noise. It would also have been entirely unsurprising if the protocol had not been perfect first time around. So surely there was room for a productive discussion on reducing real collision risk, including through everything from protocol changes to regatta timing.
The actual failure to take this course publicly was to push a clearly defined and agreed limit away. That action is little different in principle to the obfuscating officials at FNZ - people who want or need to take to contortions to pretend legal limits to Hectors dolphin bycatch are not being breached. But to be fair, Coutts’ public course is not quite that bad: the difference is that whereas the Sail GP dolphin protocol could surely have been iterated, the FNZ dolphin mortality limits appear to have been robustly established.
If some version of a sensible discussion happened behind closed doors, apologies to Coutts. If not, let’s not be too harsh. We can’t let blame lie with one man. Poor preparation is something we all suffer from sometimes. Surely the absence of a measured discussion implies that various Christchurch and dolphin people were too rigid: failing to give Coutts sufficient space to climb down from his earlier public pronouncements while retaining some face. We all need face, we all make mistakes, we can all always improve, and remembering this in heated situations can be helpful.
Is it possible that Coutts’ response was about something more than, or other than, dolphins? About our national story perhaps? I think so. To me, it seemed that many allowed the situation to become an emblem of New Zealand dysfunction with red-tape - the syndrome the government or people like Hosko or Heather would have us diagnose ourselves with. Certainty to me this seemed the case for the many listening to Newstalk ZB with slightly too much credulity.
Different views about red-tape are all very well normatively, and in many ways this is the same debate happing in Fast Track land today, but people with these kinds of views need to ask themselves whether we should enforce any existing law at all.
If we don’t like dolphin protections getting in the way of yacht races, the honest course is not to pretend existing and agreed protections shouldn’t be enforced, but to question the content of, or need for, the protections themselves. Perhaps there was room for more judgement and fewer rules - more ‘common sense’ - in the dolphin protocol? If so who would we have trusted to decide? Would we have been prepared to accept that arrangement, and its implied need to refrain from harsh public criticism of the judge? And so on.
If we just pretend about rules when we don’t like the outcomes of their application, like so many did over Sail GP, we surely court trouble.
For some environmentalists, and many I call friends and colleagues, the cancellation of the Sail GP contract was a “victory for the dolphins”. While I’m not for removing dolphin protections myself, in my humble view the cancellation was anything but a victory for Hectors.
To people with the view it was, reducing or eliminating any and every threat to Hectors is a good thing. Surely this is a good heuristic for any environmentalist worth their salt. It’s also a reasonable heuristic to apply when a species is in such serious trouble. But generalising can have its issues – as many of the same people would tell us in other contexts. Here was a classic case where this may have been a possibility.
People with these kinds of views need to ask themselves about the story being absorbed by different sections of the public, and their part in weaving that story.
Did their stance risk alienating some section of the public to the Hectors’ cause – starting with the 20,000 in the stands? Could it compete with the glow and echo of a national quest for some kind of greatness spanning entire generations? Did their stance court the emblem de jour of red tape, to the ultimate detriment of Hectors goals?
If not, fine. But if so, was that worth doing in exchange for completely eliminating what must in principle be a relatively miniscule threat to Hector’s population? Might it have been possible to settle for merely reducing this already small fractional risk and traded for advantage in other areas? Could it have been possible to accept a residual risk, and use the worldwide television coverage to bring the right kind of attention to the key threat sources? Or to goad those who would make excuses for them into a misstep? After all, some of these key threat sources were lying right next door, tied up on the fishing pier.
I have declared my love for sailing, and I accept this might bring a slant to my views. But I have also worked a lot on core Hectors issues. Sail GP’s threat to Hectors dolphins pales, and always did pale, in comparison to the fishing related mortality risk. There are real legal hooks available for those issues, and officials have baulked at enforcing these laws for at least 20 years.
From this vantage point, the environmental story of a “Hectors’ victory” over Sail GP looks like a potential opportunity missed, one courting the risk of alienating the public, and an un-necessary misstep given the available alternatives.