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A-Law spotlight on Save The Asian Elephants

Save The Asian Elephants Duncan McNair

Duncan McNair is a prominent corporate litigation lawyer with a longstanding interest in animal welfare causes. He is founder and CEO of Save The Asian Elephants (STAE), a Community Interest Company working for the preservation and protection of the endangered Asian elephant. McNair founded STAE in 2015 after hearing about the plight of the Asian elephant and travelling to India to elicit the facts for himself. Moved by what he saw, McNair returned to the UK and STAE was formed.

In this piece, we look at the problems faced by Asian elephants and protections they are afforded by law. We also consider STAE’s achievements, challenges and plans for the future.

The plight of the Asian elephant

The Asian elephant is a desperately threatened species. Classified as endangered by the International Union for Conservation of Nature since 1986, it is estimated that the population of Asian elephants has reduced from over one million in the late 19th Century to barely forty thousand today. Around ten thousand of those are captive.[1]

The majority of wild elephants inhabit India and Sri Lanka, with ever reducing numbers in Thailand, Myanmar, Malaysia, Indonesia, Nepal, Bangladesh, Bhutan, Laos, Cambodia, Vietnam and China. Some states, such as Java, have already lost their entire indigenous population.

The threats to Asian elephants are man-made. The destruction of their natural habitat has the widest effect, with intrusive human habitation and cultivation forcing elephants into often fatal contact with man. Moreover, the obstruction of migratory corridors isolates populations, preventing genetic diversification and increasing susceptibility to disease. Populations are further threatened by ivory poaching and capture for commercial purposes. For those that are captured, a life of suffering awaits.

A young elephant awaiting pajan. Image: Save The Asian Elephants.

“I was horrified and appalled by the level of abuse I witnessed, inflicted upon a sentient, intelligent and endangered species”, says Duncan McNair about his first visit to India. He describes the capture and breaking of an elephant, a practice called ‘pajan’. “Baby and calf elephants are captured from the wild, with members of their herd who try to protect them often slaughtered in the process. They are isolated, starved and placed in a cage called a crush (or ‘kraal’) for weeks. They suffer terrible beatings using hammers, clubs and iron spikes. Many die in the process.”

McNair explains how the abuse continues outside the kraal with physical and mental torment. “A bull hook (‘ankus’) is used to control the elephant, a constant reminder of their brutal training. It is used on the most delicate parts of their bodies: behind the ears, under the toenails and around the anus. Elephants are kept alone, malnourished, and chained for most of their lives, with constant stabbings and beatings”.

McNair realised that although existing efforts to save individual elephants are well-intentioned, they are ineffective for tackling the problem at source; there is a greater driving force behind the abuse. “Over the last forty years, the intensification of world travel has fuelled the use of Asian elephants for commercial purposes, particularly in tourism, but also in festivals and temples. A large tusker elephant can be hired for £5000 per hour in the festival season.”

This has also brought about a change in training techniques, from positive reinforcement to negative reinforcement. “Before this intensive commercialisation, the relationship between the elephant and handler (the ‘mahout’) was built upon time and trust, enabled by the exceptional cognitive ability of the elephants. What has changed dramatically and tragically is the intense use of elephants, and their abuse by a new breed of mahouts. The mahouts themselves are in a desperate situation. They are not well regarded in Indian or Hindu society, they live in deprived circumstances and are economically enslaved to the industry.”

Through STAE, McNair takes a broader approach to helping the elephants. STAE employs a multifaceted strategy that includes advocating for regulation of the Western tourist industry, pursuing proper enforcement of animal protection laws in South East Asia and raising international pressure to protect the elephants. At its heart is the drive to raise public awareness and influence public opinion, political action and commercial practices towards STAE’s policies and objectives[2].

Law and enforcement in the range states

Asian elephants now inhabit just thirteen South-East Asian states (the range states). Although laws vary amongst the states, India is home to the greatest number of wild and captive Asian elephants and also holds the greatest political sway in the region. It is unsurprising therefore that India is STAE’s main focus for change.

In India, there are plentiful animal welfare laws. In particular, the Indian Ministry of Environments and Forests Guidelines, promulgated in 2008, offer specific, well-drafted guidance for the protection of elephants.[3] However, McNair argues the enforcement of those guidelines is substantially ineffective. “The problem is not the lack of laws in India. The problem is the effective and efficient enforcement of those laws, which requires a new political will to disturb the status quo, and pressure from the state and its agencies to bring this about”, says McNair. “There are green tribunals in India with excellent lawyers who often work for the good cause of animal welfare, but they have limited jurisdiction. If there is no efficient apparatus for effective enforcement, the effort is in vain.”

Better enforcement can only be achieved with the support of state agencies and, in STAE’s view, raising public and political pressure is the only way of achieving this. “We must never doubt that, in any functioning democracy, everyone – politicians, parliaments, governments, commercial interests – is susceptible to public opinion. The problem for the Asian elephants is how long have they left and how much more terrible suffering must they endure in the meantime?”.

Capturing political and public support

(L-R) Ian Redmond OBE, Duncan McNair (CEO) and Peter Collins of STAE, prior to meeting senior FCO officials.

“One of the greatest challenges”, says McNair, “is the effective projection of our policies and proposals upon nation states thousands of miles away. The range states are all drastically different to the UK, and India, like all democracies, is not a perfect plebiscite”. Despite these challenges, STAE continues to garner public and political pressure at home and in the range states.

In 2015, Virendra Sharma MP, a member of STAE’s Executive Board, sponsored two Early Day Motions in Parliament urging the Indian and South-East Asian governments to end the ill-treatment of elephants.[4] The motions quickly gathered cross-party support with 199 signatures. Similarly, in the European Parliament a Written Declaration on the Conservation and Welfare of Asian Elephants gathered 87 MEP signatures.[5] STAE also met with senior officials of the FCO and DEFRA at the request of the former Indian High Commissioner in London to discuss the British government’s role in protecting Asian elephants.

McNair returned to India to discuss STAE’s proposals for reform with several senior Cabinet ministers of the Indian Government. On his next trip, he was accompanied by a journalist from The Mail on Sunday who delivered a three-page exposé of the treatment of captive Asian elephants, accompanied by a second feature a week later.[6] Together, the online versions of these articles generated more reader views and reader shares than any other piece in the history of The Mail group of newspapers.[7]

McNair and UK Delegation Members at the World Forum Summit in Brussels.

A similar article featuring STAE’s pioneering work was published by The Sun newspaper in April 2017[8], followed by various features documenting disturbing undercover footage in December 2017.[9] Meanwhile, McNair spoke at the European Parliament; his address was widely attended and described by the Chair as “dramatic and shocking”. The public’s appetite for change is clear. The various petitions initiated following The Mail feature surpassed half a million signatures last year and numbers continue to rise.[10]

McNair draws hope from this, alongside other examples of commercial interests buckling under public pressure. “Look at Virgin in the case of SeaWorld. They listened to the public, acted quickly and had a dramatic impact on the financial standing of the company misusing these poor animals. But, as far as the Asian elephants are concerned the travel industry has been altogether too slow and patchy in its response.”

Harnessing change

There are opportunities on the horizon with Brexit providing a new catalyst for change. McNair argues the UK retains great influence and has an opportunity to take action to protect Asian elephants. “India wants to do business and gain inward investment, as does the UK. But, there is a real public demand in the UK and in the range states to protect the elephants.”

STAE at No 10

STAE joined other charities to deliver a letter to Downing Street demanding an end to the UK ivory trade, October 2017.

On a domestic level, STAE now advocates for the regulation of the UK’s abundant market in elephant tourism. “Our country should stand up and start to regulate the large market in elephant related holidays. At present, it is wholly unregulated”, says McNair. It would not be the first time that STAE has influenced government policy: in October 2017, McNair was part of a key group representing 220 charities and MPs who presented a letter to the Prime Minister demanding the abolition of the UK ivory trade. A proposed ban was announced by government. McNair continues, “Whether on principle or for political expediency, our present government has shown a highly laudable interest in espousing animal welfare causes. This may suggest the government’s disposition at the moment – I hope supported by the opposition – to help with appropriate legislation and regulation, but also the power of the electorate in speaking up. This is a cause that commands virtually unanimous support when the basic facts are articulated.” He adds, “There are vested interests which wish to maintain the status quo, but that should never thwart the general desire for change for the sake of these precious animals which are so terribly abused.”

The future for STAE

Looking ahead, STAE’s plans are wide-ranging. McNair says STAE will continue pressing for regulation of the elephant tourism industry. “We are pushing for a new law in Britain to prohibit the offering for sale or provision of holidays or facilities abroad which involve Asian elephants, unless it can be shown that the facilities advertised have never abused, and are not abusing, the elephants present there.” McNair is quick to point out that this does not mean an end to elephant tourism. “STAE’s proposal is not synonymous with the abolition of elephant tourism; in fact, the future of the Asian elephants may prove to depend upon responsible tourism.”

“The idea that [elephant experiences are] risk free is absurd”: Duncan McNair.

STAE also anticipates damages claims in the UK when tourists are injured or killed by captive elephants. McNair argues that it is reckless of the tourist industry to send their customers to be in the presence of captive and abused elephants. “The idea that it is risk-free is absurd. Elephants are gentle creatures but can be provoked by constant abuse into fatal attacks.”

Most crucially, STAE’s growing team will continue pressing to raise public awareness. This entails raising awareness of the abuse of Asian elephants, but also educating the public about how to choose ethical providers of elephant experiences. Moreover, McNair encourages the public to let their voice be heard, though always in a lawful and measured way. “However keenly felt our views, those involved in work such as STAE’s must always engage respectfully with governments, and likewise respect the cultures and traditions of their peoples. Our purpose is clear but we aim to proceed consensually.” McNair concludes, “There are stock letters on STAE’s website.[11] Write to your MP, the Prime Minister, the Leader of the Opposition, the Secretary of State at DEFRA, the Foreign Secretary and the shadow ministers. Write to Mr Modi, the Indian Prime Minister, to the Indian Tourism Minister and to the Indian High Commissioner to London. Above all, join STAE, follow us on social media and support the cause of the Asian elephant.”

For more information about STAE, visit www.stae.org.

Follow STAE on Twitter: https://twitter.com/stae_elephants

Like STAE on Facebook: https://www.facebook.com/stae.org/

Sign STAE’s petition: https://www.change.org/p/save-the-asian-elephants-savetheasianelephants

Article written by Abigail Scott, Trustee of the UK Centre for Animal Law.

[1] https://stae.org/overview/

[2] Summarised at www.stae.org/proposals.

[3] http://www.moef.nic.in/division/new-guidelines.

[4] EDM 436/2014 and EDM 45/2015.

[5] No.62/2015.

[6] http://www.dailymail.co.uk/news/article-3199391/Tortured-tourists-Chained-spot-20-years-Beaten-submission-secret-jungle-training-camps-terrible-plight-Indian-elephants-LIZ-JONES.html.

[7] https://stae.org/our-work/.

[8] https://www.thesun.co.uk/living/3344306/we-uncover-the-horrors-of-the-asian-elephants-abuse-industry-where-beautiful-animals-are-left-dying-in-agony-and-brit-tourists-are-to-blame/.

[9] http://www.independent.co.uk/news/world/asia/elephant-leg-broken-india-tourist-trade-rides-a8093231.html, http://www.mirror.co.uk/news/world-news/workers-brutally-beat-terrified-elephant-11637120 and http://www.dailymail.co.uk/news/article-5143011/Elephant-leg-BROKEN-workers-tame-India.html.

[10] The most popular of which can be found at https://www.thepetitionsite.com/en-gb/557/819/763/urge-indian-prime-minister-to-stop-abuse-against-captive-elephants/, https://www.thepetitionsite.com/en-gb/535/879/990/urge-indian-forest-department-to-take-action-on-elephant-torture/, https://www.thepetitionsite.com/en-gb/373/558/887/ask-india-for-better-treatment-of-elephants/ and https://www.change.org/p/save-sacred-elephants-from-being-tortured-and-abused-in-india.

[11] https://stae.org/help-us/.

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