A Department of Conservation investigation crumbled when SailGP didn’t provide data
Authorities couldn’t prove super-fast boats broke marine mammal sanctuary rules because race organisers didn’t provide GPS coordinates, the investigation report confirms.
International sailing series SailGP, which ran the event in Lyttelton Harbour/Whakaraupō, refused to answer questions this past weekend, while a retired marine biologist says the situation can’t be allowed to stand.
Also, an allegation has emerged race managers tried to pressure marine mammal observers into agreeing that aspects of a dolphin-protecting plan could be dropped.
READ MORE: * Cloud hangs over SailGP race * Is it dollars over dolphins for sail race?
SailGP’s inaugural New Zealand race, held in March, worried dolphin advocates because nationally vulnerable Upokohue/Hector’s dolphins frequent Whakaraupō, within the Banks Peninsula marine mammal sanctuary.
Event organisers said comprehensive protocols were in place to mitigate risks to marine wildlife. A marine mammal management plan was developed with the help of local experts.
During the final SailGP race, on March 19, the event’s marine mammal observer coordinator issued an order for the foiling catamarans, so-called F50s capable of speeds up to 100kmh, to stop racing because two dolphins were approaching the course.
The instruction, backed by representatives of the Department of Conservation and Te Hapū o Ngāti Wheke Rāpaki, accorded with the management plan.
But the race controller ignored the order and racing continued.
No dolphins were killed or injured, Conservation said, but it investigated a possible breach of the marine mammal sanctuary’s regulations.
As reported in May, the department was unable to establish an offence took place.
If vessels are within 300m of a marine mammal, its “master” must use best endeavours to move at a constant slow speed, as slow as the animal or at “idle or no-wake speed”.
It has already been established the SailGP race controller didn’t tell the skippers the dolphins were there.
Now, the department's investigation report, released to Newsroom last week, says of the vessels possibly being within 300 metres of the dolphins: “Unable to prove this beyond reasonable doubt without actual GPS coordinates.”
The investigation report, compiled by national compliance team investigator Marlous Heijs, said SailGP’s GPS data was required to establish whether the three F50s were within 300m of dolphins as they rounded the windward gate before heading for the finish.
SailGP definitely had the data; live GPS tracking, including of three dolphin spotter boats, was shown on screens in the control room during racing.
DoC’s Mahaanui operations manager Andy Thompson, who was in the control room, asked SailGP, on March 19, to hand over the data. A formal request by the department was made via email on March 30.
On May 1, SailGP responded but didn’t provide GPS coordinates or vessel tracks.
After a further request, SailGP told the department: “We are currently determining whether we can obtain GPS co-ordinates for each F50 as requested and will supply this to you if possible. However, it is important to note that this information was not available to the people in the ECR making decisions on the day.”
That was almost three months ago.
Newsroom asked SailGP a series of questions, including when it decided to supply the GPS and tracking information, or not, and when it told DoC of that decision.
Senior manager of marketing and communications Natalie Fortier said: “SailGP has replied extensively to your queries, and will not be providing further comment on this matter.
“SailGP cares deeply for the environments in which it operates, and is proud to have delivered a safe event with exceptional racing.
“No dolphins were in any danger at any point, and there were no incidents between F50s and marine mammals over the course of the entire weekend.”
Retired marine biologist Liz Slooten says it’s not correct to say no dolphins were in danger and there were no incidents.
“The level of observation was simply too low to be able to draw such a categorical conclusion. On the contrary, there were many close calls.”
A witness statement from Thompson, the DoC operations manager, shows dolphins were seen on or near the Whakaraupō race course on at least three days.
The fact no dolphins were struck by SailGP boats on March 19 “was a matter of luck rather than planning”, Thompson told the DoC investigator.
The boats appeared to come “well within 300m of the dolphins”, he said.
Witness statements taken for the DoC investigation can be used as evidence in court. Making false or misleading statements can lead to prosecution for perjury.
“I interpreted that the intention of this discussion was to check the validity of the plan generally and talk about whether it could be changed or not.” – Andy Thompson, Department of Conservation
Slooten asks why should the regulator have to go to SailGP to get the data.
(The investigation report said SailGP indicated before the event it would cooperate with any investigation and provide the relevant data.)
She compares it to the police stopping a speeding car and an officer asking how fast they were going.
“The whole situation, with SailGP holding all the cards and none of the management agencies doing anything about it, is set up to fail.
“They created a situation in which a prosecution would have been pretty much impossible. This should never happen again.”
The department's investigation report noted no marine mammals were injured or killed in the March 19 incident, the offence was unlikely to be repeated, and, even if the company were convicted, a court was likely to impose only a small or nominal penalty.
Heijs said a formal education letter could be sent, and she recommended a section of the Marine Mammals Protection Act be triggered, allowing the Conservation Minister to impose restrictions to protect dolphins “during events like SailGP”.
“It may be more worthwhile to deploy resource into ensuring: enhanced race protocols with Department of Conservation for future regattas; race officials have a better knowledge of the Act and regulations; and a clear undertaking that yachts will slow down, or racing stop, if dolphins approach the course.”
Other SailGP-related documents released by the Department of Conservation last week included witness statements from Thompson, and a marine mammal spotter whose name was redacted.
Thompson said during the practice day on March 16, the New Zealand team’s time was shortened by dolphins entering what was known as zone four, close to the race area.
“As a result of this, I believe the plan and potential impact of the plan on the actual event was highlighted to senior race management. My impression was that they were not aware of the extent that the plan could stop live racing.”
The following day – a rehearsal day cancelled by high winds – a person, whose name was withheld, sat down in the control room with several people working on the marine mammal plan, including Thompson, and senior Conservation ranger Abby Lawrence. Yvette Couch-Lewis, of Te Hapū o Ngāti Wheke Rāpaki, was also in the control room and worked closely with Thompson during the event.
While Thompson and others were there as advisors, the Department of Conservation boss said “race management was seeking our endorsement to alter/discard aspects” of the marine mammal management plan.
Thompson said the person was “questioning the validity of the plan and whether the plan was necessary”.
“I felt that [name redacted] had an aggressive approach. He was questioning everything about the plan and putting pressure on us about the necessity of sticking to this plan.
“I recall one statement along the lines of running a scheduled event and how it would be a major disaster for them if they couldn’t race. They have been racing for many years and not hit anything, and have never had to go [to] this extent to plan for marine mammals.
“I interpreted that the intention of this discussion was to check the validity of the plan generally and talk about whether it could be changed or not.”
At a meeting held straight afterwards, another person confirmed pressure had been applied by senior race management over the plan.
Thompson said: “I reiterated that the plan was the plan, and that there was strong public pressure to ensure that the marine mammals were protected.”
Newsroom asked SailGP which of its race managers pressured advisers, such as Thompson and Couch-Lewis, over its marine mammal management plan, and whether it agreed the approach was aggressive.
As previously stated, SailGP refused to answer.
The marine mammal spotter, aboard the boat circled in red in the above photo, said in their statement: “From memory, I’d estimate the dolphins were about 50m or so from our boat to the east/north east.”
Given SailGP chose not to comment further, it’s worth traversing some of the unanswered questions:
- Why did SailGP not follow though on its promise to cooperate with an investigation?
- Did it not send the data so as not to incriminate itself?
- Did race managers decide before the final race on March 19 the F50s wouldn’t stop, even if dolphins approached the course?
- How can race managers be trusted to make decisions based on dolphin safety?
The last question is important because ChristchurchNZ, the city council’s economic development arm, is paying millions of dollars for the rights to host this year’s race, and another one in two years.
Loren Heaphy, general manager of destination and attraction, says: “ChristchurchNZ believes the MMMP should be reviewed so that it reflects the lessons learned from the first SailGP event.”
If the 2025 event goes ahead, we asked SailGP:
- Will it accept third-party trackers on all F50s and spotter boats, to ensure the data is available to authorities?
- Will it guarantee to immediately obey instructions for F50s to go off the foils?
- Will it agree to changes to legislation or marine mammal sanctuary rules to make it an offence to continue racing?
Newsroom asked Conservation Minister Willow-Jean Prime if she believed changes were required to the Banks Peninsula sanctuary to better protect dolphins, and if the Department of Conservation had briefed her on potential changes to regulations.
Her office said there was no update to a comment sent on June 16.
Te Hapū o Ngāti Wheke, Rāpaki, has said its support for the 2025 event is contingent on a review, through which it expects improved implementation of the marine mammal management plan.
* This story has been updated with comments from Loren Heaphy, of ChristchurchNZ
