Animal sentience workshop

Ian Robertson

A view of law's 'sentient' animal through the legal lens (15:42)

Ian is a barrister, solicitor and director of Guardianz Lawyers and Consultants which specialises in animal law and animal-related issues associated with biosecurity, food safety, and trade.

Ian started his career as a clinical veterinarian and after 15 years added a law degree, specifically to take part in developing area of animal law. As a lawyer, Ian has worked as prosecutor for MPI, and was a state-wide specialist for animal welfare in Australia. Through Guardianz, Ian provides specialist legal opinion, representation, and consultancy/training programs for diverse animal welfare stakeholders including government, non-government organisations, and corporates.

[This video was filmed during a workshop in front of an audience. The speaker is on stage, standing at a speaker’s podium. He moves around on the stage and points at the screen sometimes. It shows slides containing information to support his talk. The screen isn't fully shown in the video.]

Ian Robertson: First of all, my thanks to the conveners and organisers and to you for the opportunity to share some time with you and I will quickly admit that that guy hadn't crossed quite as many time zones and so sleep-deprived as this guy. You ever looked at photos of people before and after I know it's a little bit of what's going on at the moment but to share a few thoughts I've only got 15 minutes so this will be bullet pointed and we have an opportunity to take questions and so on later.

I live as a lawyer and what we call a house of words and I call them a power house of words and the power comes from the fact that what's in law determines what you and I can do and can't do who can do it who get penalised for it. Think of research, testing and teaching as an example. A license to do what others in community in the community would likely be prosecuted for. On that basis the definition in so many ways is everything. It's one thing to have a word but how that's defined sets those parameters going forward.

Now I noticed in the survey results that 75 percent of us here are confident with what the definitions are and what the implications are we've had some time discussing that so this should be easy but just take a pen and paper and as I'm going through this because this is dead easy now right? 75 percent of us this is a walk in the park. Write down what you identify as the three consistent element of the sentience definition. I see lots of people just looking at me, I'm hoping to see pens on paper. What are those three consistent elements?

Number two you're familiar with the Animal Welfare Act so there are four key words in what I call the two elements standard that determines currently if somebody's broken the law or not. What are they?

For 75 percent of you this is a walk in the park. And I'm still seeing most people looking rather than writing. In other forums where I've done this I've got you to exchange pieces of paper that always makes it entertaining. Third thing the third element of sentience correlates with what's standard in our current codes of welfare and it does. How? Nobody's writing.  Okay consider those and I'm picking that 99.9 percent of us have written those answers in our mind and we'll compare them later okay.

Now this is a busy slide I'm going to talk to it so if you can't quite read all the writing that's okay. My goodness there we go pushed the wrong way. Sentience, if we're talking today or in any other forum I've attended a number on talking about sentience. If we're talking about that animals are sentient, and what we should do, to a large extent and not to put too fine a point on it we're wasting our time. Because that decision was made 200 years ago when the law came into play and said animals experience, and the next question is not just that they experience what do they experience, they experience what you and I broadly defined as positive and negative states. This is David Mellor's domain, oh, five domains.

Sentience has three elements and I've just outlined them so compare this with the answer that you had in your head. Number one animal's experience. Number two they experience what, second one first one of that is pain and distress. The third element and the positive state is interests, joy, again thank you David. It's always nice to see the author of five domains nodding in the audience that I've got it right. It reminds me of Brazil. I've NZVA position up there because I'm going to come to it in the next slide I consistently refer to that because I think it's a concise, clear statement, and I feel and I put it up here because if you ever want to reference it later on go to the NZVA policy and position statement.

It asks a couple of questions and it goes to the animal's experience not just that they experience but what did they experience. Did they experience negative states of pain and distress, which are currently laid out in the Animal Welfare Act and the qualifiers are that whether that pain or distress was reasonable or necessary. And in terms of the second test on those positive states what was the animals experience in terms of interest, joy, comfort those sorts of things? Now we've talked already this morning about the law and I've outlined why that's important it sets the parameters of what you can and cannot do. It is while some people yawn and mentally and emotionally turn off when you mentioned law the reality is that law is society's handbook so that's relevant to what you see as 'D' here in terms of public expectation. Virginia kindly outlined our journey from Animal Protection Act through to the Animal Welfare Act, what's the next stage? Is it the sentient animal welfare act, animal, Sentient Animal's Welfare Act? Or is it business as usual? Because there, once we've got the definition that isolated those three elements, the question is, is it going to be business as usual? And they're going to be those that will argue for that because it's what we've been doing all along.

We acknowledged animals as sentient 200 years ago. This is old. The real question is are we going to take on responsibility for that third element? Not just element number two protecting them from unnecessary or unreasonable pain or distress, but are we going to make it a legal responsibility, that's a key word there responsibility, to provide for their positive emotional experiences? There are those that will argue for the two of the three elements, expected, but myself another group of lawyers have made out a legal argument which we're looking for opportunities to put through the courts because there are various heads of government one is, yeah, Parliament, and the other is the judiciary or the courts we can take something and develop it.

I see there's a few lawyers and those that have worked and in compliance and enforcement in this room, um, and you'll know this principle. Law is not in the habit of saying what we want you to do is 3 + 3, 4 + 2, 7 - 1, and 6 + 0. It is not in the habit of repeating yourself if there's an introduction of a new word it must mean something different. So if you've got three elements, you've acknowledged them that they experience, we've already acknowledged pain and distress, we did that 200 years ago, then the only element remaining is positive states and this is entirely consistent with that interpretation of adding on that third element with law as it currently stands.

Section 10 of the Animal Welfare Act, and this will please a lot of the scientists in the room, says that there's a standard to keep up with what we call good practice and scientific knowledge and talk with almost any of the scientists in here, if not all of us, and we acknowledge that animals, that science, recognises animals as sentient and what those 3 elements are. Just as a by the way, the, you and I wouldn't be here today, we wouldn't need to be here, in my very respectful opinion, if a definition of sentience had been included in the August 2015 amendment. It's been noticed as a legislative gap. Section 2 of most pieces of New Zealand law provide definitions, that business as usual, so it has attracted criticism from overseas and in my conversations. In fact one of my favourite ones was from a colleague in the UK that describes sentience in New Zealand's Animal Law as an empty Christmas present, because it looks good but without the definition, we need meetings to decide what sentience is. Most scientists can fill in that answer strange that wasn't written into legislation at the time. So, key messages fill the gap. What do we do from here?

My personal contribution is we fill the gap. We recommend those in our new New Zealand Government fill the gap. Provide the definition of sentience and I know of at least two other jurisdictions where reconsideration to their animal welfare law is looking at providing a simple definition of sentience and letting things develop from there. But those definitions are based consistently on those three elements. They experience, they experience what? Negative and positive states. What would that require? A review of all uses and environments of animals. It's not a bad thing, that's what's expected, by the public who write the law book. There is a difference I can think of experiences in another jurisdiction with, involving rodeos where maybe the practice will continue but certain events won't.

Does your average companion animal cat, dog, experience positive states as they're lying by the fire having just finished their bowl of food that was brought to them by the biggest and best hunter in the world, their owners? Alright. Then compare that with the experience of an animal in the rodeo, that's chased out of a corral into an arena, roped, hogtied and dropped. Is it having a good day? You don't need to be a lawyer or a scientist to figure that one out and yet that's where the public expectations are moving.

Is there an expectation that the positive states and experiences of an animal will be accommodated by our governors? Fill the gap, provide that definition. There are predictably going to be predictably going to be some resistance to this change. There always is to change. Again it's business as usual and it was interesting to see that we're looking at the opportunities and benefits here. The bottom line is, we're already familiar with this. I see on the on the program there's a representative from the zoo speaking to us today. There are, there are farmers, there are corporates, there are industry, who are already putting in standards, what we call in our codes of welfare, best practice. It's there so the shift is not some aspirational unattainable, pie in the sky, dream of recognising animals having positive experiences.

The reality is that there are those who are already doing it so, [Bell noise] thank you, there are the, there are the leaders there are the followers and there are those that kind of drag their heels. What we're doing by filling the gap, you'll notice I'm repeating that because I think that's the key message, filling the gap – three elements of sentience. Is taking those who had dragging the chain and bringing them up to from minimum standards, which I and other colleagues, provides a defence for those that are draggers, if they're complying with minimum standard that's okay under the law, currently, you want to change?

Change that standard. So then what we're making is basically today's best practice standards, the required standards of practice. I've already been given the bell, so I refer to the policy, the position statement the NZVA, as a nice, clear, concise, quick reference proviso of this. It gives the background. Sentience not defined, legislative gap, so fill the gap. That's what you and I are here today because there was a gap created. The three elements are experience positive and negative emotions.

As we go through the day listen to the speakers, listen to the conversations at the table. If you find yourself getting dragged off into a conversation of we should recognise animals as sentient, that discussion was had 200 years ago. The people that decided that are long dead. What we're looking at is, do we apply a legal responsibility for the positive states of animals? That would change things. And as David kindly nodded his head, what do we mean by positive states? And it's an "and", it's not just minimums it's something positive. Essentially this is where we're coming in - the legal argument is, there's been a new word. It's got to change something. We've already been doing these 2, that's the gap, that's the one 'fill the gap' that we can make a change today.

So in summary, since the 60 seconds is coming up very soon, those 3 questions which most of you answered in your head, the 3 elements is the definition. Sentience means that animals experience negative and positive states. 'Experience', 'positive', 'negative'. Overlay all your discussions for that today. It's not about just sentience, its responsibility for the positive. Second, you know the 4 key words. Name them: pain and distress that's unreasonable and unnecessary. Those are the qualifiers. So focus on minimal pain and distress, yippee-kay-yay, it's outdated.

Number 3, as I said, it's about the issue today is about accepting, or not, responsibility for that third element and I'll endorse again that there's a number of lawyers at least who have found a way to create a legal argument. I know of cases I'm talking with lawyers on Friday where this is being introduced into their courtroom arguments. I know of cases from when structuring solicitors that this is being introduced, so either government is going to fill the gap or somebody else is. I would say let's be part of the voice that fills the gap provide a simple definition. Thank you. [Applause]

[Video ends]

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Last reviewed: 22 Nov 2021