Alex Last Art Tasmania

Beast of Burden of Proof

Presented at Melbourne Knowledge Week 2021
Originally commissioned by Next Wave Festival 2020.

These are trialing times. Ecosystems are collapsing and whole species are rapidly disappearing. But who is responsible? In ‘Australia,’ one threat in particular has been singled out: a small bird known as the Indian or Common Myna. Introduced to the continent over 150 years ago, the species stands accused of rampant ecological lawlessness; of wreaking havoc on native birds, overcrowding available habitats, and interfering with human infrastructure. In response, Myna communities are being exterminated all across the country. However, until this moment, they have not received a fair trial.

Beast of Burden of Proof invites participants to engage in a trial of restorative ecological justice, confronting a tangled, multi-sensory web of evidence in an effort to decide the Myna’s fate – a decision laced with irreversible consequences. Participants must judge the facts and deliberate together, facing the ethics of being human in a world striving for ecological justice.


The burden of not belonging: human-avian entanglement at the edge of ecological ruin

   Ecosystems within Australian borders are collapsing under the press and pulse of ongoing and extreme weather events [1] Across the planet, at least 1 million species of animals and plants are threatened with extinction [2] Population decline in vertebrate species is considered so severe that academics refer to biological annihilation and a sixth mass extinction event [3] But who or what is responsible? Homo sapiens are a clear culprit, yet still more discerning eyes would narrow it down to those particular humans (comprising barely 1% of earth’s population) wielding and benefiting from the life-draining tendrils of capitalist extractionism, a process of becoming-extinction which ‘necrotizes the entire planet’ [4] However, amidst a dramatic atmosphere of annihilation, an additional culprit has also emerged: a small introduced bird known as the Indian or Common Myna (Acridotheres tristis) In 2005, WildWatch Australia surveyed the Australian community to find out which species was perceived to be the “most significant pest/problem,” with 82.37% respondents selecting the Common Myna, placing it above the cane toad (76.15%), feral cats (68.21%) and foxes (67.89%). Despite this severe public perception, there appears to be no strong consensus from the scientific community regarding the Myna’s impact on native ecologies [5] In 2021, the Myna remains the target of an intensive culling regime orchestrated by local government agencies, land-care groups and citizen action networks who accuse the Myna of spreading disease, wreaking havoc on native birds, overcrowding available habitats and damaging agricultural crops [6]

Participants listen to a testimony on Myna aggression, composed by a human manufacturer of specialised Myna traps, and narrated from the perspective of a Rainbow Lorikeet.↑ participants listen to a unique testimony on Myna aggressiveness, written by a human manufacturer of specialised Myna traps and narrated from the perspective of a Rainbow Lorikeet.

  Due to its status as an invasive species in Australia, the Myna is not afforded legal protection and can be trapped and killed by any individual who has the inclination, with the provision that it must be dispatched ‘humanely’ [7] One particularly vigorous citizen coalition, the Canberra Indian Myna Action Group, has reported culling 71,870 individuals since 2006 [8] Despite the severity of this situation, there has been no formal adjudication on a national or state level to determine whether the Myna’s current status is equitable. This is unsurprising since, as Edward Mussawir points out, ‘none of the State or Territory legislation in Australia addresses the legal rights and capacities of animals other than by describing certain acts, states or conditions that may constitute or indicate ‘cruelty’ [9] 


↑ The host performs a live representation of how the Myna population has expanded over the last 150 years.

But what would formal adjudication look like? In part, the answer to this question can be traced back to the Middle Ages where, as early as 1266 CE, animals of all kinds were placed before civil and ecclesiastical courts in order to face formal trial for alleged criminal actions [10] These were serious proceedings which required financial backing and involved judges, lawyers, executioners, witnesses and bailiffs. In this era, non-humans were considered lively subjects and were believed to be as capable (and culpable) as any human culprit:

The terminology in the legal documents dealing with animals is identical with that used to describe the criminal offenses of humans. A sentence of the high court of Savigny, for instance, speaks of the guilt of prisoners caught red-handed in the act of murder, though, in this instance, the perpetrators were pigs (1457) … “these pigs have committed and done themselves murder and homicide to the person of Jehan Martin, aged five years . . . [they will be punished] if it is found out that they were culpable of this delict. " A late medieval law document of 1466 from northern Germany is no less outspoken, calling a horse, expressis verbis, a murderer. [11]


↑ A single Myna egg bears the weight of the participants’ decision. 

  All of this sits in stark contrast to our contemporary situation, where both English and Australian common law continues to define animals as chattel and a form of property [12] Despite modernist claims that the Middle Ages were morally and ethically deficient, the medieval treatment of animals as legitimate legal subjects is oddly progressive. Over five hundred years later, animal rights organisations are fighting an uphill battle in order to elevate the legal status of earth’s most charismatic species. The Nonhuman Rights Project is an organisation based in the United States with one of the following central objectives:

To change the common law status of great apes, elephants, dolphins, and whales from mere “things,” which lack the capacity to possess any legal right, to “legal persons,” who possess such fundamental rights as bodily liberty and bodily integrity [13]

 Accomplishing this goal should not be considered progress but rather a belated acknowledgement of animal agency. In Australia, indigenous groups already recognise the robust agency of non-human beings and have developed a diverse set of complex social relationships with introduced species on the continent [14] In part, Beast of Burden of Proof is an attempt to circumvent the complex legal battles being fought by organisations like the Nonhuman Rights Project. Instead, this project looks towards alternative modes of justice, retracting from the possibility of locating an equitable solution within Australia’s inherently racist and oppressive legal system. Stripped of lawyers and judges, the proceedings in Beast of Burden of Proof are more in line with a citizens deliberative assembly than a standard court proceeding. Scraps of the old system remain, including binary concepts like innocence and guilt. The ‘evidence’ is a mismatched array of hard data, pure fiction and emotional propaganda, and is additionally flawed due to being assembled by a single person with many inherent biases’ (i.e. the artist) A final flaw in the proceedings is the difficulty of opening space for the Myna community to voice its own defence. An attempt to remedy this deficiency is made in an extended video segment demonstrating certain fine-grained variations nested within Myna calls (see image below) 



     After the final piece of evidence has been processed, the participants must deliberate together to decide a question riddled with limitations: is the Common Myna innocent or guilty? Despite exhibited footage demonstrating that certain individual Mynas have a capacity for aggression towards endemic birds, can a whole species be held to account for ecological destruction? Before discussion ensues, the host reveals an incubator containing a single unhatched Myna egg; a verdict of innocence will lead to continued incubation and eventual release. A verdict of guilty will lead to the eggs’ destruction. The egg is an unwilling delegate and the first in line to sustain the ramifications of the participants’ decision.

  As discussion unfolds, one thing is painfully clear: the absence of a living, speaking defendant. Outside the abstract and human-dominated space of adjudication, Myna birds are feeding, nesting, calling, swooping and caring for their young. The evidence, whether for or against, is ossified, digitised, historicised, laced with human bias and anthropocentric weight. In what is really nothing more than a kangaroo court, unevenly assembled and unrecognised by State authority, the eventual verdict will fall to a single egg and change no laws. Instead, the strongest affect will linger in the minds of participants’ post-trial; occupying shared urban terrain, what might they begin to notice, and how will they go on to relate? To assemble a truly authentic and singular testimony, participants’ will have to listen and witness deeply, uncovering a new narrative of co-implication and intertwined ecological fate.

References

[1] Harris, R.M.B., Beaumont, L.J., Vance, T.R. et al 2018, Biological responses to the press and pulse of climate trends and extreme events, Nature Clim Change 8, 579–587 (2018). https://doi.org/10.1038/s41558-018-0187-9

[2] Diaz, S, et al 2019, Pervasive human-driven decline of life on Earth points to the need for transformative change. Science (New York, N.Y.)

[3] Ceballos, G, Ehrlich, P & Dirzo, R 2017, Biological annihilation via the ongoing sixth mass extinction signaled by vertebrate population losses and declines, Proceedings of the National Academy of Sciences. 114. 201704949. 10.1073/pnas.1704949114.

[4] McBrien, J 2016 Accumulating Extinction Planetary Catastrophism in the Necrocene. In Altvater, E, et al. Anthropocene or Capitalocene? Nature, History, and the Crisis of Capitalism, edited by Jason Moore, PM Press, 2016.

[5a] Grarock et al 2013, Are invasive species drivers of native species decline or passengers of habitat modification? A case study of the impact of the common myna (Acridotheres tristis) on Australian bird species, Austral Ecology, 2013.

[5b] Griffin A, Sol D, Bartomeus I 2011, The paradox of invasion in birds: competitive superiority or ecological opportunism? Oecologia 169(2):553-64

[6] Canberra Indian Myna Action Group: Fact Sheet (2013) 

[7] Department of Agriculture and Fisheries (2016) Indian Myna, Acridotheris tristis. Biosecurity Queensland. Available at: https://www.daf.qld.gov.au/__data/assets/pdf_file/0020/62066/IPA-Indian-Myna-PA28.pdf

[8] Handke, B 2020 Myna Matters Bulletin # 37 (Summer 2020) Canberra Indian Myna Action Group Inc. Available at: http://www.indianmynaaction.org.au/documents/Myna%20Matters%20Bulletin%2037%20Summer%202020.pdf

[9] Mussawir, E 2011, Jurisdiction in Deleuze: the Expression and Representation of Law, Routledge, 2011.

[10] Cohen, E 1986, Law, Folklore and Animal Lore: Past and Present. Oxford University Press

[11] Dinzelbacher, P 2002, Animal Trials: A Multidisciplinary Approach.The Journal of Interdisciplinary History, 32(3), 405-421.

[12] Walker-Munro, B 2015, Cattle v the Crown: is there a place for the Commonwealth as animal welfare guardian? University of Queensland Law Journal, 34 (2). pp. 363-391.

[13] Nonhuman Rights Project, 2019, Nonhuman Rights Project: 2019 Annual Report, viewed 9 March 2020, <https://www.nonhumanrights.org/content/uploads/Nonhuman-Rights-Project-2019-Annual-Report.pdf>.

[14] Trigger, S 2008,  Indigeneity, ferality, and what ‘belongs’ in the Australian bush: Aboriginal responses to ‘introduced’ animals and plants in a settler-descendant society.  Journal of the Royal Anthropological Institute.