Breathing life into a dormant statute: using the case of the pink dolphins to forge a path forward for environmental legal protections in Hong Kong.

• Author: Leitner, Lara

1. INTRODUCTION II. THE PINK DOLPHIN AND ITS DECLINING POPULATION IN HONG KONG FROM A BIOLOGICAL PERSPECTIVE III. HONG KONG'S DIFFICULT POLITICAL AND REGULATORY ENVIRONMENT A. Hong Kong's Prioritization of Consumerism and Development over the Environment B. Hong Kong's Animal Welfare and Environmental Protection Laws Lag Behind C. Hong Kong's Relationship with China and its Status in International Law Impede Environmental Progress D. Issues with Hong Kong's Environmental Impact Assessment Process Impair Environmental Progress E. Glimpses of Hope for Environmental Progress that can Indirectly Help Protect the Hong Kong Pink Dolphin IV. BREAKING THE LOG JAM: A TEST CASE UNDER THE WILD ANIMALS PROTECTION ORDINANCE A. Protecting against Harmful Vessel Traffic under the Wild Animals Protection ordinance B. The Legal Standard for Holding Parties Liable Under Section 4 of Cap 170 C. The "Willfully" Standard D. Establishing the Walla-Walla Operators Acted "Willfully" E. Establishing that the Walla-Wallas "Disturb" Dolphins F. Contextualizing the Statute in History G. The Remedy H. An Alternative Solution: Amending the Statute for Increased Stringency and Specificity V. OTHER METHODS FOR PROTECTING THE PINK DOLPHIN A. Marine Parks Ordinance B. Hong Kong's Environmental Impact Assessment Ordinance as it Relates to Cetaceans VI. CONCLUSION I. INTRODUCTION

   Hong Kong's pink dolphins are majestic, intelligent, and beautiful. Unfortunately, Hong Kong's coastal waters are no longer suitable for pink dolphin populations. Vessel traffic, water pollution, land reclamation projects, and localized construction-blasting activity all contribute to the declining stability of their habitat. These destructive impacts on the marine environment derive from Hong Kong's generally inadequate political and regulatory protections, increased tourist use of polluting river boats to view the dolphins, ambivalent local perceptions of the problem, and a growing human population, which together make environmental protection increasingly more difficult. Despite this unequivocally bleak future, legal tools exist that can help improve and preserve their habitat. Although litigation under Hong Kong's environmental statutes is rare, bringing suit under existing laws can create meaningful change for the pink dolphin. The Wild Animals Protection ordinance contains provisions that may lead to a prohibition of local vessels navigating through dolphin marine habitat.

   In order to carry out this litigation strategy and others like it, parties need more exposure and a better understanding of the legal actions available to them. This comment demonstrates how parties can successfully litigate under the Wild Animals Protection ordinance for the protection of pink dolphins despite Hong Kong's current political climate. Part II describes the Hong Kong pink dolphin and major threats to dolphin populations. Part III analyzes Hong Kong's history of delayed proactivity, regulation, litigation, and enforcement of environmental and animal welfare matters. Part IV develops a potential case under the Wild Animals Protection ordinance for better protection of Hong Kong's pink dolphins. Part V summarizes other legal avenues available for protection of pink dolphins and other marine species. Finally, Part VI concludes by encouraging government agencies and private parties to bring novice environmental cases under existing legislation and to press for statutory amendments where necessary to better protect Hong Kong's natural resources, habitat, and species.

2. THE PINK DOLPHIN AND ITS DECLINING POPULATION IN HONG KONG FROM A BIOLOGICAL PERSPECTIVE

   The Indo-Pacific humpback dolphin, also referred to as the Chinese white dolphin or the Hong Kong pink dolphin, inhabits temperate and tropical waters ranging from central China and Australia to South Africa. (1) Unfortunately, pollution, incidental bycatch, loss of prey, habitat degradation, disturbance, and tourism threatens their existence globally. (2) Although the dolphins are not recognized as endangered on all existing international species lists, they have suffered population declines in several areas. (3) The pink dolphin is designated an Appendix I endangered species, requiring "highest protection" on the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) species list. (4) They are "Near Threatened" species on the International Union for the Conservation of Nature and Natural Resources (IUCN) Red List of Threatened Species. (5) In Mainland China they are a Grade 1 National Key Protected Species. (6) In Hong Kong, the pink dolphins are "protected species" under the Wild Animals Protection ordinance. (7)

   The first data collection project regarding cetaceans in Hong Kong occurred in 1973. (8) At that time the Agriculture and Fisheries Department only collected data pertaining to stranded individuals. (9) Then, in 1989, the World Wide Fund developed a system for recording certain pink dolphin sightings. (10) It was not until 1993 that any long-term, directed research on Hong Kong cetaceans was initiated. (11) Recent research generated by the Hong Kong Dolphin Conservation Society indicates that the number of dolphins utilizing Hong Kong waters significantly declined in the past decade. (12) In 2011, approximately 78 dolphins were present on any given day in Hong Kong waters. (13) One year later in 2012, this average dropped to 61 dolphins per day utilizing Hong Kong waters, the lowest figure since recordkeeping began. (14) Since insufficient continuity still plagues the data collection process, the reasons for dolphin population decline are not yet fully conclusive. Nonetheless, the data is highly suggestive of the primary threats responsible for population decline.

   Studies indicate that the dolphins residing in Hong Kong's coastal waters are most vulnerable to the immense vessel traffic occurring to and from the ports. (15) Evidence demonstrates that the sound pressure from vessel noise and the high speed of the boats trigger behavioral changes in the dolphins. (16) In addition, researchers frequently attribute physical abrasions to boats colliding with dolphins. (17) Jefferson et al. argues that the vessel traffic's high noise levels can lead to severe injuries or death. (18)

   Dolphin experts specifically fear that motorboats, nicknamed "walla-wallas," are harmful to the Hong Kong pink dolphin. (19) Walla-wallas are small, noisy speedboats that conduct dolphin-watching tours. (20) Since the walla-wallas run as a local village operation, the tours are less luxurious and significantly cheaper than competitor companies, such as the Hong Kong Dolphinwatch Ltd. (21) To compensate for low tour prices, the walla-walla operators attempt to squeeze in as many tours per day as possible; they also satisfy tourists by positioning their boats close to the dolphins. (22) Further, these walla-wallas operate at alarmingly high speeds, in attempts to reach dolphin groupings quickly and return to complete more trips daily. (23)

   Research suggests that the speed and noisiness of these watercrafts along with their tendency to maneuver in and out of dolphin groups are likely disruptive for the dolphins. (24) First, the engines of these small speedboats are especially noisy, (25) which can interfere with the dolphins' acoustic senses. (26) Dolphins echolocate for prey detection, communication with other group members, and navigation. (27) Evidence suggests that the dolphins will be less able to perform these critical behavioral functions if noise levels and sound pressure interfere with their echolocation. (28) For example, dolphins near Florida's coast increase their rate of whistle production and swim in tighter groups when vessels are approaching. (29) Another study found that the abundance of dolphins at a study site declined with increased exposure to dolphin-watching vessels, but not to research boats, which have lower water noise levels than dolphin-watching vessels. (30) The larger sizes and higher speeds of the tour boats likely also contribute to their deterrent effect on the dolphins. (31)

   Studies conducted in Hong Kong support these findings. Sound pressure levels at one of the primary dolphin study sites in Fan Lau fell "well within the lower audible range of common bottlenose dolphins." (32) Since researchers suggest that bottlenose dolphins have similar vocal repertoires to those of pink dolphins, the sound generated from vessels and those from the dolphins likely interfere. (33) Similarly, noise and sound pressure recordings were louder in study sites containing walla-walla operations than ambient noise levels in other study sites along West Lantau. (34) Noise and sound pressure levels near walla-wallas were even louder than ambient noise levels in the South Lantau Vessel Fairway containing other types of vessel traffic. (35)

   Second, studies indicate that vessel traffic, especially from those that approach rapidly and in close proximity to dolphin groups, can be very startling and agitating to the dolphins. (36) Data demonstrates that the pink dolphins continue to inhabit smaller and smaller areas. (37) An increasingly plausible explanation for this behavior is that they are trying to avoid vessel disturbances. (38) Hong Kong Dolphin Conservation Society (HKDCS) researchers ultimately expect the dolphins to die or migrate elsewhere in the Pearl Delta due to these disturbances. (39) The one-year decline in estimated local populations from 78 in 2011 to 61 in 2012 supports this premise. (40) Moreover, the same data shows that 2011 marked the lowest percentage of dolphin socializing activities recorded in the last decade. (41) Again, the disruptive effect of vessel traffic seems to provide the most plausible explanation for why dolphins are unable to adequately socialize. These declines are problematic for the dolphins, which depend on social activity to find mates and reproduce. (42)

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