Simcha Walfish
2nd year, McGill University, Faculty of Law
June 15, 2018
Sound does not respect the boundaries between human and non-human animals. In “An Empire of Sound: Sentience, Sonar and Sensory Impudence,” John Shiga writes about how sound “bleeds across spatial and species boundaries and frustrates attempts to treat sound’s effects as uniform across material settings and bodies.” Sound can change those boundaries permanently. With new technologies, what Shiga calls “sensory prostheses,” humans can now “hear” in areas that were previously the exclusive sensory terrain of non-human animals.
From earthquakes to the speech of whales, technology has made undersea events audible to humans. By opening the sea for human perception, technologies like sonar “might enable the temporary suspension of humanist asymmetries.” While this new technology had the potential to suspend the animal/human divide, it has been used to create new sites of “capitalist expansion and geopolitical conflict.” Instead of suspending humanist asymmetries, these new technologies often usurp the senses of undersea creatures. Seismic testing can cause “temporary and permanent hearing loss, abandonment of habitat, disruption of mating and feeding, and even beach strandings and death. For whales and dolphins, which rely on their hearing to find food, communicate, and reproduce, being able to hear is a life or death matter.” Sonar can cause whales to “swim hundreds of miles, rapidly change their depth (sometime leading to bleeding from the eyes and ears), and even beach themselves to get away” from the blasts.
Visualization of the use of sonar on a ship by Sonerkut via Wikimedia Commons.
As these technologies grew, so did calls for their regulation. This was an important recognition that the “soundscape” of the ocean was a legitimate object of law. But there was no consensus about why undersea noise should be regulated. Shiga identifies three main groups that advocated for regulation:
1) One group wanted a bill based on the view that marine mammals are an important economic resource that should be sustainably managed.
2) A second group advocated conservation, recognizing that marine mammals play an important role in the broader ecosystem.
3) A third group argued that there is an ethical and moral imperative to protect marine mammals from human intervention because of their intelligence.
These divides were based on differing accounts of the “ontological status of cetaceans (as resources, ecological elements, or sentient beings) as well as the principles underlying their regulation (utilitarian, scientific, moral).”
Beluga whales by Diliff via Wikimedia Commons
In Canada, recent litigation has demanded regulation of undersea noise for reasons that do not fit within either the economic, conservationist, or moral arguments. In at least two recent cases, Inuit groups in Nunavut have successfully challenged seismic testing projects on the grounds that the interference with the hearing of marine mammals would violate Inuit rights.
In a 2010 case brought by the Qikiqtani Inuit Association (QIA), the nunavuumi iqkaqtuijikkut (Nunavut Court of Justice) granted an interlocutory injunction to block seismic testing in the waters of North Baffin Island. The Court considered “scientific literature which documents significant impacts on marine mammals from seismic testing, including permanent hearing loss, disruption of feeding and migration patterns, and impacts on social bonding, reproductive success and predator avoidance.”
The QIA claimed that the noise of seismic testing would irreparably damage what it “means to be Inuk”:
The Inuit right which is of concern in this matter is the right to harvest marine mammals. Many Inuit in Nunavut rely on country food for the majority of their diet. Food costs are very high and many would be unable to purchase food to replace country food if country food were unavailable. Country food is recognized as being of higher nutritional value than purchased food. But the inability to harvest marine mammals would impact more than the just the diet of Inuit. The cultural tradition of sharing country food with others in the community would be lost. The opportunity to make traditional clothing would be impacted. The opportunity to participate in the hunt, an activity which is fundamental to being Inuk, would be lost.
The court granted the injunction because the “harm to Inuit in the affected communities will be significant and irreversible. The loss extends not just to the loss of a food source, but to a loss of culture. No amount of money can compensate for such a loss.”
In the 2017 case, Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., the Supreme Court quashed an authorization granted by the National Energy Board (NEB) to conduct seismic testing in Baffin Bay and Davis Strait. The proposed test would have involved “detonating air guns exponentially louder than a jet engine for 24 hours a day, five months per year, for a period of five years, into ecologically sensitive and culturally vital waters.”
The Court noted that the NEB approved the project after its own “environmental assessment concluded that the project could increase the mortality risk of marine mammals, cause permanent hearing damage, and change their migration routes, thereby affecting traditional resource use.”
The case was not decided on the merits of seismic testing but on the fact that the NEB’s botched consultation process did not fulfill the “deep consultation” owed to the Inuit of Clyde River. For the people of Clyde River, stopping the testing was a massive victory. Jerry Natanine, the former mayor of Clyde River who pushed the case forward, said: “What a victory for us. Justice was on our side because we’re fighting for our way of life, our hunting and gathering culture — whaling and sealing — that’s our lifestyle, that’s what we want to protect.”
For the Court, the Inuit of Clyde River were owed better consultation because the interference with the hearing of marine mammals threatened their way of life. The Court, thereby, affirmed that undersea sensation is a legitimate object of law because it impacts Inuit hunting. At the same time, the Court implicitly rejected the claim that Inuit law should have a say in this regulation. As Cree law professor Tracey Lindberg and professor Angela Cameron write, the decision failed “to address Indigenous territoriality and responsibility for their lands.” They argue that rather than reducing the duty to consult to an exercise of box-checking by administrative bodies, “a reconciled/reconstituted/respectful approach would be open discussions and admissions of Indigenous authorities over Indigenous lands, in accordance with Indigenous laws.”
The Court found that the duty to consult was not discharged in this case, but it had nothing to say about consent or about a process guided by Inuit law. Intervening in the case, the Chiefs of Ontario argued that the government’s consultation process “fails to respect Indigenous communities’ own asserted inherent jurisdictions in relation to management of resources and lands.” Although the United Nations Declaration on the Rights of Indigenous Peoples and the concept of “free, prior, and informed consent” were raised by Clyde River and several intervenors, the Court never mentions either. The Court did very little to overturn the unilateralism that mars consultation processes across the country.
In the words of Lindberg and Cameron: “Legally and institutionally, Canada needs to commit to the understanding that Indigenous law is alive, is operational and authoritative.” The Court, while recognizing that the Inuit have a vested interest in the hearing of marine mammals failed to recognize an Inuit power to regulate undersea noise.
All of the links in this Probe were accessed on 21 May 2018.
Further reading:
Navy Sonar May Mimic Killer Whale Sounds by John C. Cannon
Whales, Somehow, Are Coping With Humans’ Din by William J. Broad
The Story of One Whale Who Tried to Bridge the Linguistic Divide Between Animals and Humans by Charles Siebert
Whales hate sonar, explosions, and other human-made noise. Do they like our music, at least? By Forrest Wickman
Making Space for Indigenous Law By Estella White (Charleson) – Hee Naih Cha Chist
Jerry Natanine on Narwhals
Breaking The Silence: For centuries, newcomers to the Arctic have marvelled at its powerful stillness. But as the ice melts away and shipping traffic rises, can the Arctic fight back against noise? by Samia Madwar
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