This section is essential for this thesis because the EU’s arguments concerning the need to make the Inuit exemption narrow in scope mirror some o f the arguments by animal welfare NGOs.
It can be argued that animal welfare NGOs supporting the EU seal products legislation view indigenous peoples’ rights as limited to subsistence, without possibility to engage in commercial activities. For instance. Nurse condemns the possibility o f indigenous peoples to exercise their
s 2.5.
^ EC-Seal Products (n 69) para 7.404.
ibid
activities for commercial purposes,'*^* which is reflected in the EU’s arguments concerning the narrowness o f the Inuit exemption/®^ According to Nurse, indigenous rights to hunt, fish or trap should be exercised exclusively in order to achieve food security, rather than for any other reasons.'*’® He cites as an example the Sami o f Finland who sell reindeer meat as part o f their reindeer herding activities.'*’* However, as a citizen o f an Arctic EU Member State, it is easy to see that Nurse and the animal welfare NGOs fail to understand the realities in which Arctic indigenous peoples’ harvesting activities and reindeer husbandry takes place. Even if the Sami reindeer herding activities could be characterised as containing commercial elements, critics are seemingly unaware o f the fact that the activities o f the majority o f reindeer herders are on a small scale.'*’^ For this reason, many herders are o f the opinion that income fi-om herding activities is insufficient on its own.'*’* This is confirmed in the UN Human Rights Committee’s 1996 decision in Lansman and Others v Finlandf^^ where the Committee noted that because the economic benefit from reindeer herding was low, many reindeer herders had to look for additional sources o f income.'*’* Although the Sami would prefer to work solely in reindeer herding, the reality is that they have had to develop other economic activities besides reindeer herding in order to survive.'*’®
Although achieving food security may be an acceptable reason for the critics to consent to indigenous peoples’ traditional activities, they nevertheless describe the indigenous rights to, inter alia, hunt whales and seals and herd reindeer as ‘legitimised animal harm’ on a par with other forms
'*®* See eg N urse (n 437).
'*®^ ch 1 s 1.2.2.
'*’° See eg N urse (n 437).
'*’ * ibid
'*’* P ohjola and V alkonen (n 200) 24-25.
M eat production provides the prim ary incom e for the fam ilies engaged in reindeer herding. A dditional incom e is often received from related activities, such as m eat processing, tourism and forestry. Particularly, w om en usually w ork in industries w hich are unrelated to reindeer herding, ibid 25.
'*’'* See eg Jouni Lansman and Others v Finland (C om m unication N o 671/1995) view s adopted 30 O ctober 1996.
'*’* ibid para 7.3.
'*’* ibid. They w ork, inter alia, as butchers for other herdsm en's com m ittees, private local landow ners or conduct sm all-scale logging w ithin th eir ow n private forests.
o f legal animal harm, such as factory farming, wildlife trafficking and animal experimentation.'*”
Critics question ‘the extent to which animal harm o f this type remains a cultural necessity’.'*’* For instance. Nurse criticises the fact that courts in many countries allow indigenous hunting activities to continue unchallenged.'*’® He criticises the fact that indigenous peoples are legally able to:
kill, hunt and harvest otherwise protected animals where considered necessary to their cultural expression and to preserve a minority way o f life; making the animal harm involved o f a type justified by the neutralization'**® o f necessity and in some cases o f providing a means o f survival integral to a specific way o f life that is otherwise under threat.'***
He further characterises indigenous harvesting practices, which are essential to indigenous cultural identity, as ‘animal killing as cultural self-expression’ because they are not treated the same way as activities by non-indigenous peoples.'**^ Therefore, he attacks the protection o f indigenous way o f life on the grounds that indigenous activities are treated differently from other activities.
Although indigenous rights may be judged as unfair on the grounds that they ‘privilege’ certain social groups and exclude all others,'*** critics clearly fail to see that without the possibility to engage in economic activities, such as the sale o f sealskins, polar bear hides or reindeer meat, indigenous peoples would struggle to support themselves. Therefore, it can be concluded that neither Nurse nor the animal welfare organisations have intimate knowledge o f the societies which they criticise.
'*” N urse (n 437) 140.
'*’* ibid '*79 ibid
480 ‘N eutralisation’ m eans justification used by individuals inflicting cruelty on anim als o r com m itting w ildlife crim e. See ibid ch 3.
'*** ibid 140. T herefore, it appears that not only does N urse criticise th e indigenous hunting practices, bu t the use o f anim als altogether for purposes w hich he does not agree w ith, such as factory farm ing, trade in w ildlife, and anim al experim entation, w hich im plies that he is not proponent o f utilitarian approach. D espite this, he acknow ledges that it is unlikely that these activities w ill cease taking place in foreseeable future.
'**^ ibid 140.
'*** K enneth R uddle and A nthony D avis, ‘H um an rights and neo-liberalism in sm all-scale fisheries: C onjoined priorities and processes’ (2013) 39 M arine Policy 87, s 6.
The views expressed by Nurse concerning indigenous peoples’ rights echo the 1970s arguments o f the animal welfare NGOs, according to which Tnuit no longer hunted to feed their families but rather for sport and commercial profit’.'**'* According to these NGOs, the use o f modem equipment, such as rifles, motor boats and snowmobiles, ‘proved that Inuit activities were no longer geared toward traditional subsistence’.'*** Consequently, the NGOs demanded that hunting by Inuit be subject to licencing, annual quotas and reporting requirements.'**® It has been argued that these NGOs not only sought to reduce profit from the sale o f animal products, but also to limit access to traditional foods .^*’ In this sense the arguments o f the NGOs could be seen to conflict with indigenous peoples’ rights. Whereas it is seen in Chapter 4, Canada has not succumbed to demands o f the NGOs,'*** Kalaallit are subject to licencing, armual quotas and reporting requirements.'**®
Whilst commentators, such as Nurse, question the legal protection given to indigenous harvesting practices altogether,'*®® others have adopted a more constmctive point o f view, which is consistent, for instance, with the current approach o f the Government o f Canada under the Inuit Treaties, discussed in Chapter 4.'*®* Varmer argues that contemporary indigenous peoples should no longer be morally justified in using inefficient and relatively inhumane hunting techniques used by their pre-contact ancestors.'*®^ He cites as an example the hunts in which hundreds o f bison were driven off a cliff by Native Americans, which could be argued to be inhumane and disproportionate
'**'* A nn M cElroy, ‘S edna’s children: Inuit elders’ perceptions o f clim ate change and food secu rity ’ in H elen K opnina and E leanor Shorem an-O uim et (eds), Environmental Anthropology: Future Directions (R outledge 2 0 1 3 )1 5 7 .
'*** ibid. A rgum ents that snow m obiles and m otorboats are used ignore the fact that this equipm ent m akes easier journeys to harvesting sites w hich are located further aw ay as a result o f relocation o f dispersed indigenous fam ilies to com m unities by the governm ents. See eg G eorge W enzel, ‘C anadian Inuit subsistence and ecological instability: i f the clim ate changes, m ust the In u it?’ (2009) 28 P olar R esearch 89, 92
< d o i:1 0 .1 11 l/j.l7 5 1 -8 3 6 9 .2 0 0 9 .0 0 0 9 8 .x > accessed 6 D ecem ber 2012.
'**® M cE lroy (n 484) 157.
'**’ ibid '*** ch 4 s 4.3.
'**® ch 5 s 5.3.
'*®® M cElroy (n 484) 157.
'*®* ch 4 s 4.5.
'*®^ See eg G ary V arm er, ‘A H arean perspective on hum ane sustainability’ (2010) 15(2) E thics and th e E nvironm ent 3 1 ,3 9 D O I: 10.13 53/een.2010.0053.
to the needs o f indigenous peoples because they may have not had the means to use and preserve all the meat. Unlike Nurse, Varmer does not criticise the legal protection o f indigenous harvesting activities p er se, only the techniques, which cause large numbers o f animals to perish unnecessarily.
It is noteworthy that although Nurse criticises the legal protection o f indigenous hunting practices on the grounds they form part o f indigenous culture, he him self notes that the content and depth o f animal welfare legislation is frequently determined by the extent to which cultural perspectives on animal use are incorporated into legislation.'*®* Therefore, it is a common place to justify certain hunting practices or, for instance, ritual slaughter'*®'* on the grounds o f culture and religion in relation to non-indigenous peoples. Such an approach has been adopted both within and outside the EU. For instance, the EU recognises that in some Member States religious rites, cultural traditions and regional heritage may influence the content o f national animal welfare legislation.'*®*
Similarly, in Canada, each province has some form o f animal cruelty statute, which vary according to the jurisdiction, inter alia, in terms o f what actions constitute as cruelty, the level o f punishment, and how the term ‘animal’ is defined.'*®®
The fact that animal welfare legislation reflects, inter alia, each country’s individual circumstances is supported by international organisations, such as the UN Food and Agriculture Organisation. The organisation has taken the view that any international animal welfare legislation should be developed with the view that such legislation’s essential elements may need to be modified, implemented incrementally, or supplemented with economic incentives and voluntary schemes, depending on the individual circumstances o f each country.'*®’ It is noteworthy that there
'*®* See N urse (n 437).
'*®'* eg the m ethods o f anim al slaughter used by Jew s and M uslim s.
'*®* See eg D avid B enson and A ndrew Jordan, ‘A grand bargain o r an “incom plete contract” ? European U nion environm ental policy after the Lisbon T reaty ’ (2008) E E E L R 280.
'*®® See eg N ational Farm A nim al C are Council, ‘A Sum m ary report on farm anim al w elfare law in C anada
for the Farm A nim al C ouncil N etw o rk ’ (2013)
<w w w .nfacc.ca/resources/Farm _A nim al_W elfare_L aw s_C anada.pdf> accessed 20 M arch 2013.
'*®’ See Jessica V apnek and M egan Chapm an, L egislative and regulatory options for anim al w elfare (FA O 2011), 17
<w w w .fao.org/docrep/013/i 1907e/il907e00.htm > accessed 12 M ay 2012.
is no universal animal protection legislation on the grounds o f vyelfare,'*®* but international laws relate exclusively on conservation and management o f wildlife as well as trade in wildlife products.'*®® Indeed, although there are currently almost 300 global or regional Treaties covering a wide range o f international environmental problems,*®® none o f them concern animal welfare as such. Consequently, in the absence o f a coherent international approach towards animal welfare or internationally recognised standards concerning the welfare o f seals, each individual State is at liberty o f deciding which actions constitute cruelty towards seals. Although this can be interpreted to work both ways, it should not mean that one country could impose its strict animal welfare standards on another, but decisions to legislate animal welfare at international level should be taken multilaterally, considering that the animal welfare views adopted by the EU, and advocated by animal welfare NGOs, are not based on any universally recognised standards or animal welfare criteria. Therefore, the fact that the EU’s public moral defence was upheld by the Panel, could be seen as an imposition o f the EU’s standards on Canada.
Indeed, as noted above, the EU recognises that EU Member States may derogate from animal welfare legislation due to the need to respect certain religious and cultural reasons as well as regional heritage. Therefore, it can be argued that no uniform understanding o f animal welfare exists within the EU Member States. In fact, the possibility to derogate from common rules has been criticised because it may weaken the protection o f animals within some Member States.*®*
Although there is scope for Member State derogation, it could be argued that under the animal welfare provision o f the Treaty (Article 13 TFEU), the institutions have a duty to actively work to achieve the objective o f protection o f animals into the sectors specifically mentioned in this
'*®* T here have been several unsuccessful attem pts to introduce universal anim al w elfare legislation at the U N. See N urse (n 437) 8-9.
'*®® See eg CITES and the B ern Convention. F o r an overall account on different international instrum ents using term inology used by anim al w elfare theories see eg M ichael B ow m an, P eter D avies and C atherine R egw ell, Lyster's International Wildlife Law (2nd edn, CU P 2010) 62.
*®® See D ivision o f Policy D evelopm ent and Law , R egister o f International T reaties and O ther A greem ents in the Field o f the E nvironm ent U N E P/Env.Law /2005/3 (U nited N ations E nvironm ent Program m e 2005).
Benson and Jordan (n 495).
provision.*®^ Additionally, this duty is in principle enforceable before the CJEU. Therefore, the Commission may start infringement proceedings against Member States that fail to respect the protection o f animals. Similarly, Member States can initiate proceedings against the institutions should they fail to respect their duties under Article 13 TFEU, which stipulates that:
In formulating and implementing the Union’s agriculture, fisheries, transport, internal market, research and technological development and space policies, the Union and the Member States shall, since animals are sentient beings, pay full regard to the welfare requirements o f animals, while respecting the legislative or administrative provisions and customs o f the Member States relating in particular to religious rites, cultural traditions and regional heritage.
Thus, Article 13 TFEU requires the institutions to undertake their activities in a certain way and with a particular goal,*®* namely to formulate and implement their policies in such a way that they ‘pay full regard to the welfare requirements o f animals’. However, it can be argued that the institutions do not only have a legal duty to promote animal welfare in their policies, they also have a duty to seek a balance between the various general objectives o f the EU, including the protection o f indigenous peoples’ rights, which is an aspect o f the EU’s human rights policy.*®'*
Whilst the EU seal products legislation seemingly supports some o f the arguments raised by Nurse and the animal welfare NGOs, particularly since the EU insists that seal hunting should not be practiced ‘primarily or exclusively for commercial purposes’,*®* at the same time the EU recognises the special legal status o f indigenous peoples under international law.*®® In fact, as is seen in Chapter 3, the international protection o f indigenous peoples’ rights is considered sui generis law, which means that it was drafted specifically to address the unique situation of
*®* F o r sim ilar argum ents in th e context o f the EU environm ental policies u nder A rticle 11 TFEU , see B eate Sjafjell, ‘Sustainable D evelopm ent, EU L aw and Com panies: The E U L aw Fram ew ork fo r the Sustainable C om panies P ro ject’ (2011) 8(1) Inti and C om parative C orporate L J 1 <http://ssm .com /abstract= 1712789>
accessed 22 M ay 2013.
*®* ibid
*®'* ch 3 s 3.5.
*®* ch 1 s 1.2.2.
*0® ch 3 s 3.2.1.
indigenous peoples who required specific type o f protection vis-à-vis non-indigenous peoples.*®’
Whether these rights are adequately protected in EU law is discussed in Chapter 3.