Why 'Scientific' Permits Make a Mockery of the Drone Whale Laws in Australia

Published: July 25, 2018
Here in Australia we have some fairly stringent restrictions regarding access to marine mammals. Whether you're swimming, diving, in a boat, in an aeroplane, in a helicopter or flying a drone - there are laws governing who close you can get to marine mammals and how you should behave around them. Now that's not a huge surprise because Australia is an incredibly over-legislated country that is drowning in officious nonsense and red tape. However I think we can all agree that, in the grand scheme of things, looking after dolphins and whales is a good thing.

Now most of these rules have been in place for some time, but the law was updated quite recently (just last year in fact) and they now include direct reference to 'unmanned aircraft' - meaning UAVs or drones. Many of the regulations around approaching marine mammals make perfect sense - a helicopter is not the quietest of machines and I can understand why they are banned from getting within 500m of a whale. Tourist boats that go out for whale watching trips cannot get within 300m of a whale and, should a whale surface near them, they are required to move slowly away at a constant speed to get to that 300m separation.

Under the new legislation, drones are banned from getting within 100m of marine mammals, horizontally or vertically - although from their own illustration (above) you might think it was only 100m vertically. In the Schedule 1 Penalty notice offences tables of the Biodiversity Conservation Regulation 2017 (Section 2.6) the fine for getting within those 100m is listed at $880. Depending upon the offence it looks like you can also cop a fine for a further $1,320 too, but it isn't very clear at all.

Now all of this would be well and good but for one thing - if you have the right permit, you can fly much closer to a whale - within 20m with a 'scientific' permit and even closer in some circumstances. This makes absolutely no sense to me. If this law is in place because drones are, in some way, harmful to whales - then surely that is true for all drones? There is nothing special about the drones being flown for scientific purposes and so if the Biodiversity Conservation Regulation 2017 legislation exists to protect whales and dolphins then scientific exemptions, as they pertain to drones, make a lie of it.

Level Playing Fields

Case in point is Jamien Hudson. Jamien is a drone photographer out in Western Australia who made a name for himself by taking beautiful footage of dolphins with his Inspire drone. Recently he started releasing video footage of migrating whales that was quite obviously closer than 100m. It turned out that Jamien had got himself a special licence. When Tourism Australia shared one of his clips, they made a point of saying that, "Jaimen Hudson is an experienced drone photographer based in Western Australia and has a special Department of Parks and Wildlife Scientific permit that allows him to capture incredible moments within 20m of wildlife." You can see some of his amazing footage below.

So hold on a second. What exactly are the scientific outcomes of Jamien filming these marine mammals? On his website he is selling the photographs and video that he takes, which is fine because he's a commercial photographer, but his permit is a 'scientific' one. This is quite obviously an admission of the fact that flying a drone near a whale or dolphin will have no harmful effects on these amazing creatures. Jamien's footage has been of huge benefit to the local tourist industry and so he's been given a special get-out. How could such a licence prove anything less? He flies a DJI Inspire drone - an off-the-shelf consumer drone that makes the same amount of noise as my Phantom 4, but because he has a 'scientific' licence he can fly 20m from the whales. I am not, in any way, shape or form, having a go at Jamien - I am suggesting that the legislation as it pertains to drones - is bullshit. Either all drones are bad  - or none are. Or maybe - all drones are equal, but some are more equal than others?

The Science Bit

So are drones harmful to whales? That's the $64,000 question. 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, let alone be 'harmed' in some way by its presence.

Lies and Obfuscation

It should be evident by now, that drones are not harmful to whales or dolphins, unless, you know - ingested. There would be no such thing as a scientific permit if this was the case and, anyway, all the actual scientific work done on the subject shows that they are not harmful.

Also - no such legislation exists in many other countries where the whales and dolphins live and migrate to and from and they are regularly filmed by drone photographers in these locations - to no ill-effect.

There is no report anywhere, ever, of a drone causing harm to a marine mammal.

The amount of obfuscation (and let's be honest, bullshit) surrounding this subject is quite amazing. For instance over at the Marine Mammal Foundation website they have a blog post on their site which includes this statement from Craig Oldis (the Planning Program Manager Compliance Operations officer for the Victorian Department of Environment, Land, Water and Planning) in which he says "While drones don’t have large motors, many marine mammals are very sensitive to noise, and buzzing from a drone’s motors has the potential to cause distress to them. There’s also potential for amateur operators to unintentionally strike the animals." Firstly note the use of the word 'potential' - which is shorthand for 'this has never happened'. Note also the suggestion that the noise from drones can cause distress to whales - as I've shown this is complete bullshit. Note also the suggestion that a drone has the 'potential' to strike a marine mammal - which is again shorthand for 'this has never happened'.

The Bottom Line

So why does this legislation, as it pertains to drones, exist?

If we give the authorities the benefit of the doubt, then we could say that what they fear is a veritable squadron of nasty noisy drones over-flying unsuspecting whales and upsetting them. So let's looks at the possibilities.

Given the number of drones out there (not actually that many, particularly decent ones capable of flying over the ocean) and the number of whales in the ocean (not a huge number) and the size of the ocean (pretty big) and the weather conditions being right (not windy, not raining), the chances of a drone owner actually being at the coast, sighting a whale and being close enough to fly said drone to said whale are unlikely. So the possibility that some drone infestation would ever blight the poor old whales is improbable to say the very least. At best you're only ever going to get one drone anywhere near a whale.

If we do not give the authorities the benefit of the doubt then we could say that this legislation, as it pertains to drones, is a glorious example of equal parts of over-reach and complete nonsense. The worst-case scenario for flying a drone near a whale is that we get some awesome video footage of these glorious creatures. The horror!

And Anyway

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 Japanese 'Research' vessel with a a harpoon stuck on the front  is of far more pressing concern to your average whale, than a tiny plastic drone with a camera stuck on the front.

For the last 16 years I’ve been photographing, blogging (and more recently vlogging) about everything I find, see and enjoy here in South Coast, New South Wales. This is my blogging site focused on my hobby (and part-time job) of photography. Please enjoy my little writing and my photography and I’d love to hear your feedback.
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