Hector’s dolphins need proper protection from SailGP

Tuesday, 23 January 2024

SailGP competitors during last year’s racing on Lyttelton Harbour. If a Hector’s dolphin collides with one of the super-fast catamarans, it risks death despite supposedly being protected in a marine sanctuary.

Teall Crossen is an environmental legal and policy consultant. She advised on the 2020 amendments to the marine mammal sanctuaries.

OPINION: It’s not unreasonable to expect that dolphins would be safe in a marine mammal sanctuary. But you would be wrong.

The Banks Peninsula Marine Mammal Sanctuary couldn’t stop the super-fast blades of SailGP’s catamarans slicing through Whakaraupō/Lyttelton Harbour last year, risking certain death for upokohue/Hector’s dolphins. And it’s about to happen again. SailGP is returning to the harbour in March, despite the lack of legally enforceable rules to protect the threatened species.

That’s not to say that a whole lot of work hasn’t gone into minimising risks to the dolphins. It has. Similar to last year’s race, SailGP is preparing a marine mammal management plan to try to safeguard the dolphins. Because with increased vessel traffic in Whakaraupō/Lyttelton Harbour, the likelihood of vessel strike increases.

The surest way to protect Hector's dolphins or upokohue from the SailGP fleet’s blades would be to move racing away from their sanctuary, or to race in winter.

No-one doubts that the dolphins risk death if they collide with a yacht racing at speeds of up to 100km/hour. Dolphin expert Liz Slooten’s view that not racing in the sanctuary, or racing in winter when fewer dolphins use the harbour, seems pretty sound. Neither of those options work for SailGP.

The problem with SailGP’s management plan approach is that it is entirely voluntary. During the race last year, the marine mammal observer ordered racing to cease when dolphins entered the danger zone – i.e. too close to the boats, as provided for in the management plan. The orders were ignored and no consequences followed.

The management plan explicitly gives SailGP a free pass for any breaches. It provides in the event of non-compliance SailGP must discuss with ChristchurchNZ the consequences for the breach.

So, the offender gets to “discuss” what kind of punishment is appropriate. It’s farcical. It’s like saying if a company fails to comply with a forestry resource consent by allowing slash to rain down on rivers and farms, the company gets to discuss the consequences of non-compliance.

To address SailGP’s failure to comply with the management plan last year, responsibility for calling off racing if any dolphins get too close to the boats will now be an independent person. But here’s the kicker. The Department of Conservation still doesn’t have any legal powers to enforce the management plan, despite that being a fundamental problem with last year’s race – and the racing occurring within a marine mammal sanctuary.

The racing may trouble the dolphins’ guardians, but it was a big hit with fans in 2023.

Of course, the sanctuary was originally established to control fishing. There are no provisions regulating high-speed yacht races in the sanctuary notice.

What’s troubling about the entire situation is that the Minister of Conservation didn’t take responsibility for protecting the dolphins by amending the notice to impose controls on the race.

It's relatively straightforward to amend rules in marine mammal sanctuaries. The sanctuary notice for Horomako/Banks Peninsula was amended in 2020 to ban seismic surveying and seabed mining (subject to exceptions). It followed a review of the Hector’s and Māui Dolphin Management Plan involving engagement with iwi, public consultation and a formal submission process. Five of the seven marine mammal sanctuaries around Aotearoa were amended.

At the time of the review, SailGP’s race wasn’t on the radar. Repeating the same process to amend the Banks Peninsula Marine Mammal Sanctuary notice to control racing in Whakaraupō/Lyttelton Harbour would undoubtedly take some time. Technical analysis, iwi engagement and public consultation would be required. Arguably, it couldn’t be achieved before the race in March.

But let’s not overthink this. Amending one sanctuary notice to give the Minister of Conservation the power to regulate yacht racing in Whakaraupō only requires a 28-day consultation period. And that’s all that is needed. Te Hapū o Ngāti Wheke Rāpaki is already engaged on the matter, as is DOC. We also have the experience of last year’s race to inform technical considerations. Members of the public would have a month to make submissions, and then the minister could decide how to proceed.

Prohibiting the race would be a viable option, as would a simple rule requiring compliance with a marine mammal management plan. Any non-compliance would then be an offence and could lead to prosecution.

Rather than using the statutory power to protect upokohue, the government is allowing SailGP to call the shots. With racing scheduled for March 23/24, there is still time for the minister to do the right thing and protect a threatened taonga.