Domestic trade in whale bone from NZ strandings

1.1 What is the problem?

The Marine Mammals Protection Act 1978 does not prohibit trade in whale bone, but usually requires that those who hold whale bone have a permit issued under the Act. With some limited exceptions, any person (carvers, retailers, purchasers and recipients) in possession of whale bone needs a permit (People who find naturally-separated whale bone on a beach do not need a permit but must notify the Department of Conservation.)

Each time a piece of whale bone changes hands a new permit is needed. This requires the person acquiring the whale bone to apply for a permit, and that application is subject to a statutory notification and submission processes.

In most cases the application for a permit needs to be publicly notified in the NZ Gazette for a period of 28 days. It is possible that by the time a carved whale bone taonga has gone from the beach to a person receiving it as a gift, up to four public notification and submission processes should have been completed.

Whale bone is also traded, gifted or exchanged² amongst iwi and hapu according to customary practice. This trade is also subject to this permitting process.

This framework is recognised to be unnecessarily cumbersome and costly, and not adequate for dealing with the complexities of trade. Because of the inherent problems with the regime, few holders of whalebone attempt to gain the necessary permits, and the Department has not been enforcing the legislative regime. In short, it is completely unworkable as a tool to regulate domestic trade.

1.2 Better managing trade in whale bone

While the current regime is not being implemented, an effective regulatory regime is still necessary.

There is an established tradition of trade in whale bone, and the Marine Mammals Protection Act does not prohibit this. Whilst consideration might be given to banning all trade, this would make a long standing and existing activity illegal. This has the potential to create a black market with little, if any, ability for government to regulate, monitor and police trade. A ban would also make illegal the passage of bone and bone artefacts between iwi. Banning the trade in bone would not increase protection of living whales.

Removing all controls on the trade in whalebone would also be undesirable. It is important to ensure that inappropriate collection of whalebone does not occur. Removal of any controls would give the impression internationally that New Zealand is not dedicated to the protection of whales, and make it difficult for people moving bone artefacts out of the country (temporarily or permanently) to show that the bone was collected legally.

It is therefore proposed that a new regime be established to provide more efficient regulation of trade within New Zealand so that sources of bone can be shown to be legitimate and there is no conservation risk to living whales. The new proposed regime will considerably simplify the requirements of everyone who participates in trading, exchanging or gifting whale bone within New Zealand. It will not affect anyone who is holding whalebone and does not intend to trade, gift or exchange it.

A new regime, such as that proposed here, will make it easier for people to obtain the export certificates that are required by the Convention on Trade in Endangered Species (CITES) before whale bone can be taken out of New Zealand as the origin of the bone will be more readily known³. People travelling with whale bone will still need to obtain import permits from the countries they are travelling to.

If a new regime is agreed to by the Government, after consideration of submissions on this proposal, it would ideally be implemented by regulation which will allow minor changes to the regime to be made as necessary in light of experience. Minor amendments to the Marine Mammals Protection Act will be required to enable those regulations to be made. The amendment would also need to remove the need for a person to obtain a permit to trade whalebone, if the trade is covered by the regulations. The amendments would not, in themselves, remove or change the current regime - no change would occur until regulations were promulgated. Given that, if an opportunity arises to make amendments to the legislation as part of a larger Bill, the changes will be made in advance of decisions on whether to implement any change in the regime.

DOC has facilitated, for many years, the recovery of whale bone for the iwi/hapu of the stranding site, either directly, or through training and agreements. The role of Māori in the management of whale strandings is discussed in Part 2 of this paper.

1.3 A Possible regulatory system for managing domestic trade in whale bone

The regulatory system proposed to manage trade in legitimate whale bone is based on the ability to link any piece of bone back to a particular stranding event. After the death of a whale, a unique identification number would be assigned to each whale. Any recording system that iwi or hapu wished to use, such as a name, can be cross-referenced to the identification number. DOC would retain a sample from each individual to be used to verify the legitimacy of the bone if necessary.

Thereafter, any bone⁴, or piece of bone, would be required to be accompanied by that unique identification number and the whale's name where appropriate. Carvers would be required to provide a certificate of authenticity that includes this identification number (and the name of the whale if appropriate). Retailers, purchasers and recipients would all be required to keep this certificate with the bone item.

Stranding:

A whale dies or is euthanased.

1. DOC assigns each individual whale a unique two-part identification code that includes:
   1. a number that relates to a particular stranding event;
   2. an individual ID number for each animal.
2. Iwi assign an identifier, such as a name, to each whale, should they wish. This identifier is recorded along with the number.
3. A sample from each individual is collected for lodging at an appropriate facility together with its ID number and name (if given). These samples will be used for compliance and law enforcement purposes if there is ever any question about the origin of bone - i.e., if items are being sold without the appropriate documentation.

Iwi:

1. All bone recovered from each carcass must be labelled with its unique number, and name, if given, at the stranding incident site.
2. Iwi/hapu must keep a record of the bone that they recover from each carcass and the distribution details for each bone (the ID number, name and who is receiving the bone).
3. Iwi/hapu must provide DOC with the record of bone recovered from each carcass and distribution details.

Carvers:

1. Must ensure that each taonga they create is accompanied by the ID number.
2. Must keep a record of the pieces that they create for trade and the ID number.
3. Must provide a 'certificate of authenticity' that includes the ID number to recipients, retailers or purchasers. The nature of the 'certificate' would be left to the discretion of each carver.

Retailers:

1. Are required to keep the certificate of authenticity with each sale item.
2. Are prohibited from selling whale bone items without the certificate of authenticity.
3. Are required to transfer the certificate of authenticity to the purchaser.
4. Are obliged to inform the purchaser as to the CITES requirements for taking the item away from New Zealand.

Purchasers/Recipients:

1. Are required to keep the certificate of authenticity as proof of legitimate source of the whale bone.
2. Are required to transfer the certificate of authenticity if the item is gifted.
3. Are required to comply with any CITES requirements before taking whale bone away from New Zealand.

1.3.1 Proposed system for dealing with whale bone that predates this system

Retailers and carvers would be required to submit to DOC a schedule of articles they hold for the allocation of unique codes. Unfortunately, there is no way of verifying the legitimate source of this whale bone, but it is important to identify it as being on the market prior to the implementation of the new system. If whale bone is not declared, retailers will run the risk of legal action under the new system.

The department would also approach all iwi/hapu at this point and allocate unique codes to all whale bone that is already held. The public would also be invited to apply to DOC for authentication documentation for any whale bone items they hold.

This regime would not cover domestic trade or export of taonga tuturu - whalebone items more than 50 years old which were carved or used by Māori, or brought to New Zealand by Māori, and relate to Māori history or society. Trade in these items would instead be regulated by the provisions of the Protected Objects Act 1975.

1.3.2 Proposed system for dealing with found whale bone

This will apply to whale bone that has naturally separated from a carcass at sea and washes ashore or whale bone that is found at the site of old whaling stations.

There will be an obligation placed on the finder of the piece of whale bone to notify DOC, which will allocate a unique number. This unique number will need to accompany the whale bone and any items produced from it through the same trail as whale bone that is distributed to iwi from a stranding.

This could result in situations in which some people could be receiving whale bone illegally, yet notify the department that it is found bone thus receiving a number for it and allowing it to legitimately make it onto the commercial market. DOC is seeking suggestions as to how this possible problem could be addressed.

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We would like your comments on this proposed regulatory system - could it be improved, or are there other ways we could manage trade, gifting and exchange of whale bone in New Zealand?

Do you have any suggestions about how to manage found bone to ensure that it is not entering the system illegally.

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² In this paper domestic trade includes commercial trade, gifting and exchange.

³ International trade in whale bone is controlled by the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES). Imports and exports of whalebone into and from New Zealand are strictly controlled in accordance with CITES. Whale bone worn as personal adornment is generally exempt from permit requirements.

⁴Bone includes teeth and baleen.

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