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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

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Pig Farmers: The NZ Pork Industry Board Is Keeping Your Secrets Safe Tonight

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.

Animal Migration

by Susy Pryde

Doth the hawk fly by Thy wisdom and stretch her wings toward the south?
Book of Job (39:26)

CaribouWith the Easter holidays approaching, chances are our family will join the ‘kiwi’ holiday migration for a bit of a lie around with a novel, aiming to accomplish nothing in particular for a few days. Technically it is not a necessary ritual though we do consider it a retreat to a more hospitable habitat.

But what if migrating at certain times of the year was necessary for our survival, as is the case in the animal kingdom?  Imagine coordinating an epic journey over weeks or even months, crossing multiple borders or oceans in order to breed, find food, or escape seasonal changes. Continue reading

Cubicle (Factory) Farming and Ministerial ‘Call-Ins’ of Resource Management Consents

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

Companion Animals, Abandonment, and Legal Analysis

The Question: ‘What could I write?’
As a law lecturer who teaches animal law, it is extremely common for me to get questions from students about potential paper topics.  Equally often, students make outright statements, along the lines of ‘I have no idea what to write for a final paper!’  Students often think that everything worth writing has been written.

This usually makes me laugh!

Continue reading

Blogging at The Solution

I’ve posted a new blog on my personal web site that explains why I’m blogging more here – at The Solution – and less there! The blog provides some additional SoLVe background that might be of interest.  Check it out!

Peter and James

The Connection Between Vegans and Better Laws

It’s not necessary to look very far to find the inspiration behind the Society of Legal Vegetarians and Vegans (SoLVe).  As I see it, we formed the group to recognise the obvious connection between veganism and better laws governing animals.

Over the past seven years, I’ve consistently propounded the idea that we cannot simply rely upon the law to protect animals from cruelty.   As drafted, our laws offer lots of window dressing, but in reality are little more than a series of loopholes and exemptions, all designed to allow us to express outrage at those who beat up dogs and cats, and simultaneously exculpate those responsible for the vast majority of animal suffering: people involved in the industrial production of animal products.

Continue reading

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