Seven years after its inclusion in the Animal Welfare Act, the thinking on animal sentience has continued to develop. But has it translated into much-needed action? By Mirjam Guesgen.
In 2015 New Zealand became the first common-law country in the world to include the word ‘sentient’ in its Animal Welfare Act. The change in law reflected what many animal caretakers had implicitly known for a long time – that animals have feelings.
At the time, the move was applauded by international animal welfare organisations and experts, who said it was fitting given NZ’s high animal welfare standards. Yet it quickly became apparent that simply slotting a word into the Act – however meaningful it may have first appeared – had real shortcomings in its application to the animals in Aotearoa.
One of the biggest issues was that sentience wasn’t actually defined in the Act, leading animal welfare experts at the time to argue that the law had very little “bite”.
Today the scientific understanding of the animal experience has once again moved forward and work is underway to have that understanding reflected in legislation and ways that animal caretakers, including veterinarians, behave. But have the bugbears of nearly a decade ago been resolved? And what will the next seven years hold for animal sentience?
The difficulties attached to the absence of a legislative definition of sentience still hangs over animal welfare law and practices. The Animal Welfare Act still doesn’t include a full definition, instead saying only that the purpose of the Act is to “recognise that animals are sentient,” but doesn’t clarify what that recognition means in terms of people’s responsibilities. However, the National Animal Welfare Advisory Committee (NAWAC) – tasked with providing independent animal welfare advice to the Government – states on the Ministry for Primary Industries’ website that it “acknowledges the explicit recognition of animal sentience within the Animal Welfare Act in 2015” and defines sentience as the “ability to perceive or feel things”.
The NZVA’s position statement on sentience clarifies that an animal is “not only capable of feeling pain and distress, but also can have positive psychological experiences, such as comfort, pleasure or interest, that are appropriate to its species, environment and circumstances”. It goes on to say, “To state that animals are sentient accepts that they can experience positive and negative emotions.”
Having these definitions is more than a matter of semantics. According to animal law specialist Ian Robertson, legal responsibilities are created by a law’s words and definitions, so a clear definition of sentience is critical to assist those who have a duty to comply with the law and those entrusted to enforce it.
“There’s been a tendency for welfare assessments to focus on alleviating the negative without promoting positive experiences,” he says. That approach is mirrored in anti-cruelty law that focuses just on preventing unnecessary pain and distress to animals. “It’s kind of stating the obvious, but less pain is not the same as more pleasure.”
Ian is the co-founder of the grassroots lobby group, the Sentient Animal Law Foundation, which advocates for a legislative definition of sentience that creates a duty of care for the animal’s negative and positive states. He says the amendment will mean that in addition to not being cruel to animals, animal caretakers will also be required to provide animals with opportunities for positive experiences.
Ian is a strong advocate for using law as a unique change management tool.
“No other tool can establish a standard that mandates changes in people’s behaviour within a definitive timeline, and has the power to take away your money, property or freedom if you don’t comply,” he says. “A clear and unequivocal change in law’s duty of care concerning animals affects all people and would foreseeably see all sentient animals given a genuine quality of life experience, not just the lucky ones”.
According to Sally Cory, the NZ Veterinary Association’s Head of Veterinary Services, Companion Animal, the inclusion of ‘sentience’ in law has already affected veterinary practice.
“It’s likely to have done this through creating a subconscious awareness of animals’ capacity to have feelings,” she says. “Many practices are acknowledging sentience without necessarily realising it. Examples include separate waiting areas for cats and dogs and the use of low-stress handling for all patients.”
It’s also affected large animal veterinarians and caretakers, who are starting to promote positive and alleviate negative experiences. For example, Fonterra’s ‘Cared for Cows’ programme is based on the Five Domains model, which aims to ensure that cows are well fed (the nutrition domain), comfortable (environment), healthy (health) and content (behaviour), and in doing so enhance their mental state (the fifth domain) and wellbeing. However, its minimum standards for farms are limited to the third (health) domain – and incidences of lameness, mortality and bulk somatic cell count. Since 2015 there’s been a slow shift in recognition of the need for animals to have positive experiences, and that people can play a big part in that. However, that recognition isn’t widespread and the number of those applying it regularly is few. This largely reflects a lack of knowledge on how to implement these ideas in a way that’s auditable and holds people accountable.
Plus, when animals are still subjected to negative experiences, is there space to ensure the positive?
In 2017, shortly after ‘sentience’ was added to the Act, NAWAC hosted a major workshop with stakeholders from the veterinary, production, game, and zoos and aquariums industries. It was a chance for participants to grapple with the meaning of the word and how it could be further incorporated into the veterinary codes of welfare, which specify how people should care for animals, and fall under the Animal Welfare Act.
“Without definition [in the Act] we were like, ‘What does this really mean?’,” says Gwyn Verkerk, chair of NAWAC.
The workshop highlighted the need for a better understanding of ways to recognise an animal’s emotional state, how to formally assess it and how to move away from minimum standards of care – which mostly do well to alleviate negative experiences – towards providing opportunities for animals to experience positive emotions.
The workshop, which coincided with a change of government, prompted NAWAC to review the 20-odd codes, allowing sentience to be considered within the context of the codes.
“Basically, this has involved going through the codes and reviewing them from all sorts of angles,” Gwyn says.
“For example, technology needs to be accounted for, as do advances in thinking, and we’ve committed to including explanations of sentience.” The review is still underway, but the revised pig and dairy codes are now both out for public consultation. As part of its review, NAWAC has conducted a full Five Domains assessment of farrowing crates and mating systems.
“It’s the first time we’ve used the Five Domains approach to assess a whole farm system,” he says. “People will find the results quite interesting.”
According to Nikki Kells, a senior lecturer in animal welfare at Massey University, sentience underpins the Five Domains model. Through recognising an animal’s capacity to experience positive and negative affective states, we can see whether their welfare is positive or negative. “Basically, it’s an underlying assumption that animals need to be sentient to have welfare.”
The Five Domains model has been updated several times since 2015 to reflect advances in scientific understanding. One of the significant changes is its stronger emphasis on the role of people in animals’ mental states.
“Before 2020, human-animal interactions were included in Domain 4 (behaviour), but not explicitly,” explains Kat Littlewood, veterinarian and lecturer in animal welfare. “The update in that year fixed that – the domain became much more explicit in how humans can affect animal welfare.”
Specifically, Domain 4 was renamed ‘behavioural interactions’ and was subdivided into the interactions that animals have with their environments, other animals and people. The key feature, according to Kat, was animals’ ability to exercise agency, or “do what they want to do”, which results in positive affective [emotional] engagement and mental experiences.
Since humans often control the lives of animals, including domestic species and some wild animals, “active human interventions are often necessary to facilitate positive experiences,” she says.
The changes to NZ’s law have also included a widening in our scientific understanding of which animals are sentient. The Act now includes mammals, birds, reptiles, amphibians, fish, octopuses, squid, crabs, lobsters and crayfish, as well as mammalian foetuses, avian and reptilian pre-hatched young that are in the last half of their gestations, and any marsupial pouch young. It also leaves room for the list to change as new evidence comes forward. For example, changes in 2018 strengthened the regulations on the killing of caught crab, rock lobster and crayfish, reflecting new evidence of their ability to experience pain and stress.
Other countries are following NZ’s approach and expanding their lists of animals deemed sentient by law. In the United Kingdom, for example, the Animal Welfare (Sentience) Bill is in its final reading and, if enacted, will see octopuses, squid, cuttlefish, crabs, lobsters, shrimps and crayfish added to the list. The bill was proposed after a review by The London School of Economics and Political Science concluded with high or very high confidence that these animals are sentient beings (Birch et al., 2021).
Gwyn says it’s imperative that we have laws and regulations that line up with science.
“You go back to the science. The decisions on what to include in the codes are very much based on the literature.” That said, it gets tricky when it comes to making sure the rules are followed and the desired outcomes are achieved.
One of the sticking points is knowing whether human interventions can actually create positive experiences for animals.
Kat gives the example of providing a toy for an animal in a zoo enclosure or farm pen. If the animal doesn’t play with it but isn’t scared by it, it’s probably not affecting their welfare positively or negatively, it’s just neutral. So having a rule that all enclosures and pens must have this form of enrichment does little to promote positive experiences.
“This example highlights the need to understand what welfare indicators mean for animals in affective state terms.”
That’s why it’s important to have good, animal-based indicators of welfare (that is, ways to measure animals’ affective experience) as well as understand scientifically what matters to a particular animal in a particular context, she says.
This is a growing area of scientific research, with animal welfare scientists investigating measures such as oxytocin levels, eye temperature, eye white, play behaviour and certain vocalisations and facial expressions.
Gwyn agrees with the need for animal- based indicators as well as environment assessments, adding, “You have to be careful that you’re not thinking, ‘The system’s providing this for the animal so therefore the animal is happy’. They don’t necessarily go together. You can design awesome systems, but you need to demonstrate that the animal is in a positive emotional state.”
Because of the difficulties in putting positive welfare into law, Kat believes that industry and veterinarians will be at the forefront of getting animal caretakers to give their animals opportunities for positive experiences. She points to programmes like Fonterra’s, where veterinarians are actively involved in developing wellbeing plans for cows. Gwyn is optimistic about the power of legislation, particularly in alleviating the pain associated with common farming procedures such as docking.
“We’re trying to use the code review to promote the idea that we can do more for animals. It’s about recognising that people as a society sometimes need to have conversations for a while before they figure out it’s doable.”
For certain actions, like giving pain relief during docking, you can create the rules (and consequences) and the commercial solutions will follow, she says.
The societal conversations include those between veterinarians and their small animal clients, and large animal caretakers. “Short comments from veterinarians can have quite an impact,” Gwyn says. “The veterinary community is a really important channel for helping people to understand; they listen to what their veterinarians say.”
Kat adds that veterinarians have a valuable role in assessing the welfare of animals in their care and offering advice on how the animals’ lives could be improved – including in a range of contexts such as onfarm and in-clinic.
“We’re seeing animals all the time, but if we’re thinking only about the animals’ health and nutrition we’re only returning them to neutral. We can enrich our opportunities to talk to owners about their animals’ behaviour, and help to provide animals with opportunities to have good lives.”
Ian too would like to see more veterinarians speaking out on the positive side of the animal welfare coin.
“Veterinarians are society’s trusted experts on animals’ health and modern welfare so, of course, you expect them to be giving advice based on the sentient animal’s ability to feel and experience negative and positive states,” he says.
“It’s a win all around for veterinarians who are already promoting the concept of happy cows and showing how an animal’s wellbeing links to production and the public’s expectations.
“In addition to benefiting the animal and the client, recording observations about an animal’s positive states benefits the veterinarian in circumstances that involve assessing the records.”
The NZVA’s Animal Welfare Strategy, which is being updated by the middle of 2022, aims to publicly promote veterinarians to being sought after as knowledge leaders in the space. Getting there will mean upskilling the profession in new research and understandings of sentience and how this applies across the various species and how the law ties into the work veterinarians do.
“This strategy update ensures NZVA’s work in the animal welfare space remains closely aligned with what our members are telling us is important to focus on,” NZVA chief executive Kevin Bryant says. “It also ties our animal welfare efforts more tightly to our strategic plan and vision – that veterinarians are the integral leaders of the health and wellbeing of animals, and their relationship to people and our environment.”
As for what’s next with sentience, the list of sentient animals will no doubt grow as new scientific knowledge comes to light. Nikki Kells notes research is already available showing that ants and bees can learn and weigh up the risks of experiencing something hurtful in order to get something rewarding (a process called ‘exhibiting motivational trade-offs’).
“The scientific evidence is mounting for sentience, and for sentience in invertebrates,” she says, noting the potential minefield of thinking, for example, about how to control insect pests or keep live insects for teaching demonstrations. All this change is likely to take some time, as the country grapples with ways to address the negative experiences animals face, particularly during painful procedures, in sometimes harsh environmental conditions and when they’re used for entertainment or sport. “We have to allow time for things to happen,” Gwyn says.
- First published in VetScript June/July 2022. Mirjam Guesgen is a science journalist and former editor of VetScript.
