Ingrid Visser: Orca have rights too

From the top of a hill on the Tutukaka coast the deep blue stretches to the horizon in a sun-soaked haze.

It's a whale highway out there, says the woman with a passion for whales and for orca in particular.

Ingrid Visser rattles off the marine life which passes by - southern right whales, humpback whales, blue whales, pilot whales, orca, minke whales, bottlenose dolphins, common dolphins.

"Yeah, it's not a bad spot, huh?" she smiles.

New Zealand's best-known whale scientist lives on this hilltop and runs her Orca Research Centre from here, which is why the deep freeze in the huge green shed behind which doubles as her home is full of stingray discarded by orca. The 45-year-old analyses the remains for pollutants to gauge the health of New Zealand's orca population. She explains stingray are an orca delicacy - though only, as far as she knows, a delicacy for New Zealand orca.

In Argentina, orca don't seem to like stingray. They like seals though and will launch themselves on to the beach to grab them. New Zealand orca swim right past seals but will go for shark - in Argentina, orca don't do shark.

These eating habits are important because they are examples of orca culture, Visser says. Around the world orca have different cultures and even different dialects.

Traditions are passed down through the generations, just like humans, she says, stretching an arm towards the Poor Knights Islands in the distance to make another point.

The Poor Knights are about 25km away, which is a mere quarter of how far orca travel each day in their tight-knit family groupings, communicating through echolocation, the sophistication of which Visser says we humans have much to learn. She says what we do know about the animals is that they are self-aware, sociable and extremely intelligent.

Her point is this: an orca in captivity is a miserable orca.

New Zealand doesn't have captive orca but other parts of the world do, including America, which is why we are here in Tutukaka talking to Visser. She has agreed to join with Peta, America's biggest animal welfare organisation, to take on powerful US marine park SeaWorld.

In the coming months, if a judge allows the motion, she will be a key part of an unusual and controversial court case designed to challenge the captivity of five captive orca in the US (there are thought to be 42 captive orca worldwide and possibly thousands of dolphins) by using the 13th Amendment to the Constitution, which bans slavery.

The case has shocked some in America because of the apparent comparison of orca to black slaves, but Visser is unfazed. Take a look at online footage of orca captures, she says. It is extremely disturbing. The animals scream and cry and thrash around as they are trapped and then ripped away from their families to live the rest of their lives confined to little pools, where their sonar bounces meaninglessly off concrete walls and where they must repeatedly perform tricks in order to be fed.

In captivity some males are masturbated to inseminate captive females, she says, "so these animals are being used as breeding slaves as well, pretty much exactly the same way as what was done with African American slaves, so again there are all these parallels."

And, she says, don't forget the 13th Amendment itself was once criticised by an outraged public who said black people were not human, only animals.

Visser freely admits to adoring orca to the point of obsession but she hopes a win in the American courts will set off a chain effect for other imprisoned animals too. Even if there is a loss, she hopes the case will at least be a step toward freedom.

But this case is controversial, even among animal welfarists. Peta lawyer Jeff Kerr says the organisation is very serious about the suit and he thinks they have a good chance of winning.

Another high-profile American animal rights lawyer, though, says the suit is ill thought-out and if Peta loses it could set animal rights back, not take them forward.

Professor Steven Wise, who visited New Zealand a few years ago to speak to Auckland University law students, has long been investigating using the law to get rights for imprisoned animals but says the 13th Amendment is not the way to go. He fears a judge will simply rule orca are not slaves under the constitution and thus deal a blow to all future legal challenges.

Kerr, however, says it is the right time to make this challenge -the public is ready for change, he says, and the captive orca are definitely ready.

Peta asserts that the 13th Amendment bans slavery but makes no reference to species. Kerr says slavery is slavery, no matter the species of the slave. He says this is the first case to seek to apply the constitution to living, breathing, feeling beings who happen to be born not human and regardless of whether this case is the one to make change, change is coming.

"You know, people don't want to have animals torn from nature and forced to perform silly tricks just for some fleeting human entertainment.. They don't want pigs and chickens horribly abused on factory farms, they don't want animals skinned alive for their fur just for a bit of fashion and they don't want household products and cosmetic products tested on animals - if you look at all of those aspects there has been already and continues to be a major seachange in the way people look at our interactions with the other species on the planet."

Also part of the case is Ric O'Barry, who used to train dolphins used in the TV show Flipper but who now works for WSPA, and two former SeaWorld trainers.

An American civil rights attorney, Phil Hirschkop, who decades ago won a landmark case declaring unconstitutional the laws banning interracial marriage, has also joined the legal team.

"Forty years ago I fought for the fundamental right of people to marry the person of their choosing regardless of race," he says.

"Now I'm fighting for these orcas' fundamental rights to be free from enslavement regardless of their species."

SeaWorld filed a brief to dismiss the case, on the basis the 13th Amendment applies only to humans, but Peta has now filed a brief opposing their motion and this is set down to be heard next month.

The five orca being fought for once swam free in the ocean - and that is enough for Visser. As we talk on her Tutukaka hilltop, she frequently fires up at the thought of how miserable these animals must be.

She is no stranger to fighting for orca freedom and last year spent a lot of her own money travelling to the Netherlands in a losing battle to fight for a young orca called Morgan.

When Morgan was found separated from her family off the coast of the Netherlands, alone and starving, she was "rescued" and sent to a Dutch dolphinarium for rehabilitation but instead of being returned to the wild she was sent to a theme park in Spain.

The decision devastated Visser and she fires up again - "we're supposed to be a civilised society but we're teaching our kids it's okay to keep these amazingly intelligent animals locked up in a pool, to swim around in their own pee and poo, be made to do tricks and be fed carrion. They get so frustrated they slam their jaws against the pool and smash their teeth."

People pay money to go and see this: "How narrow-minded, how conceited we are as a species," Visser says and urges New Zealanders who travel to vote with their wallets and not go to see them.

Visser has studied and swum with New Zealand orca for more than 20 years. Her role in the case will be to present the science about orca - to speak up for them. She has no problem marrying her scientific role with advocacy for orca.

"As a scientist, if you can't speak up for them, then who's going to? You know, I've built my career on this species, so isn't it about time that I turn around and do something for them?"

She fires back down again. Scientists don't always speak up, she says, because if they make a stand they are labelled as activists.

"This is an unfortunate label because this implies you are a nutcase."

Visser laughs because she knows some people think she is a nutcase when it comes to orca.

But she doesn't mind being called obsessed, saying she is happy looking herself in the mirror.

"I'm not doing any harm to anybody. It's not an obsession that's detrimental to the natural world and it's not detrimental to the animals. I'm comfortable with it."

Whistling whales

* Orca have brains five times the size of the human brain and good long-term memory.

* Sociable, they have strong family groups and distinct cultures.

* They have signature whistles, so each member of the group has a different sound.

By Catherine Masters Email Catherine