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Parliament speaks: wildlife has intrinsic value.

Can an environmental statute have ethics? This is the question University of Calgary Law Professor Ian Rounthwaite has been asking himself and his environmental law students for years. In fact, he has raised this question, not simply in passing, but as an overarching theme for his advanced environmental law seminar. You might say he's obsessed with this question.

I posed the question above in somewhat facetious terms. Professor Rounthwaite has really been asking what environmental ethics are reflected in Canadian environmental statutes or, in other words, how might those laws be perceived from various ethical perspectives.

The recently-enacted federal Species at Risk Act (SARA) has provided considerable grist for Professor Rounthwaite's ethics mill. The Act's Preamble states that "wildlife, in all its forms, has value in and of itself" in addition to having various instrumental values for people. This legislative statement is somewhat unique among environmental statutes in expressing any ethical viewpoint outright because many, if not most, environmental statutes refer to a goal or set of goals without explaining why, especially at the fundamental ethical level, the enacting legislative body chose to pursue those goals in the first place. Other statutes, like the federal Fisheries Act--one of the flagship federal environmental protection statutes--do not even state a goal at the outset.

SARA's Preamble is even more unusual for the content of the ethic it espouses--once again, its attribution of value to wildlife "in and of itself". Most, if not all, other Canadian federal and provincial environmental statutes purport to justify their environmental protection objectives (when they provide any justification at all) on the basis of wildlife's instrumental value.

By declaring that wildlife has value in its own right--what philosophers call "intrinsic" value--Parliament waded into a long-standing philosophical debate. In fact, Parliament did so boldly by declaring that all wildlife, not just apes, or all mammals, or all sentient creatures, have intrinsic value. (The Act does not define "wildlife" per se, but it defines "wildlife species" in terms of all living organisms, except bacteria and viruses, provided they are "wild by nature". This qualification raises thorny philosophical questions about the differences between wild and domestic organisms, but I'll ignore this specific problem for present purposes.) By referring to "wildlife" generally, Parliament also appeared to consider both individual living wild organisms and wildlife species as having intrinsic value (the Act defines "wildlife species" broadly as including subspecies and distinct populations of wildlife species), thus, taking a bold stand on another aspect of the philosophical debate. Of course, Parliament stopped short of attributing intrinsic value to whole "ecosystems"--which are essentially collections of organisms and non-living features in a given geographic area. So, in this sense, Parliament did not weigh in at the extreme end of the philosophical spectrum.

There is general agreement that people have intrinsic value; so the debate among philosophers about the values of other living organisms typically focuses on the similarities and differences between people and those other organisms. But the debate has been so difficult to resolve largely because of a lack of consensus and clarity on the appropriate reference point for comparing people with other living things. I am similar to an elephant or even a blade of grass, in some respects, but different in many others. However, there is widespread disagreement on which of these respects count for purposes of having intrinsic value. Uncertainties about the actual nature of other organisms--especially how some non-human creatures think and feel--make the philosophical comparison even more problematic.

Some sceptics of the non-anthropocentric camp sidestep this comparative exercise altogether by arguing that it is simply impossible for humans to attribute intrinsic value to non-human organisms. In other words, we are stuck with--or perhaps doomed to--an inherently anthropocentric morality because morality itself is a human construction. I'm not sure I could recite the entire logic of this criticism, but the bottom line has some intuitive appeal. I'm also sympathetic to the criticism because of the human-centered logic that is sometimes used to justify a non-anthropocentric environmental ethic. The logic is something like this: 1) the environment is going downhill; 2) this is bad for people; 3) widespread adoption of a new environmental ethic is necessary to solve this problem; 4) the only ethic that will do this is a non-anthropocentric one. In my view, Aldo Leopold's now Famous and widely cited "land ethic" is a classic example of this anthropocentric justification for a supposed non-anthropocentric environmental ethic ("The Land Ethic," in A Sand County Almanac, 1966).

Sceptics also ask: If you attribute intrinsic value to non-human organisms, then what? More specifically, how are human values supposed to be balanced with or weighed against non-human intrinsic values? Some people argue that humans should simply take a back seat or, worse yet, butt out entirely, but this is a tiny minority voice, even among the proponents of so-called non-anthropocentric ethics. The more typical response is that humans should "consider" or "respect" the "interests" of whatever other organisms have intrinsic value when making decisions or taking actions to promote human interests. While simple to state, this rule is difficult to implement. What are those non-human interests? And what weight should they be given even if they can be considered as independent of humans' interests?

As noted earlier, SARA's Preamble references both the intrinsic and instrumental values of wildlife, so Parliament clearly did not ignore the human side of the equation. But the Preamble itself provides no guidance on how wildlife's intrinsic values should be factored into governmental decision making under that legislation. In fact, critics of the new law--including Professor Rounthwaite--argue that Parliament's acknowledgement of wildlife's intrinsic value is hollow given the law's shortcomings as a tool for preventing species' extinctions. Chief among these flaws is the government's wide discretion in deciding whether to include certain species on the lists of species to which the Act's protection mechanisms apply. Another flaw is the Act's limited applicability to the habitats of endangered species that occur on non-federal land. But these flaws hold even from an anthropocentric standpoint, if you assume--as I do--that our own interests are ultimately best served by the maintenance of healthy and diverse species and ecosystems.

While the Act's tools are weak, SARA's declaration of wildlife's intrinsic value may be a long-lasting legislative achievement. We may never know whether our inherent anthropocentricism makes the legislative declaration fundamentally illogical, but even the act of asking and re-asking the question may help instill a strong environmental ethic. Viewed another way, Parliament's declaration is an implied reminder that our interests are tied to the fate of other species. Coming from Parliament, and likely to be cited in future court decisions interpreting SARA and other environmental laws (not to mention read repeatedly to students by Professor Rounthwaite and by numerous other professors in Canadian universities), this is a potentially powerful reminder.

Michael M. Wenig is a Research Associate with the Canadian Institute of Resources Law and an Adjunct Professor with the Faculty of Law at the University of Calgary in Calgary, Alberta.
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Title Annotation:Environmental Law
Author:Wenig, Michael M.
Geographic Code:1CANA
Date:Feb 1, 2005
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