Animals in the Wild, Animal Welfare and the Law
Unlike domesticated animals, which at common law are the absolute property of their owners, animals in the wild have no owner. In practice, some jurisdictions address this ownership 'gap' by vesting property in wild animals in the Crown. The first part of this chapter explores the nature of this claim to property in wild animals by the Crown, arguing that the claim may not be well-founded, and that it provides limited protection to, and does not prevent exploitation of, wild animals. Part II argues that animal welfare legislation fails in important ways to adequately protect the welfare of wild animals, with significant exemptions from the application of cruelty and other offences limiting the reach of such legislation. While nature conservation legislation is also relevant to the welfare of wild animals, it is limited by a focus on wild animal species as members of an ecosystem, rather than a focus on individual animal welfare. Part II seeks to demonstrate that, taken together, animal welfare and nature conservation legislation establishes a hierarchy of welfare protection, with endangered or rare native wild animals the most well-protected, and introduced wild animals the least well-protected. Part III then considers some justifications for a differential regulatory approach to the welfare of wild animals, including economic imperatives, environmentalism and issues of national identity. It is argued that none of these justifications adequately address the significance of sentiency, shared by all wild animals, and the ethical requirements sentiency demands.
Animal Law in Australasia: A New Dialogue
Law and Society