`SENTIENT' ANIMALS GAINING LEGAL GROUND
Humanity's dominion over the animal kingdom and its slaughter of species great and small may be coming to an end as some of those creatures win legal recognition and pursue claims of legal rights.
Vancouver lawyer Victoria Shroff, who 22 years ago became one of the first specialists in animal law, thinks a sea change is underway with the growing acceptance that some animals have a sense of consciousness.
“Not every animal law scholar agrees that `personhood' (the legal rights of individuals) is the way forward,” she said.
“They think it creates a kind of exceptionalism or speciesism where animals that are more recognizable and valued will be at the top of the chain and the ones less valued, like rats and chickens, will still be human fodder. ... Elephants and dolphins, ones that have language, where do you draw the line? I think we nudge open the courtroom doors to let whoever we can pass first and the rest will follow.”
As slaves and women were once considered property but eventually given equality, so should sentient creatures, is the argument. It does not matter that they cannot articulate or communicate instruction to counsel, because neither can comatose individuals without family, or babies who have been abandoned. Since the start of the century, the animal-rights movement has gained increasing support and momentum in the marketplace, in courtrooms and in legislatures.
In May, the New York Court of Appeals will hear arguments on behalf of Happy the zoo elephant.
This landmark case has been called “the most important animal-rights case of the 21st century” and challenges the idea of elephants as “things,” with an aim to free Happy to a sanctuary.
“This is the vital case, absolutely vital,” Shroff said.
Numerous briefs have been filed opposing the elephant that, as one put it, boil down to fear: “Should Happy be provided with habeas corpus rights, farms, zoos, and aquaria would be at risk to a plethora of similar lawsuits purportedly made on behalf of the animals residing in their facilities. Pet owners would no longer be able to be certain that they will be able to keep caring for the dogs, cats or fish they possess.”
A collapse of the social order was predicted, although perhaps a bit prematurely. In the U.K., for example, the government last year grabbed the bull by the horns, so to speak, proposing the far-reaching Animal Welfare (Sentience) Bill that recognizes certain creatures as “sentient.”
An Animal Sentience Committee will examine the effect of official policies and mandates on such animals and provide a report with recommendations for government action.
The high court in Ecuador ruled individual wild animals had legal rights and were not property in a suit brought by the former owner on behalf of his late woolly monkey. Captured and turned into a family pet, Estrellita was seized by the authorities after 18 years and moved to a zoo where she died within about a month.
In March, the United Nations Environment Assembly called on the global organization to ensure its programs embody the principles of interconnectivity: that humans and animals live not in isolation but together as part of a wider biosphere.
In Canada, there have been court cases and broad legislation proposed. The Jane Goodall Act, Bill S-241, was reintroduced in March by Sen. Marty Klyne, who picked up where retired Sen.
Murray Sinclair left off in 2020. It embraces Indigenous perspectives and the view that animal laws and policies should be based on coexistence and a holistic approach.
“Whereas the phrase `All My Relations' expresses an Indigenous understanding that all life forms of Creation are interconnected and interdependent;
... Whereas science, empathy and justice require everyone to respect the biological and ecological characteristics and needs of animals.”
The bill would amend the Criminal Code and the Wild Animal Protection and Regulation of International and Interprovincial Trade Act, banning future captivity of bears, apes, lions and other animals.
More than 800 species would be protected. Creatures with a sense of consciousness would no longer be treated as property under the legislation, and the domestic trade of ivory and animal trophies would be banned.
One or more provincial animal advocates would be appointed by the Governor-in-Council and have the authority to apply for court orders and give the animals an independent voice in court.
“It makes my heart soar,” said Shroff, author of Canadian Animal Law and a professor at UBC's Allard School of Law and Capilano University. “We would see an end to keeping animals as hapless entertainers, exhibits for human amusement. By helping to end the commercial trade in wild animals and understanding the global trafficking of animals in context, Canada would be doing its part to help curb animal cruelty, stop future global pandemics from taking root. This all-encompassing legislation, if passed, would restrict the ownership of hundreds of wild animals from elephants to reptiles, and bring a halt to horrendous `roadside' zoos.”
Jason Gratl, former president of the B.C. Civil Liberties Association and a veteran lawyer, isn't so sure Criminal Code amendments and such sweeping legislation is the answer. Better enforcement of existing laws may be enough.
“In my view, the use of penal powers is unnecessary and excessive to achieve the objective of attitudinal change,” he explained. “Just as discriminatory attitudes are changed by human rights tribunals without the threat of penal sanction — animal cruelty and other excesses are better addressed through meaningful regulatory structures. No one welcomes bedbugs into their mattress or weeps when weeding the garden. Only a monster would rescue a cat from a burning building before rescuing an infant. Most questions of balance between human and animal interests are so obvious that they are not up for discussion.”
For more subtle balancing questions like finding the balance between corporate profits and animal crowding, he added, “There are no easy answers.”