Oceans of noise - Whale and Dolphin Conservation Society

The only cetaceans listed in Annex II are the harbour porpoise, Phocoena phocoena, and thebottlenose dolphin, Tursiops truncatus.Article 12 refers to another list of species (i.e. Annex IV, which includes all cetaceans) andestablishes a range of measures that should be applied to them. This includes prohibition in theirnatural range of:(a) all forms of deliberate capture or killing, and(b) deliberate disturbance of these species, particularly during the period of breeding, rearing andhibernation.There are some derogations that apply to these measures but they are outside the scope of thispaper.Since the Directive was passed, national laws will have been modified. For example, in the UK,laws have been amended and, in addition, three bottlenose dolphin Special Areas of Conservation(SACs) have been proposed (these are presently classified as “candidate sites”, whilst theEuropean Commission is considering all proposals). No sites for porpoises have been proposed inthe UK..The issue of whether, or not, this Directive applied to the UK’s full Economic Exclusion Zone(rather than only territorial waters) was the subject of a recent Judicial Review 4 . Several aspectsof the resulting judgement are of interest. Firstly, the presiding judge concluded that theDirective did apply to the UK Continental Shelf and to the “superadjacent waters up to a limit of200 nautical miles from the baseline from which the territorial sea is measured.”In addition, considerable evidence was submitted to the Judicial Review concerning the threatcaused by offshore oil and gas development, including the disturbance it might create. The judgecommented:“the evidence and materials provided...are to the effect that oil exploration, includingseismic activity, is harmful to cetaceans and has serious implications for conservation.There is no real evidence to the contrary before me. I shall proceed on the basis that it issubstantially correct.”Amongst the measures currently enacted in UK offshore waters and which might be said to meetthe requirements of the Habitats and Species Directive are “Seismic Guidelines”, issued to thefossil fuels industry. These guidelines are intended as mitigation in relation to the very loudnoises used in marine prospecting.The UK Countryside and Rights of Way Act, passed in 2000, made “reckless” (in addition todeliberate) disturbance of cetaceans (and basking sharks) an offence.However, it may be that, in practice, what constitutes ‘disturbance’ is not presently adequatelydefined and, similarly, interpretation of the terms “deliberate” and “reckless” may presentproblems. The IWC Scientific Committee and other expert bodies could play an important role inhelping to define these terms.34 R v Secretary of State for Trade and Industry, ex parte Greenpeace Ltd ([2000] 2 CMLR 94).64