Animal Cruelty Laws and Indigenous Rights: Blog

Introduction

            Under current Canadian law, animals are considered legal property of their owner. Classifying animals as property is an obviously strange decision. My pet cat Eevee has feelings, is playful, gives me attitude when I don’t feed her on time, and likes to cuddle. So, putting my cat Eevee in the same category as the chair I’m currently writing this blog in seems strange.

            One proposed reform to animal cruelty laws is to make animals no longer “property” by moving animal anti-cruelty laws outside the Criminal Code's property section. Such a move would grant animals better protection because in Canada animals are currently considered legal "property," so humans can use them in whatever way benefits them the most. Currently, animal agriculture, such as the conditions on factory farms, is mainly unregulated. Moving animals out of the property section of the Criminal Code would result in more regulation and scrutiny of farming conditions. Such an idea was proposed in Bill C-10B. However, Bill C-10B died in November 2003 after sizeable agricultural industry resistance to the proposed changes. One particularly curious challenge by the industry was that moving animal cruelty laws out of the property section would criminalize traditional Indigenous hunting, trapping, and fishing because it would grant protection to wild animals that could be hunted. Wild animals are not protected under anti-cruelty laws because they are not “owned” and therefore are not one’s “property.”

            The industry’s argument went something like this: (1) Moving anti-cruelty laws outside of the property section of the Criminal Code would mean that everyone who willfully causes or permits to cause an animal (wild or domestic) unnecessary pain, suffering, or injury is guilty of committing a crime; (2) Traditional Indigenous hunting, trapping, and fishing causes pain, suffering, and injury to wild animals that is unnecessary pain when compared to modern technology (i.e., white, Western methods of slaughtering animals); (3) Therefore, traditional Indigenous hunting, fishing, and trapping becomes criminalized if animals are no longer considered property.

            A quick sidebar: The industry's argument led to debates between Senators that an exception to the animal cruelty laws could be made for traditional Indigenous hunting. Although not the focus of my writing today, this line of argumentation is chock-full of racist conceptions of traditional Indigenous culture and practices. In particular, the argument is founded on the false assumption that all traditional Indigenous hunting is inherently cruel, but Western animal slaughter practices are somehow peaceful. Including an exception for traditional Indigenous hunting, fishing, and trapping would further entrench the false and racist idea that Indigenous culture is inherently cruel.

            Agricultural industry lobbyists weren’t the only ones involved in this fight. In the other corner were animal advocates who wanted all-encompassing anti-cruelty animal legislation that applied to all organizations with no exceptions. Thus, we reached an impasse between animal advocates who wanted a general prohibition on anti-cruelty laws with no exceptions and agricultural industry advocates who argued that such a move would criminalize traditional Indigenous hunting. It should be noted that only one Indigenous group was involved in these debates, expressing worries about the potential effects on Indigenous hunting rights that Bill C-10B would have. Perhaps more Indigenous groups should have been involved in the discussion about Indigenous rights, but I digress.

            The irony is that the industry advocates didn't even seem to understand how Indigenous rights in Canada work. Traditional Indigenous hunting is protected under section 35 of the Canadian Constitution Act, so moving anti-cruelty provisions out of the property section of the Criminal Code likely doesn’t criminalize traditional Indigenous hunting – an argument I make by looking at a Nunavut case and conducting a quick constitutional analysis.

            This discussion is important for many reasons. First, although not the topic of this blog, there are meaningful racial and cultural discussions that need to take place about the false assumption that Indigenous traditions are "cruel." Second, animal cruelty is an important topic that Canada needs to address further. Even though Bill C10-B died almost 20 years ago at the time I write this, I am confident that movements to move anti-cruelty laws out of the property section of the Criminal Code will rise again. Last, Canada must strive to continue reconciliation with Canada's Indigenous, Inuit, and Métis people in all aspects of governance. If the Canadian courts determined that the Constitution protects Indigenous hunting and therefore would not be criminalized if anti-cruelty laws outside of the property section of the Criminal Code, Indigenous peoples would (hopefully) not have to defend themselves against criminal prosecution for traditional hunting on their lands. In a time where the historical atrocities the Canadian government committed against Indigenous peoples across Canada are becoming more and more apparently egregious, any step, however small it may seem, towards reconciliation must be pursued.

Has This Issue Been Dealt With in the Courts?

            The argument raised by the farming industry lobbyists has never been directly addressed in court, and a constitutional analysis has undoubtedly not been conducted in this context. However, one particular case from Nunavut called Kadlak v Nunavut may be analogous with the anti-cruelty laws that could help us decide whether anti-cruelty legislation outside the property section would criminalize traditional Indigenous hunting. An experienced Inuk hunter named Noah Kadlak, a beneficiary under the Nunavut Land Claims Agreement, wasn’t allowed to participate in the traditional hunt of the polar bear using the traditional methods and technology of his ancestors – a spear and harpoon – because the Minister decided that the traditional ways Kadlak hunted created an “unwarranted risk to public safety.” The judge stated that hunting polar bears with traditional methods is "risky business" because the "strength, agility and cunning of the bear make it an extremely dangerous and formidable adversary […] It is perhaps the ultimate test of the Inuit hunter." The danger of hunting polar bears seems to be why the Minister stopped Kadlak from participating in the hunt, since hunting polar bears poses a "significant risk, even to the experienced hunter." Kadlak asked the Minister to grant him an exception. The Minister said no.

What Did the Court Say to the Minister and Kadlak?

            At trial, the judge overruled the Minister’s decision to not allow Kadlak to participate in the hunt. First, the judge provided some context about the hunt Kadlak wanted to participate in, concluding that the hunt uses traditional methods of Kadlak’s ancestors, is part of the close relationship between the land and the Inuit people, and is key to preserving the Inuit culture. Second, the judge said that the Inuit’s right to hunt proclaimed in the Nunavut Land Claims Agreement is constitutionally protected. There is a caveat to this protection, though. Although the Constitution protects Kadlak’s right to traditional hunting, it does not promise that all the rights under the Nunavut Land Claims Agreement are immune from all government regulation. To determine whether Kadlak’s right to hunt is immune from the law that allowed the Minister to decide that Kadlak can’t hunt, the Nunavut government had to show that preventing Kadlak from using traditional methods to hunt was justified as an unwarranted risk to public safety.

 Preliminary Step: Finding a Dictionary

            Justifying the Minister’s decision began with an argument about how “public safety” is defined. Defining a term is usually easy enough in day-to-day life. For example, how would you ride a bike “safely”? I’m sure most people would say wear a helmet. But defining terms in court is always needlessly complex.

            On the one hand, the Nunavut government argued that “public safety” means that the government can regulate anything that’s dangerous and risky so that the public health care and public welfare systems aren’t overburdened with helping those injured or killed during risky activities. On the other hand, Kadlak argued that “public safety” means anything that is an “identifiable risk to the community or public at large.” Personally, Kadlak’s definition makes sense to me because risky activity should have to affect the greater community’s wellbeing. Traditional Inuit polar bear hunting techniques of using a spear and harpoon were only dangerous to Kadlak and no more dangerous to others than Western hunting with a rifle. Yet, in classic court fashion, the judge sided with the Nunavut government and used the broad and liberal definition. Thus, Kadlak’s hunting did fall under the Nunavut Government’s regulation of “public safety.” But the judge didn’t stop there.

JUSTIFYING THE INFRINGEMENT ON KADLAK’S INDIGENOUS RIGHT TO HUNT

            Next, the judge decided that the Minister’s decision to prevent Kadlak from participating in the traditional hunt was not justified because the decision did not minimally interfere or restrict Kadlak’s right to traditional hunting under the Constitution. Specifically, the judge decided that the Minister’s decision was not a reasonable attempt to address legitimate public safety or health concerns that may arise from the hunt. In fact, the judge said that the Minister’s decision was a “drastic step” and should have been “a step of last resort,” particularly in the context of the Nunavut Land Claim Agreement that recognizes and accepts the traditional hunt Kadlak wanted to participate in as valid and essential to contemporary Inuit society. The importance of the hunt to Kadlak as part of Inuit culture can’t be put any better than what the judge said, so I quote the judge in full below.

The Inuit have developed a close symbiotic relationship to the land, and all the creatures of the air, sea and land upon which they have traditionally depended as a people for their survival. The traditions of the hunt are an important focus of Inuit culture. Even today, Inuit language, art, diet and clothing celebrate the hunt and the animals of the hunt. The preservation of Inuit culture remains closely linked to this traditional way of life … This is key to their social and cultural identify as a people.

–      Justice Kilpatrick

How is the Kadlak Case Helpful?

            Kadlak v Nunavut is useful to demonstrate what is called “the Sparrow test” to help us figure out if animal anti-cruelty laws outside of the property section of the Criminal Code would criminalize traditional Indigenous hunting. First, it’s easy enough to say that the Constitution protects traditional Indigenous hunting, trapping, and fishing rights, just like the judge said in Kadlak. So, the next step would be figuring out if there is a valid legislative objective to move anti-cruelty laws outside of the property section of the Criminal Code. This, I think, would be pretty easy to show because trying to protect innocent animals from pain, suffering, and injury during farming, transport, or in our homes is clearly a valid objective.

            Second, it’s safe to assume that any animal cruelty provision outside of the property section of the Criminal Code would violate Indigenous constitutional rights because a blanket prohibition on causing unnecessary pain, suffering, and injury to any animal would include all hunting. So, the government would have to justify this decision. It is essential to know that the government cannot justify infringing an Indigenous right if the government does not consult and accommodate Indigenous peoples. Thus, the government would have to consult and accommodate Indigenous peoples, but, for our purposes, let's say they did.

            What next? Well, the government would have to show that the change doesn't impair Indigenous interests any more than reasonably necessary to achieve the government's objective. A blanket prohibition on animal cruelty is in no way "minimally impairing" to Indigenous rights. As we saw in the Kadlak decision, the judge concluded that not allowing Kadlak to hunt was drastic and should have only been used as a last resort, which it was not. A court would likely apply the same reasoning to the denial of all Indigenous hunting rights if animal cruelty laws were amended. If one Minister’s decision to not allow Kadlak to hunt because of “public safety” was overruled, then a court would definitely decide that the Federal government’s decision to not allow any Indigenous person to hunt because of animal safety would not be minimally impairing. Moving animal cruelty laws out of the property section of the Criminal Code, thereby making animals no longer property, would likely not be justified in infringing Indigenous rights. Thus, moving animal cruelty laws outside of the property section of the Criminal Code would not apply to Indigenous peoples who have a protected right to hunt under the Constitution.

Concluding Thoughts

            In short, agricultural industry lobbyists that argued moving anti-cruelty provisions in the Criminal Code from the property section would cause Indigenous hunting to be criminalized misses the mark. Such a move would not be justified in the context of Indigenous rights in the Constitution and therefore wouldn’t apply to Indigenous hunting, fishing, and trapping rights. Regardless of the conclusion one reaches, whether you agree with me or not, animal cruelty is an important issue that will rise again, and soon, including another push towards no longer defining animals as property. Even though Bill C-10B died 20 years ago, the courts should prepare to hear this issue and to ignore industry’s self-serving arguments that animal cruelty laws can’t be moved out of the property section of the Criminal Code because it would criminalize traditional Indigenous hunting. It wouldn’t. Let’s not allow Western agricultural corporations to decide for us that Indigenous culture is cruel towards animals to serve their interests.

Resources Consulted

Adams, Wendy A, “Human Subjects and Animal Objects: Animals as ‘Other’ in Law” (2009) 3:1 J Animal L & Ethics 29.

Brighten, Andrew, “Aboriginal Peoples and the Welfare of Animal Persons: Dissolving the Bill C-10B Conflict” (2011) 10:1 Indigenous LJ 39.

Deckha, Maneesha, Animals as Legal Beings: Contesting Anthropocentric Legal Orders (Toronto: University of Toronto Press, 2021) at 39-78.

Kadlak v Nunavut (Minister of Sustainable Development), 2001 NUCJ 1.

Sorenson, John, “Some Strange Things Happening in Our Country: Opposing Proposed Changes in Anti-Cruelty Laws in Canada” (2003) 12:3 Soc & Legal Stud 377.