Dam nation: This Canada Day we ask about the legal rights of beavers—our iconic national symbol

Consider the beaver. Sculptures of them stand sentinel over Parliament’s Centre Block. In 1851 it appeared on the first Canadian postage stamp, and long before that beavers were carved into totem poles on the Pacific coast. For 88 years it has graced our nickel. And this year it celebrates its 50^th anniversary as our official national symbol representing our sovereignty. Given this stature, what is our mascot’s relationship with the law? Does it enjoy more rights than, say, moose or geese? UM has experts at the centre of many debates and discussions, and animals and the law are no exception.

This Canada Day, we ask Mary Shariff, a professor in the Faculty of Law and Director of UM’s Master of Human Rights Program, to shed light on our rodent’s rights. Shariff created a course on animal rights five years ago and writes on a variety of legal topics that bridge the philosophical.

Animals have had many days in court. A pig was tried and hanged for attacking a child in 1386 in the Normandy region of France. In the 1530s, a French court tried beetles for destroying a vineyard and the defence argued the insects had a prior right to the land. In 1713, Brazilian monks brought termites to trial because they were destroying their monastery. But the termites’ lawyer argued the creatures were entitled to food. In a compromise, the monks set up a suitable habitat and the termites were commanded to live there.

So, consider the beaver.

Castor canadensis is a Canadian beast. Its ancestors came from Germany about seven million years ago and its fur trade laid our country’s foundation. We are a dam nation.

If we’d brought beavers to trial in the Middle Ages, courts would have heard testimony that they are entitled to live in beaverly ways. But now? Who knows—you can’t sue a beaver (or any animal) in Canada. Regardless, does the country that celebrates it like no other give it any special rights or privileges?

Shariff weighs in as a third-party. She represents neither beavers nor the state.

Q: Has a beaver ever been taken to court in Canada?

The first Canadian stamp from 1851 shows the beaver and not the sovereign. Image: Wikimedia Commons

Well there have been several court cases where people, municipalities or companies who bear the beaver’s name have been taken to court, but I am not aware of any Canadian cases where beavers have been sued at least not directly, likely because of a small detail called “standing” whereby animals, which are generally considered property, do not have legal capacity to bring or directly defend a lawsuit in court.

But as you can imagine – beavers are frequently part of the factual mix of a variety of different lawsuits, including cases where beavers are blamed for causing unwanted water issues, such as causing debris in waterways, or dams causing flooding in some areas or drying up other areas. And in some of these cases they are also part of a defence. As in, “it wasn’t me, it was the beaver dam.”  Those kinds of things.

Q: Is the beaver more legally protected under Canadian law than the Canada Goose or moose?

In terms of the animal itself, I am not certain that it has more legal protections – just different. For example, under Manitoba’s Wildlife Act, moose, goose and beaver would all be considered wild animals. Moose though are considered big game, whereas the beaver is considered a fur-bearing animal. The Canada Goose on the other hand is a migratory game bird and there are additional international laws in play regarding their conservation and protection.

But generally, when it comes to wildlife, the provincial law is set up to first prohibit all hunting and trapping, unless the person doing the hunting and trapping has a licence. In terms of trading in beaver fur or pelts, it’s the same concept, the provincial law says no, unless you have the appropriate licence or permit to do so.  There are of course some exceptions to this general approach, for example, people who have harvesting rights, pursuant to Aboriginal or Treaty rights. 

Q: What rights does a beaver enjoy in building a dam? What limitations does it have—what happens if it floods private or public infrastructure?

I do as a I please.

Good question. I would say that beaver’s enjoy their full rights to build a dam and from what I have seen in my own life, that is exactly what they do.

But if the dam is causing an issue they definitely can be removed. When and how they can be removed depends on their location as different provincial and federal regulations could apply.

If for example, the dam is on private land, provincial law requires that reasonable efforts are made to kill the beavers first before the dam is destroyed, and furthermore there are restrictions on how a beaver can be trapped or killed. There are also requirements for how a dam can be destroyed or removed which is in part because of the potential downstream consequences when interfering with water, waterways and water flow. I guess the bottom line is that it is important to contact the province before taking any action.

Q: Do you think we take an enlightened view of animals and law today, or were people in medieval times more open to animal’s having access to the law?

In terms of medieval times, when animals were brought before the court, my understanding was that it was primarily to blame them for harm to humans or property rather than to provide them with protection.

But in terms of the more philosophical questions of what is an animal, what is human, what is the nature of the relationship between them, I suspect these have been around forever.  The more you dig into history, I think you will find that different cultures, different disciplines and different philosophies and faiths at different times have afforded more or less respect to animals and the natural environment.

In fairness though, in terms of the “western” legal trajectory, there is no question that law has taken a utilitarian approach to regulating animals as natural resources or objects—meaning they are simply a means to a particular end, whether it be food, scientific advancement or entertainment.  Part of the difficulty here in terms of law, is that the law around animals which would include our friend the beaver, is disjointed and disconnected: it is human-centric. It has developed around the human activity with the animal considerations being contextualized to the activity.  So this is why, for example, we have different legal thresholds for what is considered animal cruelty in respect of a dog or cat, compared to a western food animal such as a cow or pig.

Over time, however, the sentience and interconnectedness conversation has continued and we see incremental changes in the law, such as a recent law in British Columbia which recognizes that family pets are more than just property. We also see movement away from that welfare model of animals (balancing animal pain against human need or desire) towards recognition of animals as ends in themselves with certain countries recognizing personhood rights for animals including dolphins, whales and orangutan. Additionally, Canadian caselaw is increasingly recognizing animals as sentient beings – living creatures who should not be treated simply as chattels.

Q: Beavers hold a significance in many Indigenous cultures. Do our laws reflect this? Or should they be amended in some way to capture how the beaver is viewed and held by Canada’s founding Peoples?

I love this question even though it is a tough one. Our Canadian constitution has been often described as a living tree and Canadian law in my view is definitely on the move in terms of the relationship with Indigenous Legal Orders and the goals of Truth and Reconciliation. So for me, when I think about this question, I think of us working within a particular, novel legal medium where anything is possible, including law reform that will recognize and place relationship and interconnectedness higher up on the list of priorities.  The more Canadian law is open to listening and sharing stories, the more likely we can walk together in peace and with hope.

Q: You oversee the Masters of Human Rights Program. Do you see any interesting parallels or omissions in how our society approaches animal rights and human rights?

There are so many linkages between how humans treat animals and how humans treat other humans and I think the upshot of all of this relates to empathy. Studies show that a lack of empathy towards animals can also manifest in a lack of empathy towards humans, and empathy needs to be fostered and encouraged. Using rights dialogue or frameworks, especially when they are combined with corollary responsibilities to help ensure those rights are respected, protected and defended, has at least the potential to help create a social environment more conducive or responsive to empathy—because rights are one way to tackle the negative consequences of “othering”. 

A concrete example of connections here is that it was the emergence of animal welfare laws that preceded and helped inform the development of child welfare laws in the United States. I am not claiming that the results of the welfare model are perfect, or that a rights approach is better, but there are definitely linkages between animals and humans that should continue to be explored from a legal perspective.

But taking all of these questions together and going back to the beaver—our topic for today—reminds me of what was said by the MP, Mr. Sean O’Sullivan, who introduced the bill that established the beaver as our national icon.  He reminded Parliament of how important it was to have a focusing point for shared interests and common strengths to “see us through troubled times”:

“To an individual, to a nation of individuals, there must be more to life than just financial facts and figures. There must be things to touch one’s soul and heart and emotions if we are to be complete persons and a whole nation. That is the importance of symbols, their special importance in times such as ours. That is the object of this bill and the special importance of the beaver to Canadians in our history, today and for tomorrow.” (Commons Debates, February 21, 1975).

 

Sean Moore