“Isn’t it time we thought more creatively about the nature of rights for other species?”
Marc Bloomfield
Description: Elephant (pexels-pixabay)
On 20 March 2017, the Whanganui River, New Zealand, was recognised in statute as possessing ‘all the rights, powers, duties and liabilities of a legal person’ (Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 s14). So why can’t an elephant be a legal person too?
It’s a question that the Nonhuman Rights Project asked the New York Court of Appeals on 19 November 2020. It had one very special elephant in mind – Happy, the first elephant to pass the mirror self-recognition test, otherwise known as the red dot test, devised by Gordon Gallup. He first tested the theory on chimpanzees, which were anaesthetised while red dots were placed on their faces. After they came round, Gallup observed them looking in the mirror. If they touched the red mark, this was an indication that they knew something had changed – that they were self-aware.
Why is this important for Happy?
Whether she is defined legally as a person will determine where Happy spends the rest of her life. The Nonhuman Rights Project advocated for Happy to be moved to an elephant sanctuary in Tennessee where she could roam with multi-generational herds of elephants across 2,700 acres. The Bronx Zoo said Happy had been in the zoo for 43 years and taking her away from this environment would create a serious risk to her long-term health.
Let’s go back 50 years
In the early 1970s, seven elephants were captured from the forests of Thailand and put on a boat to the US, where they were sold for $800 each to the Lion Country Safari Park, California. As there were seven, it seemed fitting to name them after seven famous dwarves – although the ending isn’t quite so happy. Sleepy died soon after arriving in her new home and the others got scattered across North America in zoos and circuses when the safari park closed. Doc broke his leg in 1990, after performing a hind leg walk for the Bowmanville Zoo, Ontario, Canada, and had to be put to sleep. Bashful and Dopey were sold to the George Carden Circus. Renamed Jaz and Cindy, in keeping with their spangly anklets and headwear, when on tour they still perform tricks in the big top. Sneezy, the bull elephant, fared better – being male – and lives in Tulsa Zoo with three other elephants.
Somewhat counterintuitively, Happy and Grumpy were relocated together in the Bronx Zoo to be part of the new one-acre exhibit known then as the Bengali Express Monorail. They lived together for 25 years until Grumpy was attacked by two other elephants in 2002, which resulted in her early death. Since then, Happy has remained pretty much alone.
What should the court do?
Elephants are social animals; empathetic, intelligent, and compassionate and, not surprisingly, they also have long memories. Although Happy probably won’t remember her very early years in Thailand, she will remember Grumpy. She will miss her.
The case before the appeal court was whether Happy had the common law right to bodily liberty protected by habeas corpus. The New York Supreme Court found that ‘Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty’, but that it was bound by earlier decisions – cases taken on behalf of chimpanzees – and ruled that Happy was not a ‘person’ for the purposes of habeas corpus.
The Nonhuman Rights Project appealed this decision. But is it really the correct test? Why does a river, a forest or an animal need to be a person to be protected? Isn’t it time we thought much more creatively about the nature of rights for other species and the environment? This year, more than most, has shown that how we treat and keep animals has repercussions for us all.
Mary Wollstonecraft’s A vindication of the rights of woman was published in 1792. At the time, the idea that women should have equal rights with men seemed so outrageous that a pamphlet called A vindication of the rights of brutes was written in response. The basic premise was that if women were given equal rights then animals, plants and even landscapes would want them too. Maybe, 200 years later, this isn’t such a bad idea.

About the author(s)

Description: Sue James
Sue James is CEO of LAG. She was previously director and housing solicitor at Hammersmith & Fulham Law Centre and a founding trustee at Ealing Law...