Private Interest Standing for Animals?

A couple of months ago, I wrote about recent animal rights jurisprudence in which plaintiffs instituted actions as owners of animals, to enforce rights under existing laws. Although those cases did involve a certain consideration of the animal’s best interests, the premise nonetheless remained that the animals were property or chattels, as opposed to sentient or rights bearing living things (Nakhuda v. Story Book Farm Primate Sanctuary, 2013 ONSC 5761; Reece v. City of Edmonton, 2011 ABCA 238). In recent years, animal rights and environmental groups have also sought public interest standing to bring suit as citizens with an interest in an animal’s welfare.

A recent New York Times article goes further and raises the question whether animals could be granted private legal standing themselves to sue their captors. In The Rights of Man … And Beast, Charles Siebert reports on the American lawyer Steven Wise, who has been advocating in defense of animal welfare for decades and who recently argued in court that a chimpanzee should have standing as a legal person to sue his captor.

Wise highlights that his goal is not to redefine the term “human being” to include animals, but rather to interpret the existing and established concept of legal personhood – which includes corporations and municipalities for instance – to include the interests of animals. Wise felt that such a concept was already present in habeas corpus case law which permits courts to issue writs requiring that a person be brought before a judge by his or her captor in order to rule on that prisoners detainment. According to Wise’s research, habeas corpus cases have already often been filed on behalf of those unable to represent themselves such as prisoners, children or mentally incapacitated adults.

Unfortunately – but predictably – the arguments put forth by Wise did not move Justice Joseph M. Sise of the Montgomery County court house in New York, who concluded that the court could not recognize a chimpanzee as a human or a person under existing laws.

Still, the case brings up the issue of standing for animals. I do not mean public interest standing, which is already recognized in some cases of animal welfare, but true legal standing for the animal itself. Practically speaking, the standing requirement is one of the most important obstacles to protecting animals under the law. While many laws and regulations protect animals against cruelty, or seek to prevent extinction of entire species by protecting diversity, it is often the case that these laws are not enforced because those who have the greatest interest in having them enforced – animals – cannot bring suit in their own name.

Cass Sunstein, in an article on animal rights, answers unequivocally that animals cannot be granted standing in their own right under existing American laws, since Congress has reserved standing to “persons”, and many laws expressly reserve enforcement to persons, not animals (In the most famous of these cases, a dolphin named Kama was found not to have standing to challenge a transfer of its location under the Marine Mammal Protection Act: Citizens to End Animal Suffering and Exploitation v. The New England Aquarium, 836 F. Supp. 45). Of course, corporations may have standing in certain cases, but only because they have been explicitly granted legal personhood under the law.

Sunstein does however cite a surprising number of cases in which animals have been included as named plaintiffs: see for example, Palila v. Hawaii Department of Land and Natural Resources, 852 F.2d 1106, in which a bird species was named as a plaintiff. In the end, however, the author concludes that standing for animals is a problem for legislative resolution, and raises the possibility that Congress could one day decide to amend the wording of the statutes to extend the right to animals.

Canadian law may grant more latitude to pleaders making such an argument. Generally, the law of standing requires that a “party” or “plaintiff” have sufficient personal interest in the suit and have suffered an injury. In provinces like Quebec, where the standing requirement is codified, the provision does not refer to humanness or personhood (see article 55 Code of Civil Procedure: “whoever brings an action at law […] must have sufficient legal interest therein”). Could this open the door to animals being granted the right to defend their own interest, through a court guardian? In light of the advancements the law has made in the area of animal protections, this is not an entirely foreign possibility.

But even if our positive law could allow for the proposition that animals have sufficient legal interest to institute actions, granting this standing implies that animals have rights worthy of being protected in Court. And while we are increasingly open to talking about animal welfare or animal wellbeing, we are still generally unwilling as a society to speak of animal rights. In other words, in my view, private interest standing would imply that animals have actual rights, and once we make this conceptual leap, personal standing may soon follow.


  1. In litigation (or for that matter a solicitor’s practice), lawyers representing a human being without full legal capacity – a child, a mentally incapable adult – has to assure themselves that they are properly retained and have to be able to assure others – the court, parties to negotiations – that they do represent the purported client. The law has developed a number of ways of doing this, but their operation is sometimes uncertain, and lawyers may have to withdraw if they are not confident of their instructions, or if there is a conflict in those instructions.

    How does a lawyer decide that an animal wants or even needs representation, and how does one resolve conflicts in interpretation of those wants or needs? I say that animal X has a right to benefit Y; how do I become the lawyer for that animal, beyond personal assertion? Suppose someone else claims to represent the same animal, who succeeds? On what basis? And if another lawyer says that animal X does not want benefit Y but benefit Z, or is happy with the status quo, how are the “client”‘s wishes determined?

    I am not talking about a court disposing of competing claims to legal rights; I am talking about someone resolving competing claims to represent the client in the first place. Do the Rules of Professional Conduct provide guidance?

    If the law needs a principle for animals like ‘the best interests of the child’, where the court is responsible to go beyond what the parties may submit, can that really be developed by the common law?