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
A report in the Dominion Post this week about a particularly nasty case of criminal neglect of sheep in the Manawatu highlights much of what is wrong with the enforcement and prosecution of animal welfare offences on farms in New Zealand:
75 sheep were found dead and another 25 had to be put down [immediately] because of alleged ill-treatment. SPCA officials raided the farm in August after being tipped off about the sheep. The 66-hectare farm is now under strict monitoring by vets and four SPCA inspectors. It is still being run by the farmer and has several hundred sheep.
Although full details have not yet been divulged by prosecutors, pending the laying of charges, it appears that the sheep were emaciated from starvation and severe neglect. The file is about to be sent to Crown Law for prosecution.
For reasons that will become clear, it is important to note that this was a raid carried out by the SPCA (Society for the Prevention of Cruelty to Animals). Under the Animal Welfare Act 1999, three bodies are statutorily-empowered to investigate and prosecute animal welfare cases; the Police, the Ministry of Agriculture and Forestry (MAF) and the SPCA. Only the Police and MAF are fully state-funded, the SPCA relies for 98% of its income on private donations. Continue reading
Plans were approved in August this year to expand the elephant enclosure at Auckland Zoo to six times its current area. The importation of another 9 elephants to join the current sole occupant, Burma, would make this the only elephant herd in Australasia. The planned extension into Western Springs Park is estimated (by many accounts, unrealistically) to cost $13 million and the zoo plans to expand into 22000 square metres of the park.
Two main arguments have been made for this. First, that Burma is in need of companions as elephants are intelligent, empathic, social animals and she has only recently lost her companion, Kashin. Second, that the herd will be valuable for conservation. Given a choice between sending one animal to a reserve overseas or committing to the hugely-expensive upkeep of ten elephants, the City has chosen the latter.
This goes against international trends to close elephant enclosures. As pointed out in SAFE’s excellent submission to the Auckland City Council Combined Committees, enclosures closed this decade include London (2002), San Francisco (2005), Detroit (2005), Lincoln Park, Chicago (2005), Alaska (2007), and Philadelphia (2009). A significant number of zoos have also committed to gradually phasing out their herds by not replacing elephants.
Just got back from Dunedin, where last night I gave a guest lecture as part of Animal Law week, a production of the Student Animal Legal Defence Fund (SALDF) chapter recently established at the University of Otago – the first ever Chapter outside of North America.
It was a hell of an experience, and one I enjoyed immensely. After years struggling to get a viable student group working at Auckland, it was refreshing to see a student-created group with so much focus and vigour – and so much concern for animal law issues. In addition to my talk, the Otago group has set up a whole week of seminars, stalls and discussions, many of them student led and researched. Quite a feat, especially when you consider that animal law has never been taught at Otago – and is not currently on the agenda.
The talk itself went well, and I received some wonderful feedback. A packed house learned about the animal welfare construct and why it fails animals, and we continued talking afterwards as well. I was pleased to hear that this SALDF chapter is planning to host further events through the year, and with the support of the Otago administration, an animal law course might not be far off. Continue reading
Looking back over the month that was…
Depressing images from this morning’s New Zealand herald. The lead story on the internet version of the paper is entitled ‘33 dogs massacred in ‘rifle-killing frenzy‘.
I’ll let you look over the depressing facts yourself. I’m interested in the legal aspects of the case. Consider the following facts set out in the Herald – keeping in mind that the Herald ‘facts’ are not necessarily actual ‘facts’:
Yesterday, holding back tears, [the owner] described the sounds of his dogs being shot – sounds that echoed off the quarry walls for 20 minutes.
“They were screaming, making sounds dogs just don’t make. When one was gone, the others knew they’d be next, but they had nowhere to go.”
In all, 23 pups and young dogs, which slept in the owner’s truck, were shot, as were a male and female dog living in a van wreck and eight adult dogs housed in a kennel. They were shot through the grating.
Four pups hiding under their mother in the van survived, as did two other dogs the shooters didn’t see.
These six were taken to the owner’s workshop in Wellsford, but one later died. None of the dogs had been registered.
Pretty despicable stuff, all arising out of a dispute between neighbours over actions taken by the dog.
Almost is frightening is the last paragraph of the story:
SPCA executive director Bob Kerridge said two investigators had visited the property and would determine whether the dogs suffered before they died. A decision would then be made on whether to charge the gunmen. Wilful ill-treatment carries a penalty of up to three years’ jail.
Ummm… Bob, what’s to think about? Continue reading
I won’t lie. I’m a HUGE Bob Barker fan. Most New Zealanders probably have no idea who Barker is – though you may have seen his cameo in Happy Gilmore, where he beats up Adam Sandler (apologies for the poor video quality) – but as a boy growing up in Canada, Bob Barker played a big role in my early life. Back when our television only picked up 3 or 4 channels – in the 70s and 80s – Barker was the host of one of North America’s most famous game shows: The Price is Right. Barker was an institution, hosting the show for thirty-five years. My grandmother – like many grandmothers – was a big Price is Right fan, as well as a huge Barker fan, and I have fond memories of watching the show with her as a child.
Of course, that’s hardly the only reason for my being a big Bob Barker fan. He was perhaps the first prominent celebrity to take up the animal cause, ending every one of his shows with a plea to pet owners to get their pets ‘spayed or neutered’. But Barker went much further than that. He put his money where his mouth was, and unlike many celebrities who offer time and energy regarding specific causes, Barker’s focus has been animal law, with him correctly reasoning that we need lawyers who understand how animals are treated by the law in order to move the movement forward. In addition to numerous other donations to animal related causes, Barker has stimulated the study of animal law in the USA, and inferentially, around the world. From the ALDF web page: Continue reading
Late last year, I posted on the euphemistically-named ‘cubicle’ farming of dairy cows proposed in the South Island’s pristine McKenzie Basin.
The Parliamentary Commissioner for the Environment has today recommended that Environment Minister, Nick Smith use his call-in powers under the Resource Management Act 1991 (the RMA) to make a decision on the consents. The Act states:
Section 141B – Minister’s power to call in matters that are or are part of proposals of national significance
In deciding whether a matter is or is part of a proposal of national significance, the Minister may have regard to any relevant factor, including whether the matter—
(a) has aroused widespread public concern or interest regarding its actual or likely effect on the environment
Why is this of interest in a blog about animal law?
Well, although about 75% of the large number of submissions received by the Canterbury Regional Council mentioned deleterious effects on the cows, the question has been raised as to whether animal welfare issues can be legitimately considered as an ‘effect’ of dairy farming for the purposes of resource management consents.
The Council has received legal advice that they can not, nor can they provide grounds for a ministerial call-in.
The Council’s Chief Executive, Dr Bryan Jenkins, has said that the animal welfare issue is more appropriately dealt with under the Animal Welfare Act 1999 (the AWA). He also suggested that a stronger argument can be made for damage to New Zealand’s reputation in international dairy markets being an ‘effect’.
This is all the more incredible if we look at the statutory definition of “environment” in the RMA: Continue reading
Just last week, we posted about the SPCA’s difficulties in pursuing prosecutions under the Animal Welfare Act 1999 (the AWA). An article in the Herald on Monday (‘Hundreds of Cases of Livestock Mistreatment Reported’) highlights just how little the Ministry of Agriculture and Forestry (MAF), is doing by way of prosecutions. But, as the Police generally do not prosecute animal welfare offences, MAF is the other main body, along with the SPCA, that is empowered to prosecute under the AWA.
In the year to November 2009, MAF received 689 complaints about the mistreatment of animals, and investigated 615. They brought two prosecutions.
In 2008, there were 948 complaints in total, of which 824 were investigated. No prosecutions were brought.
So, out of 1439 investigations in two years, only two resulted in prosecutions. This is a rate of less than 0.4%.
Curiously, the story was re-spun the next day with the title: ‘Big Fines for Farmers Who Let Their Livestock Starve’ moving the sentences imposed to the head of the article and the fact that there were only two prosecutions in two years to the second half of the piece. Continue reading
National Party MP, Simon Bridges, has drafted a private member’s bill to increase the maximum penalty for wilful ill treatment of animals from three years imprisonment to five years.
As always in public discourse, the primary justification for this increase of the sanction is that abuse of animals leads to – or is at least an early indicator of – violence against humans.
It is encouraging to see these issues raised in Parliament and the mainstream media but this call for tougher penalties highlights a number of the shortcomings of the law around animal cruelty. Namely: That sentences are so far short of the current maximum that an increase will be largely academic; the fact that the sanction is criminal actually militates against its implementation; and, the real problem is with a distinct lack of enforcement and prosecutions. Continue reading