Twice a year whales migrate up and down the east coast of Australia to and from the Antarctic. Seeing these incredible creatures in the wild is always exciting and I absolutely love seeing photographs and watching videos of them in action. However woe-betide you if you consider flying your drone anywhere near a whale in New South Wales (or indeed the whole of Australia), because if you did you would fall foul of the Biodiversity Conservation Regulations of 2017 which in turn are based on The Australian National Guidelines for Whale and Dolphin Watching 2017.
What is this
red-tape legislation you may wonder? Well, according to the NSW Government Office of Environment and Heritage, the regulations are, “aimed at reducing disturbance to marine animals, ensuring their welfare is maintained.” And that of course is fair enough – it’s important that marine life is protected. The legislation determines how close you are allowed to get to marine mammals if you are swimming, in a boat, in a helicopter or if you are piloting an unmanned aircraft – i.e. a drone. And what are those distances? You can see them in the illustration below:
So, a helicopter cannot get any closer than 500metres, a fixed-wing aeroplane is limited to 300metres and a drone is limited to 100m. Bear in mind that this is the height above the whale, not the distance from it. I have seen a lot of misinformation about this subject and I would like to quote verbatim from the actual legislation as it pertains to marine mammals and aircraft (including drones).
(1) A person must not operate an aircraft so as to approach a marine mammal from head-on for the purpose of observing a marine mammal.
(2) A person must not operate an aircraft so as to hover over a marine mammal.
(3) A person must not land an aircraft on water for the purpose of observing a marine mammal.
So just to be crystal clear about this – you are absolutely allowed to fly over a whale as long as you don’t approach it from the front, and as long as you don’t then hover over the animal. As we’ve already established you also have to remain 100m above the whale, but this gives you a fair bit of latitude to take photographs and videos as you keep your drone in motion. Also, since the whale is highly likely to be in motion, what constitutes hovering? If the whale’s moving and I bring my drone to hover then the whale will swim off. If I do as required and keep my drone moving I can in fact remain over the whale. I guess it’s all in the wording of the legislation – so as to hover.
Of course the question is – what happens if you are minding your own business, flying your drone over the ocean, when a whale happens to surface right under you? It’s a big ocean, but the whales are pretty plentiful these days, and it could happen. The answer to that, based on the legislation is that (if it’s not already), you should put your drone up to 100m. There is nothing however, stopping you from taking photographs and videos as your drone ascends further upwards into the air – and if you decided to ascend quite slowly, so as to minimise noise levels, nobody could really blame you.
But what I really wondered is if these regulations are ludicrous over-reach and that the dolphins, seals, sharks and whales couldn’t actually give two shits that there’s a drone in close proximity to them? I wondered if these regulations were just another example of Australian over-reach and pointless restrictions on perfectly reasonable behaviour. Well, it turns out that there has been an actual scientific study done to answer this precise question and that answer is the least surprising thing I’ve read since Ricky Martin announced he was gay.
Professor Lars Bejder, formerly of Murdoch University’s Cetacean Research Unit in Western Australia, and now at the Marine Mammal Research Program at the Hawaii Institute of Marine Biology, lead a study into this very area and released a paper on the subject called Noise Levels of Multi-Rotor Unmanned Aerial Vehicles with Implications for Potential Underwater Impacts on Marine Mammals or my slightly snappier para-phrased title Do Noisy Drones Irritate the Piss out of Whales.
In the study, conducted in conjunction with the Marine Bioacoustics lab of Aarhus University in Denmark (who you’d like to think would know something about the subject), they rigorously tested how well drone noise carried into the water. And what they found is that drone sounds do not, in fact, carry into the water and that even if they did, the marine mammals couldn’t hear them anyway. To be precise, they found that the noise that a drone makes is very close to the ordinary background noise level you get in shallow water habitats anyway. They also tested the noise of drones against the known hearing thresholds of dolphins and whales and they found that they were below those auditory thresholds. Here’s a quote from Professor Bejder’s paper:
The acoustic effect of UAVs on marine mammals in water, even when flying <10 m above the study animals, is likely to be absent or very small, and far less than that of conventional aircrafts, as long as the type of UAVs used generate noise at similar or lower levels than the types (Splashdrone and Inspire) used in this study.
So in conclusion we can say, with some confidence, that if you find your drone in close proximity to a marine mammal, the critter is highly unlikely to even notice your aircraft. I’m not suggesting that you should break the law (dear me no!), merely pointing out that if circumstance brings a whale within close range of your Mavic Pro, he or she will not be endangered in any way, shape or form, by its presence.
I’d also say that it’s hard to take any of this legislation surrounding the supposed protection of marine mammals seriously, when the Australian government chooses to do absolutely nothing about Japan’s illegal butchering of whales in Australian territorial waters. I would suggest that a harpoon on a Japanese ‘Research’ vessel is of far more pressing concern to your average whale, than a tiny plastic drone with a camera stuck on the front.
So there you go. The next time the drone police give you the old it’s illegal to fly your drone over a whale line – be sure to show them this article and send them my best regards.