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Legal Status of Nonhuman Animals: A Property Problem with a Personhood Solution

Editor: Kirsten Marsh


You have likely heard this before: Canada has some of the worst animal protection laws in the Western world. Canadian legislation is devastatingly silent on animal protection, leaving gaps that expose animals to unthinkable exploitation and suffering. Where legislation does exist, enforcement of it leaves much to be desired. To make matters worse, several Canadian provinces have now adopted, or are contemplating adopting, ag-gag legislation that criminalizes animal advocates in favour of the institutions that exploit and abuse animals.[1] There is an overarching problem at the root of all of Canada’s inadequacies when it comes to protecting animals: the legal statu of non-human animals as property.


Broadly speaking, equating animals to property precludes them from enjoying even the most fundamental of rights because property cannot hold any rights under the law. Rights are essentially relations between persons and the law. “Things” cannot enter into relations and, under the law, non-human animals are things.[2] How can the Canadian legal system balance human interests against non-human animals’ interests in an equitable way when it fails to acknowledge non-human animals’ interests at all? By denying non-human animals legal rights, the legal system denies them any meaningful protection.


Legal personhood is one solution that can be adopted to give non-human animals legal rights. Personhood is generally assumed to be based on attributes that are characteristic of human beings, such as rationality.[3]However, the concept of “personhood” may exist on a scale; with property on one end and full personhood status like humans on the other. Quasi personhood/property lies somewhere in the middle, offering animals legal status that is neither full property nor full personhood. It recognizes a range of legal rights that could be recognized judicially or legislatively and advocated for politically.[4]


Legal personhood is not a status reserved solely for human beings. In Canada, a corporation is considered a legal person in New Zealand,[5]


Te Urewera National Park was declared a legal person in 2014;[6] in India, the Ganges and Yamuna rivers are legal persons;[7] and Ecuador, Bolivia, Columbia, and the United States each have rivers and parks that benefit from legal personhood.[8]


Non-human entities across the world are endowed with legal personhood in order that they might enjoy the rights that flow from it. The difference between a park or a tree or corporation and an animal, however, is that the animal has the capacity to experience suffering. Surely, if laws across the globe can rely on legal personhood as a mechanism for affording the robust protections that flow from legal rights to inanimate entities, Canada can reform its laws to protect the lives and interests of sentient beings in the same way.


___ [1] See e.g., Security from Trespass and Protecting Food Safety Act, 2020, SO 2020, c 9; see also Jodi Lazare, “Animal Rights Activism and the Constitution: Are Ag-Gag Laws Justifiable Limits?” (2022) 59 OHLJ 3 [2] C Reinold Noyes, The Institution of Property (New York: Longmans, 1936) at 290 n13. [3] Christine M. Korsgaard, “Personhood, Animals, and the Law” (2013) 12 Think Philosophy for Everyone 34. [4] Angela Fernandez, “Not Quite Property, Not Quite Persons: A “Quasi” Approach for Nonhuman Animals, 2019 CanLIIDocs 2110 at 75. [5] https://www.thecanadianencyclopedia.ca/en/article/corporation-law [6] Te Urewera Act, 2014, No. 51. [7] Susan Bliss, “A River is a Person” (2017) 49 Geography Bulletin No. 2. [8] CITE, not sure where author found this information.

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