Vernon Tava

I recently went to a seminar by Associate Professor Marcelo Rodriguez-Ferrere, put on by the Auckland University Animal Law Association, about the recognition of animal sentience in New Zealand law.

The recognition of the concept ‘animal sentence’ was made in an amendment to the long title of the Animal Welfare Act 1999 in the Animal Welfare Amendment Act (No. 2) 2015: ‘to recognise that animals are sentient’.

Widely heralded as ‘groundbreaking’ at the time, nine years later the impact of this change has been minimal.

It is the lack of a definition of ‘sentience’ in the purpose and interpretation sections that means it is not amenable to judicial definition.

We may also ask whether this is a classic example of political symbolism slowing down development in an area of the law by allowing interested parties to hold it up as another example of New Zealand ‘leading the world’ while leaving underlying problems with the legislation and enforcement untouched.

Alternatively, or simultaneously, a symbolic gesture that is marooned by a lack of connective tissue to the rest of the body of the law, reminiscent of the recognition of legal personhood of the Uruweras and the Whanganui River by way of Treaty settlement acts.

So far, there is just one instance, identified by Rodriguez-Ferrere, of the courts referring to sentience but it was not applied in the Animal Welfare Act context.

Haenga v Porirua City Council [2021] NZHC 1549, an appeal against conviction and sentence, dealt with section 58 of the Dog Control Act 1996, a dog causing serious injury. At [35] is the “first and only definition in New Zealand caselaw” albeit one that is obiter dicta.

Justice Isacs’ views are worth quoting in full (italics added):

[35] I note the [Dog Control] Act refers to the “destruction” of the dog. Such wording reflects the fact that animals have historically been classed as personal property that can be “destroyed”. Of course, most New Zealanders would not classify their dog as an inanimate object that can be “destroyed”. But neither does the Animal Welfare Act, which recognises animals are sentient. Although sentience is not defined in the Animal Welfare Act, it refers to the capacity to have feelings and requires a certain level of consciousness and intellectual capacity. [The footnote to this definition references Jane Kotzmann “Recognising the Sentience of Animals in Law: A Justification and Framework for Australian States and Territories”(2020) 42(3) Sydney Law Review 281 at 282.]

[36] The Dog Control Act’s reference to “destruction” is therefore surprising. Sentient beings are generally not “destroyed”; they are put to death or killed. Of course, the Dog Control Act serves a different purpose to the Animal Welfare Act. The Dog Control Act is very much focussed on public safety and control of dogs, whereas the Animal Welfare Act serves to impose obligations on people in charge of animals. Given the Animal Welfare Act’s recognition of the sentience of animals, the continuing reference to destruction in the Dog Control Act remains curious, as does its classification of a destruction order as a criminal sentence. One might think that the question of public safety and what is to be done with a dangerous dog ought to be unshackled from the criminal responsibility of its owner.

The National Animal Welfare Advisory Committee (NAWAC) are working to integrate the concept of sentience in the codes of welfare which is where the rubber will meet the road in terms of practice.

NAWAC attempts a definition of animal sentience here:

The National Animal Welfare Advisory Committee (NAWAC) understands animal sentience to mean that animals have emotions, feelings, perceptions and experiences that matter to them. These can be negative (such as pain or boredom) as well as positive (such as pleasure or comfort). We don’t know whether animals’ emotions, feelings and experiences are similar to those of humans. We also don’t know if they are felt with the same intensity. But they matter to individual animals and have an impact on their welfare.

There have been some relevant developments overseas; a useful summary as at 2023 can be found here.

A particularly interesting recent reform in the UK follows the passing of the Animal Welfare (Sentience) Act 2022: an Animal Sentience Committee was created that reviews legislation and can examine any decision made by UK government ministers on policy development and implementation.

Overall, these reforms importing sentience into the law, while promising, tend to lack a working definition of the term which seriously limits practical implementation.