Toward the end of the afternoon, the focus became the comparison of the non-indigenous non-marine management seal hunt in Canada with the indigenous seal hunt in Greenland. Norway insisted that both hunts are really "commercial" since they are both on a significant scale, both involve the provision of a livelyhood to hunters, and both involve the trade in pelts or other seal products to some extent.
Norway's strategem here was to portray the core distinction in the EU scheme as between permitted "non-commercial" hunting and impermissible "commercial" hunting, and suggest that this distinction was framed in a suspciously inconsistent way so as to protect Greenland's hunt while blocking products from Canada's.
There was a certain cleverness in Norway's rewriting of the EU seals regime. Of course, the fundamental distinction is not commercial vs. non-commercial but between hunts that serve specific legitimate purposes that justify allowing some risk of seals being killed in a manner harmful to animal welfare (indigenous rights including to a traditional way of life and sustainable marine management) and hunts like the East Coast Canadian hunt that are based upon normal commercial activity and do not have these purposes. Rightly, the EU scheme limits the extent to which the former, permissible hunts can result in commercial trading of seal products (the subsistence and own-use requirements in the case of the indigenous exception and the not-for-profit requirement for the sustainable marine management exception), to prevent abuse of the exceptions where hunts are conducted ostensibly for the purposes in question but are really a way of getting around the general ban and its morally-based animal welfare goals. Because the fundamental distinction is not commercial vs. non-commercial but whether the hunt supports certain specific legitimate policy purposes or not, the EU scheme limits the extent to which the permissible hunts can be commercial, so that there is less incentive to try and abuse the exceptions to circumvent the main measure. But in so doing it doesn't, and doesn't need to, eliminate all commercial activity flowing from the hunts for the permissible policy purposes; indeed eliminating all such activity would result in waste of products and thus be offensive to public morals since resources that could serve human needs would be thrown away.
But rewriting the EU scheme as based on the commercial/non-commercial distinction served Norway's and Canada's purposes well. Based on this distorting gimmick, wouldn't the fishers in Canada's East Coast hunt also be viewed as eaking a subsistence living out of sealing just as much as Greenland's indigenous peoples? As the EU lead attorney reminded the panel, the all-important difference is that Greenland's hunt is indigenous and under international law, and indeed even under Canada's own constitution indigenous people are entitled to special treatment when traditional activities like hunting and fishing are involved.
As someone whose origins are in the East Coast of Canada, I would add that the supposed "subsistence" nature of the non-indigenous East Coast hunt derives from a policy decision of Canadian governments to deal with economic decline on the East Coast of Canada not through worker adjustment or other pro-active industrial policies but through a mix of aids to prop up uneconomic fishing actvities and the seal hunt, as well as welfare-type payments to see the these individuals through in really tough times. In other words, while seal hunting of indigenous peoples as a way of survival is an ancient cultural practice, resorting to seal hunting as a way of earning one's keep on the East Coast of Canada today is the result of a pathology of failed industrial and adjustment policies, as documented in numerous Royal Commission-type exercises, studies, reports and taskforces on economic underdevelopment in Atlantic Canada and what to do about it.
The other fallout from Norway's tactic of focusing the comparison on Greenland vs. the "commercial" hunts of Norway and the East Coast of Canada, was again being able (very repeititvely) to revert back to the attack on the idea of a measure with multiple objectives where to some extent the achievement of one involves accepting a lesser degree of fulfilment of another. Thus, Norway and Canada would have it that the Greenland indigenous hunt is as "cruel" (and they suggested, even more so) than the Canada East Coast non-indigenous hunt. Yes, of course, regrettably, because the suffering of seals is being given less significance than respecting indigenous rights in this particular case. But, it was asked by the chair of the panel in effect,, could not something still be done to minimize the suffering occuring during indigenous (or indeed marine management) hunts? The EU answered very honestly that there are real limits to that in the case of indigenous hunts, given the way in which traditional indigenous hunting is done and the EU also pointed out that Canada itself exempts indigenous hunting from its own animal welfare requirements. Canada hemmed and hawed, said some things about the complexity of the exceptions, but in the end admitted it. As for the marine management hunts, I would add that we musn't forget that such hunts are required to be conducted in a manner that doesn't undermine the main purposes of the EU measure. Thus, arguably, animal welfare concerns cannot simply be ignored when this exception is invoked, even if, to some extent, they are being relativized to the sustainable marine management purpose.
