Nazi legislation against animal cruelty

From Sydney Criminal Lawyers, on Lexology (via Legal History Blog): "The History of Laws Against Cruelty to Animals". A particularly interesting section discusses the Nazis:

There can be no words to sufficiently encapsulate the appalling atrocities perpetrated by one of history’s most evil people, Adolf Hitler, and his fascist Nazi party.

And one must take special care before giving credit for any act to the person at the helm of history’s most disgusting and shameful political, social and cultural regime, whereby millions of innocent men, women and children were tortured and murdered, including the systematic use of humans for medical experimentation, annihilation of ‘undesirable’ groups in society including the disabled and slaughter of large segments of targeted racial and religious groups.

Hitler and his extreme right-wing party exemplified the very worst of humankind, and the regime’s ultimate demise was a Godsend to all moral people.

But the irony must also be acknowledged that while on the way to murdering millions of human beings, the famously vegetarian and dog-loving Hitler took unprecedented steps to protect non-human animals from cruelty. And many of the enacted laws go way further than present day legislation.

In that regard, 24 November 1933 saw the German parliament (the Reichstag) the under the Chancellorship of Hitler and Presidency of Hermann Göring) pass the Reichstierschutzgesetz, or Reich Animal Protection Act, which is listed in the above table.

The law imposed a total ban on the almost-universally accepted, and even encouraged and publicly funded, practices of vivisection (operating or experimenting on live animals) and slaughter of animals without anaesthetic.

In a 1933 speech approved by Hitler, Göring declared an end to the “unbearable torture and suffering in animal experiments” and warned that those who “still think they can continue to treat animals as inanimate property” would be sent to concentration camps.

The regime saw a range of further prohibitions to protect animals including bans on animal trapping, the boiling of crustaceans such as crabs and lobsters, live baiting, neglect and cruel acts to domestic animals, and severe restrictions on hunting.

And so it was – perhaps history’s most evil regime was ironically perhaps the most benevolent in the treatment of non-human animals.

This is just one one section of the long post, which includes a chronology of developments and a discussion of Australian law. 

Carbon dioxide as an air pollutant

More on the co-production of environmental science and law: Just out in Environment and History is an article by Ashton Macfarlane, "The Many Pollutant Identities of Carbon Dioxide: Global Climate Monitoring and Air Pollution Research in New Zealand, 1968–1975", that discusses the way carbon dioxide was framed as an air pollutant due to the modern air pollution statutes of the 1960s and '70s. The abstract:

In the late 1960s, New Zealand and the United States collaborated to establish a southern hemispheric carbon dioxide (CO2) monitoring station on New Zealand’s coastal cliffs. The New Zealand CO2 Project, as it came to be known, is an underappreciated landmark in the history of environmental monitoring. The archival record of its early years reveals the extent to which efforts to measure atmospheric carbon dioxide concentrations interacted closely with one of the most hotly debated political issues of the mid-twentieth century: urban air pollution. The designation of CO2 as air pollution on a planetary scale had profound legal implications in an era in which clean air legislation increasingly brought air pollution within the scope of governmental regulation, and administrative agencies began to jostle for control of the monitoring enterprise. The precise nature of CO2 as an air pollutant, however, was difficult to pin down. In these initial years of concerted carbon dioxide monitoring, when the lines between climate science and air pollution research were still blurred, CO2 developed its many pollutant identities. The nature of these identities – and the ways in which scientists and science administrators negotiated their boundaries – retain their relevance today, as nations continue to link air pollution and climate legislation in the twenty-first century.

NIWA's Baring Head monitoring station (Dave Allen)

A colonial history of the River Murray dispute

Adam Webster recently posted his article, "A Colonial History of the River Murray Dispute". The abstract:

This article examines the history of the dispute over the sharing of the waters of the River Murray between the colonies, with particular emphasis on the period from the mid-1880s to the mid-1890s. The article shows that the change in water use by the colonies during this period had a significant impact on the question of how the water should be shared between the colonies. The article examines the early legal arguments regarding the ‘rights’ of the colonies to the waters of the River Murray and argues that these early legal analyses influenced the drafting of the Australian Constitution, which in turn has influenced the way similar disputes between the states are resolved today.

Aboriginal water rights

Aboriginal men obtain water from mallee root at Yalata in South Australia, 1981
(National Library of Australia)

Peter D. Burdon, Georgina Drew, Matthew T. Stubbs, Adam Webster, and Marcus Barber recently posted "Decolonising Indigenous Water ‘Rights’ in Australia: Flow, Difference and the Limits of Law". The abstract:

This article addresses Indigenous Australian claims to water resources and how they inform and relate to current Australian law and contemporary legal thinking about future possibilities. It adopts a multidisciplinary approach, drawing from historical records, previous ethnographic investigation with Indigenous Australians, current legal scholarship, and social anthropological theory. In doing so, it analyses Indigenous dependencies on water, the history of settler colonial orientations to water bodies, the evolution of settler colonial–Indigenous relations to natural resources, and the development of the Australian legal system’s regulation of water. This provides foundations for a discussion of the limitations of settler colonial notions of property and the failure of settler colonial law to understand and incorporate the dynamism of Indigenous relationships to water, particularly the meaning and productive capacity of water flows within Indigenous cosmologies and sociocultural and ecological systems. Calling for a decolonial turn in legal approaches to Indigenous access and water resource determination, the authors explore the ways in which Australian law may need to ‘unthink’ settler colonial notions of resource ownership as a prerequisite for reformulating future water policy and planning. This reformulation relies on a more extensive legal philosophical engagement with the concept of ‘flow’, a concept that already exists in both water law and planning, but which has not been adequately theorised and enacted. A more comprehensive legal understanding of flow in the context of Indigenous understandings of, and claims to, water provides more sustainable and equitable legal and analytical foundations for managing future water resources issues. The article creates the space for a more culturally relevant notion of ‘Indigenous water rights’ and for new ways of honouring the interrelationship between water flows, meaning-making practices, and cultural continuity.

Forest law and constitutional change

Rata forest on on Enderby Island

Earlier this year André Brett published "A Sudden Fancy for Tree-Planting? Forest Conservation and the Demise of New Zealand's Provinces" in Environment and History. The abstract:

New Zealand provides a valuable case study of the relationship between colonial statecraft and forest conservation. This article explores the connections between Premier Julius Vogel’s Forests Act of 1874 and the abolition of New Zealand’s provinces in 1876, locating conservation within the broader context of popular discontent with provincialism. It argues that previous perspectives have either downplayed or exaggerated the significance of conservation to provincial abolition, and that the relationship between the two was complex and uneven. Abolition profoundly affected conservation, but the stimulus for abolition had been gathering elsewhere even as conservation shaped its timing.

The river as legal person

Whanganui River

H-Law's World Legal History Blog published this week Debjani Bhattacharyya's post, "Being, River: The Law, the Person and the Unthinkable". Some excerpts:

While many indigenous activists and jurists hailed the granting of legal personhood to Whanganui River in New Zealand in March 2017 as a victory after a long-waged battle, many others were surprised and puzzled. When I mentioned it to my students in April, they wondered what it even means. The unthinkable in law has a long history dating back to medieval jurists. Christopher D. Stone noted that “[t]hroughout legal history, each successive extension of rights to some new entity has been, theretofore, a bit unthinkable.” Stone goes on to show how it sometimes even leads to  laughable conclusions referring to the case of the Morris mouse in Suffolk County prison, where the guard flushed a rat, who had earlier been tamed by the prisoners, resulting in a lawsuit filed by the prison inmates against the guard. Following the granting of legal rights to Whanganui in New Zealand, the Uttarkhand High Court in India granted legal personhood to rivers Ganga and Yamuna, considered holy by many Hindus.

So what does it mean for a river to achieve the status of legal personhood? Broadly speaking, it means that the river counts jurally, and has legal dignity.... 

CFP: Ecological restoration and the law

The Griffith Law Review has put out a call for papers for what promises to be an interesting special issue on "Ecological Restoration and the Law: Recovering Nature’s Past for the Future". Some highlights from the call:

This special issue provides a timely opportunity to critically investigate one of the gravest temporal, philosophical and methodological deficiencies inherent in how environmental law develops – namely its neglect or structural deficiencies in actively engaging with the recovery of ecosystems. Under the aegis of the philosophy of sustainable development, which provides environmental law’s main temporal and ideological ballast, our environmental regulations and policies have become obsessed with the future and emotionally and ideologically disconnect people from actively engaging with the recovery of ecosystems. The legal priority is commonly to avert, mitigate or adapt to new ecological impacts rather than to restore past damage. While further environmental upheaval must be avoided, sustaining what remains may be illusionary if prevailing conditions are too degraded. A focus on sustainability emotionally and mentally disconnects us from actively restoring nature by presuming that nature has the capacity to passively restore itself. To the extent that legal systems recognise the imperative to actively restore nature, they tend to focus narrowly on environmental restoration rather than ecological restoration (ie, the difference between rehabilitation of small, discrete sites, such as a former mine, and ambitious restoration of entire ecosystems and landscapes).

The special issue of the GLR thus serves to critically evaluate the nature and impact of current laws and other governance mechanisms that address ecological restoration, to advance theoretical understandings for a new generation of governance reforms for eco-restoration, and more broadly to generate critical and interdisciplinary insights into environmental law generally. Ecophilosophy and philosophy more generally, through strands such as the ‘new materialists’ have helped us to think differently about the idea of nature and ask ontologically informed questions about human beings in a world of matter. Environmental history, geography, ecopsychology, anthropology and other disciplinary approaches to the human relationship to nature have supported discussions and research that question our understanding of how we come to view and interpret our relationship to the natural world and its significance for us. Environmental law however has not kept pace with the widening of our increasingly more interdisciplinary and critical approaches to how we understand the human and nature relationship.

In this respect, the special issue considers how law and its relationship to themes like recovery, emotions, time, geography, vitalism, vulnerability, justice, and history can provoke how we think more deeply about restoration. Some of the interrelated themes include: 

Environmental protection in New Zealand

Geoffrey Palmer has posted "The Resource Management Act - How We Got It and What Changes are Being Made to It". The abstract:

At a time when the New Zealand Government is proposing significant changes to New Zealand’s key environmental protection statute the Resource Management Act 1991, one of the architects traces the Act’s origin and history. The Act is based on the principle of sustainable management articulated in the report of the World Commission on Environment and Development in 1987. This chapter in a book analyses the forces that led to the enactment, particularly the National Development Act 1979. It also canvases weaknesses in the administration of the Act and critiques the Government’s proposals for reform.

Environmental legislation in 1860s Australia

Last summer we posted on articles on water law and pollution law in colonial Victoria. According to Tristan Orgill, "The Forgotten Decade: The Legislative Conservation of Game, Fish and Timber in 1860s Victoria", the law at the time actually dealt with an even wider range of environmental issues. The abstract:

Between 1851 to 1860, an unprecedented ‘gold rush’ wrought a profound transformation upon the fledgling state of Victoria. By 1860, Victoria’s population had increased sevenfold and the colony was attracting ‘worldwide fame’ as one of Britain’s wealthiest settlements. However, this colonial prosperity came at a high environmental cost. Whether by land clearing for agriculture or mining, industrial and urban pollution, or the over exploitation of game, fish and timber - colonial progress often meant, as one colonist observed, that ‘every feature of nature [was] annihilated’. Almost all historians have argued that the environmental degradation of Victoria was an inevitable consequence of the widespread antipathy (or antagonism) of Victorians to what they perceived as a foreign and ugly environment. Whilst some colonists called for restraint, ‘the colonial project - to master, develop, and prosper - overwhelmed the faint cry of such sentiments’. 

ST Gill, Diggings in the Mount Alexander district of Victoria in 1852

This paper will contend that this dominant historical narrative is specious and inconsistent with surviving primary source material. Not only was environmental concern prevalent in Victorian society, popular concern persuaded Parliament to enact considerable environmental legislation throughout the 1860s. Historians have either blithely dismissed or simply ignored the history of this legislation. This is perplexing given that the development of law provides a critical insight into Victorian society’s commitment to - and reasons for - addressing environmental concerns. Thus, this paper examines the three most significant environmental regimes enacted throughout the 1860s: namely, the game, fish and timber statutes.

It will be shown that these regimes were primarily justified by utilitarian conservation arguments and, additionally, that aesthetic and moral considerations were vital. The existence and influence of a ‘proto-preservationist philosophy’, which underpinned the enactment of these statutes, disproves the orthodox historical narrative that colonial society was generally apathetic to environmental degradation and that colonists who voiced concerns were ‘insignificant’.

An Australian take on the US Wilderness Act

The Reflections section of the latest Environmental History on the US Wilderness Act has a piece by Libby Robin, "Wilderness in a Global Age, Fifty Years On", offering an Australian angle. Robin writes:

While the US national parks model, “America’s Best Idea,” had a strong following in Australia in the 1960s, the idea of wilderness never had the strong transcendental or romantic attraction it held in America. Our wilderness did not create heroes. Australians died in the bush: being away from settlement meant being away from water, and survival was precarious. By 1990 the idea of wilderness was also seen as “western” and not inclusive of Indigenous history. Australian ecologists and historians fiercely debated the limits of “wilderness thinking” some years before Environmental History published William Cronon’s “The Trouble with Wilderness” in 1996. While Richard White’s wry paper “Are You an Environmentalist or Do You Work for a Living?” had a strong following among historians of our 1980s forest debates, it has been the powerful critiques from Aboriginal Australia that have determined new directions in twenty-first-century practices of biodiversity conservation and in the way national parks are now managed.

*****

Walking along Garie Beach, Royal National Park.
Photo: Andy Richards

Some states followed “America’s Best Idea” more closely than others. The New South Wales (NSW) National Parks and Wildlife Act (1967) was directly modeled on the American legislation; its inaugural director of the National Parks and Wildlife Service was Samuel Weems, former parks adviser to the US Department of the Interior. NSW learned of the model at the First World Congress of National Parks held in Seattle in 1962, a major international meeting. NSW National Parks Service joined the enthusiasm for a second congress, in Yellowstone National Park, timed to celebrate a World Centennial of the National Parks Idea in 1972. It was only late in the game, after the US Congress had approved financial support for the event, that organizers realized Yellowstone itself was not a legislated national park in 1872. Technically, the world’s first national park legislation had been passed in NSW on March 31, 1879, to establish the National Park (later Royal), an urban park, just 15 miles from the center of Sydney. This was nothing like the bigger, wilder model of Yellowstone, 1,000 miles from any city. NSW parks managers, as keen as their US colleagues to celebrate a World Centennial in 1972, did not press a claim for priority. They wanted larger more remote wild national parks, and having little interest in city parks, they were aware of wide support for a World Centennial not just in the United States but also in other Western nations where national parks had emerged early including New Zealand, Canada, South Africa, and Sweden. 

Robin writes about the tensions between nascent recognition of indigenous relationships to the land and American ideas of wilderness:

Water law in colonial Victoria

In a follow-up to their recent article on the regulation of mine tailings in colonial Victoria, Peter Davies and Susan Lawrence recently published an article on the history of water law in the Victorian goldfields: "A 'mere thread of land': Water races, gold mining and water law in colonial Victoria". The abstract:

Water law in Victoria has its origins in arrangements made during the gold rush to satisfy the needs of miners and towndwellers on the goldfields. Rights of access to water and diversion practices were worked out in the peculiar circumstances of the new colony during the 1850s and 1860s, where economic and social conditions were transformed by the discovery of gold. Miners needed abundant, reliable supplies of water to wash gold from the earth and to power steam engines and processing machinery. Laws regulating access to water, however, were poorly defined during this period, with a mix of English common law and American legal doctrine drawn on and adapted to local conditions. This was in response to disputes that quickly emerged over the nature and scale of water diversions, priority of access and the sale of water rights. Conflict was exacerbated by the highly variable nature of rainfall in Victoria and frequent dry seasons which often disrupted mining activity. Out of this confusion, colonial officials gradually fashioned rules to regulate access to water. The State asserted increasing authority over the distribution of water in this period, laying the foundations for the effective public ownership of water rights by the 1880s. The Victorian experience provided leadership in establishing water regulations which the other Australian colonies later followed.

Environmental regulation in the Australian goldfields

The latest Environment and History has an article by Susan Lawrence and Peter Davies, "The Sludge Question: The Regulation of Mine Tailings in Nineteenth-Century Victoria".

Washing sludge in a timber race, Mitta Mitta, c. 1896
(SML Corporation)

The abstract:

Mining waste was a significant environmental problem in nineteenth-century Victoria, an Australian colony dependent on gold mining for its economic prosperity. Sludge from alluvial (placer) workings and hard-rock mining flowed into rivers across the colony causing significant damage and disruption to downstream communities. The sludge problem was eventually resolved by the passage of legislation early in the twentieth century. The struggle to control sludge reveals changes in public perception over a fifty-year period, from acceptance of sludge as an inevitable consequence of industry to the identification of sludge as pollution that should be eliminated. Significantly, at a time when the cost of dealing with noxious waste from other industries was still being borne by the public purse, the anti-sludge legislation held the mining industry responsible for its own pollution and required gold miners to return clean water to river systems.

The article is one in a series by the authors on environmental aspects of the Australian gold fields.

Legal hierarchies of Australian animals

Steven White has posted "British Colonialism, Australian Nationalism and the Law: Hierarchies of Wild Animal Protection". The abstract:

credit: Fir0002/Flagstaffotos

A combination of animal welfare law and nature conservation law establishes a hierarchy of protection for wild animals in Australia, with rare, threatened or endangered native animals receiving the highest levels of protection, plentiful native animals lying in the middle — sometimes well protected, sometimes not — and introduced wild animals at the bottom. In reading beyond the accounts of contemporary law, especially in sociology and environmental history, a plausible argument can be made for the proposition that this prevailing general schema of protection reflects an early 20th century assertion of a distinctive Australian identity, combined with the emergence of a conservation ethic and the decline of attempts to acclimatise British wild animals in Australia. Prior to federation the legal protection of wild animals was quite different, with native animals receiving little protection until the late 19th century. Introduced wild animals were initially protected to allow their flourishing, but by the late 19th century were increasingly being characterised as ‘pests’ and their protection wound back. This article explores how and why attitudes to native wild animals and introduced wild animals in Australia have changed over time, and how these changes continue to be reflected in Australian law.

Procedure and environmental history

A little while back Liz Fisher gave an interesting paper at a conference at TAU Law on how courts in New South Wales have approached judicial review of environmental impact assessments. My colleague Issi Rosen-Zvi, commenting on the paper, related Fisher's discussing of Australian courts' manipulation of the law/fact distinction to a centuries-long phenomenon of courts arrogating power to themselves (and taking it away from juries and administrative agencies) by casting questions as ones of law rather than of fact.

Rosen-Zvi's comment is a reminder that current debates over procedural issues such as standing, scientific evidence, class action lawsuits, and the like not only hold great importance for today's environmental law, but have a long history behind them, a history tied up in politics and power struggles over (among other things) which institutions, social classes, professional groups, etc. get to make decisions of environmental import.

William Hogarth, The Bench (1758)

Settler Contract or Natural Contract?

Last week I participated in a very interesting conference on the topic of legal diffusion put on by Juris Diversitas and the Swiss Institute of Comparative Law. Bronwyn Lay, a lawyer, writer, and scholar, gave a thought-provoking paper entitled "Settler Contract or Natural Contract". Hopefully it will be published soon; meanwhile, here's an excerpt: