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Animal Law, Uncategorized

The Trials of Moko the Dolphin: But not of anyone else

Over the Summer months, as well as writing a Masters thesis, I’ve been following the rather sad and brutal tale of Moko the bottlenose dophin.

He is but one in a long succession of “lone” dolphins who have actively sought the company of humans around coastal New Zealand. Two of the better-known since European settlement are Pelorus Jack (in the early 1900s) and Opo (1955-6). A common denominator in both of these stories is unprovoked human aggression toward intelligent animals who sought and enjoyed human company. A passenger on the Penguin took a shot at Pelorus Jack (follow the link for the tale of the sad fate of that ship) and there was strong suspicion that Opo was killed (whether deliberately or inadvertently) by an explosive charge set off in the water.

In the present day, scientists have pointed out in a recent study that of the 30 lone dolphins identified around the world in the last decade, 14 had already been injured or had died as a result of their interaction with humans.

Moko is something of a joker. He is well known for his playful antics with swimmers and watersporters in the Gisbourne area frequenting Mahia, Waikanae and Wainui beaches. Such play has involved nudging kayaks, towing swimmers about and on occasion (briefly) blocking swimmers from returning to shore when he wants to keep playing.

In 2008, he famously assisted two Pygmy whales, a  mother and calf, stranded on a sandbar in Mahia Beach. This area is notorious for whale strandings. About 30 whales beach there every year, and most have to be killed when it becomes clear they cannot be re-floated. As DOC workers were considering whether to kill these whales to save them from a slow and agonising death, Moko swam to the two whales and led them through a narrow channel back to the sea, saving their lives.

Moko is a large and impressive specimen, at over 3 metres long and weighing an estimated 250 kg. He bears the marks of interaction with humans to the extent that scientists are concerned about his welfare. In a 2009 study they found he had been scarred by boats and a large fish hook. Although he has never attacked any person and the worst injuries anyone has received have been some bruises, some people have been intimidated by his size and playfulness and struck out at him. 
Others seem to have deliberately set out to hurt him for their own enjoyment.

There has been some quite hysterical reporting – particularly in the more sensationalistic quarters of the Australian press – breathlessly suggesting that Moko is targeting young women and even making sexual advances upon them. They ominously quote a marine expert as saying:

I can’t help but think that something is going to go very wrong with this situation in the next few months.

Such claims have been dismissed as ‘nonsense‘ by local experts who have spent time with Moko.

Perhaps taking the stories of Moko’s amorous advances seriously, a Gisbourne man was ordered by the District Court to stay at least 200 metres away from him after throwing a rock at his partner on Boxing Day 2009, striking her on the head when she surfaced from a dive with the dolphin.

The closest thing yet to a serious incident was in July last year. A local woman who had played with Moko on a number of occasions before went out alone for a swim just before dark. She played with him for a while, but when she wanted to return to shore Moko still wanted to play and blocked her from returning to the beach. As it became cold and dark, she began to panic and called out to people on shore who rowed out to retrieve her. She later admitted that, as a local who had played with Moko on a number of occasions, she had underestimated the risks involved in being alone on open water:

I went out by myself quite late, which probably was not the wisest thing to do.

In November, two twelve year old girls, both junior lifeguards, were bruised when Moko took their paddle boards from them.

Beginning in early December 2009, an $100 fine was levied by the local council  against anyone found swimming with Moko without proper authorisation.

In New Zealand, dolphins are protected by the Marine Mammals Protection Act 1978 (MMPA). Under the Marine Mammals Protection Regulations 1992 (pursuant to s28 of the Act) it is an offence under clause 18(i) to ‘disturb or harass any marine mammal.’ Further, under clause 20(d) it is an offence to even ‘make loud or disturbing noises near dolphins or seals.’ Maximum penalties are $250 000 or up to six months imprisonment.

However, in mid-December a group of high school-age boys were seen hitting and punching Moko. There were several witnesses but none of the boys were apprehended. 
Following this incident, a number of community groups provided volunteer ‘minders’ to keep an eye on the beach and protect Moko for ten hours a day. Wade Doak, an internationally-renowned expert on solitary dolphins, has claimed that this is the first time in the world that a group of people have banded together to protect an animal in this fashion. 
Over the New Year’s period a ‘text bomb‘ was distributed in the area informing visitors to the beach of the proper protocol when swimming with the dolphin.

In January, Moko was playing amidst a group of waka ama boats, when a paddler aboard one repeatedly and apparently intentionally struck him him with a paddle. Moko sustained deep cuts to the dorsal fin but reportedly remains undaunted in approaching people.

The Department of Conservation (DOC) has decided that no charges will be laid against the waka ama attacker. The local DOC officer investigated the incident and after considering statements taken from the alleged offender and several eyewitness decided there was ‘insufficient evidence’ to lay a charge.  They also declined to issue a formal warning on the same grounds.

Relying only on news reports and not having had the benefit of being party to the investigation, I do not intend to criticise the DOC officers outright. But it has to be said that beating Moko repeatedly with a paddle was by any standards a totally disproportionate reaction and clearly within the legal definition of ‘disturb or harass.’ There was no threat to the safety of the people involved who were in boats and wearing lifejackets and it was clear to those present that the dolphin was only playing. In the words of one of the paddlers involved:

It was a bit scary at first. We thought we wouldn’t be able to get back into shore, but then it was fun. We knew he was just playing.

Given what would appear to be a clear causal link between the injuries sustained and the alleged actions of the paddler, and given the fact that the injuries were discovered while the investigation was still underway and were consistent with the alleged striking; the statements of the witnesses must have been words to the effect that they did not see anything for there to be insufficient evidence to even bring a charge.

Surely, if there is conflicting evidence, that can be assessed at trial. But no charge at all? Not even a caution?

An interesting comparative case. In April 2008 in England, two men in Sandgate, Kent, were found guilty of ‘intentionally or recklessly disturbing a wild animal’ under the UK Wildlife and Countryside Act 1981. They had, after a night of drinking, taken a swim at 5AM with a dolphin known locally as Dave. They caused the dolphin no physical harm, nor did they intend to. They were ordered to complete 120 hours of community work and pay £350 each in costs. This is under a similar provision – referring to ‘disturbing’ an animal – to the New Zealand provision of ‘disturb or harass.’ It is not drawing too long a bow to suggest that ‘beat repeatedly with a paddle until it breaks’ fits within this modest definition.

Ultimately, this comes down to a sense of human entitlement to the coastline. Moko is not a roaming hazard who strikes at random. In fact, his every move is reported in the national media and he is closely observed by experts and locals wherever he does settle. He has been a regular denizen of the same area since 2007. People know his behaviours and they are well aware of the type of play in which he engages. The point that overwhelmingly seems to be missed is the fact that humans are visitors to, often intruders upon, the dolphin’s environment. Not the other way around.

I think Gisbourne kaumatua, Barney Taupara, says it  best in the course of his observation that Māori see Moko’s visits as a sign from Tangaroa (God of the Sea):

For our people, our relationship with the creatures in the sea is very close. We are sad when a shark or whale dies because they are kaitiaki – guardians of the sea. To us, Moko has come to these shores for a reason, perhaps for us as a community to have a better understanding of the impact we are having on creatures in the sea.We play in the sea, but it’s foreign territory for us – they live, abide and thrive there. If he is being aggressive or overly playful, don’t be afraid of him – he might be telling you to move to a safer place, or that you’re disturbing something under the water. Work with him, and listen to him.

The latest on New Zealand’s marine mammal protection regime is the Marine Animals Protection Law Reform Bill 2009. This is a private member’s bill from Metiria Turei of the Greens Party. It aims to alter the MMPA, Fisheries Act 1996, and Wildlife Act 1953 to frame the objectives of the Acts as ensuring ‘that marine animals are a functioning element of their ecosystem, that populations be maintained at healthy levels and that depleted or threatened populations be allowed to recover to non-threatened status within a reasonable timeframe.’

However, this is aimed primarily at regulation of fishing and is not so relevant to the issue under discussion here which is human contact with marine mammals.

That seems to come down to an issue of ethics. We must ask ourselves, what does it say about us as a species that our relationship with one of our closest mammalian relatives is so fraught with violence and misunderstanding? Perhaps more to the point: What level of violence will it take before the protection of marine mammals becomes an issue about which DOC are at least prepared to bring charges?

About Vernon Tava

Barrister. Lives in Auckland, New Zealand.


5 thoughts on “The Trials of Moko the Dolphin: But not of anyone else

  1. That was shocking that those youths were punching him, and even wors that no one came forward and named them. People are such scardey cats.

    Posted by AaronC | 26 April 2010, 11:39 pm
  2. Great stuff Vernon. You are right to be skeptical of the DOC approach in the case. Sadly, we’ve seen far too often that officials from various ministries tend to take a very conservative view of what constitutes harm to animals. It sounds like a page right out of the MAF playbook, unfortunately.

    Posted by Peter Sankoff | 27 April 2010, 4:47 pm
  3. great article vernon. keep em’ coming – very informative.

    Posted by Birsha | 27 April 2010, 6:27 pm
  4. Moko left ‘Gisborne’ a while ago now. Up until this week he made his new home in Whakatane. He is now in Tauranga. You can follow him on facebook -there are 4 moko groups- mokoinwhakatane, moko minders, moko in tauranga and one that is about a movie being made.
    The reason Moko has not been in the news for a while is that there have been no negative stories to tell. In the meantime 100’s of people have been having fun with him.
    Dave Head- Aotearoa

    Posted by Dave Head | 7 June 2010, 2:08 pm
  5. Well, he’s back in the news now, and sadly, it’s not for any of the good reasons: http://tvnz.co.nz/national-news/moko-memorial-planned-3636328/video

    Posted by Peter Sankoff | 12 July 2010, 2:49 am
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