Over the coming weeks, I will put up some reflections here on the links between climate change and both human and animal rights.  I will also reflect on some of the things I have learned through the COP process.

But, first, a bit of background. New Zealand’s media has been typically quiet about the Conference. So, a quick summary.

In 1992, at the Rio Conference, States negotiated and drafted the UNFCCC, which entered force in 1994. It aimed for the Parties (now, 194 of them in total) to stabilise their emissions at 1990 levels by 2000. Twenty years on from Rio (with Rio+20 approaching fast), it is one of the cornerstone documents in international environmental law. It defined climate change as a “common but differentiated responsibility” of humankind: All States have a shared responsibility to address climate change, but some have a greater responsibility to do so, because they have more capacity and emitted more in the past.

In 1997, at COP3 in Kyoto, the Parties negotiated a binding treaty to operate under the UNFCCC: The Kyoto Protocol. While the UNFCCC set general goals, principles and ambitions, the Protocol imposed binding emissions reductions targets on States in the global north for the commitment period 2008-2012. The Protocol was strengthened by the 2001 Marrakesh Accords and entered force in 2005. By 2011, 191 States had ratified Kyoto.

Each year since 1994, there has been a Conference of the Parties (COP) of the UNFCCC. Durban, therefore, was COP17, the seventeenth Conference of the Parties. Each COP since 2005 has served as both a Conference of the Parties to the UNFCCC and a Meeting of the Parties of the Kyoto Protocol (so referred to as a COP/MOP – seriously – or a COP/CMP – there’s a whole booklet of these acronyms).

From the dates above, two things should be obvious. First, climate change negotiations are slow. Second, things must have been getting pretty uncertain about that whole Kyoto Protocol thing by the time Durban rolled around in late 2011, seeing as it imposed no obligations past 2012.

In 2007, at COP13 in Bali, the Parties agreed to a roadmap for a new binding agreement to replace Kyoto to be agreed at COP15 in Copenhagen in 2009. At Copenhagen, tens of thousands of people attended to demand a fair, ambitious and binding deal.

The conference, however, failed. Even the logistics were disastrous. New Zealand Youth Delegation member Rachel Dobric told me about standing outside for hours in the snow, being fed coffee by the Danish National Guard. In Cancun in 2010, halting progress was made towards a new deal, and progress was made on side issues.

At Durban, then, there were two main issues up for debate (in short: would there be a second commitment period to the Kyoto Protocol and what would happen after Kyoto?) along with a plethora of other issues – technology transfer and climate financing being key examples. So that’s the background.

But let’s make this a bit more real. COP17 was three city blocks surrounded by security fences and guarded by blue-shirted and heavily-armed UN security. COP17 was negotiators from over 190 states along with thousands of non-governmental representatives, from environmental organisations, businesses, and universities – including over 1,000 people from youth organisations. COP17 was – and this is not being melodramatic – the last chance for States to agree to a treaty that could limit climate change to less than an average global temperature rise of two degrees.

The outcome was not what it should have been.

Authorised by Jon Field, Level 2, 17 Garrett Street, Wellington.

Just wanting to let our readers know that I am standing as the Green Party of Aotearoa New Zealand candidate for the electorate of Northcote in this year’s general election.

As a nationaI Young Greens Co-Convenor, I will be communicating through Party channels until November 26th and don’t want this to be confused for one of them. Blogging about animal legal issues, ecology and life outside Party politics will resume after the election.

I know that people like to split their vote in an MMP election so, if you have to choose, it’s your Party vote we want. For now at least, that’s how we get our MPs into Parliament.

Remember there’s also a referendum on MMP being held at the same time. I believe that MMP is the fairest system of the available options because it is the most proportional and allows representation of interests that would normally be subsumed into the two party system. I’d like to remind you that there will be a review of the operation of MMP in New Zealand in the result of a vote to retain the system so you don’t have to think it’s perfect, just that it’s better than the alternatives.

More than 3.7m scientific procedures were carried out using animals in 2010, an increase of around 100,000 on the previous year, according to data released by the Home Office. The rise is largely due to the production of more genetically modified mice and greater use of fish in basic biological and medical research.

But read on:

Barney Reed, senior scientist at the RSPCA, described the rise in procedures as “astonishing”, pointing out that they equated to a 37% increase in animal use over the past decade. He also raised concerns over the implementation of a new EU directive on animal research into UK law that would legally allow the UK to drop its standards in many areas of inspection and practice in the use of animals. “A watered-down law could mean laboratory animals in the UK being allowed to suffer ‘long-lasting, unalleviated, severe pain, suffering or distress’, it could allow some animals such as dogs to be kept in even smaller housing, and some UK laboratories may not be visited by Home Office officials for years at a time – this is simply unacceptable,” he said.

Ouch.

Sadists who hacked off an eight-week-old puppy’s ears with a pair of scissors have avoided prosecution because witnesses refused to give evidence in court.

…

After a lengthy investigation, Mr Blair established where the puppy came from and managed to find out what happened from several residents, but they refused to go on the record with their evidence, despite the SPCA’s numerous attempts to persuade them to.

As we have previously discussed, the bulk of the enforcement work under the Animal Welfare Act 1999 falls squarely (and heavily) on the SPCA’s unfunded shoulders.  In Auckland, the SPCA has the benefit of pro bono legal assistance. 

In Tauranga, it does not.  And it needs it.  Or, rather, if it is to keep fulfilling a law enforcement role, it needs to be treated like a law enforcement agent – meaning it needs to be funded to engage the firms holding Crown warrants (that is, Crown prosecutors) at the Crown rates. 

Here’s why:

71 Eligibility and compellability generally

(1) In a civil or criminal proceeding,-
(a) any person is eligible to give evidence; and
(b) a person who is eligible to give evidence is compellable to give that evidence.

That is section 71 of the Evidence Act 2006.  Any person (except the defendant/accused – s 73) is eligible to give evidence, and, if you are eligible to give evidence, you may be compelled to give evidence.  What does compelled mean?

It means that a person may be summonsed to give evidence.  If you don’t?  The Crimes Act 1961 kicks in:

352 Refusal of witness to give evidence

(1) If any witness, without offering any just excuse, refuses to give evidence when required, or refuses to be sworn, or having been sworn refuses to answer such questions concerning the charge as are put to him, the Court may order that, unless he sooner consents to give evidence or to be sworn or to answer the questions put to him, as the case may be, he be detained in custody for any period not exceeding 7 days, and may issue a warrant for his arrest and detention in accordance with the order.
(2) If the person so detained, on being brought up again at the trial, again refuses to give evidence or to be sworn or, having been sworn, to answer the questions put to him, the Court, if it thinks fit, may again direct that the witness be detained in custody for the like period, and so again from time to time until he consents to give evidence or to be sworn or to answer as aforesaid.
(3) Nothing in this section limits or affects any power or authority of the Court to punish any witness for contempt of Court.

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

For non-lawyers, let me explain what cross examination means.  It means that instead of asking you open questions, the lawyer can put closed statements to you, for you to say “yes” or “no” to.  Not “What did you see?” but “You saw him hacking off that puppy’s ears, didn’t you?”

And if you lie on the stand, that’s perjury.  If you say something different from what you said in a prior (“off the record”) conversation with the SPCA inspector – that’s a prior inconsistent statement, and, well, yes, the prosecutor can most probably adduce it as evidence.

Of course, none of this would help the SPCA in their initial investigation.  There’s no point in getting someone on the stand if you don’t know what they saw, heard, or did.  But they’ve already told the SPCA:

“They spoke to me but they were quite clear in their minds that they wanted to remain anonymous because of fear of the people that were involved,” he told NZPA.

“It’s frustrating knowing who’s responsible but not being able to take that extra step to follow through, which is a common problem that the SPCA has because the animals don’t talk so we do rely on either a confession or witness statements.”

So why can’t the SPCA convict the puppy mutilators again?

Because they don’t have good legal advice.

And why don’t they have good legal advice?

Because they can’t afford it.

And why can’t they afford it?

Because they’re fulfilling the state’s law-enforcement function without any government funding and without the legal assistance offered to the formal law-enforcement branches of the state.

That is: They’re doing the government’s job, but the government isn’t paying (or helping).

That simple.

 Just one week after the acquittal of fiery far-right politician Geert Wilders, the Dutch parliament struck another blow against multiculturalism in the Netherlands yesterday with the passage of a bill banning ritual animal slaughter. The bill requires that all animals be stunned before being slaughtered, a requirement that conflicts with halal and kosher stipulations that animals be fully conscious.

At first glance, this looks like a classic example of the far-right undercurrent that lurks below the surface in much of Europe.  It evokes Switzerland’s controversial minaret ban, for example.  You can easily picture a pale, thin Dutchman with close-cropped chestnut hair apoplectic about immigrants, their funny cuisine, and their sick, sick, sick farming practices.

But there’s something more, and something stranger going on there. 

Foreign Policy continues:

The bill was initially proposed by the Party of the Animals, which holds two seats in the 146-seat Dutch parliament and maintains that ritual methods of slaughter are inhumane.

The Party for Animals?  Here in New Zealand, where only one Party has an animal welfare spokesperson, that seems outlandish, and extraordinarily progressive. 

Of course, the far right are still in the game: 

 It gained support from centrists on similar grounds, but Wilders’s Freedom Party has also been a longtime proponent. In fact, it was Wilders who first raised the issue in 2007 when he objected to halal meat being served at a public school in Amsterdam.

Strange bedfellows.  The Dutch animal welfare movement and the Dutch far right.

All movements, especially single-issue movements such as traditional animal welfarism or animal rights, must be careful with who they align themselves with and take real care to consider the unintended consequences of their actions.  In advancing the cause of animals, we must take care not to alienate natural allies.  Animal liberation should not come at the cost of oppressing human minorities.

New Zealand and the Netherlands are bedfellows also.  Both are in the handful of countries that have banned kosher slaughter.  In New Zealand, however, halal slaughter is legal. 

The process was very different.  No odd alliance of the SPCA and the National Front, but the slow, methodical, industry-backed process of Codes of Welfare.  Without hue or cry, we banned kosher slaughter. 

And then backed down:

Under pressure on human rights grounds the Agriculture Minister David Carter has granted an exemption to the Commercial Slaughter Code of Welfare for the local Jewish community, to be able to slaughter chickens without pre-stunning. He is also under heavy pressure to continue to allow a temporary exemption for sheep and cattle, despite it contravening the code of welfare.

What surprises me about this tale is that the state, without an Act of Parliament, banned a fundamental part of Jewish practice.  As a lawyer, I strongly suspect that this Code of Welfare could be open to legal challenge on the grounds that it is ultra vires, or outside the power that Parliament has given the executive.  But to forestall any such claims, David Carter MP backed down.

SAFE is campaigning for him to stick to his guns – but I’d pick an easier battle.  Campaigning against Jewish religious expression makes you an easy target.

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.

When we started this blog two years ago, we did not think we would still be writing for it now.  We hoped that SoLVe would attract new writers to the blog each year.  We hoped that this would become a self-sustaining student initiative.

That did not happen.  The Solution has been in limbo for the last four months.  As some of you no doubt know, the Society of Legal Vegans and Vegetarians was wound up at the end of 2010.  It had a good run, forging strong friendships, and opening a lot of students’ minds to vegan and vegetarian alternatives.  But, unfortunately, we failed to really pass the baton on.  No younger crop of vegan and vegetarian law students seized the reins.

So, we wondered: What about the blog?

We could have let it wither away, or stand as a memorial to a student group that was.

But we decided not to do that.  We took a leave of absence, and now we’re back.  Better looking, faster, cleaner. Welcome to the new Solution.  Of the five original writers, two remain.  The rest have left Auckland, for Canada, Latin America, and Wellington.

Things are a bit different around here.  The new look is the most obvious change.  The Solution has had a makeover.  A more subtle change lies below that though.  Vernon and I are no longer just writing about veganism and animal law.  We are writing about what we want to write about.  From the start, we have both seen veganism and ecology as intimately connected, so expect to see more about the environment here.  This isn’t a blog about animal law anymore – if it ever was.

This is the blog we want to write.  And we want to write about a finer world and the practical ways we can make that happen – like veganism.

To date, at least six workers have ‘dobbed in’ bosses for animal cruelty. But none want to accept the reward.

All were for dairy farms and piggeries. None of the workers were still employed by the farms they were laying complaints against, so the cases and information are considered ‘historical’ and hence a low priority for investigation. Four of these cases were referred to MAF. According to SAFE’s Hans Kriek:

Paddocks were in bad shape, there were stones and lame cows. There were high mortality rates amongst calves. Dying animals were being left to rot in paddocks. With the pig farms we had the usual complaints … that the conditions were terrible and enclosures weren’t cleaned out and the animals were standing a foot deep in their own muck.

Yet, no breaches of the relevant welfare codes were found in any case.

There is some interesting editorial spin, in an article entitled,  Workers dob in bosses for animal cruelty, quoting Federated Farmers’ Sam McIvor ‘maintaining’ (as if this is an accepted point) at the end of the piece that the self-regulation approach has been successful and the industry’s ‘voluntary audit’ scheme has been working with 115 out of 124 farms successfully passing audit.

These are the same audits that the Pork Industry Board attempted to keep secret by developing a legal strategy to exempt the reports from requests under the Official Information Act 1982. Back in July, McIvor argued that a balance needed to be struck between the interests of pig farmers and the public right to information:

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.”

So it’s down to trust now?

This is a brazen claim from an industry which had just been publicly shamed by an investigative media piece.  The whole process of these voluntary audits and product labeling were introduced as an attempt to forestall stricter regulation (not such a worry) and regain credibility in the eyes of a shocked public, many of whom made it very clear that they no longer trust pig farmers to properly care for animals.