Privatize Willy

Whale lovers are rightfully horrified at the tragedy that is playing itself out on Vancouver Island, where Luna, a lone killer whale, has taken to socializing with human beings rather than the rest of his pod. Over the last two years, the Orca, which seems to have adopted humanity as his pod, has taken to following boats, and hanging out at the docks in Gold River. Not surprisingly, given people’s fascination with killer whales, Luna has become an impromptu attraction, drawing people out to pet him, feed him, swim with him, and so on. Sadly, many of these visitors are unaware of the harm they can do to Luna by feeding him inappropriate food (like beer and chocolate chip cookies), and they’re equally unaware of the potential for tragedy they create when they try to stick things in Luna’s blowhole, dangle their children over Luna’s jaws, or allow them to reach into his mouth.

As a recent article in the National Post pointed out, potential solutions to the problem have been debated for months, but the traditional approaches have proven limited in their effectiveness. Luna isn’t really trapped anywhere, nor is he isolated from his pod; they swim by him regularly. He’s just not interested in rejoining them. Posting signs hasn’t helped, nor have the volunteer actions of the Marine Mammal Monitoring Program(M3), which hired two whale watchers last summer to try to keep people away from Luna. In the most recent attempt to protect Luna, one of the whale’s visitors was cited by the RCMP for harassment, but it’s uncertain whether the fear of a citation will keep visitors away.

If nothing effective can be found, Luna, and perhaps some of his visitors, may well be headed for tragedy a tragedy of the commons. Traditional environmentalists have misunderstood the nature of the problem.

The real problem in this situation is not Luna’s interest in people, nor people’s interest in Luna. The problem is that the way that humans and animals relate through our legal institutions doesn’t create the right incentives to give people the wild whale encounter experience they want, while protecting Luna’s health. The conventional approaches tried to deny the whale his expressed preference, or to deny his fans access to the whale. But there’s a better way, one that has been successful in protecting elephants and other animals from abuse by humans: the establishment and use of property rights.

In the current situation, incentives and institutions for Luna’s protection are all wrong. There’s no real cost to the people coming out to see him, who also face little risk of punishment if they cause Luna harm, or even his destruction. Meanwhile the people trying (in vain) to protect him incur costs they can’t recover or sustain. The would-be protectors also have no real legal authority to stop Luna’s abusers themselves, and the legality of the RCMP’s citations for harassment has yet to be established.

By creating a property right that would declare Luna to be the property of a group (he might be given to the Marine Mammal Monitoring Program, for example), the incentives and institutions could be straightened out with a few strokes of the pen. First, M3 would have the right to directly sue people for the abuse of their property. That right is well-established under existing law. Second, M3 could establish fees for people to come visit Luna, control the flow of visitors by charging different fees for day and weekend hours, and they could and set up a fee structure that would pay for the creation of safety protocols, and monitors or guards, to ensure that Luna was not abused. While they were at it, they could create a program to sell Luna souvenirs to raise funds for animal research, and for Luna’s protection. Since they’d own the rights to use Luna’s name and likeness, they’d have a lock on the franchise.

People don’t like to think about privatizing wild animals. They’d rather think of them as a common trust, that belongs to everyone. But as advocates of free-market environmental management point out, the abuse of ecosystems and wildlife is often the result of the absence of property rights, and the incentives that flow from a property-rights regime. Though Canadians tend to regulate first and ask questions later, in the case of Luna, everyone would be better off if the time-tested tools of property rights and incentives were used to let Luna visit his human friends with safety for all concerned.