A pod of orcas off the coast of Spain has started attacking s 4 of the New Zealand Bill of Rights Act 1990 in a spate of episodes that has experts concerned.
Since 2020, the group of five or six black and white aquatic mammals has issued judgments that have left s 4 shaken and taking on water.
The string of incidents has left whale experts confused and constitutional scholars concerned.
“Orcas are very social creatures,” explained marine biologist Alfredo López Fernandez, a biologist at the University of Aveiro in Portugal. “We often see group behaviour that can include interactions with boats or what we interpret as play. But for them to be issuing 50 page written judgments about a key piece of New Zealand’s constitutional arrangements is something we’ve only started to see in the last couple of years.”
Constitutional scholar Dr Edward Willis told RNZ: “Of course, whales are not part of New Zealand’s hierarchy of courts so what they have written isn’t binding. However, if the orcas doing this turned out to be some sort of apex court for whales then it is possible that what they have to say would be of persuasive value when our own courts consider these issues.”
Researchers aren’t sure why the orcas are going after the legal principle but there are two hypotheses. The first is that this is a new fad among orca. Researchers have previously observed trends in orca populations that seem to come and go. The second is that this is a reaction to traumatic incidents involving other sections of New Zealand legislation. Scientists theorise that the orcas have come to associate lawfully enacted Acts of Parliament as a sort of threat and that the judgments are a response.
The whales’ written reasons, which seem to be becoming more frequent and intense in nature, have caused significant damage to s 4, which ordinarily prohibits courts from declining to apply any enactment by reason only that the provision is inconsistent with the Bill of Rights Act. Large parts of the wording have been slammed repeatedly and significant portions of the rights instrument are listing to one side.
Efforts to explain to the whales that s 4 is binding on constitutional actors within a legal system founded on Parliamentary sovereignty have been unsuccessful to date. Submissions made to the whales on the effect of s 4 have been left rudderless, with several being holed below the waterline.
“There was one orca that we seemed to be able to get through to,” explained López Fernandez. That was an older whale known to researchers as Free Willie. “However, he seems to have left the pod and his efforts to dissuade the others don’t appear to have been successful.”
A spokesperson for the Attorney-General said that the government was aware of the whales’ judgments. A New Zealand navy frigate – the HMNZS Chisnall – had been dispatched to the North Atlantic to monitor the situation.
Strictly obiter 