Wild Law – Should Australian Animals Have Rights?

 

I Introduction

The concept of Wild Law or Earth Jurisprudence law frames nature as having basic rights.[1] It is a framework that understands the universe as comprising subjects, not objects, capable of possessing rights.[2] The Australian Legal system currently has no foundational framework that would support the introduction of further animals being classified as sentient beings. Although a party to some international nature-protectionist themes, Australia’s is slow to change and heavily influenced by the movements of other nation States. The key issues in Australia are the classification of animals as property under general Australian law, the conceptual contradictory of this classification and protectionist efforts, the current lack of Constitutional power to legislate over animals, and thus lack of Commonwealth legislation for the protection of animals. The central reason for these is that anthropocentrism underpins current legislation. This presents conflicts between traditional ethical and indigenous perspectives as compared to Australia’s law. Australia’s human society and natural environment and the greater world would benefit from a legal system that integrates consistent, animal-centred legislation, in order for environmental and economic sustainability.

II What is Wild Law?

Thomas Berry devised the conceptual framework of Wild Law.[3] He described Earth Jurisprudence laws as being a “dynamic and functional cosmological ecology”,[4] that is, that laws preexist in nature. Similarly, Claire Williams defines ‘Wild Law’, or ‘Earth Jurisprudence’, as ‘an approach to human governance.’[5] She proposes that Wild Law should be integrated into the current international animals’ law regime. That is, law, science and policy should intertwine to reflect current knowledge and perspectives about the natural environment. This suggests that optimal protection for animals and the planet requires a holistic perspective of human intervention in nature. Rather than being human-made, environmental laws and relationships are pre-existing.[6] Humans merely seek to recognise laws and understand their implications.[7] Bell notes that Berry perceives this as the most accurate means of revealing Earth Jurisprudence. This is a human perspective, which inevitably is unavoidable in human jurisprudence. Nevertheless, it serves to afford wild animals some protection when they are perceived as constituting human property.

 

III Indigenous principles

Williams notes Indigenous Australian culture includes no chain of command between humans and nature. The belief exists that everything in nature serves a purpose and should ‘not be needlessly destroyed.’[8] This contrasts traditional European philosophical notions of hierarchies within society and nature as dictating the degree of morality afforded during the treatment of other humans and animals. Although Indigenous traditions of obtaining resources from animals are evidence of anthropocentric means of survival, simultaneously Williams notes that traditions such as kinship ceremonies indicate attempts to understand animals, resulting in harmony and respect for their environment.[9] She notes indigenous Australians perceived themselves as living as and constituting part of, not having proprietorship over, the natural world.[10] ‘Nurturing nature as we do ourselves’[11] is a novel concept in anthropocentric Western societies. The incentive to avoid propertising the natural world insinuates that excessive consumption diminishes nature and oneself. Integrating indigenous Australian principles into conventional legislation would be a key means of giving credence to indigenous traditions and culture. This involves raising the status of nature’s components to those of sentient beings as Australian humans. It would be key to reflecting the principles of equal treatment of all persons under Australian law. Nevertheless, their practical implications would be challenging in light of existing Western notions of proprietorship over animals. These prevail in agriculture,[12] marital settlement,[13] and commerce.[14] For example, the Competition and Consumer Act 2010 (Cth)[15] defines property according to whether an object constitutes property, which includes animals.[16] Thus Williams suggests fostering rights for animals enacting legislation may be through a similar mode to the Commonwealth Franchise Act 1902 (Cth), which introduced political rights for women.[17] Therefore, integrating indigenous principles of Earth Jurisprudence would be an ideal means to introduce Wild law into Australian society. Doing so at a gradual pace would be practically and conceptually more feasible in modern Australian consumerist society.

 

IV Legal Standing

As non-human animals generally constitute property under Australian law, they do not have legal standing as a “person aggrieved” or as any other party to a case. Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493 determined “standing” to exist if a person or organisation seeking to bring a case before the court demonstrates a “special interest” in the matter concerned.[18] A “special interest” is constituted by “a belief … that the law generally, or a particular law, should be observed”.[19] Thus no entity can bring action on behalf of or represent animals’ interests as entities, under Australian law. Nevertheless, protection exists for animals but in the limited sense of their status as property.

 

V Australian Commonwealth Legislation

The classification of animals as property perpetuates the Australian regime’s current inconsistencies. Problematically, there is no Constitutional power to legislate over animals for human purposes as property, although Constitutional Common law deems animals as property (Saltoon v Lake and Others [1978] 1 NSWLR 52).[20] This calls into question the legitimacy of existing precedent. Introducing a Commonwealth Constitutional power to regulate animals as property would clarify animals’ legal status, yet would legitimise their exploitation for human purposes. Nevertheless, some Commonwealth legislation exists, though in a limited, species-specific form. These, such as the Whale Protection Act 1980 (Cth),[21] aim to ratify international Wild Law treaties and movements that aim for global environmental protection. For example, the Declaration of Animal Rights (2011)[22] and the Universal Charter of the Rights of Other Species (2000)[23] both encourage the notion of ‘all living beings’, specifically animals, as holding rights similar to humans, such as to ‘eat, sleep, be physically and psychologically comfortable, be mobile, healthy, safe, and fulfill all their natural and essential needs.’[24] Ultimately, without the introduction of a Constitutional power to legislative for the rights and welfare of animals, legislation, such as the EFIPA, will remain an unconstitutional decision thus likely an outlier decision.

 

VI Conclusion

Ultimately, the integration of Wild Law principles into Australia’s legal system would benefit humans and the natural world as a whole. A multi-faceted approach is required if nature-centred Wild Law principles are to widely and seriously implemented in Australian law. The ratification of international agreements has indicated the most progressive of shifts in legal thinking and animal protection, although it is essential that the primary national animal protection schemes and Constitutional power evolve to indoctrinate respect for the protection of non-human animal life, and the natural world generally.

 

By Vanessa Harley

Vanessa Harley is a Law student at the University of Wollongong, aiming to practice Environmental Law. After graduating, Vanessa plans to foster conservation and protection of Australia’s natural environment. She is currently volunteering on a research project, which will change the face of Family Law court outcomes. Vanessa is an apiarist and black belt, passionate about creating a balanced, flourishing Australia.

 

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REFERENCES

[1] Friends of the Earth Adelaide, Wild Law <adelaide.foe.org.au/?page_id=233>, cited in Peter Burdon, ‘Wild Law- The Philosophy of Earth Jurisprudence’ (2010) 2 Alternative Law Journal 35, 62 <http://classic.austlii.edu.au/au/journals/AltLawJl/2010/21.pdf>.

[2] Ibid.

[3] Ibid.

[4] Mike Bell, ‘Thomas Berry and an Earth Jurisprudence: An Essay’ (Draft) (2001) Inukshuk Management Consultants 144, citing Thomas Berry The Great Work, 65

<https://www.rainforestinfo.org.au/deep-eco/earth%20jurisprudence/Earth%20Justice.htm>.

[5] Claire Williams, ‘Wild law in Australia: Practice and Possibilities’ (2013) 30 Environmental and Planning Law Journal 259, 261 <https://www-westlaw-com- au.ezproxy.uow.edu.au/maf/wlau/app/document?docguid=I8f8ecf23b39b11e28085de5d98fda335&isTocNav=true&tocDs=AUNZ_AU_JOURNALS_TOC&startChunk=1&endChunk=1>.

[6] Bell, above n 4, [66].

[7] Ibid [67].

[8] I. Watson, ‘Kaldowinyeri- Munaintya: In the Beginning’ (2004) 4 Flinders Journal of Law Reform 1, 4, cited in Williams, above n 5, 261.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Animal Welfare Code Of Practice- Commercial Pig Production 2009 (NSW) s 24.

[12] Competition and Consumer Act 2010 (Cth) s 4.

[13] Family Law Act 1975 (Cth) ss 79(1), 90SM(1); McDonald v McDonald [2008] FamCA 122, cited in Alex Bruce, Animal Law in Australia- An Integrated Approach (Lexis Nexis Butterworths, 2018) (“Textbook”) 139.

[14] Competition and Consumer Act 2010 (Cth) s 4.

[15] Ibid.

[16] Ibid.

[17] Commonwealth Franchise Act 1902 (Cth), cited in Williams, above n 5, 273.

[18] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, cited in Malcolm Caulfield, Animal Law in the Spotlight: An Update on “Standing” (Voiceless, 1 October 2015) <https://www.voiceless.org.au/content/animal-law-spotlight-update-%E2%80%9Cstanding%E2%80%9D#footnoteref10_4mqw2i5>.

[19] Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493, 530 (Gibbs J).

[20] Saltoon v Lake and Others [1978] 1 NSWLR 52.

[21] Whale Protection Act 1980 (Cth).

[22] Aylam Orian, ‘Declaration of Animal Rights’ in Aylam Orian and Zelda Penzel (ed), Declaration of Animal Rights (2011) <http://declarationofar.org/textSign.php>.

[23] The Universal Charter of The Rights of Other Species (2000) cited in All Creatures.Org, ‘The Universal Charter of The Rights of Other Species’ (2000) Animals Today, 16 <http://connection.ebscohost.com/c/articles/3819074/universal-charter-rights-other-species>.

[24] Aylam Orian, above n 32.

 

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