The South African Constitutional Court has handed down a judgement to dismiss the South African (SA) Hunters and Game Conservation Association’s application to have the animal wellbeing provisions in the National Environmental Management Biodiversity Act (NEMBA) declared unconstitutional and invalid. Reading between the lines, the issue being challenged was not whether wellbeing was important or not (it most definitely is), but rather how vague terms within its definition would be weaponized in a legal vehicle to stop well managed sustainable use.
The SA Hunters court case challenged whether adequate public participation had been allowed before adopting the amendments tie to “wellbeing” in The Department of Forestry, Fisheries, and the Environment’s National Environmental Management: Biodiversity Act 10 of 2004 (NEMBA) as approved by Cabinet that provides guidance to the SA government on how appropriately manage, legislate and create policies around sustainable use of wildlife.
As someone who is pro-sustainable use of wildlife and fisheries it’s important from the outset that the reader understands that from our perspective animal welfare (i.e., wellbeing) is a cornerstone of that utilization model. Without it, the economics of the system doesn’t work, and more importantly the ethics of our belief system doesn’t fit with societal norms and standards. In our world, often animal welfare and animal wellbeing are synonymous. If you are being more technical, animal wellbeing is the physical and mental health of the animal, i.e., quality of life, while animal welfare includes animal wellbeing plus the human responsibilities of maintaining that wellbeing state.
Semantics vs. definitions
In colloquial language often animal health, animal care, animal welfare, animal rights, and animal wellbeing are blurred across how those terms are used and applied.
The lay public may look at the court case and generally, based on a lack of understanding of the difference in terminology, see SA Hunters arguing for a softening of the definition of wellbeing. That is a tough pill to swallow and would make most sit up and say that’s exactly what hunters should be doing.
In fact, that is absolutely what most sustainable use practitioners do. They are constantly ensuring animals (including fish) live as healthy a life as possible, in the best conditions possible, and when it comes time, are dispatched as quickly, as efficiently, as ethically as possible. A management system of addressing wellbeing and the animal’s welfare.
To ensure crystal clarity in our position – animal wellbeing should be at the forefront of sustainable use, and honestly believe it is (due to the economic asset model around it). Those in our space that are not being good stewards and subjecting wildlife and fisheries to conditions that are not in line with providing conditions for those animals to thrive should have questions, and legal challenges, brought against them. That’s why the NSPCA exists.
However, the court case, and the angst around its inclusion in NEMBA, is not tied to conditions, but rather an interpretation of what was included in the definition of wellbeing.
In NEMBA animal wellbeing is defined as: “The holistic circumstances and conditions of an animal or population of animals which are conducive to their physical, physiological and mental health and quality of life, including their ability to cope with their environment”. By technical definition it is not incorrect. However, the problem with this definition is that elements within it, cannot be proven or disproven, which makes the definition ambiguous. When something is ambiguous that opens that door to legal challenges that, depending on what side of the aisle you reside on, could lead to a cessation of sustainable use of wildlife.
What’s the issue?
At this point you should be saying I don’t see the issue. Let me provide some examples.
For example, an impala on a ranch is hunted. In the circumstance of it being killed, it is shot and the animal runs a distance, falls over, and kicks as he dies. A very typical circumstance in hunting. The animal was shot ethically, appropriately, with all factors considered. Did that activity just impact the physiological and mental health of that animal? The argument could be made yes and no. Actually nobody knows.
Or a 10 yr old girl fly fishing in the mountain streams of Lesotho catches a yellowfish and takes a video of the catch and the landing. She takes the fish out of the water admires it, shows it to her dad who is filming, and returns it back to the water as healthy as possible. The fishery is limited to when it is fished due to water levels, water temperature, and numbers of anglers. Is that video now evidence of an activity that comprised the physiological and mental health of that fish and would that open up her, her family, and ultimately the fishery to close?
If we took this thought process a little further, how is that definition applied when a pack of wild dogs in a private game reserve (who purposefully stocked them) disembowels a kudu cow as it is still alive. Did that kill affect the mental health of that kudu? Most would likely say yes. In the white paper supporting NEMBA there is a note that states “This does not imply that natural
processes such as predation or competition should be prevented or interfered with, but rather that anthropogenic interventions and activities must consider animal well-being”.
Was the activity of bringing wild dogs to the reserve, an anthropogenic intervention, something that didn’t consider the animal wellbeing of the plains game animals on that reserve? Given the definition of wellbeing, one could argue that statement is contradictory as predation and or competition would affect mental health and physiological health, as well as the act of bringing the wild dogs being considered an anthropogenic intervention. So does that mean predation and competition are exempt from those elements of the definition? NEMBA nor the accompanying white paper doesn’t state that explicitly, i.e., it’s ambiguous.
If you are confused, that’s the point. Confusion and ambiguity are not good in a courtroom.
Unfortunately, legal ambiguities have been used globally to stymie and pause good wildlife and fisheries conservation, often resulting in animal welfare issues, the very thing that the legal challenge is over. This hamster wheel is a symptom of our system.
The hope that this is not the case here, and when challenges are made, courts look specifically at the insertion of the word holistic and give deference to the defendant who has economically, physically, and often mentally sacrificed to ensure that their wildlife and fisheries have had the best life that has conformed with existing animal welfare and husbandry laws, as well as the definition of animal wellbeing.
By the very nature of sustainable use, wildlife and fisheries populations are cared for to be sustained. Under for that to happen, animal wellbeing takes a very front row seat.
Dr Robert (Robbie) Kröger is a restoration ecologist originally from South Africa but now is based in the United States of America. His work through the non-profit he started, The Origins Foundation, aims to showcase the true consequence, benefit, and impact of sustainable use of wildlife globally.
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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