A video shared to Instagram in February, and reported to DOC, shows the man jump from a pleasure boat into the sea off the coast of Devonport, Auckland – in what appears to be a deliberate effort to touch or "body slam" the orca.
DOC and the Harbour Master had been receiving calls that weekend from concerned members of public about how close people were getting to the mammals. DOC was subsequently tipped off to this video by a member of the public.
DOC Principal Investigation Officer Hayden Loper says the 50-year-old Auckland man showed reckless disregard for his own safety – and that of the adult male orca with a calf swimming near the vessel.
At one point in the video the man yells "I touched it" to other people on the boat, before asking "did you get it?", in apparent reference to the filming of his antics. Other people aboard the vessel laugh and cheer as they watch.
"The video left us genuinely stunned," Hayden says. "As well as the initial attempt to dive onto the animal, the man stays in the water and then swims toward it again in a second attempt to touch it.
"This is stupid behaviour and demonstrates a shocking disregard for the welfare of the orca. It is extremely irresponsible.
"Orca are immensely powerful animals, and this really could have ended horribly – with either the startled whale being injured, or the man responsible being harmed by the aggravated animal.
"It's a very clear breach of the Marine Mammals Protection Act. Orca are classified as whales under conservation legislation and it is illegal to swim with, disturb or harass any marine mammal."
DOC marine science staff say there have been incidents in which wild orca have been perceived to have attacked humans – including recent incidents off the coast of Spain, where orca have sunk several small vessels – and any sudden moves near orca significantly risk the chance of people being harmed.
Orca are an apex predator and the species' population found around the waters of New Zealand is estimated to be between 150 and 200 individuals. Disturbance by vessels, including recreational boats, is identified as a threat to orca due to noise pollution and boat strike.
Hayden urges New Zealand social media users to continue alerting DOC to content they believe breaches legislation protecting New Zealand wildlife.
"This is the third case in recent years in which social media content has led to a successful prosecution for DOC and we greatly appreciate the tip-offs we get from the public."
Anyone who sees an incident they believe may breach conservation legislation can call 0800 DOC HOT (0800 362 468).
