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Is it time wild animals had property rights?

by Dr John Hadley
31 March 2015
The conversion of native habitat for agricultural development, urban expansion and mining are the leading causes of biodiversity loss in Australia. Dr John Hadley thinks it's time humans represent the voiceless wild animals whose homes are under threat.

Australia is home to more species than any other developed country. Around ninety per cent of our mammals and reptiles are only found in Australia. But Australia also holds the title of the worst mammal extinction rate in the world. And while some European countries are gaining forest space every year, Australia’s forests are shrinking. It’s time to think boldly about protecting the environment. It’s time to discuss property rights for wild animals.

The obvious response to this proposal is that animals cannot have property rights because they are not smart enough to exercise them. But, having property rights doesn’t only mean buying and selling things; it can mean simply having rights to access and use land.

My suggestion is modelled on the system of guardianship representation for cognitively impaired people who, like animals, are unable to buy and sell things.

The basic idea is that when a landholder is seeking to modify habitat on their land or encroach into wild territory, they would meet with an animal property rights guardian to discuss their land management objectives.

Of course, if property rights were to be extended to all wild animals, then resolving some conflicts of interest where wild animals are co-habiting with humans on private property would be unreasonably problematic.

I don’t think the right of rats to set up camp in the kitchen is a defensible case. But, if there were a family of koalas living in a tree on your property, I think there’s room for argument. Inside the home is out of bounds.
"I don't think the right of rats to set up camp in your kitchen is a defensible case."

So what about animals in wild territories? In effect, a wild animal property rights guardianship system would enable animals at risk from land clearing a right to negotiate similar to the right of indigenous titleholders under the Australian Native Title Act 1993. The animal guardian would have an opportunity to negotiate with the landholder to delay the implementation or alter the design of their development plans. The point is not to stop development altogether, but simply to get people into a room to talk things over.

Of course, many different wild animals from different species will reside in any parcel of land and share overlapping territories. So if we extend property rights to wild animals, then all species (as well as plants, insects, watercourses, soils, and every other element that makes up that animal’s habitat) will benefit because each of these elements form part of a functioning ecosystem. And, as everyone knows, protecting natural habitat helps mitigate climate change.

A suggestion of this kind is in line with a global trend toward guardianship advocacy for animals. The Austrian parliament recently passed a law requiring each province to appoint an “animal solicitor” to advocate on behalf of animals in court proceedings. In the United States and Argentina there have been high profile cases in which lawyers have attempted to bring suit on behalf of captive animal plaintiffs.

Now, instead of conceiving of a single animal as the property holder and assigning a guardian to every animal, ownership rights could be extended to a specific family group or pack, or a community of different kinds of animals. In such cases, animal property rights would be like native title rights, in so far as they are vested in members of a body corporate; but unlike a trust, which vests ownership in specific individuals.

"And, as everyone knows, protecting natural habitat helps mitigate climate change."
The eligibility of people to serve as guardians is a feature of the animal property rights system that could be allowed to vary between jurisdictions. Some jurisdictions may require the guardian to be a specialist in a particular field, such as ecology or law; other jurisdictions may allow guardians to be anyone with a serious interest in the relevant species or population, such as retired farmers, activists, or concerned citizens. The most important qualification is a preparedness to act in the ‘best interests’ of the animals.

The key difference between the proposed animal property rights system and existing conservation systems, such as the property vegetation planning regimes currently in place in NSW and Queensland, is the independence of the guardian. Unlike a representative from a government regulatory agency, the guardian is one step removed from the political fray so conducive to unsustainable decision-making.

A statutory authority will need to be established to provide oversight of the mediation system. After an initial financial outlay from government or an NGO, this authority must be allowed to operate at arm’s length from existing regulatory agencies.

Not only is independence from government interference important for considerations of justice and efficiency, it is also necessary in order to ensure that the animal property rights guardianship system is sufficiently different to existing mechanisms for environmental protection.

At a time when novel solutions to seemingly intractable environmental problems are called for, the animal property rights system provides an opportunity to reinvigorate existing public policy responses to the biodiversity extinction crisis. Given that the conservation of biodiversity is a motherhood goal of governments the world over, it makes good policy sense to seriously examine the idea of property rights for wild animals.

John Hadley is a lecturer in philosophy in the School of Humanities and Communication Arts at the University of Western Sydney.  Dr Hadley's book "Animal Property Rights: A Theory of Habitat Rights for Wild Animals" will be published later this year by Lexington Press.