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Call to grant property rights to animals in Australia

By Monique Ross
Apr 18, 2011

Giving animals legal ownership of their habitat and affording them standing before the courts may hold the key to protecting biodiversity, an Australian researcher says.

Australia is one of only 17 countries recognised as being mega-diverse, but it also has one of the highest extinction rates, with around 126 species of plants and animals sent to extinction in the past 200 years.

Doctor John Hadley from the University of Western Sydney says land clearing is the leading cause of biodiversity loss.

"We have this policy that allows farmers to offset any habitat they destroy. So they are allowed to remove habitat if they promise to restore habitat elsewhere," he said.

"It is essentially saying [to animals] it's OK if we destroy your home because we will build you another one nearby, but in the interim you have to fend for yourselves."

Dr Hadley says under his idea, certain animals would be afforded legal property rights, and human guardians would be appointed to advocate for them in court.

"We have a system in place now for human beings that are unable to manage their property due to some sort of mental impairment, known as guardianship," he said.

"So I was thinking, could we extend this idea to animals and would this be a way of bolstering protection for habitat?"

He says guardians would be registered with an independent tribunal and people who wanted to modify habitat on their land would have to negotiate with the guardians before taking any action.

"I'm not saying that this is something that animals are owed as a right. It's not going to apply to all animals everywhere," he said.

"The idea would be that somebody comes forward - say an NGO or it could even be a private individual - who agrees to represent a group of animals whose home is impacted or potentially about to be impacted by land clearing."

Dr Hadley says there is a "groundswell around the world" to secure legal rights for animals, including cases like 'Cetacean Community v George W Bush' in the United States.

In that 2004 case the whales, porpoises and dolphins of the world sought the right to sue Mr Bush, Donald Rumsfeld and the US Navy for destruction of habitat caused by the Navy's use of sonar as part of submarine navigation systems.

While the case was unsuccessful, Dr Hadley says the idea of property rights for animals has been successfully floated in other parts of the world.

"In Austria there's a system of animal solicitors where each state has to have a designated solicitor representing animals," he said.

He says is time to "think outside the square and do something different", but admits that for his idea to ever become reality, it will take a "courageous government".

"Probably not in my lifetime, but I think something like it down the track is inevitable," he said.

"Native Title was similarly radical. 150 years ago people would have said that that would never work," he said.

March for progress

But Dr Malcolm Caulfield, the principal lawyer at the Animal Welfare Community Legal Centre, says the legal system is highly unlikely to recognise any push for property rights for animals.

"I honestly think it's kind of out in the realms of silly legal academic points," he said.

"The loss of biodiversity... is nothing to do with the rights of the animals. It has to do with the respect for the environment and biodiversity.

"It's the march for progress and the demand for development that is the issue here, not the legal rights of animals."

Dr Caulfield says the law is already clear that animals must be considered before clearing land.

"The Commonwealth Environmental Protection and Biodiversity Act is a huge umbrella-type legislation that makes huge references to animals, and animal welfare acts apply equally to wildlife as to any other form of animal," he said.

"And I would argue that animal guardianship is almost where we are anyway."

Dr Hadley says he is working on a case study involving a dingo population in Western Sydney. He hopes it will show that his idea can mesh with existing laws.

"Hopefully my framework will be practical and useful enough for entertaining on a small scale and then it would grow from there," he said.

"This is an option, if we care about biodiversity and saving habitat, that we might be interested in exploring."

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