When Legal Pluralism Fails:

Indigenous Customary Laws v. State Avoidance

in Animal Cruelty Cases

Abstract

State exemption in dealing with aboriginal animal cruelty practices is

attributable to the growing international recognition and mandate to
States to protect the intangible cultural heritage of indigenous peoples.

Collective human rights of indigenous peoples as the sweeping

justification to indigenous peoples’ special hunting permits pose
challenges. Some modes of State avoidance are discriminatory. Tradition
and cultural identity must be reconciled with general welfare, addressing
the limits of self-determination and the so-called aboriginal sovereignty
when the morals, public policy, and public good stand to be jeopardized.

State interference, instead of avoidance, is therefore necessary in cases of

indigenous peoples’ animal cruelty practices. It must be framed however
based on an understanding of legal pluralism and not what the law is.

Page 1 of 37
 Table of Contents

I. Introduction

II. Background on the State Exemption on

Aboriginal Animal Practices

III. States’ Treatment on Aboriginal Animal Cruelty Practices is

discriminatory

IV. A Way of Looking at the Clashes – the framing of State Interference

V. Conclusion

Page 2 of 37
 I. Introduction

There exists a global trend on State avoidance in dealing with animal

cruelty practices of indigenous cultural communities. The recognition of
communal property rights of indigenous peoples over their lands,
territories, and cultures has mandated States to protect those rights.1

Kymlicka and Donaldson (2015) coined the term the “strategy of

avoidance”2. States have been taking no explicit stance on how
Aboriginal practices should be legally regulated, or even the extent which
such practices should be subject to moral scrutiny.

In Canada, the penal laws dealing with cruelty to animals have exempted
aboriginal people from prosecution. This move accordingly reflected the
Senate’s effort to avoid governmental intrusion on Aboriginal
sovereignty.3

The Animal Welfare Act in the Philippines allows the killing of animals
other than poultry and livestock when done as part of the religious rituals
of an established religion or sect or a ritual required by tribal or ethnic
custom of indigenous cultural communities.4
1
Alvardo, L. J. (2007). Prospects and challenges in the implementation of indigenous
peoples' human rights in international law: lessons from the Case of Awas Tingni v.
Nicaragua. Ariz. J. Int'l & Comp. L., 24, 609.
2
Kymlicka, W. & Donaldson, S. (2015) Animal Rights and Aboriginal Rights. Peter
Sankoff, Vaughan Black and Katie Sykes (eds) Canadian Perspectives on Animals
and the Law (Irwin Law, 2015), 159-86.
3
Brighten, A. (2011). Aboriginal Peoples and the welfare of animal persons:
Dissolving the Bill C-10B conflict. Indigenous LJ, 10, 39.
4
SEC 6 PAR 1 of Rep. Act No. 8485.

Page 3 of 37
In a small coastal town in Japan, indigenous whaling has a long history
that could be traced back since the early 17th century at the latest.5 To
present, the International Whaling Commission allows the activity to be
carried out if it occurs on a subsistence basis, similar to subsistence
fishing, restricted to indigenous peoples and others working on their
behalf. 6

An aboriginal corporation in Australia was handed in November 2022 a

$250,000 suspended fine by the Court after pleading guilty to 11 animal
cruelty charges in 2018. 7 To animal rights advocates, this is deemed a
slap on the wrist where if these acts were committed by non-indigenous
peoples, the punishment would have been considerably more.

This article seeks to discuss a conceptual framework in tackling State

avoidance and exemption relative to animal cruelty.

Part II of this paper provides the background and legal foundation

recognizing the indigenous peoples’ right to self-determination and
aboriginal sovereignty and autonomy that propelled the international

5
Usami, M. (2016). Moral Grounds for Indigenous Hunting Rights. Philosophy of
Law in the Arctic, University of the Arctic, 100-108.
6
WDC, Aboriginal Subsistence Whaling. Last accessed January 22, 2023.
https://us.whales.org/our-4-goals/stop-whaling/aboriginal-subsistence-whaling

7
Sinclair, S. (2022). WA farm lobby group says Yungngora Association
Incorporated's penalty for cattle death inadequate. https://www.abc.net.au/news/2022-
11-02/pga-slams-animal-welfare-sentencing-over-kimberley-cattle-deaths/
101603238#:~:text=Close%20to%20100%20cattle%20are,done%20without%20fear
%20or%20favour

Page 4 of 37
trend on State exemption and grant of special hunting permits to
aboriginal groups.

Part III reflects on the challenges brought about by the sweeping

invocation of indigenous peoples’ collective human rights. Avoidance
and exemption as the stance for a number of States are discriminatory.

There exists a need to reconcile tradition and cultural identity with

general welfare, addressing the limits of self-determination and the so-
called aboriginal sovereignty when the morals, public policy, and public
good is in peril. Afterall, the collective rights of the indigenous peoples to
autonomy and self-determination do not exist in a vacuum.

This author adheres that reliance solely on the aboriginal community as a

collective agent to represent and protect animal rights has become
unstable and weak.

Part IV looks into the solutions proffered by authorities when legal

pluralism fails. The conglomeration of theories as harmonized establishes
a conceptual framework to be able to understand the necessity and bases
for State interference when there exists a clash between customary laws
and State’s official legal norms. It must be emphasized that the author
holds to Tamanaha (2017) that the normative laws do not occupy the top
position in the hierarchy of competing systems of normative ordering in
social arenas.

In sum, this article revisits the agency aspect of native people and the
necessity of examining whether the collective human right to self-

Page 5 of 37
determination reflects the shared interest that benefits not only the
collective but the general welfare as well. As Kymlicka (2020) pointed
out, human rights are not enough. It is not sufficient that those invoking
the special hunting permit possess collective human rights as members of
the aboriginal community. The claim must pass through an assessment of
the welfare State.8

II. Background on the State Exemption on

Aboriginal Animal Practices

Aboriginal hunting or animal utilization privilege may be attributed to the

increasing invocation of international human rights institutions to defend
their communal property rights which include hunting traditions as part of
their culture.

The instrument developed by United Nations Educational, Scientific, and

Cultural Organization (UNESCO) embraces in the definition of
“intangible cultural heritage” (ICH) traditions or living expressions,
practices, representations, knowledge, and skills associated to
communities and groups inherited and passed from one generation to the
next. 9

8
Kymlicka, W. (2020). Why human rights are not enough : To combat the narrow-
minded view of whom society belongs to, we must recognise a more sophisticated
idea of what it means to be a citizen.

9
Article 2 of the 2003 Convention for the Safeguarding of the Intangible Cultural
Heritage.

Page 6 of 37
The right to animal utilization can therefore be considered an intangible
cultural heritage. It may form part of the claim of indigenous peoples in
the exercise of right to self-determination, identity, expression, and
cultural development. They are framed in the 2007 United Nations
Declaration on the Rights of Indigenous Peoples (UNDRIP) and are part
of other general treaties.

The UNDRIP is the most comprehensive international instrument on the

rights of indigenous peoples. It ensures individual and collective rights
and cultural rights and identity among others. Seventeen out of 45 articles
of the UNDRIP deal with indigenous culture and how to protect and
promote it, by respecting the direct input of indigenous peoples in
decision-making, and allowing for resources, such as those for education
in indigenous languages and other areas. 10

The general human rights international treaties also uphold the rights of
the indigenous peoples to advance and promote their status and identity.
For one, the 1948 Universal Declaration of Human Rights is the first
international document that states that all human beings are “equal in
dignity and rights.”11 Everybody is entitled to the rights in the
Declaration, “without distinction of any kind, such as race, color, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.”12

10
University of Minnesota Human Rights Library (2003) Study Guide: The Rights of
Indigenous Peoples http://hrlibrary.umn.edu/edumat/studyguides/indigenous.html
11
Article 1 of the 1948 Universal Declaration of Human Rights.
12
Article 2 of the 1948 Universal Declaration of Human Rights.

Page 7 of 37
The 1989 International Labor Organization (ILO) Convention 169 was
the first international convention to address the specific needs for
Indigenous Peoples' human rights. The Convention outlines the
responsibilities of governments in promoting and protecting the human
rights of Indigenous Peoples. 13 

The 1992 Declaration on the Rights of Persons belonging to National or

Ethnic, Religious, and Linguistic Minorities concerns individual rights,
although collective rights, might be derived from those individual rights.
The Declaration deals both with States’ obligations towards minorities as
well as the rights of minority people i.e., the national or ethnic, cultural,
religious or linguistic identity of minorities; 14 the free expression and
development of culture; association of minorities amongst themselves;
participation in decisions regarding the minority; 15
and the exercise of
minority rights, both individual and in  groups16. 17

The International Covenant on Civil and Political Rights and the

International Covenant on Economic, Social, and Cultural Rights both
have provisions on collective rights. 18
There is no gainsaying that the
13
University of Minnesota Human Rights Library (2003) Study Guide: The Rights of
Indigenous Peoples http://hrlibrary.umn.edu/edumat/studyguides/indigenous.html.
14
Article 1 of the 1992 Declaration on the Rights of Persons belonging to National or
Ethnic, Religious, and Linguistic Minorities.
15
Article 2 of the 1992 Declaration on the Rights of Persons belonging to National or
Ethnic, Religious, and Linguistic Minorities.
16
Article 3 of the 1992 Declaration on the Rights of Persons belonging to National or
Ethnic, Religious, and Linguistic Minorities.
17
University of Minnesota Human Rights Library (2003) Study Guide: The Rights of
Indigenous Peoples http://hrlibrary.umn.edu/edumat/studyguides/indigenous.html.
18
University of Minnesota Human Rights Library (2003) Study Guide: The Rights of
Indigenous Peoples http://hrlibrary.umn.edu/edumat/studyguides/indigenous.html.

Page 8 of 37
agency aspect and the right to identity of the indigenous peoples’ rights
are rooted on their collective rights.

The exemption on traditional knowledge and practices, which necessarily

include animal utilization, also finds support in the 1992 Rio Declaration
of Environment and Development and Agenda 21. This Declaration
acknowledges the special relationship between Indigenous Peoples and
their lands, and their vital role in environmental management and
development because of their traditional knowledge and practices. In
order to fully make use of that knowledge, some indigenous peoples
might need greater control over their land, self-management of their
resources and participation in development decisions affecting them.19

The 1992 Convention on Biological Diversity calls upon its signatories to

“respect, preserve and maintain knowledge, innovations and practices of
indigenous and local communities embodying traditional lifestyles
relevant for the conservation and sustainable use of biological diversity
and promote their wider application with the approval and involvement of
the holders of such knowledge, innovations and practices and encourage
the equitable sharing of the benefits arising from the utilization of such
knowledge, innovations and practices.”20

This grant for greater control and self-management of their resources

allows the indigenous peoples to assert their rights in their intangible
cultural heritage such as animal hunting and utilization practices.

19
Id.
20
Id.

Page 9 of 37
With these instruments, States have been given reasons to resort to
avoidance and exemption in favor of aboriginal animal cruelty practices.
These treaties concede to indigenous peoples’ right to self-determination
and cultural integrity as part of the international custom. According to
Kymlicka and Donaldson (2015)21, the treaty rights to hunt is a safe way
to delimit the aboriginal exemption which is then a good reason to
approve State avoidance strategy.

For another, there exists the necessity to address scarcity of food sources.
In some jurisdiction like in the European Union pertaining to the
prohibition on seal hunting, indigenous peoples claim that the ban
infringes on their right to economic social and cultural development
consistent with Article 32 of the UNDRIP.22

Indigenous peoples are often last to receive public investments in basic

services and infrastructure and face multiple barriers to participate fully
in the formal economy.23

Second, indigenous hunting has usually smaller impact as it often

embodies sustainability and responsible stewardship. 24 The indigenous
21
Kymlicka, W., & Donaldson, S. (2015). Animal rights and aboriginal
rights. Canadian perspectives on animals and the law, 159-186.
22
Cambou, D. (2013). The impact of the ban on seal products on the rights of
indigenous peoples: a European issue. The Yearbook of Polar Law Online, 5(1), 389-
415.
23
The World Bank. Indigenous Peoples. Understanding Poverty. Last accessed on
January 22, 2023. https://www.worldbank.org/en/topic/indigenouspeoples
24
Kymlicka, W., & Donaldson, S. (2015). Animal rights and aboriginal
rights. Canadian perspectives on animals and the law, 159-186.

Page 10 of 37
peoples’ rights over the natural resources take the form of management or
stewardship. Indigenous peoples may use resources (extending to
animals) within their ancestral domains but must ensure that the natural
resources are conserved for future generations and that the "utilization" of
these resources must not harm the ecology and environment pursuant to
national and customary laws.25

Accordingly, the limited rights of "management and use" contemplates

small-scale utilization of natural resources as distinguished from large-
scale. 26

The thrust of the instruments and States’ acquiescence have been the
integration of human rights to the collective with safeguarding the
intangible cultural heritage. 27 Nonetheless, the perspective relative to the
treatment of animal cruelty practices as part of indigenous heritage only
highlights the isolation of indigenous peoples and affirms the
preoccupation of distinguishing members from outsiders.

Usami (2016) pointed out that aboriginal peoples are not merely patients
who are isolated and left behind by the majority of the population in each
society. They are also agents who endeavor to inherit the cultural legacies
of their ancestors, to sustain and develop them, and to bequeath them to

25
Isagani Cruz v. Secretary of Environmental and Natural Resources, Id. Separate
Opinion of J. Puno citing Section 9 of the Philippine Indigenous Peoples Rights Act of
1998.
26
Id.
27
Blake, J. (2015), “International Cultural Heritage Law”Chapter 4: Cultural Heritage
and the Environment. Oxford University Press, 123.

Page 11 of 37
their descendants, as they are proud of their lineage and language. 28

Membership rights – distinguishing insiders from outsiders, members

from non-members, in the case of animal cruelty practices wants
justification.

Instead of truly addressing the dearth of attention and services from the
Government to indigenous communities to respond to food scarcity for
instance, we choose the band aid solution. In the long run, this could be
fatal to the general welfare and the environment. We allow animal cruelty
practices to continue just so we can postpone if not ignore the taking of
the necessary steps in addressing the real problem.

The reliance to indigenous peoples as faithful stewards presupposes a

certain absence of conflicts of interest and self-interests. Some
Indigenous communities would be unwilling to revise tradition even if
alternative humane methods are available in the circumstances. To some
of them, they strictly adhere still that changing their hunting methods is a
restriction to their exercise of their rights under native title and
undermines the cultural significance of the hunt.29

Faith in the shared interests that indigenous peoples would choose

humane practices over the tradition of animal maltreatment seems more
generally to be of little plausible interest in legal or political theory. This
theory demands an unrealistic lack of diversity such that there are

28
Usami, M. (2016). Moral Grounds for Indigenous Hunting Rights. Philosophy of
Law in the Arctic, University of the Arctic, 100-108.
29
Sowry, A. (2015). Reconciling the Clash/ A Comparison to the Australian and
Canadian Legal Approaches to Burdening Indigenous Hunting Rights. Pub. Int.
LJNZ, 2, 154.

Page 12 of 37
particular interests on which there can be unanimous agreement 30
and
that indigenous cultural communities enforce animism by relinquishing
animal cruelty practices.

III. States’ Treatment on Aboriginal Animal Cruelty Practices is

Arbitrary and Discriminatory

Legal regulations of animal cruelty are indeed intertwined with issues

around identity and how minority practices ought to be accommodated in
a multicultural democracy.

The restriction in favor of the aboriginal members is morally arbitrary.

The aboriginal special hunting permit confronts at least two issues. 31

First, the normative weight in the restriction does not apply to indigenous
peoples. Hence, there is inconsistency in moral reasoning. Second, it is
not fair as the trend has been to sweepingly exempt indigenous peoples –
individuals or juridical persons. 32

Within the aboriginal hunting practices, there is a need to define when is

a special hunting permit granted to indigenous peoples. The grant must
have to comply to certain conditions to be considered moral and fair. The
size of the population practicing the tradition is a considerable small part
of the whole population of the country which they live. The duration of
30
Newman, D. G. (2004). Collective interests and collective rights. The American
Journal of Jurisprudence, 49(1), 127-163.
31
Usami, M. (2016). Moral Grounds for Indigenous Hunting Rights. Philosophy of
Law in the Arctic, University of the Arctic, 100-108.
32
Usami, M. (2016). Id.

Page 13 of 37
the cultural practices distinct than any other group have been passed
down over hundreds of years. Importantly, respect for indigenous life
must promote equitable power-relationships within the State. The
dominant cultural group, who insist on their autonomy and right to self-
determination, should not be able to impose their own view of the shared
resources and natural heritage on all others in society. 33

The UNESCO has set the definition and standards as to what constitutes
intangible cultural heritage.34 Based on UNESCO’s criteria, traditions,
cultural practices, and expressions such as animal cruelty practices and
hunting must comply with the following:

“Traditional, contemporary and living at the same time:

intangible cultural heritage does not only represent inherited
traditions from the past but also contemporary rural and urban
practices in which diverse cultural groups take part;”

“Inclusive: we may share expressions of intangible cultural

heritage that are similar to those practised by others. Whether
they are from the neighboring village, from a city on the
opposite side of the world, or have been adapted by peoples
who have migrated and settled in a different region, they all
are intangible cultural heritage: they have been passed from
one generation to another, have evolved in response to their
environments and they contribute to giving us a sense of
identity and continuity, providing a link from our past,
33
Usami, M. (2016). Id.
34
UNESCO Intangible Cultural Heritage. What is Intangible Cultural Heritage?
https://ich.unesco.org/en/what-is-intangible-heritage-00003

Page 14 of 37
 through the present, and into our future. Intangible cultural
heritage does not give rise to questions of whether or not
certain practices are specific to a culture. It contributes to
social cohesion, encouraging a sense of identity and
responsibility which helps individuals to feel part of one or
different communities and to feel part of society at large;”

“Representative: intangible cultural heritage is not merely

valued as a cultural good, on a comparative basis, for its
exclusivity or its exceptional value. It thrives on its basis in
communities and depends on those whose knowledge of
traditions, skills and customs are passed on to the rest of the
community, from generation to generation, or to other
communities”; and

“Community-based: intangible cultural heritage can only be

heritage when it is recognized as such by the communities,
groups or individuals that create, maintain and transmit it –
without their recognition, nobody else can decide for them
that a given expression or practice is their heritage.”

State avoidance is ultimately unstable.35 The invocation of self-

determination and cultural integrity opens the door for other societies to
claim that hunting, fishing, or whaling are central to their cultural
identities36 even when these practices no longer comply with the

35
Kymlicka, W., & Donaldson, S. (2015). Animal rights and aboriginal
rights. Canadian perspectives on animals and the law, 159-186.
36
Kymlicka, W., & Donaldson, S. (2015). Id.

Page 15 of 37
aforementioned measures of what consists an intangible cultural heritage.
The scope of exemption is unclear even in aboriginal case. 37
Case in
point is when the act is committed by indigenous corporation vis-à-vis an
individual aborigine, or when whaling is for subsistence or being served
to tourists.

To use the argument of treaty right or self-determination to condone

animal killings implicitly adopts species hierarchy and double standards .
In the end, ethics and morals are wanting in this perspective. There
appears to be no insight into why the practices might be ethically
permissible or worthy. 38

Moral rights are universal in form and apply to anyone situated in a

certain way. They are neither incoherent nor odd for people to defend,
non-egoistically, the rights of others.39 Indigenous cultural communities
should transcend to their own rights and think in the broader terms of the
common good, or civic virtue.

The derogation rights granted to aboriginal animal practices is

discriminatory. As Wills (2020) discussed, discrimination may be direct
or indirect. There is direct discrimination where States treat persons in
analogous situations differently. On the other hand, there is indirect
discrimination where States “fail to treat differently persons whose
situations are significantly different”.40
37
Kymlicka, W., & Donaldson, S. (2015). Id.
38
Kymlicka, W., & Donaldson, S. (2015). Id.
39
Green, L. (1991). Two Views of Collective Rights. Can. JL & Jurisprudence.
40
Wills J. (2020). The Legal Regulation of Non-stun Slaughter- Balancing Religious
Freedom, Non-discrimination and Animal Welfare. Liverpool Law Review.

Page 16 of 37
The indigenous individuals and aboriginal juridical persons are
significantly different. The blanket exemption to both is not warranted.
Hence, it is a clear case of direct discrimination. Animal cruelty
practices, whether committed by an aboriginal person or an indigenous
corporation, are morally reprehensible and contrary to public policy.

It can also be argued in this discourse of animal welfare, animals must be

treated and dealt with in the same manner by both the majority and the
indigenous groups.

The right to self-determination does not cut as objective and reasonable

support when the general public is enjoined from the exercise of the act.
In this regard, the derogation is capricious not only in favor of the
indigenous peoples and against the public. In reality, this derogation in
essence prejudices too the indigenous cultural community.

The right to self-determination of the indigenous cultural community may

be founded on the bond of humans and nonhumans as sacred. State’s
tolerance to animal cruelty practices defeats the right to self-
determination of aboriginal communities whose identity is closely linked
to non-humans or animals. The indigenous human rights extend to

nonhumans with the sharing of the “sensitive faculty of the soul”. 41

41
Surrallés, A. (2017). Human rights for nonhumans?. Journal of Ethnographic
Theory, 7(3), 211-235.

Page 17 of 37
As can be gleaned from Article 25 of the UNDRIP, there exists the right
of indigenous peoples to “maintain and strengthen their distinctive
spiritual relationship with their traditionally owned or otherwise occupied
and used lands, territories, waters and coastal seas and other resources
and to uphold their responsibilities to future generations in this regard.”
The right accordingly confers a form of affective link between persons,
humans, or nonhumans implicit in the notion of spirituality. This
spirituality as animism is considered necessary for the survival of the
indigenous people as a people.

Aboriginal exemption on animal cruelty practices therefore assails the

right of self-determination and identity. Animals have agency interests
that should impact humans’ thinking about how to permissibly interact
with animals. 42
Self-determination rights of the indigenous peoples
cannot include rights over the lives of animals when the nexus the
indigenous peoples have to these non-humans is an integral part of this
very right.

It goes without saying that there is backing for indigenous peoples to care
for animals rather than harm them in the guise of the exercise of tradition
and cultural heritage. Stated differently, animal rights and animal welfare
as not irreconcilable with the aboriginal way of life.

42
Healey, R., & Pepper, A. (2021). Interspecies justice: agency, self-determination,
and assent. Philosophical Studies, 178(4), 1223-1243.

Page 18 of 37
Human–animal relations are continuous where animals are co-authors of
our relationships with them. Accordingly, indigenous peoples “never
doubted the consciousness and willfulness of all creatures.”43

As the international law such as the UNDRIP considers this bond of

humans and nonhumans as sacrosanct, State’s tolerance to animal cruelty
practices finds no justification in treaties and customary laws. The fact
that indigenous peoples have rights to self-determination yet closely
bonded with the animals within their territory merely creates an agency
for them to participate in international agreements on animals.44

For the indigenous peoples, self-determination is the right to live a

particular way of life, to practise their traditions and cultural heritage.
It necessarily includes the ability to determine the future course of
their existing traditions. The integration of indigenous peoples into
mainstream social, cultural and economic life is therefore not
inconsistent with the right to self-determination and aboriginal
autonomy.45

Under the framework of self-determination, traditions and cultural

heritage are not constant and immutable. Aboriginal practices are not
separate phenomena but are interrelated with human interaction and
activities as is explicitly acknowledged in the Operational Guidelines to
the 1972 World Heritage Convention, stating that “no area is totally
43
Kymlicka, W., & Donaldson, S. (2015). Animal rights and aboriginal
rights. Canadian perspectives on animals and the law, 159-186.
44
Kymlicka, W., & Donaldson, S. (2015). Id.
45
Blake, J. (2015), “International Cultural Heritage Law”Chapter 4: Cultural Heritage
and the Environment. Oxford University Press, 123.

Page 19 of 37
pristine and that all natural areas are in a dynamic state and to some
extent involve contact with people”.46

Blake (2015) ratiocinates that the profound truth that human societies and
cultures have been largely molded by their natural environment in a
complementary way. While Blake literally refers natural environment as
archaeological sites, land conditions and climate, it may encapsulate the
membership and relationship of indigenous peoples with outsiders and
the general public. Where the mainstream society prescribes animal
cruelty as contrary to law, public morals, and public policy, the
indigenous cultural community adapts and modifies their way of life. The
relationship of culture and heritage with human interactions therefore
could be seen from the anthropological points of view.

Aboriginal animal cruelty practices are an area of cultural heritage that

are seen in the negative light in the interrelationship between cultural and
natural heritage. For one, traditional cultural practices to be regarded
positively should be supporting environmental sustainability, not contrary
to environmental protection principles. The continuing dispute before the
International Whaling Commission for instance, over claims of whaling
as a traditional cultural practice and right in Norway, Japan, and the Faroe
Islands is cited as potentially harmful to the environment.47

Cultural adaptation that entails ending animal cruelty practices is unlikely

to lead to cultural destruction. Animal practices should be seen as
political choices not culturally determined, or as deliberate manifestations
46
Blake, J. (2015). Id.
47
Blake, J. (2015).

Page 20 of 37
of resistance, an insistence of territory and sovereignty to eat what they
choose to eat.48 It now becomes an ethical and moral question whether
animals should be the ones to pay the price for aboriginal political
expression against cultural oppression. Authorities suggest that perhaps it
is now time to reshape the expression through an alternative cultural
tradition. And this would still be consistent to the exercise of self-
determination that is generally morally acceptable and ethical.

Most traditional practices, the method (as opposed to the purpose) of

hunting animals has no particular cultural significance. Embracing new
technologies has in no way diminished the cultural significance of the
hunt. Likewise, the adoption of methods of killing animals in ways that
ensure quick and painless death would not jeopardize the traditions status
of the hunting practices. Thus, the laws and practices which allow
Indigenous hunters to use cruel hunting methods that would otherwise be
prohibited under relevant animal protection legislation, are not special
measures. They do nothing to 'secure advancement' of Indigenous People
nor do they ensure 'equal enjoyment of their human rights' (in this case
the right to conduct traditional activities) as such rights could be equally
enjoyed using alterative 'more humane' hunting techniques.49

IV. A Way of Looking at the Clashes – the Framing of State

Interference

48
Kymlicka, W., & Donaldson, S. (2015). Animal rights and aboriginal
rights. Canadian perspectives on animals and the law, 159-186.

Thiriet, D. (2006). Traditional hunting: cultural rights v animal welfare. Alternative

49

Law Journal, 31(2), 63-65.

Page 21 of 37
There is no doubt that in general, cultural heritage, cultural practices,
expressions, and traditions need safe guarding and protection. This
emerged from the model of legal pluralism designed to support claims to
indigenous rights by proposing a distinctively sociological account of the
origins and the validity of such rights50.

The most potent conflict in a pluralistic legal system arises between

normative laws and the customary or indigenous cultural law.

The official or positive legal systems are linked to an institutionalized

legal apparatus of some kind manifested in legislatures, enforcement
agencies, tribunals. They give rise to powers, rights, agreements, criminal
sanctions, and remedies. Official legal systems can supposedly coexist in
an uncoordinated fashion in a given social arena with different sources
and institutions that can conflict with one another.51

On the other hand, customary normative systems interchangeably referred

to as ‘indigenous law’ or ‘traditional law’52 originate in the rich stories,
ceremonies and traditions of indigenous peoples.53 Narratives and stories
play a dominant role in the way elders reveal to the younger generation

50
Thornhill, C., Calabria, C., Cespedes, R., Dagbanja, D. and O'Loughlin, E. (2018).
Legal pluralism? Indigenous rights as legal constructs. University of Toronto Law
Journal, 68(3), pp. 440-493. doi: 10.3138/utlj.2017-0062
51
Tamanaha, B. Z. (2017). Understanding legal pluralism: past to present, local to
global. In Legal Theory and the Social Sciences (pp. 447-483). Routledge.
52
Tamanaha, B. Z. (2017). Understanding legal pluralism: past to present, local to
global. In Legal Theory and the Social Sciences (pp. 447-483). Routledge.
53
Vermeylen, S (2013). The Nagoya Protocol and Customary Law: The Paradox of
Narratives in the Law, 9/2 Law, Environment and Development Journal, p. 185,
available at http://www.lead-journal.org/content/13185.

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the deeper meanings of order and disorder in their community. Stories
and narratives act as normative 'lawmaking' sources. Stories and
storytelling are central components in discourses that represent history,
memory and particular places.54 Once created, indigenous laws have been
carried over and continue to the present in some form of coexistence with
(or within) official legal systems. 55

The overlapping and competing versions of these two legal systems may
create clashes as in the case of aboriginal animal cruelty practices. The
recognized human rights norm under the official law is inconsistent with
the indigenous law, albeit as discussed above only superficially. This is
the premise proffered in this discourse on aboriginal exemption in their
animal cruelty practices under existing milieu. And the mechanism of
State avoidance to manage the clashes failed to resolve the overt source
of conflict.

While there are various mechanisms to manage the clashes between these
two systems, the solution is not categorically addressing "what the law
is”. Rather, it should be framing situations in ways that facilitate
observation and analysis.56

As Tamanaha (2017) traced back the development of the competing

systems, it can be deduced that the competing system such as customary
laws should not be assumed to faithfully match prevailing customs or

54
Vermeylen, S (2013). Id.
55
Tamanaha, B. Z. (2017). Understanding legal pluralism: past to present, local to
global. In Legal Theory and the Social Sciences (pp. 447-483). Routledge.
56
Tamanaha, B. Z. (2017). Id.

Page 23 of 37
social norms. A dual legal system co-exists within the ambit of
overarching legal system and mutual influences, traditions, and
customary laws may be redefined based on liberal principles. This
precept grounds legitimate State interference and veers away from mere
avoidance strategies.

From the situations of legal pluralism in the medieval period and during
colonization, Tamanaha (2017) illustrated that legal pluralism exists
whenever social actors identify more than one source of ‘law’ within a
social arena. Defining “what the law is” produces conceptual problems.

Rules are dynamic. As Sandberg argues, norms are made and then refined
both by the creation of further rules and also by the application of the
rules to factual situations to determine the rule in question has been
breached.57

In the case of aboriginal expressions, practices, and traditions, they are

not incapable of modification to adapt to the environment and the milieu.

The nature of the rights and duties and even of the right-and-duty-holders
themselves and their mutual interactions will change. 58 There cannot be
just one single approach to the protection of cultural heritage under
international law. The bare assertion of cultural determinism – that “It’s
just the way things are” or using animals or aboriginal animal cruelty

57
Sandberg, R. (2016). The failure of legal pluralism. Ecclesiastical Law
Journal, 18(2), 137-157.
58
Blake, J. (2015), “International Cultural Heritage Law”Chapter 4: Cultural Heritage
and the Environment. Oxford University Press, 123.

Page 24 of 37
practices are a given, not a choice, a way of life, is a myth. 59
This is a
denial of the indigenous peoples’ bond with nature and animal which is
an integral part of their identity, thus an assertion of aboriginal right to
self-determination.

Blake (2015) posits that one of the continuing challenge to international

cultural heritage law is and has been whether to characterize the heritage
that merits protection as a cultural heritage of humankind, a ‘national
treasure’, or the source of value and identity to local and indigenous
communities. In the area of animal cruelty practices as a tradition and as
an expression, apologists succumbed to ethnic legacies which may be
incompatible with global heritage shared and sheltered in common. 60 It
goes without saying that the indigenous peoples’ claim to identity is not
the sole legitimate interest in heritage. It should be operating within a
system primarily established by and for sovereign and equal States.
Hence, State interference has a place in regulating and sanctioning
aboriginal animal cruelty practices.

The defense of cultural diversity is an ethical imperative inseparable from

respect and a commitment not only for the human rights of the indigenous
peoples but for the general welfare of non-members and the public. The
prohibition on animal cruelty is a standard that should not apply only for
non-members but for members of indigenous peoples. This cultural
practice contravenes human rights standards similar to female infanticide,
cannibalism, forced marriage and physical mutilations. These practices

59
Kymlicka, W., & Donaldson, S. (2015). Animal rights and aboriginal
rights. Canadian perspectives on animals and the law, 159-186.
60
Blake (2015), supra.

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have been outlawed similar to animal cruelty. The only difference is that
the sanction and enjoinment of the latter has not been made to uniformly
be applied to indigenous peoples.

According to Wills (2020), animal cruelty practices vis-à-vis animal

protection fall within States’ margin of appreciation. National authorities
is in the best position to judge the appropriateness of the interference to
the protection of “morals” and if I may add, “public policy”. As evenly
discussed above, advocating animal welfare and protection aims not
solely to benefit the animals as sentient beings. If we are to assert and
uphold the right to self-determination of aboriginal communities within
territories, safeguarding the animals serves that purpose as well. One
could say that the State is simply advocating the interest of indigenous
peoples to their right to identity when it chooses to promote State
interference instead of exemption and avoidance.

State’s legitimate interference as a restriction on a right must accordingly

satisfy four essential components, to wit: 61

“First, the domestic legal system must sanction the

interference. Second, the law must be adequately accessible to

citizens, meaning that they ‘must be able to have an indication
that is adequate in the circumstances of the legal rules

applicable to a given case’. Third, the law must be formulated

with sufficient precision to enable citizens to foresee the exact

61
Wills J. (2020). The Legal Regulation of Non-stun Slaughter- Balancing Religious
Freedom, Non-discrimination and Animal Welfare. Liverpool Law Review.

Page 26 of 37
 scope and meaning of the provision, including ‘the
consequences a given action may entail’. Finally, there must
be adequate safeguards against arbitrary interference with the
affected substantive rights.62

The aboriginal derogation of animal cruelty practices in most States is

usually granted by reason of State’s recognition of the indigenous peoples
right to self-determination and autonomy. Emphatically, self-
determination is best served when the purest bond of indigenous peoples
to the animals within their territory is upheld. Aboriginal sovereignty
neither morally and ethically justifies animal cruelty practices.

State interference would involve uniformly applying the law to satisfy the
legitimate aim which is the interest of public policy and morals. It will
also advance the protection of the rights of both members and non-
members. For members, their right of identity linked to animism is
compatible with animal safeguarding. For non-members, actions that
improve animal welfare may also have positive environmental effects and
each aspect can be measured in terms of biodiversity and sustainability.63

We need to consider the welfare state that is based on universal

humanitarianism – where services and goods are provided to both
members and non-members of a community. The welfare state is guided
by an ideal of “social justice” which suggests society is shared equally to
all members of the State. The task of the welfare state is accordingly to

62
Wills (2020), Id.
63
Broom, D. (2019) Animal welfare complementing or conflicting with other
sustainability issues. Applied Animal Behaviour Science, Volume 219.

Page 27 of 37
share social relationships in accordance with the idea of equal
membership. As T.H. Marshall states, the welfare state rests on a “direct
sense of community membership based on loyalty to a civilization that is
a common possession”. According to Kymlicka (2020), the task of the
welfare state is to provide the public good and social policies which help
create a good society – one which belongs to its members.

Everyone should be able to partake in the social and cultural life of the
community and be empowered to shape and to enjoy the shared society.
When the larger society views animal cruelty as reprehensible, there is no
validation for aboriginal community’s resort to said practice and for the
State’s tolerance and allowance.

The retraction of derogation rights could be justified based on protecting

the right of people to live in a society in which there are laws protecting
animals against unnecessary suffering.64 Indigenous rights do not stand
against, but instead they in fact form part of, a process of legal
nationalization, in which the central legal/political order of society is
extended and reinforced. 65

This pluralist approach could fit well with the theory of “interlegality”
which accentuates the important role of legal hybridization, caused by the
interaction between global law and indigenous law, in forming

64
Wills J. (2020). The Legal Regulation of Non-stun Slaughter- Balancing Religious
Freedom, Non-discrimination and Animal Welfare. Liverpool Law Review.
65
Thornhill, C., Calabria, C., Cespedes, R., Dagbanja, D., & O’Loughlin, E. (2018).
Legal pluralism? Indigenous rights as legal constructs. University of Toronto Law
Journal, 68(3), 440-493.

Page 28 of 37
indigenous rights.66 Accordingly, the formation of indigenous rights as a
process which reflects the increasing autonomy of national legal systems,
in which the allocation of rights to indigenous groups enables the national
legal order to promote more even patterns of inclusion, generating rights
that can be accessed by, and thus help to integrate, all collective actors. 67

Clearly, embracing the regularity of aboriginal animal cruelty practices

proceeds in the relinquishment of the indigenous peoples of their bond
with non-humans and their right of representation as regards the identity
of the indigenous collective. These rights (assigned to animals and of the
indigenous community’s cultural identity through animism) could not
become at the mercy of the aboriginal agents’ assertion of their right to
expression and tradition via animal cruelty practices.

Animal welfare as in itself a collective interest of the indigenous peoples

and an inherent public good that serves legitimate interest of the
aboriginal members and non-members, is not dependent of native rights.
Looking at rights to a collective interest under collective moral concerns,
rather than rights granted to agents provides a justification on State
interference.

As Thiriet (2006) discussed, the anti-cruelty limitations that apply to

traditional hunting practices do not amount to discrimination. First, anti-
cruelty legislation, although clearly affecting the right to hunt, does not
limit the nature and the amount of property to be taken. It simply
regulates how it should be taken when allowed. It also acknowledged that

66
Thornhill C. (2018), Id.
67
Thornhill C. (2018), Id.

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the traditional right to hunt is more than a mere property right. Second,
there is no direct discrimination as anti-cruelty legislation that may apply
to traditional hunting applies equally - or equally fails to apply – to
hunting conducted by other cultural groups. Third, while both the
International Covenant on Civil and Political Rights and the Racial
Discrimination Act of 1975 prohibit laws that impose restrictions on some
groups based on race, art 18(3) of the Covenant entitles States 'to impose
such limitations as all necessary to protect public safety, order, health, or
morals, or the fundamental rights and freedom of others.' It is argued that
any regulation which aims to limit cruel treatment of animals does so in
the interest of moral consideration. Article 18(3) is not given effect in the
RDA but there would be no impediment to State and Territory
governments applying this principle. It is argued, therefore, that the
imposition of anti-cruelty standards on Indigenous peoples amounts to
neither direct nor indirect breach of the RDA. 68

In the perspective of environment sustainability, the Practical Principle 12

of the Addis Ababa Principles espouse that indigenous and local
communities who live with and are affected by the use and conservation
of biological diversity, along with their contributions to its conservation
and sustainable use, should be reflected in the equitable distribution of the
benefits from the use of those resources. 69 This reinforces the equitable
and unform application of anti-animal cruelty practices as not
discriminatory. Submitting to the recognition that indigenous peoples are
stewards of the environment, aboriginal communities must therefore be at
Thiriet, D. (2006). Traditional hunting: cultural rights v animal welfare. Alternative
68

Law Journal, 31(2), 63-65.

69
Blake, J. (2015), “International Cultural Heritage Law”Chapter 4: Cultural Heritage
and the Environment. Oxford University Press.

Page 30 of 37
the forefront in actively safeguarding the welfare of animals by
promoting more humane hunting methods and evenly sharing of
resources to other non-members within the local community.

In the Philippines, the passage of the Indigenous Peoples’ Rights Act

(IPRA) in 1997 did not remove the jurisdiction of the courts over criminal
offenses that may be committed by indigenous cultural community
members relating to the utilization of natural resources. The State frowns
upon unbridled utilization of natural resources by indigenous peoples. For
instance, it is prohibited to cut, harvest, and gather without Governmental
permit timber, pulpwood, firewood and other forest products within
ancestral domains that falls within the forest and protected areas land
classification. Penal sanctions for unrestrained natural resources
utilization are defined under the Philippine Forestry Code and the
Expanded National Integrated Protected Area Systems Act.

Customary laws and practices of the indigenous peoples in the

Philippines may be invoked provided that they are not in conflict with the
legal system of the country. There must be legal harmony between the
national laws and customary laws and practices in order for the latter to
be viable and valid and must not undermine the application of legislative
enactments, including penal laws.70

Like most States, animal maltreatment by indigenous peoples pursuant to

tradition is considered an exemption. As it is only the State through its
legislation that grants such privilege, hence by the same power it can be
removed. While the IPRA recognizes native title or ownership of the
70
Datu Malingin v. Sandagan, G.R. No. 240056, October 12, 2020.

Page 31 of 37
indigenous peoples of their ancestral domains and lands, the ownership of
the natural resources has remained to the State consistent with the
Regalian doctrine – all natural resources belong to the State.71 State
ownership of natural resources was seen as a necessary starting point to
secure recognition of the State's power to control their disposition,
exploitation, development, or utilization.72

Ownership over the natural resources in the ancestral domains remains

with the State and the indigenous cultural communities are merely
granted the right to "manage and conserve" them for future generations,
"benefit and share" the profits from their allocation and utilization, and
"negotiate the terms and conditions for their exploration" for the purpose
of "ensuring ecological and environmental protection and conservation
measures." 73

The right of indigenous peoples to negotiate over natural resources

(necessarily including the animals within their territories) as regards the
terms and conditions must be for the purpose of ensuring ecological and
environmental protection of, and conservation measures in the ancestral
domain. As it does not extend to the exploitation and development of
natural resources, it should not have covered animal cruelty practices –
which are a form of exploitation.

71
Isagani Cruz v. Secretary of Environmental and Natural Resources, G.R. No.
135385 December 6, 2000.
72
Isagani Cruz v. Secretary of Environmental and Natural Resources, Id. Separate
Opinion of J. Puno citing 2 Aruego, The Framing of the Philippine Constitution, p.
592 [1937].

Isagani Cruz v. Secretary of Environmental and Natural Resources, Id. Separate

73

Opinion of J. Puno citing Section 9 of IPRA.

Page 32 of 37
The indigenous peoples’ rights over the natural resources take the form of
management or stewardship. The indigenous peoples must ensure that the
natural resources within their ancestral domains are conserved for future
generations and that the "utilization" of these resources must not harm the
ecology and environment pursuant to national and customary laws.74

The Constitutional declaration of ownership by State over all natural

resources within the ancestral domain is Philippines’ affirmation that
aboriginal communities cannot solely be left to their own devices.
Reliance on consensus of the collective is in tension with the possibility
of interests that are highly volatile with respect to changes of leadership
and influence that could substantially change the collectivity’s interests.

A useful model that balances the need for societal organization with self-
determination for aboriginal groups is to equate “liberal principles” with
“civil rights”. Where a minority group chooses to deny the civil rights of
some of its citizens contrary to the liberal principles held by the majority
group, intervention by regulation is warranted (i.e. not discriminatory). 75

V. Conclusion

It can be said that in the debate of indigenous animal cruelty practices, it

is not about law and non-law, official law and non-official law or

74
Id.
75
Kymlicka, W. (1995). Multicultural citizenship: A liberal theory of minority rights.
clarendon Press.; see also Chesterman, above: n 12. 140- L

Page 33 of 37
common or customary law, that is relevant. The key questions involve the
normative commitments of a community and the interactions among
normative orders that give rise to such commitments, not their formal
status. 76

To ensure respect of indigenous peoples’ right as protected under Article

32 UNDRIP implies a consultation and an assessment process respectful
of the principle of Free Prior and Informed Consent (FPIC) and the
adoption of appropriate mitigation measures to remediate adverse impacts
of the law and regulation which have been implemented.77

State interference is therefore not about placing systems the national legal
system at the top of the hierarchy in the social arena of normative. As this
disquisition highlights, legal pluralism refuses to focus solely on who has
the formal authority to articulate norms or the power to enforce them.
Instead, it aims to study empirically which statements of authority tend to
be treated as binding in actual practice and by whom. 78

The treaty rights and customary international laws recognizing

indigenous peoples’ right to self-determination and identity are not
inconsistent with ending aboriginal animal maltreatment practices.

76
Vermeylen, S. (2013). The Nagoya Protocol and customary law- the paradox of
narratives in the law. Law Env't & Dev. J., 9, 185.
77
Cambou, D. (2013). The impact of the ban on seal products on the rights of
indigenous peoples: a European issue. The Yearbook of Polar Law Online, 5(1), 389-
415.
78
Vermeylen, S. (2013). Id.

Page 34 of 37
There just remains the challenge for indigenous peoples to accept the
principles of procedural pluralism itself which are consonant with liberal
principles and may reject it on that basis.79

The framing of the normative lawmaking source resolving the issues

confronting indigenous animal cruelty practices should not be completely
reliant on the authoritative State Interference. In upholding the indigenous
peoples’ right to self-determination, governments should be able to
consult with the indigenous community before enacting restrictive
legislation.80 So as not to risk of controverting indigenous sovereignty
somehow recognized by international customary laws, State interference
should not only consider the majority’s understanding of animal welfare
or that what constitutes appropriately necessary suffering of animals. This
stance may not be inclusive of indigenous understandings.81

In modifying the methods of traditional hunting to cater animal welfare,

more information about the nature of indigenous hunting is needed. The
extent to which the method of hunting has cultural value will vary
between communities and over time. 82
As indigenous peoples’ right to
self-determination encompasses the ability to determine the future

79
Vermeylen, S. (2013). Id.
80
Sowry, A. (2015). Reconciling the Clash/ A Comparison to the Australian and
Canadian Legal Approaches to Burdening Indigenous Hunting Rights. Pub. Int.
LJNZ, 2, 154.
81
Sowry, A. (2015). Reconciling the Clash/ A Comparison to the Australian and
Canadian Legal Approaches to Burdening Indigenous Hunting Rights. Pub. Int.
LJNZ, 2, 154.
82
Sowry, A. (2015). Id.

Page 35 of 37
course of their existing traditions 83, the significant changes to hunting

practices do not affect the legitimacy of the relevant traditions.84

Aboriginal consensus should be reached after all the necessary

information has been gathered by the community and after the
community has received pertinent information i.e., on the efficacy of a
ban, alternative methods, and evidence from the consultation process and
scientific impact assessment compliant with the principle of FPIC.85

This is vital in determining whether modifying traditional hunting

methods should be treated in the most balanced way to reconcile the clash
with animal welfare standards, and the lack of evidence of the Indigenous
perspective means that this resolution should not be treated as the ideal
solution to the matter.86

With the growing popular support for legal protections for animals, States
should prioritize strengthening consultation with indigenous communities

83
Blake, J. (2015).

84
Thiriet, D. (2004), "Tradition and Change - Avenues for Improving Animal Welfare in
Indigenous Hunting" [2004] JCULawRw 8; (2004) 11 James Cook University Law
Review 159.

85
Cambou, D. (2013). The impact of the ban on seal products on the rights of
indigenous peoples/ a European issue. The Yearbook of Polar Law Online, 5(1), 389-
415.
86
Sowry, A. (2015). Reconciling the Clash/ A Comparison to the Australian and
Canadian Legal Approaches to Burdening Indigenous Hunting Rights. Pub. Int.
LJNZ, 2, 154.

Page 36 of 37
to ascertain how they would be affected by any future animal welfare
laws. 87 #

87
Sowry, A. (2015). Id.

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