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The animal welfare standards introduced by Agriculture Minister Damien O’Connor in 2018 were illegal and invalid because they circumvented previous changes to the law designed to phase out the controversial practice of farrowing crates and mating stables for pigs, ruled a Superior Court judge.
In a ruling issued Friday, Supreme Court Judge Helen Cull directed O’Connor to consider recommending new regulations eliminating the use of farrowing and mating cages under the Animal Welfare Act, and to consider make changes to certain minimum standards in the Animal Welfare Law. Code for pigs.
The successful judicial review, presented by the Animal Law Association and Save the Animals Against Exploitation (Safe), challenged the decisions of the attorney general, the minister of agriculture and the National Advisory Committee on Animal Welfare to enact certain regulations and minimum standards related to the use of farrowing cages and mating cubicles.
A farrowing cage is a cage in which sows (sows) are individually confined before, during and after “farrowing” (farrowing).
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There are minimum size requirements for farrowing cages, time limits for their use, and hygiene and nesting requirements that must be met.
A stall is an enclosure in which an individual pig is kept. The size of a barn allows a pig to stand in its natural posture and lie down, but the pig cannot roll over. There are minimum size requirements for positions.
Currently, a stable can only be used for mating purposes for no more than a week. Otherwise, the stalls are prohibited.
Previously, the practices of using maternity cages and stables, which were accepted as non-compliant with the Animal Welfare Act, were allowed in “exceptional circumstances”.
But in 2015, Parliament signaled its intention to phase out practices that do not comply with the repeal of the “exceptional circumstances” exemption and ushered in the timelines for the transition to practices that fully comply with the law.
In 2018, based on the decisions and recommendations of the independent ministerial advisory committee, the National Animal Welfare Advisory Committee (Nawac), O’Connor recommended that the Governor General make amendments to the Act, which did not require a transitional time frame and allowed the practices to continue indefinitely.
At the same time, O’Connor revoked the 2010 Animal Welfare (Swine) Code and “reissued” it as the 2018 code. The minimum standards in the 2018 code that were in question were essentially the same minimum standards that were contained in the 2010 code, and made the practices in question comply with the Animal Welfare Act.
Judge Helen Cull found that the regulations and minimum standards circumvent Parliament’s intention to enact empowerment legislation in the Animal Welfare Amendment Act.
He said they were contrary to the purposes of the law and were “illegal and invalid” because there was no transition or phasing out of such practices as intended by Parliament.
The Animal Welfare Act has been described by the Court of Appeal as “New Zealand’s most important law relating to the protection of all types of animals under human control”.
It includes provisions based on the “five freedoms” of animal welfare; freedom from thirst and hunger, freedom from discomfort, freedom from pain, injury and disease, freedom to express normal behavior, and freedom from fear and distress.
Safe Executive Director Debra Ashton said the case was about giving sow mothers the freedom to live more natural lives and respect them as sensitive, rather than treating them as simply ‘production units’.
“After exhausting all other avenues to free mother sows from cages, we had no choice but to take this landmark case to court,” Ashton said.
Animal Law Association president Saar Cohen said the ruling raised serious concerns about Nawac’s conduct.
“At best, they lacked the proper understanding of their legal duties and were disappointed by the legal advisers at the Ministry of Primary Industries (MPI),” Cohen said.
“At worst, Nawac acted in bad faith by allowing economic factors and industry pressure to outweigh their duty as independent scientists and advisers.”
Cohen said Nawac caused “great embarrassment” to O’Connor, who trusted his advice without hesitation.
David Baines, CEO of NZ Pork, said: “We are disappointed with this decision and are evaluating our options. It is important to remember that this judgment has found flaws with the Nawac process in the development of regulations and standards.
“Our industry follows world-leading animal welfare practices. Maternity or farrowing systems are essentially farrowing rooms for sows. They contribute to the survival of as many healthy and well-developed piglets as possible, while meeting the needs of the sow.
“All over the world, farrowing boxes are the most common system used to house sows and piglets until the piglets are weaned. No country has completely banned its use. “
