National Parks and Wildlife (Whales and Dolphins) Regulations 2000

South Australia NATIONAL PARKS AND WILDLIFE (WHALES AND DOLPHINS) REGULATIONS 2000 2. REGULATIONS UNDER THE NATIONAL PARKS AND WILDLIFE ACT 1972 National Parks and Wildlife (Whales and Dolphins) Regulations 2000 being No. 278 of 2000: Gaz. 7 December 2000, p. 34721 1 Came into operation 1 January 2001: reg. 2. 3. SUMMARY OF PROVISIONS PART 1 PRELIMINARY 1. Citation 2. Commencement 3. Regulations under section 68(1)(c) of the Act 4. Interpretation 5. Application of these regulations PART 2 WHALES DIVISION 1-INTERACTION OF VESSELS AND WHALES 6. Distance from whales and speed of vessels 7. Obligation where whale too close to vessel DIVISION 2-INTERACTION OF AIRCRAFT AND WHALES 8. Restrictions on aircraft DIVISION 3-SWIMMING AND WHALES 9. Restrictions on swimming 10. Circumstances in which swimmers must move away from a whale 11. Non application of this Division to submersibles DIVISION 4-COMMERCIAL OPERATIONS 12. Restrictions on the commercial observation of whales DIVISION 5-THE ENCOUNTER BAY RESTRICTED AREA 13. The Encounter Bay restricted area DIVISION 6-GENERAL 14. Noise in the vicinity of whales PART 3 DOLPHINS AND PORPOISES 15. Distance from dolphins and porpoises and speed of vessels 16. Swimming and dolphins and porpoises PART 4 MISCELLANEOUS 17. Swimmers and marine mammals 18. Approaching marine mammals on land 19. Feeding marine mammals 20. Exemption 4. PART 1 PRELIMINARY Citation 1. These regulations may be cited as the National Parks and Wildlife (Whales and Dolphins) Regulations 2000. Commencement 2. These regulations will come into operation on 1 January 2001. Regulations under section 68(1)(c) of the Act 3. (1) These regulations are made under section 68(1)(c) of the Act. (2) The Minister is able to grant a permit to a person to act in contravention of these regulations under section 68(2) of the Act. Interpretation 4. In these regulations, unless the contrary intention appears "the Act" means the National Parks and Wildlife Act 1972; "adult whale" means a whale that is not a whale calf; "aircraft" means any machine or equipment that is designed to be flown by a person who has control over its speed and direction of movement but does not include a hovercraft; "dolphin" means an animal of one of the following genera; (a) Delphinus; (b) Grampus; (c) Lagenorhynchus; (d) Orcinus; (e) Pseudorca; (f) Tursiops; "marine mammal" means a mammal of a species whose natural habitat is a marine environment; "motorised vessel" means a vessel that has a motor or engine as its principal source, or one of its principal sources, of motive power; 5. "observe" in relation to a marine mammal means to watch, or listen to, the mammal and includes to take photographs or films or to make audio, video or other recordings of the mammal; "porpoise" means an animal of the genus Phocoena; "prescribed vessel" means a jet ski or a hovercraft; "submersible" means a machine designed to move one or more persons underwater; "swimmer" includes a person using a surfboard; "vessel" means a boat or other craft or a device that is designed to float on water and to be manoeuvred by a person who has control over its speed and direction of movement and includes (a) a submersible; and (b) a hovercraft, but does not include a surfboard; "whale" means an animal of one of the following families: (a) Balaenidae; (b) Balaenopteridae; (c) Neobalaenidae; (d) Physeteridae; (e) Kogiidae; (f) Ziphiidae, or of the genus Globicephala; "whale calf" means a young whale that is less than two thirds of the length of an adult female whale. Application of these regulations 5. (1) These regulations only apply to, and in relation to, marine mammals living in the wild. (2) These regulations apply to, and in relation to, a vessel or aircraft except where the observing of marine mammals or swimming near marine mammals is not the purpose, or one of the purposes, for which the vessel or aircraft is being used. 6. (3) Where a whale, dolphin or porpoise is in a situation in which it is reasonable to assume that it is distressed, the whale, dolphin or porpoise will be taken to appear to be distressed for the purposes of these regulations. (4) Subregulation (3) does not limit the circumstances in which a whale, dolphin or porpoise may appear to be distressed. 7. PART 2 WHALES DIVISION 1-INTERACTION OF VESSELS AND WHALES Distance from whales and speed of vessels 6. (1) A person who is in control of a prescribed vessel must not move it closer to a whale than 300 metres. (2) A person who is in control of any other kind of vessel must not (a) move it closer than 300 metres to (i) a whale that appears to be distressed; or (ii) a whale calf; or (b) move it closer than 100 metres to any other whale. (3) A person who is in control of a vessel that is within 300 metres of a whale (a) must not approach the whale head on or tail on; (b) if the whale is moving towards the vessel-must not use, or continue using, the vessel to enable persons on the vessel to observe the whale or swim near it unless he or she either maintains the vessel's position or moves it away from the whale; (c) must not move the vessel between the whale and another whale that is within 300 metres of the vessel; (d) must not drop an anchor from the vessel. (4) A person who is in control of a motorised vessel must not drive the vessel at a speed exceeding 5 knots if the vessel is within 300 metres of a whale. Obligation where whale too close to vessel 7. (1) Subject to subregulation (2), where a whale is (a) within 300 metres of a prescribed vessel; or (b) within 100 metres of any other vessel, the person in control of the vessel must not use, or continue using, it to enable persons on the vessel to observe the whale or swim near it unless he or she maintains the position of the vessel or 8. moves it away from the whale. (2) Where a whale that appears to be distressed or a whale calf is within 300 metres of a vessel, the person in control of the vessel must not use, or continue using, it to enable persons on the vessel to observe the whale or swim near it unless (a) in the case of a whale that appears to be distressed by the presence of the vessel-he or she moves the vessel away from the whale until the distance between the whale and the vessel (i) is such that the whale is no longer distressed by the vessel; or (ii) is 300 metres, whichever is the greater; (b) in the case of a whale that appears to be distressed but not by the presence of the vessel-he or she moves the vessel away from the whale until the distance between the whale and the vessel is 300 metres; (c) in the case of a whale calf that does not appear to be distressed-he or she moves the vessel away from the whale calf until the distance between the whale calf and the vessel is 300 metres. DIVISION 2-INTERACTION OF AIRCRAFT AND WHALES Restrictions on aircraft 8. (1) A person who is in control of a helicopter must not fly it (a) at an altitude of less than 600 metres above a whale; or (b) at an altitude of less than 600 metres above any part of a circular area that has a whale at its centre and a radius of one kilometre. (2) A person who is in control of an aircraft other than a helicopter must not fly it (a) at an altitude of less than 300 metres above a whale; or (b) at an altitude of less than 300 metres above any part of a circular area that has a whale at its centre and a radius of 300 metres. 9. (3) Where a whale appears to be distressed by the presence of an aircraft, the person in control of the aircraft must not use, or continue using, it to enable persons in the aircraft to observe the whale unless he or she flies it away from the whale until the whale is no longer distressed by the presence of the aircraft. DIVISION 3-SWIMMING AND WHALES Restrictions on swimming 9. (1) A swimmer must not (a) approach closer than 30 metres to a whale; (b) approach closer than 100 metres to a whale calf. (2) A swimmer who is using scuba or hookah equipment must not approach closer than 100 metres to a whale. Circumstances in which swimmers must move away from a whale 10. If a person is swimming to observe whales and is (a) closer than 100 metres to a whale calf; or (b) using scuba or hookah equipment and is closer than 100 metres to an adult whale; or (c) closer than 30 metres to an adult whale in any other circumstances, he or she must not continue swimming for that purpose unless he or she either maintains his or her position or moves away from the whale. Non application of this Division to submersibles 11. Division 1 applies, instead of this Division, to a swimmer who is using a submersible or other vessel. DIVISION 4-COMMERCIAL OPERATIONS Restrictions on the commercial observation of whales 12. (1) A person must not, for fee or reward, use a vessel or an aircraft to take another person into the vicinity of a whale for the purpose of (a) observing the whale from the vessel or aircraft; or (b) swimming near the whale. (2) A person must not, for fee or reward 10. (a) take another person by any other means into the vicinity of a whale; or (b) assist another person in the vicinity of a whale, for the purpose of enabling that person to swim near the whale. DIVISION 5-THE ENCOUNTER BAY RESTRICTED AREA The Encounter Bay restricted area 13. (1) A person who is in control of a vessel must not move it closer than 300 metres to a whale that is in the Encounter Bay restricted area. (2) The boundary of the Encounter Bay restricted area is as follows: Commence at longitude 138ø34'5" latitude 35ø36'23" (being a point at high water about 1.5 kilometres west of Kings Head) then one nautical mile to the south east to longitude 138ø35'0" latitude 35ø37'0" then to longitude 138ø46'25" latitude 35ø31'23" (being a point at high water near the Goolwa Beach car park) then to the point of commencement along the high water mark. DIVISION 6-GENERAL Noise in the vicinity of whales 14. A person who is in the vicinity of a whale for the purpose of observing the whale must not (a) make, or cause to be made, a noise that is likely to frighten or otherwise cause distress to the whale because of its loudness or suddenness or for any other reason; or (b) play back a recording of sounds made under water in a manner that is likely to be heard by the whale. 11. PART 3 DOLPHINS AND PORPOISES Distance from dolphins and porpoises and speed of vessels 15. (1) A person who is in control of a prescribed vessel must not move it closer to a dolphin or a porpoise than 150 metres; (2) A person who is in control of any other kind of vessel must not move it closer to a dolphin or a porpoise than 50 metres. (3) If a dolphin or a porpoise is closer to a vessel than the distance prescribed by subregulation (1) or (2) for that vessel, the person who is in control of the vessel must not use, or continue using, it to enable persons on the vessel to observe the dolphin or porpoise or to swim near it unless he or she avoids as far as is reasonably practicable changing course or speed suddenly. (4) Where a dolphin or a porpoise appears to be distressed by the presence of a vessel, the person in control of the vessel must not use, or continue using, it to enable persons on the vessel to observe the dolphin or porpoise unless he or she moves the vessel away from the dolphin or porpoise until it is no longer distressed by the presence of the vessel. (5) A person who is in control of a motorised vessel must not drive the vessel at a speed exceeding 5 knots if the vessel is within 150 metres of a dolphin or a porpoise. Swimming and dolphins and porpoises 16. (1) A swimmer must not approach closer than 10 metres to a dolphin or porpoise. (2) If a person is swimming to observe dolphins or porpoises and is closer than 10 metres to a dolphin or porpoise, he or she must not continue swimming for that purpose unless he or she either maintains his or her position or moves away from the dolphin or porpoise. 12. PART 4 MISCELLANEOUS Swimmers and marine mammals 17. (1) This regulation applies to marine mammals except whales, dolphins and porpoises. (2) A swimmer must not approach closer than 10 metres to a marine mammal. (3) If a swimmer is swimming to observe marine mammals and is closer than 10 metres to a marine mammal, he or she must not continue swimming for that purpose unless he or she either maintains his or her position or moves away from the marine mammal. Approaching marine mammals on land 18. A person who is on land must not approach closer than 10 metres to a marine mammal that is on land or in the water. Feeding marine mammals 19. A person must not (a) feed a marine mammal; or (b) dispose of any material into water if (i) the person knows, or ought reasonably to know, that a marine mammal is in the vicinity; and (ii) the material is likely to be eaten, ingested or otherwise absorbed by the marine mammal. Exemption 20. (1) These regulations do not apply to a person to the extent that he or she is acting reasonably in the best interests of a marine mammal that is (a) suffering from injury, disease or exhaustion; or (b) stranded or entangled or otherwise incapacitated by material of human origin. (2) These regulations do not apply to a person to the extent that he or she is responding in a reasonable manner to an emergency involving danger to human life.