New Zealanders have had the privilege of enjoying the company of many dolphins that chose to interact with people or boats. Some became household names, including Pelorus Jack (1888-1912), Opo (1955-56), Horace (1978-79), Aihe (1987-93), Maui (1992-97) and Moko (2007-10). The close bond that people developed with these dolphins led to concern about their welfare and protection – and a persistent myth about which was the first dolphin to be protected.
Pelorus Jack was perhaps the most famous of these dolphins internationally, partly due to his (or her) longevity. For more than 20 years, Pelorus Jack accompanied vessels steaming across Admiralty Bay (east of D’Urville Island in the outer Marlborough Sounds).There was much debate about his/her identity, with various experts suggesting beluga, Cuvier’s beaked whale and bottlenose dolphin before there was eventual agreement that Pelorus Jack was New Zealand’s first recorded Risso’s dolphin.
Requests to the government to protect Pelorus Jack began in late 1903, and resulted in an Order in Council published on 29 September 1904 that stated “it shall not be lawful for any person to take the fish or mammal of the species commonly known as Risso’s dolphin (Grampus griseus) in the waters of Cook Strait, or the bays, sounds, and estuaries adjacent thereto”. The Order in Council covered a period of five years, and was renewed (as Regulations under the Sea-fisheries Act 1894, and the subsequent Fisheries Act 1908) for further five-year periods on 31 May 1906 and 4 May 1911.
Reference to Pelorus Jack being a fish caused amusement among zoologists. New Zealand Premier Richard Seddon received a letter in June 1905 referring to an English authority who had made considerable fun of the ‘fish or mammal’ phrase: “Pelorus Jack is, he says undoubtedly a mammal, and I have wondered whether a proclamation is valid [seeking to protect] a mammal under an Act for the protection of sea-fishes”. This last comment cuts to the core of the matter, and provides an explanation for why legislators had referred to a dolphin as a fish. Neither the Sea-fisheries Act 1894 nor the Fisheries Act 1908 made any mention of marine mammals other than seals. The government was bluffing, and hoped that by calling Pelorus Jack a fish they could get away with a piece of legislation that was ultra vires (beyond their legal power or authority).
Pelorus Jack was last seen in 1912, but in September 1944 reports were received of a second pale dolphin accompanying boats in Pelorus Sound – this time in Hikapu Reach (north of the entrance to Kenepuru Sound). The dolphin was given the name ‘Pelorus Jack II’, and its identity was resolved when Reginald Oliver, Director of the Dominion Museum, visited the site later that same month. Oliver recognised the animal as a ‘coast porpoise’ (now known as Hector’s dolphin) and suggested that it was ‘of sufficient interest to have some measure of protection, and [I] accordingly recommend that an Order-in-Council be gazetted as was done in the case of “Pelorus Jack”’. The resulting Regulation (again under the Fisheries Act 1908) was published on 28 February 1945 and stated ‘During a period of three years from the 31st day of January, 1945, no person shall take or attempt to take any porpoise of the species commonly known as white porpoise (Cephalorhynchus hectori) in the waters of Cook Strait, including the bays, sounds, and estuaries adjacent thereto.” This was renewed for four further periods of three years in May 1947, August 1950, February 1956 and March 1966.
The third famous dolphin for which protection was sought was Opo, a young bottlenose dolphin that became a national sensation during 1955-56. Opo interacted with swimmers and boaties at Opononi on the southern shore of Hokianga Harbour, and large crowds gathered to swim and play with her. Many people became concerned about Opo’s welfare, and lobbied the Marine Department and at least three cabinet members for her protection. However, Marine Department staff expressed concern to their minister that “protection cannot be given under…the Fisheries Act 1908 as the animal is a mammal not a fish”. Advice was sought from the Crown Solicitor, who replied:
“Although in a loose and popular sense the word “fish” is sometimes used to include mammals living exclusively in the water and having a fish-like form (cetacea) such as whales, porpoises and dolphins, it strictly means and is restricted to “vertebrate animals, provided with gills throughout life, and cold-blooded; the limbs, if present, being modified into fins”…It is in this latter sense, I think, that the term “fish” must be deemd to have been used in section 2 of the Fisheries Act 1908; and I am therefore of opinion that the draft Order in Council submitted by you herein … is ultra vires…As I know of no other statutory provision or rule of law under which this dolphin can be afforded adequate legal protection I can only suggest that special legislation should be enacted by Parliament for this purpose.”
However, the Minister of Marine, John McAlpine, did not accept that there was no existing mechanism for protecting Opo, and instructed the head of the Marine Department (Gerald O’Halloran) to draft an Order in Council similar to those used to ‘protect’ Pelorus Jack and Pelorus Jack II. O’Halloran begrudgingly obliged, but warned his minister “You are aware, of course, that there is no statute under which this provision can be given”. He then advised Cabinet “that these regulations may not be valid as a dolphin is a mammal and not a fish. However, as an expediency measure I think they should suffice”.
The Fisheries (Dolphin Protection) Regulations 1956 (SR 1956/25) were issued on 7 March 1956, (‘protecting’ dolphins in Hokianga Harbour) and notified in the New Zealand Gazette on 8 March. Sadly, Opo probably died that same day; she was found dead, trapped in a tide pool, on 9 March – the day the regulations came into effect.
The messy attempt to protect Opo did, however, convince legislators to tidy up their Act. The Fisheries Amendment Act 1956 (enacted on 26 October 1956) stated that the word “seals” in the Fisheries Act 1908 was to be replaced with “marine mammals (including seals)”. Almost half a century after Pelorus Jack, New Zealand finally had legislation in place that allowed for dolphins to be protected. At the time, there were two sets of regulations in the statute books that referred to dolphins: the Fisheries (Dolphin Protection) Regulations 1956 (covering dolphins in Hokianga Harbour), and a reprint of the Fisheries (General) Regulations 1950, ‘protecting’ Hector’s dolphins in Cook Strait for three years from 1 March 1956.
It is unlikely that any dolphins were resident in Hokianga Harbour following Opo’s death, therefore the correct answer to ‘what was New Zealand’s first protected dolphin?’ is Hector’s dolphins in the waters of Cook Strait, between 26 October 1956 and 1 March 1959.
The Hokianga Harbour regulations were revoked in March 1957, but the Hector’s dolphins regulations were renewed in March 1966, before being revoked in June 1968. No further dolphin protection was achieved under the Fisheries Act 1908, and so no dolphins were protected from 4 July 1968 until 1 January 1979, when the Marine Mammals Protection Act 1978 came into force. All marine mammals in New Zealand waters have been fully protected since that date.
For more information on the history of protection of New Zealand wildlife, see these Te Papa publications:
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