Thunderous step: High court to hear Happy the elephant’s habeas corpus case
Thunderous step: High court to hear Happy the elephant’s habeas corpus case
Victoria Shroff, The Lawyer’s Daily
May 11, 2021
Thunderous animal law news out of the U.S. For the first time in history in
an English-speaking jurisdiction, an animal is going to have her day in
high court. That’s correct. A non-human being named Happy is going to have
her elephantine habeas corpus case in court. The hugely influential New
York Court of Appeals agreed on May 4, 2021, that they will hear Happy the
zoo elephant’s habeas corpus case.
Happy the elephant has been stuck inside the Bronx Zoo since the 1970s.
There is no doubt that animals are valued by society and a shift is
occurring to begin to recognize them as intrinsic beings. Nearly three
years ago when I wrote about Happy in The Lawyer’s Daily, I wrote, “The
voices decrying the notion that animal matters are a waste of court
resources may gradually be fading into the background as courts hesitantly,
nervously approach the idea of animal rights.
I believe we will likely be seeing more cases like Happy’s where the court
has to grapple with law, ethics, science and policy to try to account for
the intrinsic worth of non-human animals. When I first started practising
animal law nearly 20 years ago, strategic cases that questioned the
fundamental legal position of sentient animals were rare. ... Animal law
cases are raising elephantine issues about animals and society worldwide.
It’s likely that the elephant in the courtroom will not be ignored for
long.” (If you're wondering what animal law is, please check out this
article Inside practice: Animal law.)
That day has arrived. This is a fundamental access to justice for animals
issue, for animals to have their voices heard. There’s every reason to
expect that Happy could be declared a person. Not a human being, but a
person. To be a legal person, one need not be human.
Rivers have been declared persons. Earlier in 2021 in Quebec, the Innu
Council of Ekuanitshit has granted the Muteshekau-shipu River (Magpie River
in English) legal personhood through resolutions by the Innu Council and
the Minganie Regional County Municipality. New Zealand declared a river a
person several years ago.
From Things to Persons
An elephant is not a thing meant for human entertainment. Happy is a
living, sentient, highly intelligent, cognitively complex elephant who was
the first animal to pass the mirror test, which means that she can
recognize herself in a mirror and is self-aware. Elephants are highly
social and Happy has been living without another of her own species for a
long time. Happy is not well named.
This legal battle has been brewing for decades. “It has taken my last 36
years of work — including including twenty-two law review articles and
five books, and teaching in ten law schools, including Harvard and Stanford
— and the magnificent work of the Nonhuman Rights Project over the last 25
years to develop our evaluate our powerful legal and factual arguments”
(Steven Wise on LinkedIn).
Leading the legal charge to free Happy from confinement is trailblazing
lawyer-professor Steven Wise of the Non Human Rights Project (NhRP). The
Nonhuman Rights Project is an American civil rights organization dedicated
to securing rights for non-human animals. Wise and his team are counsel for
Happy.
The pith of their argument is that Happy is suffering, she ought to have
the same rights as a person and should be moved out of isolation as the
sole elephant in the zoo and be shifted to an elephant sanctuary. Wise and
the NhRP have assembled a dream team of not just lawyers, but scientists
and academics, including Jane Goodall and other experts.
An affidavit was filed in the case by renowned elephant expert, Dr. Joyce
Poole who stated: “Held in isolation elephants become bored, depressed,
aggressive, catatonic and fail to thrive. Human caregivers are no
substitute for the numerous, complex social relationships and the rich
gestural and vocal communication exchanges that occur between free-living
elephants.”
If this momentous case succeeds, Happy may be the first animal in the
U.S.A. to have her right to bodily liberty recognized by a high court.
Widening Legal Pathways for Animals
“History shows that rights expansion begins as an idea that may be thought
of as almost unthinkable, deviant even, and then moves from impossible to
possible” (Access to justice for animals: It’s possible).
The challenge will no doubt be met with skepticism and the zoo will argue
that Happy is fine where she is, but one of the New York Court of Appeals
justices, Eugene Fahey, has already made some extremely favourable and
insightfully empathic comments toward animals in the past, stating that
habeas corpus for non-human animals “will have to be addressed eventually.”
Animals are not things.
In 2018 Justice Fahey importantly and prophetically noted: “The issue
whether a nonhuman animal has a fundamental right to liberty protected by
the writ of habeas corpus is profound and far-reaching. It speaks to our
relationship with all the life around us. Ultimately, we will not be able
to ignore it. While it may be arguable that a chimpanzee is not a ‘person,’
there is no doubt that it is not merely a thing” (Microsoft Word - Happy
Petition KS 10.1.2018). The time has come for an elephant to have her day
in a top U.S. court.
Chief Justice Catherine Fraser of Alberta’s words about Lucy the zoo
elephant are similar. Chief Justice Fraser provided a framework for the
unfolding of a new pathway for animals’ accessing justice in Canada’s in
what has become a leading animal law dissent.
In the chief justice’s powerful dissent in Reece v. Edmonton 2011 ABCA 238,
an Alberta Court of Appeal case about Lucy the solo elephant in the
Edmonton zoo, she wrote: “Lucy’s case raises serious issues not only about
how society treats sentient animals — those capable of feeling pain and
thereby suffering at human hands ... .” (para. 39). Cases involving animals
deal with human obligations: “... stewardship is reflected in the legal
obligations we have assumed not only to the physical biosphere but also to
the animals with whom we share the Earth” (para. 58). For more on Lucy’s
case, please see: Animal law: An elephantine case to consider.
Emerging Legal Landscape Will Include Animals
Happy’s case is not just about animal rights, but about human
responsibility, civility to animals. Both humans and animals stand to gain.
“It’s therefore not only animals who stand to benefit, but society as
whole, from a dissent like this that examines social justice issues while
ostensibly considering the welfare of a large animal confined in a city run
zoo” (Reframing the status of animals in Canadian law).
Conferring fundamental legal protections to animals enhances the lives of
animals but of humans too. It’s a braver, newer world, where animals are
included in the matrix.
Victoria Shroff is one of the first and longest serving animal law
practitioners in Canada. She has been practising animal law civil
litigation for over 20 years in Vancouver at Shroff and Associates and she
is erstwhile adjunct professor of animal law at UBC’s Allard Hall Law
School and Capilano University. She is recognized internationally as an
animal law expert and is frequently interviewed by media. Reach her at
shroff@telus.net shroff@telus.net, @shroffanimallaw or LinkedIn.