Patricia Nonis: Possible moral or legal duty to intervene with wild animal suffering in nature.

Patricia writes….The Australian bushfires of 2019-2020 or “black summer” was a period of intense bushfires which burned across different parts of Australia, resulting in over four hundred human deaths and approximately three billion animal deaths[1].

Ecosystems and many homes of animals which had not been disturbed for tens of millions of years were permanently damaged in the fires[2], a devastating 60,000 individual koala bears were affected and a large portion of Queensland’s Dingos faced malnourishment[3]. From one perspective, this represented a devastating failure of the law to protect the rights of wild animals[4], and furthermore in the midst of a catastrophe that was driven predominantly by humans themselves[5].

Author: Patricia Nonis

Patricia is an advocate for animal liberation and rights, free speech, science and new atheism. Patricia is an admitted lawyer of the NSW Supreme Court and also has a background in the liberal arts. She is currently pursuing her thesis at the University of Sydney.

 

A more developed conception of positive duties towards wild animals would assist in building a cohesive system of response in times of emergency.

This may include adoption of the view that wild animals are not only entitled to basic rights but also a flourishing of well-being and a recognition of wild animal sovereignty, a new and emerging conception in animal rights theory (‘ART’) which diverges substantially from traditional ART.

The purpose of this essay is to examine the theoretical controversy in ART which questions whether positive human intervention to assist the suffering of wild animals is justified.

The first part of this essay briefly outlined the Australian Bushfires and the animal deaths which subsequently followed, as an example of a failure to recognise the rights of wild animals, and subsequently, the positive duties that may be owed toward them.

The second part of this essay will establish the position which advocates for basic negative rights for farm and domesticated animals, but non-interference with wild animals in nature, which is the traditional standpoint in ART.

The third part of this paper will assess the common representation of the natural world as moral or just and whether relying on this portrayal to determine whether to assist wild animals is appropriate. This section will also deconstruct the logical fallacy known as the appeal to nature fallacy which has largely formed the basis of the reasoning behind the traditional belief in ART that assisting wild animals is not necessary.

The fourth part of this essay will evaluate the scope of the proposed altruistic intervention.

The fifth part of this paper will analyse the emerging conception of sovereignty for wild animals, and what implications for positive duties this may have.

The sixth part will assess the risk of the implementation of positive intervention, looking at two different principles: the precautionary principle and the principle of indifference.

The seventh and final part of this paper will propose that legal recognition and the enactment of specific legislative protections for non-human animals, such as the right to be rescued, has the potential to provide the requisite clarity on the aforementioned points of differences[6].

 

 

PART II: ESTABLISHING THE VIEW OF WILD ANIMAL RIGHTS AND DUTIES IN ART

The premise that most non-human animals possess moral value is generally accepted as a truism within ART and is now also well established by rigorous scientific literature and a literary consensus[7]. Although there is unanimity in ART that animals should not be harmed and a general affirmation of other similar negative rights[8], whether we also, in fact, owe positive duties to animals, particularly non-domesticated and wild animals, has proven a contentious theoretical challenge to the same field, reflecting a wider tension between the two theories of normative ethics; deontology and negative utilitarianism. The idea of intervention into wild animal communities was generally considered a foreign concept, with the view that occurrences in nature, including acts of extreme violence, are completely independent of the morals and duties of human civilisation[9].

This view is grounded pro tanto, in negative utilitarianism, a branch of normative ethics which assumes the position that one has a duty to reduce harm and a right to not be harmed, but the proposition of maximising utility or happiness is either not mandatory or ancillary to reducing suffering because suffering is always the priority and takes precedence over other base values, such as rights violation or utility maximisation[10].

For example, Regan stated that wild life managers should be principally concerned with letting animals be, keeping human predators out of their affairs and allowing these “other nations” to carve out their own destiny[11]. Singer similarly opined that economically boycotting unnecessary killing towards animals was sufficient[12]. This suggests that the principle of non-interference has been ingrained in much of ART[13], cementing the view that while basic negative rights[14] garners communal support, positive rights[15] and duties to non-human animals, especially in the wild, has only recently gained traction[16]. This in part is due to a quasi-negative utilitarianism philosophy and in part because there is an assumption that nature has its own ethics and justice, which is grounded in the belief that what is natural always contains within it some sort of innate morality or goodness[17].

PART III: UNDERSTANDING CRITIQUES AND SKEPTCISM TO POSITIVE HUMAN INTERVENTION

  1. The belief that nature contains innate and consistent morality is ingrained in society

The assumption that nature is just or good and therefore may provide the natural and animal world with its own version of justice is a prominent belief in not just ART but also environmentalist literature,[18] mainstream contemporary ideals[19] and major legal theories such as natural law[20]. Nature is portrayed as a force of justice, or at the very least, a pristine entity throughout media and mainstream documentaries[21].

For example, proponents of nature in this regard, such as Callahan, suggest nature can function as a guide for morality and human behaviour, echoing the natural law position in jurisprudence[22]. Environmental ethics regularly positions nature within ethical frameworks[23] insisting it is intrinsically morally valuable or able to provide normative guidelines in which one could operate[24]. The view that nature is somehow inextricably linked with justice is promoted by various groups and organisations committed to biodiversity and various environmental concerns[25].

The human representation of nature as normative or capable of administering compassion or justice is a flawed notion, which has arguably played an important role in maintaining the beliefs in classical ART and other sectors of society that wild animals are outside our circle of ethical concern, because of the supposed justice or ethics organic in nature. Consequently, this has hindered the acceleration of addressing our potential duties to wild animals and what their own moral value might entail, including wild animal sovereignty and the right to a flourishing of well- being[26].

  1. b) The Appeal to nature fallacy in animal ethics and beyond

The appeal to nature fallacy is geared at exposing the false ideal or representation of nature as depicted above[27]. This position is often coined an irrelevant premise or appeal to nature fallacy which is a common fallacy readily identified in formal logic, the study of argumentation[28]. The natural fallacy or “appeal to nature” assumes because something is natural, it must automatically mean it is good or just[29]. This fallacy has been further perpetuated by social norms and media which consistently idealize nature while overlooking the grimmer realities of the natural world[30].

On contrary, studies examining animal reproduction, population and the quality of life of animals in the wild reveal a bleak reality for most living beings.[31]. Examination of patterns in nature also provide evidence for the view that resource scarcity plays a role in producing nature’s predators, among other modes of potential suffering such as various diseases and genetic mutations, all of which creates suffering which potentially rivals the kinds of injustices created in the human world[32].

 

PART IV: SCOPE AND NATURE OF POSITIVE DUTIES

The humanitarian intervention approach

If the premise that non-human animals possess intrinsic moral value is accepted as true, our current lack of concern for the well-being of conscious creatures in the wild is inconsistent with this premise. Donaldson and Kymlicka, (‘DK’) in Zoopolis provide a sophisticated line of argument that presents a fresh perspective on the rationale for human assistance and intervention with wild animals[33]. The main argument underpinning the rationale is that all individuals are entitled to not just basic rights, but a flourishing of well-being[34]. Important elements of DK’s proposals of intervention are: vaccinations for specific animal populations, providing medicine where there is a breakout of a controllable disease, and also feeding animal populations so they will not ultimately die from food shortages and starvation[35]. The question of animal predation has also emerged as a divisive topic with some scholars suggesting relocation of herbivorous species and finding other means to cater to the appetite of predatory animals[36].

Even within the collective who agree that altruistic human intervention is at this stage, morally urgent[37] perspectives further diverge regarding the extent of such an intervention. For example, it has been suggested by Horta, that DK’s proposals of intervention are insufficient due to the severity of the situation regarding wild animals. Horta argues nature is a consistently harsh climate for animals, where suffering, disease, and death are the norm, and any individual experience of happiness and well-being by wild animals, an exception[38]. Horta argues that the reproductive patterns in nature and quality of life for most wild animals are consistently dire[39]. For example, Horta reveals only a small fraction of animal species make it to adult-hood, with the vast majority of animals either dying from starvation or disease or being attacked and eaten alive by other animal predators[40]. Subsequently, Horta opines for a more aggressive method to confronting wild animal suffering with direct interference into food supply chains and systems of predation[41].

While a more robust method seems justified prima facie, the task of implementing such a strategy remains a challenge for animal advocates. Any major change to ecosystems and animal localities insofar must also ensure that potential action on behalf of non-humans is grounded in correct science and an accurate understanding of their needs and desires; what will best ensure the protection of their rights, create the greatest amount of utility for their communities, and ensure a flourishing of their well-being[42].

PART V: SOVERIGNITY

While it is put forward that forms of animal exploitation such as industrialized farming should be abolished, and current domesticated animals should be afforded similar citizenship status and rights as humans[43], (and in fact Australian legislation is increasingly supporting better protections for companion animals[44]) scholars such as DK posit a recognition and facilitation of sovereignty for wild animals.

For DK, any humanitarian intervention to assist wild animals must first start with the recognition of their sovereignty[45] or their right to govern their own bodies, families, communities and territories. DK’s primary argument is that most if not all wild animals possess a desire for self-determination and governance of their own communities[46], and if there is a genuine commitment to ensuring the flourishing of their well-being, humanity should aid that innate desire[47]. It is therefore difficult to envision rights for animals or duties to animals from humans coming to fruition in any meaningful way or as imagined in classical ART without first a recognition of animal sovereignty and perhaps more urgently, an admission that humans must first extinguish the sovereignty and supreme power to rule and dominate over all other life forms[48] according to philosophers such as Wadiwel.

The notion of sovereignty has been contested on the basis that the state of nature and wild animals is so destitute it constitutes a Hobbesian – failed state[49]. The phrase Hobbesian refers to Thomas Hobbes, a theorist who believed the fundamental nature of human States, governments and their societies were based on uncivilized competition among participants, selfishness and complex power relations[50]. Granted, there is strong evidence to suggest the aforementioned is a true premise[51] given the amount of amensalism and parasitism prevalent in nature, however, it does not follow from this, that sovereignty is somehow intrinsically not valuable to members living under conditions of a failed state.

Most sovereign nations today have questions pertaining to their legitimacy[52]. In advocating for the recognition of sovereignty for Apes, for example, Goodin et al note that the definition of sovereignty has become a flexible notion[53] and where warranted, there appears no valid reason to not recognize animal communities as sovereign states, providing them with guarantees against external aggression as is done with any other distinct, or territorially based community in the world[54]. Further, the justification for sovereignty for any living group of individuals should not be contingent on whether a more powerful party deems the characteristics of their societies as legitimate[55]. To disregard the innate desires of others to thrive and succeed with a certain degree of autonomy and independence[56] is counter-intuitive if one is dedicated to seeing the proper flourishing of wild animal communities; flourishing which relies on the recognition of their self-determination, governance and rights.

Ergo, the fact wild animals would benefit from our positive intervention does not mean they automatically would not also value and prefer a certain degree of self-governance, freedom and autonomy[57], for example, establishing their own relations, social dynamics[58], leadership and communities[59]. This view is attractive if one is interested in not just securing basic rights and living conditions for wild animals, but if there is a genuine commitment to seeing the flourishing of all conscious beings[60].

 

PART VI: RISK ALLOCATION AND ETHICAL IMPERATIVES

  1. Potential harmful consequences does not negate from risk taking decisions

While the above may be theoretically sound justifications to implement positive duties for humans and positive rights for non-human animals, it is important to understand the scepticism from critics of this view[61] and the complexity of the matter more generally. The success of implementing such a policy is unconfirmed, and admittedly, the majority of human intervention with non-human animals and their habitats and homes have so far proven disastrous at the expense of non-human animals[62]. Nevertheless, concerns of negative consequences should not negate[63] from the potential of creating appropriate policy solutions that while aspirational and ambitious, have capacity to provide substantial alleviation of widespread suffering that has so far gone largely unnoticed.

  1. Moral Risk Assessment: Precautionary principle vs principle of indifference (‘PoI’)

The precautionary principle refers to a broad philosophical and legal approach to innovations with potential to cause harm and where scientific knowledge is lacking[64]. For example, Wise persuasively argues that the precautionary principle should apply when determining which animals are eligible for legal protection, in particularly, in the case where it is ambiguous as to whether an animal is sentient[65]. For the precautionary principle to apply it must be shown there is only risk of harm in taking an action[66] (as oppose to not taking it). The precautionary principle does not and cannot apply to the decision of whether to intervene with wild animal suffering. This is because there is potential for harm by intervening, but also by not doing so. For example, in the outbreak of a new disease in nature, consider a strategy to administer medicine to a population of animals such as deer. Treating or curing that disease may greatly benefit the deer. On the other hand, they may have a bad reaction and have their conditions worsened – or perhaps their population may increase, affecting the territories and food resources for other animals. Because the action to intervene with wild animals in a positive way, has overwhelmingly not yet been taken, there is currently no substantial evidence demonstrating its proven advantages or detriments. The moral risk allocation is equal, and thus the precautionary principle cannot apply as harm is possible from both intervening and not intervening[67].

A superior principle to be applied to the case for humanitarian intervention to wild animals, is the principle of indifference. The principle of indifference[68] (or principle of insufficient reason) is a rule for assigning epistemic probabilities[69]. The PoI states that in the absence of any relevant evidence, agents should distribute their credence or degrees of belief equally among all possible outcomes available[70]. This invalidates the precautionary principle argument, because of the parallel argument[71] which exists alongside it; not engaging in positive intervention also causes harm and suffering, because the injustices in nature will continue unchallenged[72]. Adopting the PoI permits the action of wild animal intervention (because the moral risk allocation is equal – there is no “right” choice) and instead of harm certainly occurring to animals in the wild because there is no assistance, there is the possibility (or even probability depending on the situation and factors such as trials, synthetic tests to see if intervention can be successful) that harm will be reduced through intervention.

PART VII: LEGAL REFORM FOR WILD ANIMALS AND ANIMALS IN NATURAL DISASTERS

  1. Animals are excluded from all circles of equality and moral consideration

Many of the proposals for reform in our duties towards animals and a recognition of their moral/legal rights cannot be accomplished without first abolishing animals’ status as chattel and/or property under law[73]. The exclusion of non-human animals from moral consideration and therefore also legal status is commonly recognised as a major impediment to the goals of animal advocacy.

The mass exploitation of animals is disguised through ‘welfare laws’ which globally legitimize their exploitation. Francione stipulates so long as animals remain outside the circle of legal consideration especially in sectors such as criminal and international law, there is a limited chance any discourse pertaining to the treatment of animals will allocate to them the moral worth and consideration they intrinsically possess[74] as discussed in this paper.

Similarly, Wadiwel has recognised this as a fundamental and overlooked problem within the foundations of ART theory albeit identifies Sovereignty as the primary facet which is stripped from animals[75]. Pursuant to this view, sovereignty precedes even liberation and rights and it is contested whether the latter are even achievable for animals, without first a recognition of their self-determination, self-governance and territories[76]. Ultimately, law reform which achieves animal legal status could potentially afford a number of protections for wild animals such as a legal right: to be rescued, to safe homes and habitat, to food and shelter, to not be harmed by humans and other species, and the right to determine their own relations with other animal species[77].

  1. Moving toward duty to rescue laws for animals

In Australia[78], duties are generally covered by tort law and the duties to aid or rescue are rarely, if ever, formalised in statute, however, there are situations where the duty to rescue does give rise to a legal obligation, and this arises when a person creates a hazardous situation and the other person is in peril as a result[79]. Catastrophes in nature have been directly caused by human factors such as climate change and industrialized animal agriculture. The fact humans create much of the disruption and suffering in nature[80], means animals meet this required condition to evoke duties owed. Granted, one could argue that the duty to aid wild animals is beyond the scope of our obligations[81], however, that would severely defeat the purpose of law reform, which is commonly based on changing to adapt to society’s evolving attitudes, values and desire for moral progress and improvement[82].

The question of wild animal suffering is an intriguing theoretical controversy in contemporary ART. Given the majority of wild animals face a bleak reality and struggle to meet the challenges of their situation, the proposition for aggressive intervention is credible, however, if implemented, must prioritise the interests of animals, including sovereignty and legal rights, in addition to the various other duties owed when moral value is entailed.

 

REFERENCES

BOOKS

Dershowtiz, A, Rights From Wrongs: A Secular Theory on the Origin of Rights (Basic Books, 2005) 193

Donaldson, S and Kymlicka, W, Zoopolis (Oxford University Press, 2011)

Finnis, J, Natural Law and Natural Rights (Clarenden Press, 1980)

Francione, G, Animals Property and the Law (Temple University Press, 1995) 5

Francione, G, Introduction to Animal Rights: Your child or your dog? (Temple University Press, 2000) 185

Francione, G and Garner, R, The Animal Rights Debate: Abolition or Regulation? (Columbia University Press, 2010) Ch. 1

Hursthouse, R, ‘Applying Virtue Ethics to Our Treatment of Animals’ in Jennifer

Hobbes, T and Tonnies, F, The Elements of Law Natural and Politic (Taylor and Francis, 1st Ed, 2020)

Hribal, J, Fear of the Animal Planet: The Hidden History of Animal Resistance (Counterpunch, 2010)

Keynes, J, A Treatise on Probability (Macmillan and Co, 1921) 41

Macphail, E, The Neuroscience of Animal Intelligence: From the Seahare to the Seahorse (Columbia University Press, 1993)

Marcus, R, Introduction to Formal Logic with Philosophical Applications (Oxford University Press, 2018) 470, [7.2]

Moore, G, Principia Ethica (Cambridge University Press, 1922) 45

Regan, T, The Case for Animal Rights (University of California Press, 1983) 357

Rosenbaum, T, The Myth of Moral Justice (HarperCollins, 2004) 247

Shue, H, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton University Press, 1980) Ch 1 and 2

Singer, P, Animal Liberation, (1975, Random House) 251; Peter Singer, Animal Liberation, (Cape, 1990, 2nd ed) 227

Stephen, J.F, Sir, A History of The Criminal Law of England (Macmillan and Co, Vol III, 1883) 10 – 11

Taylor, P, Respect for Nature, (Princeton University Press, 1986)

Varner, G, ‘Biocentric Individualism”, in Schmidtz, David and Willot, Elizabeth (eds.) Environmental Ethics: What Really Matters, What Really Works (Oxford University Press, 2002)

Wadiwel, D.J, The War Against Animals (Brill, 2015) 22

Welchman (ed), The Practice of Virtue (Hacket Publishing Company, 2006) 136

Wise, S, Rattling the Cage Toward Legal Rights for Animals (Da Capo Press, 2000) 49

Wise, S, Drawing the Line Science and the Case for Animal Rights (Perseus Books, 2002) Pt 1

 

LEGISLATION

Amendment of Crimes (Domestic and Personal Violence Act 2007 No 80

Family Law Act 1975 (Cth) s 61B

Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020 [NSW] sch 1 [1]

The Danish Penal Code Ch 12 and 13

JOURNAL ARTICLES

Abram et al, ‘Connections of climate change and variability to large and extreme forest fires in southeast Australia’ (2021) 2(8) Natur

Andersson et al, ‘Do No Harm: The Balance of “Beneficence” and “Non-Maleficence”’ (2010) 35(9S) Spine S

Bayes, M, and Chapman, B, Ethical Issues in the Law of Tort (Springer-Verlag, 1983) 20.

Beirne, P, ‘Theoricide: Naming Animal Killing’ [2014] International Journal of Crime, (2014) 3(2) Justice and Social Democracy, 49

Callahan, D, ‘Can Nature Serve as a Moral Guide? (1996) 26(6) The Hastings Center Report 20

Cook et al, ‘Consensus on consensus: a synthesis of consensus estimates on human-caused global warming’ (2016) Environmental Research Letters 1

Dodds, S, ‘Citizenship, justice and indigenous group?specific rights—citizenship and indigenous Australia’ (1998) 2(1) Citizenship Studies 105, 113

Eisen, J, ‘Animals in the constitutional state’ (2017) 15(4) International Journal of Constitutional Law 909, 944

Giroux, V, ‘Animals Do Have an Interest in Liberty’ (2016) (6(1) Journal of Animal Ethics 20, 23

Goodin et al, ‘Simian Sovereignty’ (1997) 25(6) Political Theory 821, 843.

Hadley, J, ‘Nonhuman Animal Property: Reconciling Environmentalism and Animal Rights’ (2005) 36(3) Journal of Social Philosophy 305

Hadley, J, ‘The Duty to Aid NonHuman Animals in Dire Need’ (2009) 23(4) Journal of Applied Philosophy 445, 450

Harrison, P, ‘Descartes on animals’ (1992) 42 (167) The Philosophical Quarterly 219, 227

Harari, Y,N, Sapiens (Vintage, 2011) 104

Horta, O, ‘Debunking the Idyllic View of Natural Processes: Population Dynamics and Suffering in the Wild’ (2010) 17(1) University of Santiago de Compostela 16

Horta, O, ‘Zoopolis, Intervention and the State of Nature’ 2013 (1) LEAP 115

Jones, J and Walters, L, ‘Nature documentaries and saving nature: Reflections on the new Netflix series Our Planet’ (2019) 1(4) British Ecological Society 420

Juthe, A, ‘Refutation by Parallel Argument’ (2008) 23(133) Argumentation 1.

Kymlicka W, Donaldson, S, ‘Animals and the Frontiers of Citizenship’ (2014) 34(2) Oxford Journal of Legal Studies 201, 204

Meinertsen, B, ‘Towards Gratitude to Nature: Global Environmental Ethics for China and the World’ (2017) 12(2) Frontiers of philosophy in China 207

Proctor et al, ‘Searching for Animal Sentience: A Systematic Review of the Scientific Literature’ (2013) 3(3) Animals (Basel) 882, 1

Rast, E, ‘Evaluating the Time-Continuous Action Alternatives from the Perspective of Negative Utilitarianism’ Global Virtual Conference 349

Read, R and O’Riordan, T, ‘The Precautionary Principle Under Fire’ 59 (2017) Environment: Science and Policy for Sustainable Development

Sagoff, S ‘Animal Liberation and Environmental Ethics: Bad Marriage, Quick

Divorce’ (1984) 22(2) Osgoode Hall Law Journal 297, 303

Stevens, A ‘Dynamics of Predation’ (2010) 3(10) Nature Education Knowledge 46

Sunstein, C, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, 2005)

Thompson, J, Probability Theory: The Logic of Science (Cambridge University Press, 2003) 10

Wadiwel, D.J, ‘The War Against Animals, Domination, Law and Sovereignty’ (2009) 18(2) Griffith Law Review 283, 295

 

ENCYCLOPEDIAS

Stanford Encyclopaedia of Philosophy, (8 June 2021) ‘The Grounds of Moral Status’ [1]

Stanford Encyclopaedia of Philosophy, ‘Environmental Ethics’, (3 June 2002) 1 

ELECTRONIC SOURCES

Australian Law Reform Commission, Role and functions of the ALRC (15 October 2012) <https://www.alrc.gov.au/publication/annual-report-2011-2012-alrc-report-119/corporate-overview/role-and-functions-of-the-alrc/>

Arnold, A, ‘Bushfires devastate rare and enchanting wildlife as ‘permanently wet’ forests burn for first time’, ABC News (Online, 27 November 2019) <https://www.abc.net.au/news/2019-11-27/bushfires-devastate-ancient-forests-and-rare-wildlife/11733956>

Best, A, ‘Are we doing enough to protect animals in natural disasters?’ Voiceless, The Animal Protection Institute (online, 29 March 2021) < https://voiceless.org.au/are-we-doing-enough-to-protect-animals-in-natural-disasters/>

Brennan, O, ‘Wild Animals: A Rights- Based Approach’, Wild Animal Suffering Research, (11 June 2021) < https://was-research.org/blog/wild-animals-a-rights-based-approach/>

Eva, B, ‘Principles of Indifference’ PhilSci (30 September 2019) < http://philsci-archive.pitt.edu/16041/>

Sanders, B, ‘Global Animal Slaughter Statistics and Charts’ Faunalytics (10 October 2018) https://faunalytics.org/global-animal-slaughter-statistics-and-charts/ 

REPORTS

Impacts of the Unprecedented 2019-20 Bushfires on Australian Animals (Report, November 2020) WWF Australia, 19

Royal Commission into National Natural Disaster Arrangements Report (Report, 28 October 2020).

RESEARCH PAPERS

Palmer, C, ‘Animal liberation, Environmental Ethics and Domestication’, OCEES

Research Papers, Oxford Centre for the Environment, Ethics & Society, Mansfield College, Oxford

SPEECHES

Harris, S, ‘Science can answer moral questions’ (TedTalk, 5 August 2012)

MISCELLANIOUS

Curtis, G, ‘Appeal to Nature’, The Fallacy Files (Retrieved 12 April 2020)

[1] ‘Australia bushfires: Hundreds of deaths linked to smoke, inquiry hears’, BBC News (26 May 2020).

[2] Ann Arnold, ‘Bushfires devastate rare and enchanting wildlife as ‘permanently wet’ forests burn for first time’, ABC News (Online, 27 November 2019) <https://www.abc.net.au/news/2019-11-27/bushfires-devastate-ancient-forests-and-rare-wildlife/11733956>.

[3]Impacts of the Unprecedented 2019-20 Bushfires on Australian Animals (Report, November 2020) WWF Australia, 19.

[4] Ashleigh Best, ‘Are we doing enough to protect animals in natural disasters?’ Voiceless, The Animal Protection Institute (online, 29 March 2021) < https://voiceless.org.au/are-we-doing-enough-to-protect-animals-in-natural-disasters/>.

[5] Abram et al, ‘Connections of climate change and variability to large and extreme forest fires in southeast Australia’ (2021) 2(8) Nature.

[6] Steven Wise, Rattling the Cage Toward Legal Rights for Animals (Da Capo Press, 2000) 49.

[7] Traits such as sentience, autonomy and the capacity to think and suffer commonly form the basis for a universal conception of moral value or status, effectively quashing the antiquated Cartesian notion which presupposed animals were ‘automata’ or ‘mechanisms’, see: Peter Harrison ‘Descartes on animals’ (1992) 42 (167) The Philosophical Quarterly 219, 227; the inquest into determining what specific set of entailments this moral value elicits is contested amongst animal advocates, a dispute which has functioned as an impetus of rich and thought-provoking legal and philosophical bodies of work see: Gary Francione and Robert Garner, The Animal Rights Debate: Abolition or Regulation? (Columbia University Press, 2010) Ch. 1; Proctor et al, ‘Searching for Animal Sentience: A Systematic Review of the Scientific Literature’ (2013) 3(3) Animals (Basel) 882, 1; Euan Macphail, The Neuroscience of Animal Intelligence: From the Seahare to the Seahorse (Columbia University Press, 1993).

[8] Alan Dershowtiz, Rights From Wrongs: A Secular Theory on the Origin of Rights (Basic Books, 2005) 193.

[9] Paul Taylor, Respect for Nature, (Princeton University Press, 1986).

[10] Erich Rast, ‘Evaluating the Time-Continuous Action Alternatives from the Perspective of Negative Utilitarianism’ Global Virtual Conference 349.

[11]Tom Regan, the Case for Animal Rights (University of California Press, 1983) 357.

[12]Peter Singer, Animal Liberation, (1975, Random House) 251; Francione also believed there was no explicit moral duties or obligations to intervene or prevent harm occurring to animals in the wild, see: Gary Francione, Introduction to Animal Rights: Your child or your dog? (Temple University Press, 2000) 185.

[13] Clare Palmer, ‘Animal liberation, Environmental Ethics and Domestication’, OCEES Research Papers, Oxford Centre for the Environment, Ethics & Society, Mansfield College, Oxford.

[14] Negative meaning rights which restrain others from inflicting harm, see: Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton University Press, 1980) Ch 1 and 2.

[15] Positive rights provides rights holder with a claim to something, although positive and negative rights can often merge: Ibid, Ch 2.

[16] Ozy Brennan, ‘Wild Animals: A Rights- Based Approach’, Wild Animal Suffering Research, (11 June 2021) < https://was-research.org/blog/wild-animals-a-rights-based-approach/>.

[17] Taylor n 9.

[18] Bo R Meinertsen, ‘Towards Gratitude to Nature: Global Environmental Ethics for China and the World’ (2017) 12(2) Frontiers of philosophy in China 207.

[19] Julia Jones and Laura Walters, ‘Nature documentaries and saving nature: Reflections on the new Netflix series Our Planet’ (2019) 1(4) British Ecological Society 420.

[20] John Finnis, Natural Law and Natural Rights (Clarenden Press, 1980).

[21] Jones n 19.

[22] Daniel Callahan, ‘Can Nature Serve as a Moral Guide? (1996) 26(6) The Hastings Center Report 20.

[23] Stanford Encyclopaedia of Philosophy, ‘Environmental Ethics’, (3 June 2002) 1.

[24] Ibid.

[25] ‘17 Principles of Environmental Justice’ Centre for Biological Diversity (15 June 2021) < https://biologicaldiversity.org/about/17-principles-of-environmental-justice.html>

[26] Sue Donaldson and Will Kymlicka, Zoopolis (Oxford University Press, 2011) 157.

[27]George Edward Moore, Principia Ethica (Cambridge University Press, 1922) 45.

[28] Russell Marcus, Introduction to Formal Logic with Philosophical Applications (Oxford University Press, 2018) 470, [7.2].

[29] Gary Curtis, ‘Appeal to Nature’, The Fallacy Files (Retrieved 12 April 2020).

[30] Gary Varner, ‘Biocentric Individualism”, in Schmidtz, David and Willot, Elizabeth (eds.) Environmental Ethics: What Really Matters, What Really Works (Oxford University Press, 2002).

[31] Alison Stevens, ‘Dynamics of Predation’ (2010) 3(10) Nature Education Knowledge 46.

[32] Oscar Horta, ‘Zoopolis, Intervention and the State of Nature’ 2013 (1) LEAP 115.

[33] Donaldson and Kymlicka n 26, 157.

[34] Ibid 165.

[35] Donaldson and Kymlicka n 26, 146; Brennan n 16.

[36] Palmer n 13; Donaldson and Kymlicka n 26, 182 and 193.

[37] Oscar Horta, ‘Debunking the Idyllic View of Natural Processes: Population Dynamics and Suffering in the Wild’ (2010) 17(1) University of Santiago de Compostela 16.

[38] Ibid.

[39] Ibid 116.

[40] Ibid 115.

[41] Ibid 116.

[42] This flourishing argument and position is grounded in the normative theory known as virtue ethics, see: Rosalind Hursthouse, ‘Applying Virtue Ethics to Our Treatment of Animals’ in Jennifer Welchman (ed), The Practice of Virtue (Hacket Publishing Company, 2006) 136; and may be seen to coexist with the principles of beneficence and non-maleficence, see: Andersson et al, ‘Do No Harm: The Balance of “Beneficence” and “Non-Maleficence”’ (2010) 35(9S) Spine S2; see also: Steven Wise, Drawing the Line Science and the Case for Animal Rights (Perseus Books, 2002) Pt 1.

[43] Will Kymlicka and Sue Donaldson, ‘Animals and the Frontiers of Citizenship’ (2014) 34(2) Oxford Journal of Legal Studies 201, 204.

[44] The meaning of ‘intimidation’ in NSW criminal law was recently amended to include harm to companion animals within the context of Domestic Violence see: Stronger Communities Legislation Amendment (Domestic Violence) Bill 2020 [NSW] sch 1 [1] which inserted the following “harm to an animal that belongs or belonged to, or is or was in the possession of, the person or another person with whom the person has a domestic relationship” to s 7 of the Amendment of Crimes (Domestic and Personal Violence Act 2007 No 80.

[45] Donaldson and Kymlicka n 26, 156.

[46] Comprehensive behavioural studies on various species have documented animal relations among their specific communities including chimpanzees, big cats, dolphins and elephants demonstrating dynamics which are sophisticated and which operate with an understanding between members of a sense of fairness, team work and nuanced relationships see: Wise n 41, 164.

[47] Donaldson and Kymlicka n 26, 165.

[48] Dinesh Joseph Wadiwel, ‘The War Against Animals, Domination, Law and Sovereignty’ (2009) 18(2) Griffith Law Review 283, 295.

[49] Thomas Hobbes and Ferdinand Tonnies, The Elements of Law Natural and Politic (Taylor and Francis, 1st Ed, 2020).

[50] Ibid.

[51] Horta n 34.

[52] Christian Volk, ‘The Problem of Sovereignty in Global Times’ (2019) SAGE Journals 1.

[53] Goodin et al, ‘Simian Sovereignty’ (1997) 25(6) Political Theory 821, 843.

[54] Ibid 840.

[55] Susan Dodds, ‘Citizenship, justice and indigenous group?specific rights—citizenship and indigenous Australia’ (1998) 2(1) Citizenship Studies 105, 113.

[56] Jason Hribal, Fear of the Animal Planet: The Hidden History of Animal Resistance (Counterpunch, 2010).

[57] Goodin n 53, 836.

[58] Ibid 821.

[59] Valery Giroux, ‘Animals Do Have an Interest in Liberty’ (2016) (6(1) Journal of Animal Ethics 20, 23; Wise n 41, 35 and 159.

[60] John Hadley, ‘The Duty to Aid NonHuman Animals in Dire Need’ (2009) 23(4) Journal of Applied Philosophy 445, 450; Sam Harris, ‘Science can answer moral questions’ (TedTalk, 5 August 2012).

[61] Singer n 12; Francione n 12.

[62] Cook et al, ‘Consensus on consensus: a synthesis of consensus estimates on human-caused global warming’ (2016) Environmental Research Letters 1.

[63] John Keynes, A Treatise on Probability (Macmillan and Co, 1921) 41.

[64] Rupert Read and Tim O’Riordan, ‘The Precautionary Principle Under Fire’ 59 (2017) Environment: Science and Policy for Sustainable Development.

[65] Wise n 41, 38 – 42.

[66] Cass Sunstein, Laws of Fear: Beyond the Precautionary Principle (Cambridge University Press, 2005).

[67] Ibid.

[68] Jaynes Thompson, Probability Theory: The Logic of Science (Cambridge University Press, 2003) 10.

[69] Benjamin Eva, ‘Principles of Indifference’ PhilSci (30 September 2019) < http://philsci-archive.pitt.edu/16041/>.

[70] Ibid.

[71] André Juthe, ‘Refutation by Parallel Argument’ (2008) 23(133) Argumentation 1.

[72] Consider certain species of fish for example, who lay millions of eggs a year, only a small amount of those eggs will survive, the rest suffer and die prematurely, see: Mark Sagoff ‘Animal Liberation and Environmental Ethics: Bad Marriage, Quick Divorce’ (1984) 22(2) Osgoode Hall Law Journal 297, 303.

[73] Gary Francione, Animals Property and the Law (Temple University Press, 1995) 5.

[74]Ibid.

[75] Dinesh Joseph Wadiwel, The War Against Animals (Brill, 2015) 22.

[76] Ibid.

[77] John Hadley, ‘Nonhuman Animal Property: Reconciling Environmentalism and Animal Rights’ (2005) 36(3) Journal of Social Philosophy 305; Donaldson and Kymlicka n 26, 209.

[78] Australian courts go as far back as 1883 labelled people who did not rescue a drowning child as “shameful cowards ” the ethical disapproval has never translated to a concrete legal obligation to save a person in peril see: Sir James Fitzjames Stephen, A History of The Criminal Law of England (Macmillan and Co, Vol III, 1883) 10 – 11; The situation in Europe is different, where certain rescue duties have been entrenched in law for example in Denmark, all persons must provide aid to the best of their ability to any person who appears to be lifeless or in mortal danger (§ 253), must alert authorities or take similar steps to prevent impending disasters that could cause loss of life (§ 185), must comply with all reasonable requests of assistance by a public authority when a person’s life, health or well-being is at stake (§ 142) see: The Danish Penal Code ch 12 and 13.

[79] Michael Bayes and Bruce Chapman, Ethical Issues in the Law of Tort (Springer-Verlag, 1983) 20; The other situation where a duty to rescue arises in Australia is if there is a special relationship between the person in peril and the bystander, for example parents, see: Family Law Act 1975 (Cth) s 61B; The majority of humanity have collectively created and actively engaged in special “relations” with animals, albeit it is one that is grounded on violence, supremacy and biopower, see: Wadiwel n 73 at 25. It could be argued the mass victimization of animals by humanity means most non-human animals meet this condition of a special relationship: Jessica Eisen, ‘Animals in the constitutional state’ (2017) 15(4) International Journal of Constitutional Law 909, 944.

[80] Cook n 55.

[81] Thane Rosenbaum, The Myth of Moral Justice (HarperCollins, 2004) 247.

[82] Australian Law Reform Commission, Role and functions of the ALRC (15 October 2012) <https://www.alrc.gov.au/publication/annual-report-2011-2012-alrc-report-119/corporate-overview/role-and-functions-of-the-alrc/>.