Own a whale and save it

HIDESIGHT

After last week’s confession I have been asked how the evolution and expansion of the common law could deliver resource conservation and environmental protection.

By its nature, there’s no generic prescription but common law principles can be helpfully thought through for particular instances.  

The advantage of the common law approach is its lack of prescription in favour of the consistent application of the principles of property, tort and contract law.

The common law doesn’t deliver an outcome but instead a set of rules that enables people to interact peacefully and freely while continuously discovering the best and proper use of precious resources.

Take whales. There’s a battle being waged in the Antarctic oceans, in political shindigs all around the globe, and through the courts. It’s long, it’s expensive, it’s divisive, it’s violent and it’s highly unsatisfactory both in process and outcome.

One side’s gain is inevitably the other side’s loss. The essence of the problem is that the only way to claim ownership of a whale is through harpooning and killing it.

That’s how old law viewed whales. Leaving a whale behind wasn’t using it and without use no ownership was established.

Besides, the ocean was considered so bountiful that whales in the open ocean were regarded as plentiful. No value was placed on them and, in the absence of any shortage, there was no conflict over free-swimming whales and no need for property rights.

That has all changed. Whale stocks were depleted and we now place considerable value on those living free.

But the law didn’t evolve to reflect the new reality. The heavy intrusion of politics into all spheres of life arrested what one can imagine would have been the piecemeal evolution of the common law to reflect new circumstances and developing values.

Imagine if it wasn’t necessary to kill a whale to claim it. Sea Shepherd could tag a wild whale with a transmitting device and declare it theirs. The whale would carry their brand and belong to them.

Sea Shepherd would no longer be pirates but modern-day ocean ranchers of whales. The law’s bias to the killing of whales would be removed.

A Japanese whaler harpooning and killing a Sea Shepherd whale would be rustling. That would be a serious crime with severe punishment.

Sea Shepherd and other conservationist groups would be busy not disrupting and fighting Japanese whalers but tagging and caring for whales. I imagine money for the enterprise would flood in.

It would be very nice to sponsor your own whale. You could follow it on your computer and no doubt there would be a phone app.

As part of the deal, Sea Shepherd would keep you up-to-date with the whale’s health and status. There would be research value, too, in following the whales and a passionate interest in their biology and conservation would be fostered.

The conflict with the Japanese whalers would be readily resolved. “I am sorry. You can’t take that whale. It’s mine.” It’s an argument that we can all perfectly understand.

Of course, the whalers would be ranching their own whales. And there would be whales bought and sold on the open ocean.  

Hard-core greenies would object to the private ownership of the magnificent leviathans but the whales themselves wouldn’t know or care. They would simply no longer be hunted and killed.

The big downside would be that Sea Shepherd would not be dashing their boats against Japanese whalers and being newsworthy as heroic whale savers. They would instead just be getting on with the job of saving the whales.

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