Vernon Tava

Barrister. Lives in Auckland, New Zealand.
Vernon Tava has written 32 posts for The Solution

Whatever happened to the Auckland City Council Rodeo ban on Council land?

rope calf[Note: This is a cross-post from my personal site]

On 31 October 2010 Auckland Council inherited a policy from the legacy Auckland City Council that prohibited  rodeo events on council land in the former Auckland City area. The ban was not a bylaw, it was a resolution of the whole Council led by John Banks. Because it was not a bylaw, it was unclear if and how it would be carried over into the new Auckland Council. Continue reading

Auckland SPCA is Teaching Dogs to Drive

In an unusual media stunt, the Auckland SPCA is training three shelter dogs to drive.

Video here.

SPCA Auckland CEO, Christine Kalin, sums up the rationale as follows:

“I think sometimes people think because they’re getting an animal that’s been abandoned that somehow it’s a second-class animal … Driving a car actively demonstrates to potential rescue dog adopters that you can teach an old dog new tricks. The dogs have achieved amazing things in eight short weeks of training, which really shows with the right environment just how much potential all dogs from the SPCA have as family pets.”

So long as they’re not pit bulls, I imagine.

This is, of course, an awareness-raising stunt rather than a viable long-term programme but it raises another issue that is worth reflecting on: a common tendency to advocate for animals on the basis of intelligence – as demonstrated by their ability to perform human tasks – as the grounds for moral consideration which oblige us to treat non-human animals far better than we generally do.

But there are reasons to be wary of the focus on intelligence as a criterion for moral consideration and the double-standards applied between domestic and farmed animals are especially apparent here. Cows are at least as intelligent as dogs and pigs have performed much better in tests of intelligence than either. And yet, it is abhorrent to eat dog but not pig or cow flesh. The intelligence standard as a benchmark for moral consideration becomes disturbing when we realise that in application it would mean we may justify lesser concern for infants, or the severely mentally disabled. In Peter Singer’s famous limit example of the anencephalic (i.e. without a complete brain, only the brain stem controlling basic survival functions) child, the human would have less of a right to life than any fully functional animal. According to Singer, the only thing that prevents us from eating the child is ‘speciesism‘.

Legal Standing of Animals: How the plight of five Orca has come to be at the vanguard of animal rights jurisprudence

A pod of Southern Resident Orca

Recently, People for the Ethical Treatment of Animals (PETA) brought a civil action to have five Orca, named Tilikum, Katina, Corky, Kasatka and Ulises, kept in captivity at Sea World in San Diego, California recognised as ‘slaves’ and hence protected by the thirteenth amendment to the U.S. Constitution. For this action to succeed, the court would have to recognise the Orca as legal persons and accept that the thirteenth amendment should apply to them. Sea World has called it “baseless and in many ways offensive” and a “publicity stunt”.

Of course this approach, while garnering a good deal of publicity (even the NZ Herald published an (very basic) article), was doomed to failure. U.S. law professor, David Favre, suggested in a letter to the Associated Press that it is highly unlikely that the substantive matters of the case would even be argued as the plaintiffs will be interpreted as lacking standing. Even if this hurdle were overcome, the judges were very unlikely to consider that the original intention of the drafters of the Constitution can encompass non-humans.

Concern has been expressed by many animal advocates that this sort of publicity stunt runs the very real risk of undermining decades of careful argumentation around the recognition of the legal personality of non-human animals. Pursuing a cause of action that is virtually guaranteed to fail may establish a negative precedent which undermines future attempts to build an animal rights jurisprudence. The Non-Human Rights Project have summed up these concerns particularly well in ‘Ten Tillikum Takeaways‘.

Pioneering animal lawyer, Steven Wise, who has brought a separate action to PETA’s on different, more considered, grounds has reservations about the PETA approach. He has said it is “ill-conceived, impossible to win, and capable of damaging future animal rights legal law cases”, going further to suggest that PETA is plowing ahead because “it wants the case ‘to go down in history as the first time that a U.S. court considers constitutional rights for animals.’ Winning is beside the point.” Continue reading

Why Colony Cages Rather Than Barn-Laid Eggs?

Caged Layer Hens

According to RNZSPCA national accreditation and marketing manager Juliette Banks: “Consumers are becoming far more conscious of where and how their food is produced and they don’t want cages.”
Yet New Zealand farmers are going ahead with installing the ‘colony cages’ approved in the new Layer Hen Code of Welfare. The thing is, the capital investment in changing out one type of cage for a marginally larger one is far greater than converting to a barn set up where the animals are still kept indoors in crowded conditions but are at least not in cages.

Barn Layer Hens

Banks continues: “With a steady annual increase in the free-range egg market it is clear consumers will not accept caged eggs in the future. For the industry to spend millions converting a system that consumers will reject seems pointless.”

Indeed it does. Until we consider that caged hen operations are very large businesses with capital investment that often runs into the millions. Why would these operators be prepared to continue with a more expensive system? Because it provides a very effective barrier to entry for possible competitors. The welfare of the thousands of hens in their care is neither here nor there for these producers. The decision is purely economic. It makes the claim of Egg Producers Federation chairman, Michael Guthrie, that they want to ‘ensure eggs remained affordable during tough economic times’ ring rather hollow.

Each Decade Seems to Have a Different Dangerous Dog: What’s the common denominator?

I happened across this on Facebook. The image makes a good point about the shifting historical conceptions of what are considered inherently dangerous breeds of dog. In the early twentieth century, Bloodhounds were considered to be a menace. There is one common denominator here.

Manufactured Meat: Lab burgers anyone?

An initial culture of cow flesh. Yum. (Photo: Dr Mark Post, Maastricht University)

In a move that may overcome the cruelty problem of raising and killing animals for meat, Dr Mark Post of Maastricht University and Eindhoven University of Technology in the Netherlands has pioneered the technique of growing meat independently of an animal by the cultivation of stem cells.

The pieces of muscle are made by extracting stem cells from cow muscle tissue and growing them in containers in a laboratory. The cells are grown in a culture medium containing foetal calf serum, which contains the nutrients the cells need to grow. The nutrients in the meat itself need to come from another source, Post will use algae to produce the amino acids, sugars and fats necessary to produce a nutritious flesh. The strips of muscle are cultivated between pieces of Velcro and flex and contract as they develop. To improve the texture of the tissue and make more protein in the cells the samples are periodically shocked with an electric current.

The problems for which this is a solution are summed up rather concisely in this abstract of a paper called ‘Advances, Challenges and Prospects for Cultivation of Tissue-Engineered Meat’ that Dr Post presented in February this year:

Traditional meat production through livestock is rapidly reaching its limits. Worldwide, meat consumption is projected to double in the coming 40 years (source WHO) and already we are using more than 50% – 70% of all the agricultural land for meat production. It has also become clear that livestock contributes appreciably to the emission of greenhouse gases such as methane and CO2. Last, the public objection against cruelty to animals will eventually favor a market for cruelty free meat …

From all livestock, cows and pigs are the least efficient meat producers with a bioconversion rate of 15%. Through breeding and feeding, the bioconversion rate has reached its upper limit. This inefficiency provides us with a margin to improve meat production provided we move beyond the traditional boundaries of livestock.

Continue reading

Human Battery Cages

I don’t normally agree with PETA‘s tactics. Sex with vegetables, nude women against fur, etc. They’ve really outdone themselves recently with this ad which manages to make light of domestic abuse and (I think?) drug addiction in the name of promoting veganism.

But I think they’ve nailed it in one particular instance. Commissioning splatter-gore purveyors, Troma Films, they’ve made the clip below, highlighting the horrors of factory farming.

WARNING: It’s pretty gruesome but that’s the reality for billions of intensively-farmed animals around the world every day. What do you think?

NZ’s ‘Dangerous Dog’ Laws to be Reviewed

Following a spate of dog attacks on children – six in the last month, half of them by pit bulls or pit bull crosses – the government has promised to dust off ‘stalled’ dog control legislation. There have been predictable calls from MPs to ban and destroy all dangerous dogs and dangerous breeds. Local Government Minister, Nick Smith, has promised that a review will be completed in March of this year. The last law changes in New Zealand were made in 2003 and resulted in the outlawing of four breeds of dog:  American pit bull terriers, Dogo Argentinos, Brazilian Filas and Japanese Tosas. Those already here must be muzzled on the street and kept behind fences at home.

But these laws have been tried around the world and have been shown not to work. There are no inherently dangerous breeds of dog, only dangerous owners. The dog control officers have a saying: “Show me ten bad dogs and I’ll show you nine bad owners”.

Anyone following these stories will notice that the dogs are almost always identified as Staffordshire or pit bull crosses. These are, indeed, dogs that were bred to fight and have a reputation for viciousness. It is this reputation and dangerous image that attracts the wrong kind of owner, those who see their dog as an accessory to their macho image or, in some cases, as a weapon. Yet owners who care for them well say that Staffordshires are among the most loyal and  gentle of dogs if they are raised and trained well and, perhaps most importantly for their interaction with humans, are properly socialised with people and other dogs.

While my heart goes out to the children who have been bitten and their parents, it must be noted that many dog behaviour experts recommend that children be kept away from dogs until they are of an age at which they understand how to behave around dogs. Many signs of human affection such as eye contact and placing heads close together are perceived as aggression by dogs. A child cannot resist pulling on ears and poking at noses but these exploratory gestures, as endearing as they are to us, can be all it takes to provoke an animal that cannot be expected to distinguish between clumsiness and attack to defend itself. A characteristic view is that of Owen Dance, President of the New Zealand Kennel Club who told Radio New Zealand that:

Such attacks happen once in a while and would continue until more parents properly educated their children about how to behave around dogs. It was hard to find examples of farmers’ dogs biting farmers’ children, he said. “And in nearly 40 years of the kennel club I have never heard of a kennel club member’s child being bitten by one of their dogs.”

Nevertheless, it is the dogs that are inevitably blamed. But there is little consistency over time in what dogs are the problem breeds. In past decades, Rottweilers, Dobermans, German Shepherds, Newfoundlands and even Bloodhounds have been considered to be dangerous breeds.

A good summary paper by Associate Professor Kevin Stafford (Institute of Veterinary Animal and Biomedical Sciences, Massey University) contains the following observations on an international review of academic literature on dog attacks finding that:

[T]he breeds most represented in dog bite data (1) vary over time, (2) are popular and (3) are not in proportion to their actual population. In almost all studies mongrels are the most common type of dog involved in attacks on humans. The variation in breed over time suggests that if specific dog breeds are legislated against, then another breed or type will be developed to meet demand for aggressive canines.

However, this view is not shared by all. Bob Kerridge, executive director of the SPCA in New Zealand has said that “the pit bull is the exception to the way we talk about dogs. No dogs are born bad, except pit bulls – owners make them bad”. The Auckland SPCA recently released a statement outlining why they will not adopt out pit bulls:

No dog will be considered for adoption if we believe it may pose a risk to the community by virtue of behaviour, temperament or the … potential to cause serious harm or injury. The Auckland SPCA considers the risks associated with adopting pit bulls or pit bull crosses too high given the Dog Control Act declares them to be dangerous and we believe we have a duty of care to the community.

So will law changes make much of a difference? How are they to be targeted? The Guardian recently published a piece on the ineffectiveness of the dangerous dog laws in Britain. In 1991, at the height of a tabloid frenzy sparked by a rash of dog attacks in England, the Major government passed a rushed piece of legislation which outlawed four breeds and made it an offence to ‘have a dog dangerously out of control in a public place’ –  although the majority of attacks take place in domestic settings. Yet, the number of dog attacks has increased and there are more of the prohibited breeds on the streets now than before the legislation was introduced.

Similarly in New Zealand, despite a toughening of the law in 2003, the Accident Compensation Corporation (ACC) has received 11,078 claims for dog attacks in the past year. This is a substantial increase from the 8,677 cases in 2003. Of the 2011 claims, 872 were children aged under four and 891 were for children aged between five and nine years.

In Auckland, submissions are being taken on Auckland Council’s proposal to introduce a new dog policy and bylaw for the region – which will replace the seven bylaws and policies inherited from previous councils. The new bylaw, which should be in operation by October, includes making seasonal start and finish times for dog access on beaches and parks uniform across the city, neutering ‘menacing’ and uncontrolled dogs and standardising dog access rules for playgrounds, sports grounds, carparks, campgrounds and footpaths. I will write more on the development of this policy  and the government review as they happen.

I can’t help but feel that while there is undoubtedly a problem with the number of dog attacks on humans, a greater focus on owner reponsibility and training rather than simply banning or victimising particular breeds is far more likely to result in a reduction of these than current policy settings.

Talking Animal Rights and Welfare in Dunedin

With the SALDF Otago group. I'm in the middle with Sue Kedgley MP (left) and Danielle Duffield of SALDF.

Last month, I spent a few days in Dunedin. I was there to give a public lecture at the Otago University Law School: Towards Rights of Nature: The extension of legal personality to non-human animals.

I had the privilege of again speaking alongside Sue Kedgley MP of the Green Party of Aotearoa New Zealand, who has been the sole voice in Parliament for the interests of non-human animals for over a decade. Sue’s final Parliamentary term will end on the 26th of November when she takes a well-earned break from parliamentary politics. There was a strong turnout with about 80 people staying well into the evening to ask questions of us.

My talk centred on the extension of legal recognition to animals in philosophical discourse and in other jurisdictions. After a review of the historical evolution of animal welfare laws, the discussion turned to the treatment of animals as property and its attendant perverse consequences. This lay the ground for the central contention of the lecture which was to look at recognising the worth of non-human nature not simply for its utility to humans but for the intrinsic worth of other living beings. My starting point was Professor Christopher D Stone’s seminal article, ‘Should Trees Have Standing?’ ((1972) 45 Southern California Law Review 450) in which he makes the – in my view very compelling – point that we accord legal personality to corporations and even to ships (when a marine vessel is seized at port for non-payment of excises, duties, etc. it is said to be ‘arrested’) and yet whales, dolphins, cows, pigs – in fact, anything that is not human – are treated as a species of property.

In the 2008 Constitution of Ecuador and the 2011 Bolivian ‘Law of Mother Earth’, this recognition of the intrinsic worth of non-human nature has been officially recognised; extending even to unique ecosystems and landscapes. In practical effect, this overcomes the legal hurdle of standing. That is, in every jurisdiction but these Latin American countries, one has to demonstrate that they have a proprietary interest in the animal or ‘natural resource’ at issue or that their right to property or non-interference with enjoyment of property will be unduly impinged upon. If this cannot be demonstrated to the satisfaction of the Court, the claimant is said to lack locus standi. A recognition of legal personality overcomes this limitation and allows any (human) person to advocate on behalf of an animal or other part of the environment, or seek review of an administrative decision concerning them. There has been an advocate for animals employed by the state government of Zurich in Switzerland for years. Although it must be said the laws there are still cast in the welfare paradigm rather than extending ‘rights’ to animals, it shows that the idea of an advocate for animals is not without precedent. Indeed, the enforcement of animal welfare law in New Zealand would be substantially improved if the state funded prosecutors rather than leaving this important duty predominantly to a charitable organisation funded almost entirely by public donations.

You may note my hesitation in employing the term ‘rights’ when applied to animals. This is because I don’t think the term is particularly useful given its liberal-democratic connotations. It all too easily invites reductio ad absurdum ripostes to straw man arguments built around dogs having the right vote or disposition of the matrimonial property of horses. Of course, the extension of legal personality contends no such thing. Or, if the vocabulary of rights must be employed, it aligns with Professor Gary Francione’s argument that the only right any animal needs is the right not to be treated as property. But while we’re on the topic of satire, I’m reminded of a piece intended as a rhetorical knock-out blow to Mary Wollstonecraft’s A Vindication of the Rights of Woman (1792). Entitled, A Vindication of the Rights of Brutes, it was published anonymously (but later revealed to be the work of prominent Cambridge classicist, Thomas Taylor) shortly after the publication of Wollstonecraft’s manifesto and advanced the thesis that all the arguments made for the equality of women with men could equally be applied to the relationship between humans and animals. Two hundred and nineteen years ago, this was considered to be a damning comparison but in these more enlightened times it makes my point exactly!

The next day I held a seminar with a group predominantly comprised of law students to discuss the animal welfare codes in New Zealand. Welfare Codes are the regulations that allow industrial producers to exploit animals in ways that would otherwise be considered ‘ill-treatment’ under the Animal Welfare Act 1999. But more on this in a future post.

Otago certainly has a picturesque campus and I really appreciated the contrast with the University of Auckland campus which is bisected by major arterial roads and is bounded by the CBD. I was particularly impressed with the campus spirit and the sense of collegiality about the place. On more than one occasion, as I walked around the campus, I was stopped by people who had been to the lecture and were eager to talk further about the issues raised which was a really inspiring experience.

I was amazed at the strength of the Student Animal Legal Defence Fund (SALDF) group at Otago which generously funded my trip; they have really achieved something impressive. The SALDF is an initiative of the Animal Legal Defence Fund, a large public interest law firm in the United States. The Otago group is the first SALDF chapter in the southern hemisphere and is an excellent model for other chapters of the group in other New Zealand universities. All the more remarkable is the fact that unlike the University of Auckland which was fortunate enough to have Peter Sankoff teaching a course in Animal Law, Otago has never had any such programme. And yet, last year they held an animal law week in which students presented seminars on various animal legal issues. Incredible.

Special thanks to Danielle Duffield for being a great host, organising the whole event and making things very easy for me, I just had to turn up and talk. Thanks also to Kari Petro-Schmidt and Mahoney Turnbull for their contributions.

Animal Liberation

Only a matter of time