So, what does she hope to do?

Whereas the other Bill primarily raised the penalties for one offence, the Green Party MP’s Bill aims to eliminate sow crates and battery farms.  For that reason, unfortunately, I suspect that it will fail in Parliament.  While tougher sentences and strong words gained unanimous support, I suspect alas that forcing notable change in the animal industries may frighten too many of our politicians.

Sue Kedgley’s Bill is premised on the sad fact that the codes of welfare for layer hens, broiler hens, and pigs fall below the welfare standards of the Animal Welfare Act 1999.  These codes of welfare provide complete defences to charges under the Act.   Section 73(1) of the Act requires the codes of welfare to comply with the minimum welfare standards necessary to achieve the Act’s purpose.  However, s 73(3) allows the National Animal Welfare Advisory Committee (NAWAC) to recommend codes of welfare in breach of s 10.  Section 10 reads:

10 Obligation in relation to physical, health, and behavioural needs of animals
The owner of an animal, and every person in charge of an animal, must ensure that the physical, health, and behavioural needs of the animal are met in a manner that is in accordance with both—
(a) good practice; and
(b) scientific knowledge.

So, section 73(3) allows the industry to write, NAWAC to discuss and recommend, and the minister to rubber-stamp codes of welfare that allow conduct the violates the animal’s physical and behavioural needs.  It allows conduct that is not good practice or scientifically sound – so long as exceptional circumstances exist.

And, the industries allege, exceptional circumstances do exist.  Businesses would fail, farmers would suffer, and so the codes of welfare – for chickens and pigs at the least – blatantly breach s 10.  But they are not ultra vires or illegal, arguably, because of the exceptional circumstances provision.

So, Sue Kedgley’s bill will, if passed, add new subsections, subss 73(3a) and 73(3b), to restrict how long a code of welfare may operate under the exceptional circumstances provision.  No code of welfare justified by the exceptional circumstances provision may persist for more than five years.

If passed, that would – arguably – close the loophole, or at least add a sunset clause to it.

But I have one niggling doubt.  If this is passed, we fall back to the old difficulty: Challenging the validity of a regulation.  There is already a potential argument that the circumstances are not exceptional, and therefore these codes of welfare are ultra vires.  But the Regulations Review Committee is non-binding, and the other main option – judicial review – is costly and slow.

So, perhaps, rather than invoking the exceptional circumstances provision, the industries will simply fall back to asserting that the codes of welfare do not breach s 10.  Good practice, after all, is something of an amorphous concept.

In an alarming development for anyone concerned about civil liberties in New Zealand, the Search and Surveillance Bill, currently before Parliament, will extend powers previously available only to Police to any state agencies with enforcement powers, of which there are 70. This includes, for instance, Work and Income New Zealand and the Pork Industry Board.

I’ve posted recently about the nefarious activities of the Pork Industry Board here in attempting to avoid their obligations under the Official Information Act 1982.

There have been widespread protests against the bill which strips away civil rights hard won over centuries in one fell swoop:

• Perhaps most disconcerting, the Justice and Electoral Select Committee has just reported back to the house supporting the proposed power of police to install concealed cameras in houses. This is a licence to enter your property, plant recording equipment and watch whatever you get up to in your own home. The police will be able to covertly film people for up to two months with a warrant, and three days without a warrant in “limited circumstances”. The same criteria will be applied as that which has previously needed for a one-off search. In Canada, the US and most western European countries, video surveillance is only allowed if it can be demonstrated that all other possible avenues for obtaining evidence have been exhausted.
• ‘Residual Warrants’ allow state agencies to use any new surveillance technologies, even if Parliament has not yet passed guidelines as to its use.
• ‘Examination and production’ orders will force people to surrender documents and report for compulsory questioning. Say goodbye to your right to silence. These orders could easily be exploited to harass activists who are accused (falsely or not) of relatively minor infractions such as trespass.
• Warrantless searches can be carried out on the dwelling of anybody detained by Police.
• Police and the seventy other state agencies (yes, even the Pork Industry Board) will be able to take anything in ‘plain view’ (and under case law in NZ, this is a highly elastic definition) during a raid without having to specify it in a search warrant.

Case in Point: The Ongoing Harassment of Rochelle Rees

No doubt we will be assured by agencies wishing to use these considerable powers that they will be invoked with restraint and only in situations where there is serious risk to public safety. But let’s consider this, taking in mind the type of surveillance to which animal rights activists have been subject in the recent past.

In December 2008, the extent of state spying on animal rights, environmental and peace groups was exposed when Rob Gilchrist was discovered by then-girlfriend Rochelle Rees forwarding email messages to the Police. It was revealed that he had been paid $600 per week plus expenses in cash by the Special Investigations Group (SIG) of the NZ Police, headquartered in Christchurch, to infiltrate animal organisations and to act, by many accounts, as an agent provocateur. Over the course of his engagement with the police for almost ten years, Gilchrist must have claimed (as a very conservative estimate) at least $300 000. The SIG were interested not only in planned activities but also pressed their ‘man on the inside’ for details of the personal relationships and sexual activities of members of the groups. We can only guess at the uses to which such lurid details would be put.
This was an awful lot of expense and trouble to go to. And for what? Gilchrist himself, when asked if he thought the activist groups were security threats, said: “No, of course not. I know they are good people trying to make a better world.”

Earlier this month, Ms Rees was in the news again. This time, after attending the court appearance of a fellow activist, she saw a small black box attached to the underside of her car with magnets. This was not a slick job, she saw the box as she was walking up to the car and immediately detached it to take a closer look. The box was a tracking device which used similar technology to that of a mobile phone to transmit the location of the car to a third party. The device was traced by the Sunday Star-Times to Thompson & Clark Investigations, a private investigation and surveillance firm. According to the article:

Rees said the campaigners were upset but not surprised at finding the device “given the past spying we’ve had to put up with from Thompson & Clark.” They were relieved they were able to spot it so easily: “Whoever put it there was incompetent, there’s no other explanation.”

When questioned about this incident in Parliament, the Agriculture Minister (and later the Pork Industry Board) denied having had any knowledge of Thompson & Clark Investigations planting a device on Ms Rees’ car.

No-one has yet admitted to hiring the firm but they have been caught out doing similar jobs before:

In May 2007, the Star-Times revealed Thompson & Clark had been paying two students to infiltrate small environmental, peace and animal rights groups on behalf of state coal miners Solid Energy and other clients.

The students were paid to write reports on the campaigners’ meetings and plans, and to set up systems redirecting internal group emails to the private investigators.

They were also caught in April 2008 trying to recruit a man to spy on activist groups. Rees said she thought it was “very likely” that the same firm was spying on them and Hans Kriek, director of Save Animals From Exploitation (SAFE), is “99.9%” certain that Thompson & Clark were responsible given that the pair have been focused on uncovering conditions in commercial piggeries.

Perhaps the question is not whether we are paranoid but whether we are paranoid enough?

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.

It goes to show what students can do when they put their minds to it.  As Margaret Mead once sagely wrote, “Never doubt that a small group of thoughtful, committed people can change the world. Indeed, it is the only thing that ever has.”  I couldn’t agree more.   This small group of students committed to learning more about animal law issues has really stirred things up at Otago.  I must confess that the only sad thought arising from this was how the same thing has not progressed at Auckland, where I teach.  Despite considerable effort from myself and one or two others, SOLVE currently lies dormant – aside from The Solution, of course – because we weren’t able to get that “small group of thoughtful, committeed people together with a vision to get matters moving on the agenda.

There will be at least one SOLVE event this year, however, and I plan to organize it.   Late in September, we will show excerpts of FOOD Inc. at the Faculty, and follow it up with a moderated panel discussing the relevance of the issues raised.

I’m going to go continue reflecting upon the wonderful work of those students down in Otago.  I wish you all the best for the rest of the week – and let’s hope this is the beginning of a lot more to come.  Thanks for having me out!

By the way, I’ve finally joined the revolution and now Tweet about all things animal law.  If you wish to check out what I can say in 140 characters or less, click here and follow me!

The book was launched by Michael Kirby during the Voiceless Animal Law Lecture Series, featuring Joyce Tischler, of the Animal Legal Defence Fund.  I was particularly struck by his remarks, a section of which I’ve reproduced below (full text available at the Sydney Morning Herald):

A year ago I launched a book that changed my life. It was Animal Law in Australasia. After reading it, I immediately ceased eating meat.

For more than a year, I have eaten neither flesh nor fowl. My diet is vegetarian, with a little fish. After nearly 70 years as a carnivore, this was a big change in my habits and eating pleasures. My partner, Johan van Vloten, told friends: ”It’s another fad. He’ll get over it.” But I have not and will not.

The book contained too much information. I could no longer pretend I did not know how sentient animals were slaughtered. No longer could I trick my mind into believing that meat and chicken pieces, so neatly wrapped in plastic or beautifully served on white plates, were the impersonal products of sterile, clean supermarkets. I was distressed at my earlier indifference and indirect participation in a huge industry of corporatised killing of sentient creatures…

Most people in Australia and New Zealand never think about these issues. Eating meat and poultry has been part of their lives for generations. They feel no guilt because they take no part in the slaughter. When they think about it (which is rarely), they assume the law lays down basic standards…

Animal welfare law has been introduced in a journey that commenced with protection for companion animals; spread to a prohibition on senseless cruelty in sporting, circus and entertainment animals; and more recently has extended to the treatment of farm, exported and wild animals, and those in corporations and laboratories subjected to testing for human protection…

A growing body of university students, most in law faculties, are electing to undertake courses in animal welfare law. Already, such courses are offered in six Australian law schools. More are on the horizon. What not so long ago was regarded as an exotic topic of limited interest is now a fast-growing curriculum subject with a real legal dimension.

Why has this happened? Why has it happened now? In part, it is because writers such as Singer rekindled the ideas of earlier thoughtful observers and planted them in the mind of contemporary Australasia. In part, this has happened because cruelty to animals happens in our midst and, as a community, we are responsible for it.

All good stuff.  Kirby has been a real leader in this area, constantly speaking his mind on behalf of animals, getting good press coverage on the issues, and reminding people that animal law is no fad; thinking people can be convinced about the dangers of allowing the existing status quo to go unrestrained.

I must confess that on a personal note, the first sentence made me blush, at least a little bit.  I created Animal Law in Australasia for two purposes: (1) to get people to think about their own actions; and (2) to get the ball rolling on more advanced critique of how animals are treated in Australasia.  Kirby’s speech told me that both objectives were in the process of being realized, and that’s enough to keep a smile on my face all day.

Next week, I’m attending Animal Law week at the University of Otago as a guest speaker.  The first ever New Zealand chapter of the Animal Legal Defence Fund has put together a wonderful program of events intended to bring “animal law” to the masses and show how interesting the subject really is – and how important the issues are.  Just goes to show what can be done once a spark is lit – and how momentum for change in the legal community continues to grow.

UPDATE: An interview with Laraque explaining how he became vegan.

Great news from Canada, where former professional hockey player Georges Laraque has become perhaps Canada’s first vegan politician, joining the Green Party, which over the past five years has been growing in size and stature.   Laraque makes no bones about what his priorities are: “promoting the link between physical health and the environment”, which sounds a lot like educating people about veganism to me.

It’s refreshing to see vegans coming forth in all areas of public life.  Again, while many refuse to admit it, veganism is still regarded by many in mainstream society with confusion, derision and fear.   Electing those with vegan views to public office is just one way of getting over the many stereotypes existing about this way of life. And as I’ve said in many posts, more vegans is the most direct way to changing society’s view about animals.

Amazing that – and please correct me if I’m wrong – we are still waiting for New Zealand’s first “out” vegan politician.  It’s no small feat, believe me, and the person who achieves that designation will face many of the same prejudices and stereotypes as our first gay politician, our first transgender politician and others of similar disadvantaged groups.  Take it from the first vegan member to ever grace Auckland’s law faculty.  It takes time to break down doors of discrimination and get people to see that vegans are “people too”; just people with a different view of the importance of avoiding the consumption of animals and animal products.

And these are the crates they'll let us see...

The nationwide furore over the conditions in which pigs are intensively farmed has finally prompted voluntary audits of conditions in piggeries around Aotearoa New Zealand.

Today, a leaked email was released in which the New Zealand Pork Industry Board, a statutorily-created entity, is shown attempting to develop a legal strategy to avoid the results of those audits being made public. To quote the Dominion Post:

The leaked email, sent to farmers on behalf of the Pork Industry Board, said: “It is likely there will be a number of farms requiring corrective actions and … those actions could cause embarrassment to the farmer if made public and could cause embarrassment to the industry if used by animal welfarists, [so] some alternatives to current procedures were put forward.”

A suggested alternative would mean only the farmer and auditor would hold “completed documentation”, with the board notified of pass, fail, or “pending corrective actions (unspecified).”

Board chief executive Sam McIvor said its legal advice suggested the audit report would belong to the farmer, meaning it was personal information.

Some very serious questions need to be asked of a statutory body – albeit one that is mostly funded by farmers – that considers protecting piggery owners from “embarrassment” justification for its connivance to avoid a general obligation under the Official Information Act 1982 (OIA) to make information ‘held’ by them available to the public.

In any event, this tactic will simply not work. The Pork Industry Board is listed in the schedule to the OIA and section 2(5) of the Act is clear that “official information” includes:

Any information held by an independent contractor engaged by any department or Minister of the Crown or organisation in his capacity as such contractor shall, for the purposes of this Act, be deemed to be held by the department or Minister of the Crown or organisation.

Mr McIvor goes further to say that a balance has to be struck between the interests of farmers and the interests of the public:

He said the board wanted to be accountable to pork-buying customers, but most customers did not care about farm conditions, just whether they had passed a minimum standard. “There does have to be some trust and the customers need to be able to trust us that we have the processes in place.”

Indeed. The kind of trust that holds so long as you don’t ask any embarrassing questions.

Leaving aside this deft identification of the Board’s constituency as being only “pork-buying customers”,  it is statements such as these that lay bare the true issue: It is not privacy, it is certainly not animal health, it is secrecy. Secrecy that allows an industry with some  demonstrably cruel operators to continue to avoid public scrutiny of their profiting from the suffering of animals.

A report on the current review is due next week. We’ll keep you updated.

]]> http://thesolution.org.nz/2010/07/30/pig-farmers-the-nz-pork-industry-board-is-keeping-your-secrets-safe-tonight/feed/ 1 Vernon Tava Gestation Crates http://thesolution.org.nz/2010/07/29/catalonia-bans-bullfighting/ http://thesolution.org.nz/2010/07/29/catalonia-bans-bullfighting/#comments Wed, 28 Jul 2010 12:57:32 +0000 Vernon Tava http://thesolution.org.nz/?p=962 ]]> Spain’s Catalonian regional parliament has banned bullfighting in a vote of 68 – 55 with nine abstaining.

It is the second Spanish region after the Canary Islands (which banned bullfighting in 1991) to outlaw the practice and the first on the mainland.

Bullfighting is a brutal spectacle  in which the torture and death of the bull is the end of a life-long process of abuse and mistreatment (I’ve written on this in more detail here) and this is a significant victory for a coalition of Catalonian animal rights groups called “Prou!” meaning “Enough!”  They initated the vote by submitting a 180 000-signature petition calling for a ban.

The vote was not a cut-and-dry animal welfare issue as the rejection of this emblematically Spanish tradition is also widely interpreted as animated by separatist sentiment. Of Spain’s semi-autonomous regions, Catalunya has the greatest degree of autonomy along with the Basque region. It has even been suggested that the vote was calculated in last-minute lobbying as retaliation for a recent decision from Spain’s Constitutional court which has curtailed some of the proudly-independent region’s autonomy in law-making.

This is an exciting advance made against one of the most tradition-bound forms of animal suffering. The commercial significance of the ‘sport’ falls far short of that in the Spanish capital of Madrid and Andalucia to the South, when the law comes into effect in 2012 it will close Barcelona’s last remaining bullring, La Monumental. This may limit the spread of the ban to the other regions.

But there is still work to do. Activists have now set their sights on a ban on the Correbous, an annual festival in the region in which flaming torches and even fireworks are fastened to the bulls’ horns and they are set loose, frightened, disoriented and often suffering burns, to run around  an enclosure for the amusement of onlookers.

Will is a graduate of the University of Auckland and a solicitor at Bell Gully.  In 2008, he was one of the editors-in-chief of the Auckland University Law Review.

Australia has taken its campaign to end Japanese whaling to the International Court of Justice (ICJ).  The Australian statement of claim, dated 31 May 2010, alleges that Japan is in breach of its obligations under the International Convention for the Regulation of Whaling (ICRW).  It seeks an order revoking any permits by which Japan has conducted scientific whaling in the Antarctic and assurances from Japan that it will not conduct similar activities in the future.  New Zealand, among other countries, has indicated that it will look seriously at joining this court action.  This, after attempts to reach a political solution at the IWC’s annual meeting, in Agadir, Morocco, failed.

The International Whaling Commission (IWC) has banned commercial whaling since the season of 1985/1986. However, the ICRW allows Contracting Governments to grant its nationals a special permit authorizing them to take whales for the purpose of ‘scientific research’. It is under this article that several states—including Japan, Iceland, and Norway—have been able to pursue whaling campaigns despite this global ban.  The fact international attention focuses more often on the former is a result of the significant increase in the number of whales hunted under Japanese-issued special permits.  The year 2005 saw the announcement of the ‘Japanese Whale Research Programme under Special Permit in the Antarctic’, known as ‘JARPA II’. Under the JARPA II research programme, the number of whales to be taken each year approaches that taken by Japan commercially before the 1982 ban.  This programme is conducted within the waters of the IWC-designated Southern Ocean whale sanctuary.   This is what the Australian claim explicitly seeks to halt.

It is not clear whether Contracting Governments have an unfettered discretion to issue permits for scientific research.  The ICRW grants this power in broad terms, but there are some procedural requirements governing the issue of these permits, which may suggest the power is limited.  For example, a Contracting Government must provide the IWC with proposed permits before they are issued and in sufficient time to allow the Scientific Committee to review and comment upon them.

The Australian claim takes the latter position.  It alleges that the scale of the JARPA II programme, the lack of any demonstrated relevance for the conservation and management of whale stocks, and the risks presented to the species targeted, mean the programme cannot be justified under the ICRW.  It further alleges that Japan is in breach of its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora or ‘CITES’.

While this is Australia’s first international claim against Japanese whaling, the issue, under domestic law, has already been litigated in Australia’s federal courts.  Court action brought by the Humane Society International against the Japanese whaling company Kyodo Senpaku Kaisha, under the Environment Protection and Biodiversity Conservation Act 1999 (Aus), culminated in a declaration in 2008 that the company cease its whaling activities within the waters of Australia’s Antarctic Territory.  The Australian government, however, has done little to ensure that Kyodo observes this court order.

Time limits for filing the initial written proceedings are expected to be set down soon.  Further, should Japan elect to continue with its JARPA II programme in the coming season, Australia may seek provisional measures – the international law equivalent of an interim injunction.

See also Australian professor and leading authority Donald Rothwell’s analysis.

Australia’s statement of claim is available online.

Whaling is one of New Zealand’s oldest industries and much of the earliest colonial experience was comprised of contact between Maori and Pakeha whaling and sealing crews. This era of New Zealand’s colonial history centred on Kororareka, by the 1830s it was the largest whaling port in the Southern Hemisphere, popularly known as the “Hell-hole of the Pacific“. Our domestic whaling industry collapsed in 1964, and in resuming our membership in the IWC the NZ government issued the uncompromising view that “…whales should not be killed even if it could be shown that whaling does not threaten the existence of the species.” This proclamation was backed by the declaration of an international moratorium on commercial whaling in 1982, coming into effect in 1986. However, a new approach has been mooted in light of the previous failures to agree at the IWC, a compromise approach (reducing the total number of whales slaughtered) that envisions an eventual cultural transformation. Labour MP Chris Carter has been extremely critical of the limited commercial whaling promoted by the Key administration, despite recent suggestions that Carter and Phil Goff had engaged in diplomatic negotiations along the same terms. Amidst this mess, Foreign Minister Murray McCully and Sir Geoffrey Palmer spent the week in Agadir, Morocco, attempting to reach an agreement, despite McCully’s fears that the IWC is presiding over a return of “anarchy” to the high seas.

Representatives from Te Ohu Kaimoana, the Maori Fisheries Trust, praised the efforts of McCully and Palmer to broker a deal between polarised factions. In particular, the Trust’s Chief Executive Peter Douglas leveled criticism at so-called, “recalcitrant anti-whaling members who refused to move from their unreasonable and unacceptable position of an immediate and complete cessation of whaling”. While clearly a question of strategy, a united multilateral consensus of 85 countries (out of 88) that opposed continuing whaling activities doesn’t seem too absurd a position. Surely the pressure of such a coalition of countries carries with it heavy political ramifications in and of itself. The only real advantage from compromise would be a short-term pecuniary interest, an area the Trust’s representation doesn’t mind discussing. Ngahiwi Tomoana, the trust’s chairman stridently opposes, “wealthy, non-government green, organisations” whose commercial interest lies in the “continued dysfunction” of the IWC. While the commercial might of environmental groups seems to me somewhat unreal, Tomoana reveals how, “…NGOs have worked to keep indigenous whaling peoples in an 18th Century subsistence category. It is time to recognise there are two types of whaling”, Tomoana believes, “sustainable whaling based on science and unsustainable, unregulated and unreported whaling. Te Ohu Kaimoana supports the former and opposes the latter.”

The failure of the IWC to come to an agreement to stop commercial whaling should come as no surprise, considering the IWC’s raison d’être, to “…provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry.” More interesting is the language of the Maori Fisheries Trust promoting their new approach. In particular, they invoke an objective “science”, a superior mode of knowledge that renders subjective political viewpoints unscientific; science can rationalise anything since it is objectively verifiable. According to this logic it is not only scientifically acceptable to engage in certain scientific whaling activities, it’s economically absurd not to. Despite public guarantees not to appropriate Maori fisheries money for commercial whaling, the Trust has previously hosted commercial whaling organisations and presented papers over the trade in whale. The NZ government’s position on whale conservation seems to be vacillating, and the acceptance of limited commercial whaling was communicated to the public in a NZ Herald editorial in March this year, promising, “a new way of Saving the Whales…” that allowed commercial whaling in small measure.

The Trust has used this strategy to discredit opposition to the funneling of NZ money into whaling activities. In September 2009, Douglas published an op-ed in the NZ Herald that threw out a ‘no-nonsense’ response to those “extreme elements of the conservation movement” whose agitation over depleting marine life suggested it was perhaps “…simpler to vilify those you wish to draw in simplistic terms as rapers and pillagers of the sea. Perhaps it’s easier to ignore the science that doesn’t suit you, and play to emotions and ignorance.” Science appears again in the piece as a rhetorical device, with Douglas proclaiming, “We do need better science and more of it.” Here, “science” is treated as a non-contestable universal domain, perhaps on a scale of zero to the Platonic ideal “peak science” (I dread the day…), something we are always blindly struggling towards. The mention of science alone raises the argument to a position of ideology, indicating a degree of objectivity and individually verifiability. Interestingly the only scientific evidence cited by Douglas is an article published in Nature that places NZ among the countries least-threatened by overfishing. A brief review of the report reveals that NZ’s coveted position means that only a tenth of our marine life is in serious danger at the moment; take what you want from this statement, to me it seems a bit premature to celebrate the threatening of a tenth of the regional marine biosphere.

Regardless of how scientific, whale slaughter remains whale slaughter, and for New Zealand to walk away from its abolitionist position at the multilateral bargaining table could spark major fragmentation within the IWC, the anarchy that McCully so feared. And anarchy is very unscientific. The IWC’s ethos has always been rooted in the regulated commodification of nature and its collapse could lead to some new more efficient bargaining machinery, although at this stage the outcome is unclear. Either way, our own government’s position must be carefully monitored, lest it become the quiescent pawn of private capital.