Short title

Interpretation

1.              These regulations may be cited as the Whale and Dolphin Watching Regulations 2003.

“Commercial aircraft operation” means a commercial

2.              In these regulations, unless the context otherwise requires-

operation using any aircraft as defined in the Civil Aviation Act;

“Commercial operator” means a person or company duly registered under the Kingdom’s Company’s Act who carries on a commercial operation:

“Commercial operation” or “operation” means an operation carried on for any form of hire or reward in which persons are transported, conveyed conducted, or guided where the purpose is to view or come into contact with any whale or dolphin within Tongan territorial or waters:

“Commercial shore-based operation” means a commercial operation that does not use any aircraft or vessel:

“Contact”, in relation to a marine mammal, includes any interaction involving a person and a whale or dolphin that is likely to produce an effect on the whale and dolphin:

“Dolphin” means-

(a)        All species commonly known as dolphins and includes common dolphins, bottlenose dolphins and spinner dolphins but;

(b)       Does not include the species known as killer whales and pilot whales:

                     “Harass” includes to do any act that-

(a)          Causes or is likely to cause injury or distress to any whale/dolphin or

(b)         Disrupts significantly or is likely to disrupt significantly the normal behavioural patterns of any marine mammal

“License” means a license issued under regulation 12 of these regulations:

“Whale’ means all species commonly known as whales; and includes baleen whales, sperm whales, beaked whales, killer whales and pilot whale;

Application

Purpose

Commercial operations

Carried on without a license prohibited.

Criteria for issuing

Licenses

Requirements to be Satisfied before a license

For commercial vessel operation is issued

Requirements to be

Satisfied before a

License is issued

Licenses

Suspension, revocation,

Restriction, or

Amendment of licenses.

Transfer of Licenses.

Conditions governing

commercial operations and behaviour of all persons around any whale

and dolphin.

Special conditions

applying to whales.

Special conditions

applying to

swimming with

whales.

Specialists Interactions.

3.              These regulations shall apply throughout the Kingdom of Tonga and Tongan fisheries waters;

(1)          Nothing in these regulations applies in respect of any fishing vessel while the vessel is engaged in commercial fishing (as defined in the Fisheries Act), unless-

(a)       the vessel is also engaged in a commercial operation; or

(b)      the vessel deviates off course to engage in recreational viewing of whales and dolphins.

(2)          The purpose of these regulations is to make provision for the protection, conservation and management of whales/dolphins and in particular-

(a)       To regulate human contact or behaviour with Whales/Dolphins either by commercial operators or other persons, in order to prevent adverse effects on and interference with Whales/Dolphins;

(b)      To prescribe appropriate behaviour by commercial operators and other persons seeking to come into contact with Whales/Dolphins.

PART I

REQUIREMENTS RELATING TO LICENCES

4.              No commercial operator shall carry on any commercial operation, except pursuant to a License issued by the Minister for Tourism under regulation 8 of these regulations.

5.              Before issuing a license the Minister shall be satisfied that there is substantial compliance with the following criteria:

(a)       That the commercial operation should not be contrary to the purposes and provisions of the Act;

(b)      That the commercial operation should not have any significant adverse effects on the behavioural patterns of the Whales and Dolphins to which the application refers, having regard to, among other things, the number and effect of existing commercial operations;

(c)       That is should be in the interests of the conservation, management, or protection of the Whales and Dolphins, should have sufficient experience with Whales and Dolphins;

(d)      That the proposed operator, and such of the operators staff who may come into contact with Whales and Dolphins, should have sufficient experience with Whales and Dolphins;

(e)       That the proposed operator, and such of the operators staffs who come into contact with Whales and Dolphins, should have sufficient knowledge of the local area and of sea and weather conditions;

(f)       That the proposed operator, and such of the operators staff who may come into contact with Whales and Dolphins, should not have any convictions for offences involving the mistreatment of animals;

(g)      That the commercial operation should have sufficient educational value to participants or the public.

6.              Every applicant for a license for a commercial vessel operation shall submit to the Minister for approval an application in writing setting out the following:

(a)       Details of the proposed operation including-

(i)              the type and number of vessels intended for use; and

(ii)            the proposed area of operation, including a map showing the boundaries of the proposed area of operation and, where appropriate, the locations where contact with Whales and Dolphins is proposed;

(iii)           the maximum number of vessels the operator proposes to operate at any one time;

(iv)           the proposed base of the operation;

(v)             the duration of the trips proposed;

(vi)           the frequency of the trips proposed;

(vii)          the proposed kind of contact with Whales and Dolphins;

(viii)        the maximum number of passengers to be taken at any one time;

(ix)           the species of Whales and Dolphins with which the operation will have contact

(x)             the masters proposed to be engaged in the commercial operation.

(b)      The experience with whales and dolphins of the proposed operator and such of the proposed operators proposed staff who may come into contact with whales and dolphins;

(c)       The knowledge of the local area and sea conditions of the proposed operator and such of the operators proposed staff who may come into contact with whales and dolphins;

(d)      The details of any convictions of the proposed operator and of those employees of the operator for offences against the Act or any Act involving mistreatment of animals;

(e)       The details of any educational material to be provided or educational aspects of the proposed operation.

7.                (1)     Before issuing a license the Minister shall determine whether or not the application by the proposed operator is acceptable to him and the Minister may require the application to be amended by the proposed operator to incorporate such matters as the Minister may specify in writing;

(2)          Once the license is approved it shall be deemed to form part of the license issued in respect of the application and shall be complied with accordingly.

8.             (1)    Subject to these regulations the Minister on receiving an application made in writing, may issue a license authorizing any commercial operator to carry on any specified commercial operation;

(2)          Every license issued to a commercial operator shall, where appropriate, specify the following;

(a)       the type of vessel to be used by the operator;

(b)      the names of the masters of the vessels and guides engaged in the commercial operation;

(c)       the area of water to which it relates;

(d)      that all vessels operated under the license, and their masters, respectively, must meet the statutory requirements relating to the licensing and safety of the vessels and the qualifications and licensing of the masters as the case may require;

(3)         The Minister shall not issue a license unless he is satisfied-

(a)       that the proposed commercial operation will not have or be likely to have an adverse effect on the conservation, protection or management of whales and dolphins; and

(b)       that the criteria specified in regulation 6 of these regulations have been substantially complied with; and

(c)       the Minister will issue licenses on an annual basis and the license is subject to review at the Minister’s discretion;

(d)        all licensed operators will required to display on all their vessels a copy of the license.

PART II

SUSPENSION, REVOCATION, RESTRICTION, OR AMENDMENT

OF LICENCES.

           9.       (1)     The Minister may at any time suspend or revoke any license, or restrict the operation authorized by any license, where the holder-

(a)   is convicted of any offence against the Act or is convicted under any other Act of any offence involving the mistreatment of animals; or

(b)  contravenes or fails to comply with any statutory requirement relating to the licensing operation and safety of any vessel used by the person carrying on the commercial operation; or

©  carries on a commercial operation without an appropriately licensed or certified master; or

                                 (d)    contravenes or fails to comply with any condition or requirement specified or notified under Part III of these regulations or specified in the license.

                      (2)    Where the Minister believes on reasonable grounds that it is necessary for the protection, conservation or management of any whale and dolphin of any class he may-

(a)       suspend, revoke, or amend (in a manner not inconsistent with Part III of these regulations) any license;

(b)       restrict in whole or in part the operation authorized by any licence;

 (3)    Where any person ceases to be a commercial operator the  Minister may suspend or revoke that person's licence;

(4)           Every suspension of a license under this regulation shall be for Minister may, at the request of the commercial operator and if he is satisfied that the criteria as specified in regulation 6 of these such a period as the Minister specifies by notice in writing to the holder;

 (5)    The regulations have been substantially complied with, amend a license to allow a change of vessels, or a change of master or guide as the case may be.

10.

(1)          No license for any commercial operation may be transferred from the holder of the license to any other person without first obtaining the consent in writing of the Minister;

(2)          The Minister may-

                                                                 i.     refuse to consent to the transfer of a license; or

                                                               ii.     consent to the transfer of a license with or without conditions.

(3)          Where the holder of a license is a corporate body, the transfer of  control of the management of the holder in whole or part to another person shall be deemed to be a transfer of the license;

(4)         In considering whether or not to consent to a transfer of a license the Minister shall have regard to the applicable matters contained in regulation 6 of these regulations;

(5)          No license shall be deemed to allow any other person other than the operator specified therein to carry on the commercial operation authorized by the license.

PART III

BEHAVIOUR AROUND WHALES AND DOLPHINS

11.              Every commercial operation and every person coming into contact with whales and dolphins shall comply with the following conditions:

(a)         Persons shall use their best endeavours to operate vessels and aircraft so as not to disrupt the normal movement or behaviour of any whale or dolphin;

(b)        Contact with any whale or dolphin shall be abandoned at any state if it becomes or shows signs of becoming disturbed or alarmed;

©    No person shall cause any whale or dolphin to become separated from a group of whales or dolphins or cause any members of such a group to be scattered;

(d).    No rubbish or food shall be thrown near or around any whale or dolphin;

(e)         No sudden or repeated change in the speed or direction of any vessel shall be made except in the case of emergency;

(f)         Where a vessel stops to enable the passengers to watch any whale or dolphin, the engines shall be placed in neutral or be switched off within a minute of the vessel stopping;

(g)        No person shall disturb or harass any whale or dolphin;

(h)        No person or vessel shall cut off the path of any whale or dolphin or prevent a whale or dolphin from leaving the vicinity;

(i)         The master of any vessel other than a licensed operator, less than 300 meters from any whale or dolphin shall use their best endeavours to move their vessel at a constant slow speed no faster than the slowest whale or dolphin in the vicinity, or at idle or “no wake” speed.

(j)         Vessels departing from the vicinity of any whale or dolphin shall proceed slowly at idle or “no wake” speed until the vessel is at least 300metres from the nearest whale or dolphin.

12.    In addition to complying to the conditions set out in regulation 11 of these regulations, every commercial operation and every person coming into contact with whales shall also comply with the following conditions:

(a)         No person shall be in the water with the whales unless they enter the water from a licensed commercial operators vessel;

(b)        No vessel may approach closer than 300 meters to the whales other than commercial licensed operators and then only in accordance with regulations governing swimming with whales;

©     If a whale approaches a vessel, the master of the vessel shall, wherever practicable:

1.     Manoeuvre the vessel so as to keep out of the path of the whale and

2.     Maintain a minimum distance of 300 meters from the whale unless the vessel is a licensed commercial operator.

(d).   A vessel shall approach a whale from a direction that is parallel to the whale and slightly to the rear of the whale;

(e)         No person shall make any loud or disturbing noise near whales;

(f)         The use of SCUBA is banned for diving with whales;

(g)        The use of artificial light sources is banned around whales;

(h)        The use of jet skis and motorized swimming aids is banned for whale watching;

(i)         Jet skis must not approach closer than 2,000 meters to the whales.

13.     In addition to complying with the regulations set out in regulations 11 and 12 of these regulations every licensed commercial operator shall also comply with the following conditions:

(a)         Only licensed commercial operators are permitted to put swimmers in the water with whales;

(b)        There shall be a waiver agreement duly signed between the commercial operators and their clients as per annex “A” to these regulations;

©    No more than 4 (four) clients plus one guide per vessel may be in the water with any one group of whales at a time;

(d).   Only one vessel may have swimmers in the water with any one group of whales;

(e)         Conditions that allow clients to swim with the whales are solely at the masters discretion;

(f)         Vessels carrying 6 (six) or more passengers are required to carry a minimum of two crew including the master;

(g)        Vessels with swimmers in the water must fly the alpha flag;

(h)        Vessels must carry an approved first aid kit and at least one member of the crew is to have a current First Aid Certificate;

(i)         All vessels must meet Ports & Marine survey requirements;

(j)       All licensed operators must have third part liability insurance coverage;

(k)        All licensed operators are to obtain a signed waiver of indemnity by each and every client swimming with the whales/dolphins.  The waiver or indemnity must specifically indemnify the Government of the Kingdom of Tonga from any liability that may result from any accident of any kind;

(l)         If a licensed vessel is on its own with a whale there is no time limit.  However, if a second licensed operator arrives a one and a half hour time limit comes into force.  When this situation occurs the approaching vessel is to make contact by VHF radio (Channel 74 – low power) and stay outside 100 meters;

(m)       Any dingy, small boat, kayak that is launched for the purpose of whale watching and approaches closer than 100 meters of whales must carry a handheld VHF radio;

(n)        Two or more kayaks within 100 meters of whales are to be considered as one operator.

14.       In addition to complying with all the provisions set out in the regulations all scientific researchers and commercial film makers/photographers must firstly obtain all the necessary permits from the relevant Government agencies.  These must be submitted to the Minister with an application for a special license.  Such researchers shall be required to use a licensed Commercial operator for these above mentions research.