Animal Harm, Culture and Self-Expression

Chapter 6
Animal Harm, Culture and Self-Expression

Separate from traditional, in the sense of socially accepted, animal harm practices, some forms of animal harm are an integral part of cultural and ethnic identity. Rollin suggests that the closest we have come to an ethical position on the treatment of animals is to not be cruel ‘which essentially enjoins us not to maliciously, wilfully or sadistically hurt animals for no purpose’ (2006: 36). However the question of what constitutes a legitimate purpose presents difficulties for legislators and policymakers and is socially constructed allowing for different interpretations in different jurisdictions and cultures. While contrary to western notions of animal welfare and animal protectionism, some cultures embrace animal harm as integral to their cultural identity, adopting attitudes towards animals that incorporate different perspectives on animal use. A variety of practices ranging from subsistence fishing to full-scale harvesting of wild animals and their derivatives (skin, tusks and internal organs) are deeply ingrained in some traditional practices which can have cultural, religious and social significance, especially to indigenous people. This chapter deals with such practices and the issue of animal harm as a distinct issue of self-expression.

Separate from Chapter 5’s discussion of traditional fieldsports activities, this chapter considers animal use or exploitation including killing which when carried out in accordance with the law may be recognized as a fundamental human right of indigenous peoples and ethnic minorities. But where the law is not followed it may criminalize activities which are claimed as distinct characteristics of ethnic identity setting up a conflict between the practices of indigenous cultures and the animal protectionism of contemporary legislation which would define some cultural practices as unlawful animal harm.

The chapter examines a range of examples of cultural endorsed animal harm including whaling and the reindeer husbandry practices of ethnic minorities and indigenous peoples as well as the traditional animal killing practices employed in the Mediterranean. Its focus is the cultural importance of certain animal killing practices to a specific notion of ethnic or cultural identity, such that animal killing activities continue in spite of legislative or political efforts to eliminate them. For many indigenous peoples a historically and culturally important spiritual relationship with animals persists despite the rise in animal rights and environmentalism that views such cultural practices as unlawful and socially unacceptable. Thus, animal harm, socially constructed to have different meanings according to the society in which it occurs, can allow the same act (for example the killing of a whale) to have multiple meanings; illegal wildlife crime in the view of animal activists and legislators, legitimate cultural practice in the eyes of the indigenous person committing the act. As Linzey (2009) identifies; ‘willed ignorance’ or looking the other way sometimes allows animal ‘abuse’ to continue. Thus the simple justification of animal harm as culturally important does not excuse it when animal law is violated. But it is also true that animal harvesting essential to indigenous cultural identity is not treated the same as other types of animal killing and is generally subject to legislative regimes that permits it (subject to certain conditions). However cultural animal harvesting that takes places in defiance of animal legislation is animal harm as defined throughout this book – an illegal act that has its distinct criminal characteristics – albeit they exist within the broader context of animal harm that this book discusses.

Brown (1991) identified that in some cultures hunting, fishing and trapping were considered to be spiritual acts carried out only with the consent of those animals killed. As a result, a spiritual ethos grew up around the killing of wildlife with rituals and specific practices being developed to ensure that those who hunted were able to demonstrate that hunting was carried out in as sustainable a manner as possible. But such practices were also designed to show that hunters, by observing specific religious practices, were considered deserving and would obtain the permission of those animals they killed (Preece 1999). In consequence, certain indigenous peoples identified themselves closely with their traditions as hunters and people who lived off the land. As people who hunted through necessity in order to survive they adopted a belief structure based around their critical subsistence needs as well as cultural practices that reflected these needs. As a result, even for contemporary descendants of indigenous peoples, underlying spiritual beliefs may inform attitudes towards animals such that any animal killing that now takes place represents a loyalty both to tradition and established cultural practices, but also to a higher power (Sykes and Matza 1957).

Fisher (2008: 17) identifies that indigenous people comprise around 4 percent of the world’s population and that pockets of indigenous peoples still carry out ‘sacred ways handed down from their remote ancestors and adapted to contemporary circumstances’. As a result, forms of animal killing such as fishing, reindeer herding, whaling and even big game hunting have cultural significance to indigenous peoples and are integral to their ethnic identity persisting even where such practices might otherwise be classed as unlawful. While many legal systems prohibit animal killing (except in respect of so-called ‘pest’ species and certain species classed as legitimate fieldsports quarry) exceptions are sometimes made in respect of indigenous peoples and certain animal killing practices recognized as culturally significant. However as Chapter 3 outlines, some animal killing is justified when individuals either do not recognize the legitimacy of the law or consider its restrictions to be unnecessarily harsh. John et al. (1985) identified that the goals of animal conservation and those of indigenous peoples wishing to hunt are not always compatible. They suggest that where legislative restrictions are in conflict with animal harm seen as integral to cultural identity this may provide a powerful motive for animal harm to take place, reflecting White’s view that human interests become privileged in determining the relationship between nature and society (2008). While legislation may in some respects preserve species justice as a conservation priority, cultural expression rights may dictate that animal harm should continue.

Animal Harm and Cultural Self-Expression

In certain cultures, animal harm represents a form of self-expression at odds with accepted notions of animal abuse as inherently criminal or evil, reflecting different cultural notions concerning the acceptability of animal killing (Preece 1999). However, human rights law explicitly recognizes this difference via its incorporation and classification of the rights of indigenous peoples into a framework of exemptions from certain legislative provisions. Specifically, human rights law provides land rights and rights of cultural preservation that sometimes recognizes that indigenous peoples should be exempt from the confines of national animal law where it is considered necessary to do so in order to give effect to cultural self-preservation and expression.

Indigenous peoples are broadly recognized as distinct ethnic groups by international and regional regulatory bodies. They are given a legal status in international law that acknowledges both historic and present threats and the assimilation and alienation of their traditional way of life. The International Labour Organisation’s (ILO) 1953 guidelines (still in force today) describe indigenous peoples as:

descendants of the original aboriginal population living in a given country at the time of settlement or conquest (or successive waves of conquest) by some of the ancestors of the non-indigenous groups in whose hand political and economic power at present lies. In general these descendants tend to live more in conformity with the social, economic and cultural institutions which existed before colonisation or conquest … than with the culture of the nation to which they belong; they do not fully share in the national economy and culture owing to barriers of language, customs, creed, prejudice, and often out-of-date and unjust systems of worker-employer relationship and other social and political factors. (ILO 1953: para 25–6)

In addition to the general provisions in international law such as the International Covenant on Civil and Political Rights which puts states under an obligation to positively protect minority rights, specific provisions exist in national laws to provide aboriginal subsistence rights. Such rights are the main route through which aboriginal people may achieve food security and thus the animal killing which takes place in exercising those rights constitute legal activities that would otherwise be unlawful. However, such activities are usually strictly controlled mainly through the use of quotas which determine the number of animals that can be killed and permits which specify who is authorized to carry out this form of animal harm. Where either quotas are exceeded or animal hunting trapping or killing is carried out in contravention of the regulations, unlawful animal harm occurs. However such animal harm may still be argued as a form of cultural self-expression, raising questions about both the mechanisms through which cultural identity is controlled and the cultural necessity of such animal harm. In common with other forms of legitimized animal harm (such as the trade in wildlife discussed in Chapter 8) legal animal harm may exist alongside illegal animal harm in subsistence and ‘cultural’ killing, and understanding both the purpose of the legislation and the extent to which it is (or is not) complied with aids understanding of animal killing as cultural self-expression.

As a result ‘whale hunting, reindeer husbandry and a variety of other usufructory rights’ can be granted to indigenous peoples to the exclusion of others (Smith 2010: 583). This allows indigenous peoples to kill, hunt and harvest otherwise protected animals where considered necessary to their cultural expression and to preserve a minority way of life; making the animal harm involved of a type justified by the neutralization of necessity (Sykes and Matza 1957) and in some cases of providing a means of survival integral to a specific way of life that is otherwise under threat. In theory at least, this distinguishes this form of animal harm from sport and trophy hunting (discussed in Chapter 7) or the commercial killing and trade in wildlife (discussed in Chapter 8) in that it represents an integral part of a particular ‘ethnic’ lifestyle. However in practice there are questions over the extent to which animal harm of this type remains a cultural necessity despite its acceptance by courts in numerous countries that it should be allowed to continue. Under Article 27 of the International Covenant on Civil and Political Rights, minority cultural rights can only be secured by persons belonging to the specified minority group and the right of self-determination provided under Article 1 of the Covenant is a group rather than individual right. As a result, indigenous people wishing to carry out animal husbandry activities may need to demonstrate compliance with certain criteria determining their participation in the cultural life of an ethnic minority, rather than individually claiming a right to be exempt from laws that prohibit animal killing. This potentially raises the question of how to determine which animal killing is (legally) acceptable as part of the expression of cultural identity and which animal killing may be carried out by individuals under the cloak of self-expression. As with other forms of animal harm discussed throughout this book there is scope for illegal animal harm to exist alongside or under the guise of legal animal use activities. The examples of fishing, whaling and reindeer herding by indigenous people help clarify the social construction of this form of animal harm.

Fishing and Whaling by Indigenous Peoples

Despite the general ban on whaling introduced in 1986, aboriginal groups are allowed to harvest otherwise protected species by way of fishing and hunting whales in order to meet ‘cultural and subsistence’ needs, recognizing centuries-long traditions of killing whales by indigenous (native) peoples. Indigenous whale-hunting traditions are recognized by the International Whaling Commission (IWC) as being distinct from commercial whaling. The IWC regulations thus permit aboriginal subsistence whaling and the IWC sets limits for aboriginal subsistence hunts that cover a five-year period and are reviewed on this basis. Under IWC regulations, aboriginal subsistence whaling is permitted for Inuit and Bequian people (IWC 2011) allowing hunting of whales in Denmark (Greenland, fin and minke whales), the Russian Federation (Siberia, grey and bowhead whales), St Vincent and The Grenadines (Bequia, humpback whales) and the United States (Alaska, bowhead and grey whales). Whaling carried out in accordance with IWC regulations and subject to IWC monitoring is therefore lawful although strict adherence to regulations is required and a number of examples exist where animal harm incidents by indigenous people have occurred when IWC regulations have been challenged.

The IWC requires whaling to be carried out as humanely as possible but recognizes this form of animal harm as legitimate for cultural reasons. The Makah people of North America contend that whaling is central to their culture and social organization and ‘the conduct of a whale hunt requires rituals and ceremonies which are deeply spiritual’ (Makah Tribal Council and Makah Whaling Commission 2005: 5). Whaling, which has been carried out by the tribe for over 1,500 years, is a right guaranteed to them under US law, specifically the Makah Treaty of Neah Bay 1855, Article 4 of which provides the rights of taking fish, whaling and sealing ‘at usual and accustomed grounds’. While the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407, P.L. 92-522, October 21, 1972, 86 Stat. 1027) established a moratorium on the taking and importation of marine mammals as well as products derived from them, amendments to the Act in 1994 expressly preserved aboriginal fishing and whaling rights. Section 14 of the Act states that ‘nothing in this Act including any amendments to the Marine Mammal Protection Act of 1972 made by this Act alters or is intended to alter any treaty between the United States and one or more Indian Tribes’. Thus provisions exist in US law (and which are replicated in the laws of certain other jurisdictions) specifically acknowledging the cultural difference between indigenous people and mainstream society. Thus this form of animal use, socially constructed through traditional practices, is allowed to continue although the Makah had, in fact discontinued whaling in the 1920s after the grey whale population in the Eastern North Pacific declined dramatically due to commercial whaling. However when whale populations recovered in the 1980s and 1990s the Makah entered into an agreement with the US federal government (in 1996) which would allow the tribe to begin harvesting whales again based on quotas approved by the IWC, after the grey whale was taken off the federal endangered species list. Arguably this makes this form of animal harm one that while culturally significant to the Makah people is not an integral part of their cultural identity such that it must be carried out. Instead it is an activity that certain