by Anisha Grewal
A NOTE ON TERMINOLOGY
For specificity, this paper uses the terms “Indigenous,” “First Nations,” and “Aboriginal” as originally used in existing case law, legislation, and other legal documents referred to throughout. In Canada, Indigenous communities include broad categories of First Nations, Inuit and Metis peoples, as per section 35(2) of the Canada’s Constitution Act, 1982.
INTRODUCTION
The intricate fabric of the issue of food insecurity and lack of food sovereignty across Indigenous communities is woven with threads of colonial disruption, nutritional insufficiency, and pressing health concerns. The challenges Indigenous people face in this regard call for a comprehensive examination of the detrimental effects of colonial policies and the transformative potential of reclaiming traditional food systems. This paper provides such an examination and incorporates an analysis encompassing legal, social, and environmental dimensions. It delves into the historical context behind food issues that First Nations face while highlighting food’s cultural and spiritual significance. This paper also examines ongoing and contemporary challenges to Indigenous food security and sovereignty, followed by potential solutions relating to legal recognition, self-government, collaboration, and funding to address Indigenous food insecurity and enhance food sovereignty across Indigenous communities.
BACKGROUND
The “International Covenant on Economic, Social and Cultural Rights” recognizes the right to adequate food as an essential element of the right to a satisfactory quality of life.1 The right to adequate food entails that every person or community should have consistent, physical, and economic access to food that meets their specific dietary needs based on age, living conditions, gender, and health.2 Despite this recognition, marginalized groups often find themselves neglected in this regard, resulting in food insecurity characterized by the deprivation of consistent access to sufficient and suitable food. Among such groups are Indigenous people and communities across Canada, who face a higher risk of experiencing food insecurity due to various obstacles to accessing adequate food. The extent of food insecurity is significant in Indigenous communities, with a prevalence rate of 48% and an elevated rate of 60% for more isolated, remote communities.3 This disparity primarily stems from the societal, political, and economic marginalization of Indigenous communities, as well as the challenges faced in achieving Indigenous food sovereignty, compounded by the enduring repercussions of government regulations and colonialism.4
Before colonization, Indigenous people inhabited and utilized large areas of land to harvest animals and plants.5 During this time, First Nations primarily consumed traditional foods collected from the natural environment, contributing to their overall well-being, and encompassing their physical, spiritual, and mental health. While meeting their nourishment needs, First Nations also fulfilled various social and economic purposes.6
The onset of colonialism marked a significant turning point, resulting in the ongoing expropriation and degradation of territories upon which Indigenous people depended for hunting and gathering traditional foods. The Canadian government subsequently implemented the genocidal policy of residential schools, which further interrupted intergenerational knowledge transfer about traditional food harvesting, storage, and processing.7 Another relative contributing factor is the colonial policy of segregating Indigenous people to small parcels of land away from urban and rural centers and without basic infrastructure.8 This segregation was facilitated by the enactment of the Indian Act in 1876, 9 which exacerbated the disruption of Indigenous cultures and economies and allotted small, mostly isolated parcels of land to Indigenous people, known as “reservations” or “reserves.”10
Many Indigenous communities experienced significant dietary shifts from being uprooted from their ancestral lands. Friedmann’s observation that food has “long been associated with wealth and power” and can be used as a weapon became particularly evident in colonial societies.11 In Canada, food became a weapon in the form of Western or ultra-processed foods.12 Indigenous people began to increasingly rely on “industrialized” foods out of necessity due to their impeded ability to access traditional foods.13 Industrialized foods imposed on Indigenous people consisted primarily of starch, sugar, processed meat, and other items with little nutritional value compared to their traditional counterparts.14 Although not all new foods were entirely unhealthy, many Indigenous people could only afford processed food options, which remain today more affordable than healthier market alternatives.
ANALYSIS
Impact on Indigenous People
a) Cultural Disruption
The implementation of colonial assimilation policies has resulted in Indigenous communities experiencing a lack of food sovereignty and constrained opportunities to access their territorial lands and foods, which hold deep cultural and spiritual significance. Indigenous communities often strongly prefer traditional foods for their taste and familiarity and for the core values they embody.15 While there is no universal definition, the general concept of “adequate food” for many Indigenous people is “divorced from mainstream development and conventional economic criteria” and is instead rooted in their socio-cultural traditions and unique relationship to ancestral territories and resources.16 In other words, some communities, like those of the Syilx people, perceive food as a gift that establishes a connection with their cultural identity, independent of the Indian Act or any other colonial constructs.17
The availability of various forms of information, such as engagement in land-based activities, interaction with elders, and enhanced cultural competence in relation to food, are recognized as significant factors influencing food security, health, and overall well-being.18 Many Indigenous people continuously face hurdles in accessing traditional knowledge and food practices and are unable to pass on traditional practices to their descendants.19 As this knowledge contributes to food sovereignty, being unable to access it perpetuates cultural loss and food security issues across First Nations.20 Such knowledge includes land-based practices, like wildlife harvesting, which form a sacred connection with the land and serve to address trauma.21 Being separated from these practices have raised concerns among elders within some communities, who express a belief that the loss of this connection is contributing to increasing rates of addiction observed among Indigenous people.22 This issue further underscores the urgency to address the status of food security across Indigenous communities and the importance of reconnecting Indigenous people with their cultural and nutritional heritage.
b) Health and Nutritional Consequences
The health of Indigenous people is profoundly impacted by a combination of factors, including social disparities, the erosion of traditional lifestyles, the resulting high levels of food insecurity, and disconnection from the land.23 Associations between obesity and food insecurity demonstrate this predicament, with accompanying rates of obesity and diabetes among Indigenous people far exceeding those of the general Canadian population.24 Challenges within the retail food sector, mirrored by significant burdens of “poor dietary quality, obesity, and chronic disease,” also exacerbate the situation.25
Traditional Indigenous food practices, such as local harvesting and hunting sources of foods, have greater biodiversity and tend to be “more nutrient-dense in protein and essential micronutrients.”26 However, unsurprisingly, studies indicate that the diets of Indigenous adults across Canada frequently fall short of recommended nutrition levels. These nutritional challenges reflect the absence of traditional food in Indigenous diets and have contributed to lower life expectancy, higher infant mortality rates, and a more substantial burden of chronic diseases, cancer, and tooth decay among Indigenous people.27
Contemporary Challenges to Indigenous Food Security and Food Sovereignty
Exploring some contemporary challenges that intensify issues related to Indigenous food security and food sovereignty is essential to better comprehend the interconnected dynamics. Doing so will also aid in working towards developing sustainable and culturally appropriate strategies.
a) Legal Landscape
One contemporary challenge is the legacy of colonialism and resulting laws, which play a pivotal role in shaping the current state of Indigenous food access. The federal government has a legal responsibility to Indigenous people under the Constitution Act, the Indian Act, and various treaties and agreements establishing a nation-to-nation relationship between the government (or the “Crown”) and Indigenous people.28
Section 35 of the Constitution Act supports the idea that First Nations have the right to care for their own infrastructures. However, the Crown assumed “unilateral discretionary power” over “Indians and lands reserved for Indians” with the establishment of section 18(1) of the Indian Act, resulting in a unique and paternalistic relationship between the Crown and Indigenous people. Moreover, although First Nations have rights to exclusive use and occupation of their reserve lands, legal title remains with the Crown, and most formal land transactions require approval from the federal government.29 Relatively, the Crown also has the power to impose and approve decisions on infrastructures and projects for First Nations through its control of relative decision-making processes.
i. Indigenous-Crown Relations and the Fiduciary Duty
The degree of “economic, social, and proprietary control and discretion” that the Crown has assumed over Indigenous peoples’ lands, beings, and interests leaves their lives vulnerable to the risks of government misconduct or ineptitude.30 As such, the legal concept of “fiduciary duty” is vital to constrain and review the Crown’s discretion, which, in the case of Guerin v The Queen, the Supreme Court of Canada (“SCC”) held as arising from the Indian Act.31 This means that, fundamentally, the Crown has a historic responsibility to protect the interests of Indigenous people in transactions with third parties.32 The basis for this duty is that where “by statute, agreement, or unilateral undertaking, one party must act for the benefit of another, and that obligation carries with it a discretionary power,” the party empowered becomes a fiduciary.33 Equity will then supervise the fiduciary relationship by holding one to the fiduciary’s strict standard of conduct,34 thereby requiring the Crown to act and make decisions that are in the best interests of Indigenous people.
ii. Do Fiduciary Duties Arise in the Context of Food?
Evidence suggests that fiduciary duties arise in relation to food systems and, as an extension, food security. For one, the Crown has a fiduciary duty with respect to reserve lands to consult Indigenous people on projects in accordance with the Constitution Act, 1982. The Crown oversees, approves, and regulates industrial projects that may directly impact Indigenous infrastructure relied upon for providing appropriate levels of food security. However, the Crown fails to delegate adequate powers to First Nations to create and implement effective food security solutions. Accordingly, it may be argued that, by failing to delegate such powers, the federal government presumed for itself the authority to control matters that may impact food access and security, such as on-reserve capital infrastructure and the design and delivery of relevant core services.35
Secondly, as per Wewaykum Indian Band v Canada, although fiduciary obligations do not exist at large, the Crown must “undertake discretionary control over a cognizable Indian interest” for such obligations to arise.36 The interest does not need to be protected by the Constitution Act, nor does the obligation have to be codified through statute, leaving the scope of a “cognizable Indian interest” to be quite broad.37 That being said, evidence suggests that the Crown took discretionary control over the cognizable Indigenous interest in on-reserve food systems. The Crown asserted authority to control matters such as reservation infrastructure, claimed jurisdiction over Indigenous lands under the federal branch of constitutional power, and made consequent changes under the Indian Act. Thus, if a fiduciary duty exists in this context, there is a strong indication that Crown obligations have not been met.
The Crown has maintained control over relevant decisions and evidently does not always consider far-reaching implications when making these decisions. Similarly, the Crown has not fully applied or accounted for issues regarding revenues for needed services, programs and infrastructure that directly benefit Indigenous people. In the end, all such decisions contribute to Indigenous communities lacking adequate supports and food infrastructure, such as paved roads, to allow all-season access to food.38
One relevant example of a Crown decision impacting food related matters is the notional route traversing the Indigenous-led protected area in the Seal River Watershed. Although this route aims to connect to Hudson Bay via Churchill rather than Port Nelson (for logistical convenience), the route would undermine the Indigenous-led protected area and threaten the migration of the caribou population, impacting the food security and cultural integrity of Indigenous communities in the area who are dependent on the caribou.39 The lack of equity in such decisions greatly impacts Indigenous communities and their well-beings while further perpetuating mistrust between Indigenous people and the Crown by amounting to “mismanagement of the Indian Act trust” and the equality clause under the Constitution Act.40
iii. Climate Change and Environmental Degradation
The ongoing impacts of the colonial legal landscape also collide with the dangers of climate change and environmental degradation. Indigenous communities are facing particular and disproportionate harms related to climate and environmental change, partly due to decisions made and approved by the Crown regarding industrialization, commercialization, and recreational activity.41 The significant impacts of climate and environmental change resulting from these decisions exacerbate issues of food insecurity while threatening the livelihoods and cultural survival of Indigenous people who have inhabited the lands for millennia.42
Infrastructures and projects approved by the Crown, such as dam, mine, and oil development, have resulted in environmental destruction, heavy metal pollution, and other impacts that reduce accessibility to traditional lands, waters, and species utilized for food collection.43 For some communities, like the Tsleil-Waututh Nation, marine degradation has resulted in necessary closures to salmon fishing to let populations recover from drought from logging and industrial projects, including a hydroelectric line and natural gas pipeline running through the watershed.44 Likewise, traditional hunters in some areas have reported that elk, moose, wolves, and cougars are “pushing their previous boundaries” of habitat range, impacting other species in the area and changing the entire kin system, leading to unknown long-term impacts.45 Other communities in northeastern BC, like the West Moberly First Nation, have publicly expressed that the government is in a perpetual state of infringement of their treaty rights, as the caribou population plummeted due to industrialization.46 Communities like the West Moberly First Nation received assurances that Treaty 8 guaranteed their traditional ways would not be interfered with, yet Klinse-Za caribou were listed under the Species at Risk Act, and member First Nations could not harvest them for food due to conservation concerns.47 Though the Saulteau and West Moberly First Nations eventually signed two caribou conservation agreements with the federal government and the provincial government of BC in 2020, the province continued to issue mining permits in areas that were protected for caribou habitat.48
The ability of Indigenous communities to challenge government decisions impacting climate change and their inherent rights recognized and affirmed under section 35 of the Constitution Act (1982) remains largely unexplored. However, evidence and reasons outlined in preceding paragraphs may provide a solid basis to argue that the Crown has breached its fiduciary duty and the duty of care it owes Indigenous people. Furthermore, momentous cases like Yahey v British Columbia49 demonstrate that the status quo of Crown decision-making, made without due regard for cumulative impacts, may result in rights violations and legal liability for the government.50
It is important to note that some may argue that the alleged benefits of Crown-approved projects, such as higher income levels and the ability to afford adequate food, outweigh environment and climate concerns. While some advantages may flow from Crown decisions, it is vital to recognize that monetary benefits tend to exclude Indigenous people at noticeable rates51 and that relative developments and projects do not necessarily help high food prices or road infrastructure to access adequate, affordable food. In fact, research suggests that, instead of improving food security and providing comparative benefits, industrial activities such as pipelines and other trade corridors typically bring the “resource curse” to Indigenous communities, who largely experience negative economic impacts from their resources being extracted.52 One example is the industrial town of Norman Wells in the Northwest Territories, in which approximately half the population is Indigenous and which falls within the Sahtu Region. With a century of oil production and supplying the American pipeline grid in northern Alberta, Norman Wells still continuously experiences high food prices and lack of road access.53 This issue remains despite the town receiving the Nutrition North Canada ("NNC”) subsidy to help make nutritious foods more affordable and accessible.54 Other Alberta First Nations continue to face similar issues, with some having the highest food insecurity rates across the country’s First Nations, despite being covered in pipelines and extractive industries.55
b) Current Regulating Policies
Another contemporary challenge to Indigenous food security and food sovereignty is government regulations. Some government regulations undermine the right of Indigenous people to hunt and fish as protected by section 35 of the Constitution Act while undercutting their ability to access traditional, healthy foods and, in turn, their ability to achieve food sovereignty. Though Indigenous communities may be exempt from most provincial hunting regulations that apply to non-Indigenous people, state regulations relating to food safety and other restrictions still impose significant barriers.56
A central issue is that state regulations are predicated on a Western system of domesticated animals and disregard Indigenous harvesting practices of wild animals.57 For instance, the Canada Food Inspection Agency (“CFIA”) has mandated that “all meat farmed, and fish harvested for commercial purposes, are subject to regulations and inspections by provincial, territorial, and federal governments” before any sale of food or before public consumption to reduce the risk of foodborne illnesses.58 The CFIA defines risk, and within these regulations, wild foods and game are considered “high risk” because they are not produced, inspected, or processed in a “federally inspected abattoir.”59 Similar definitions and regulations are also applied to wild game at the provincial level, including under Ontario’s Food Safety and Quality Act, which classifies moose and beaver as “risky wild foods.”60 Moreover, traditional foods obtained through recreational or subsistence practices are regulated through the Safe Food for Canadians Act, under which a hunter with a hunting license may hunt and share food with his family but not with his community.61 Consequently, wild game that is uninspected may not be legally shared or served in public areas in most provinces and territories. When wild foods are served or shared with people gathering to create community or to feast, generally, the following requirements must be met: the food handling areas used for receiving, processing and containing wild meat must be inspected by a local health inspector; uninspected meat cannot come into contact with inspected meat, nor can any kitchen utensils, containers, or surfaces; and food handling certificates are recommended for those involved in traditional food programs.62
In most provinces and territories, selling or sharing wild food, even without exchanging goods, is also unlawful.63 Some Indigenous communities advocate against the “commodification of food” and uphold the belief that food is a gift requiring nothing in return.64 On the other hand, there are also communities that do not feel that there is anything wrong or culturally inappropriate about selling traditional foods65 and have implemented community run markets offering traditional foods to improve overall food access.66 An example of this includes the Hunter Support Program (HSP) in Nunavik, which pays hunters to supply traditional foods that are freely distributed to households requiring support,67 allowing traditional food to move fluidly in and out of commodity status. Whichever belief each Indigenous community may hold, it is evident that almost all communities wish to have more freedom to choose and govern their food in a way that works best for them.
i. Section 35
As outlined above, state regulations may impose significant barriers to traditional practices. Among such regulations are also those that limit the amount of food harvested, setting game-specific seasonal hunting, and controlling routes used for traditional hunting.68 While there may be some beneficial aspects behind such regulations, they seemingly undermine rights protected under the Constitution Act.
Section 35 of the Constitution Act recognizes and affirms Indigenous rights but does not define them. Nonetheless, the SCC recognized and affirmed that the right to gather, hunt, and fish is protected under section 35 in several decisions, including R v Simon (1985), R v Sparrow (1990), R v Badger (1996), and R v Marshall (1999). 69 Additional complimenting decisions further set out the meaning and significance of section 35 rights in cases like R v Van der Peet and R v Delgamuukw.70 Despite such legal recognition, state regulations impose constraints and limitations which continue to infringe on Indigenous people’s rights and ability to access traditional foods. Indigenous communities also claim that state departments, such as the Department of Fisheries (DFO), have made insufficient effort to ensure that treaty rights affirmed by the SCC are integrated and respected within current regulatory regimes.71 Líl̓wat Nation in British Columbia expressed similar concerns regarding fishing, with the DFO still requiring nation members to obtain an Aboriginal communal fishing licence to fish in shared fishing grounds.72 Such issues have resulted in Indigenous communities, like the Sipekne’katik First Nation in Nova Scotia, moving forward with their own self-regulated fisheries and processes.73
Other regulations placing holds on caribou hunting in some regions are also problematic and place a “maximum quota” on harvesting due to declining population numbers.74 These regulations significantly restrict some First Nations from accessing caribou and fulfilling their physical and socio-cultural needs. As previously mentioned, the West Moberly and Saulteau First Nations First impacted by these regulations received assurances from the government that their treaty agreement guaranteed that their traditional ways would not be interfered with.75 But, after Klinse-Za caribou were listed under the Species at Risk Act, the same First Nations could not harvest them for food due to conservation concerns.76 Although the provincial and federal governments hoped to stabilize the Klinse-Za caribou population, their hopes greatly conflict with the goals of the First Nations, who want to grow the herd for generational use. Conflicting goals between the government and First Nations exemplify a gap between the Western foundations on which state laws are built versus Indigenous knowledge perspectives. While all regulations outlined under this section are designed to protect people and wildlife stock itself, they inadvertently treat Indigenous practices related to harvesting the same as the production and processing of foods within the industrial food system.77 This constriction on access to adequate food further undermines food sovereignty and security across Indigenous communities.
ii. Impact on Charter Rights
Discussing the potential implications of government decisions or regulations under the Canadian Charter of Rights and Freedoms (“Charter”) is vital. The Charter guarantees many basic human rights and fundamental freedoms, but it does not have any substantive provisions protecting the right to adequate food or, in other words, food security.78 However, it may be argued that Crown decisions or legislation resulting in reductions in food security violate existing rights protected under the Charter.
Evidence suggests that reductions in food security may, in extreme cases, interfere with the right to life, liberty and security of the person under section 7 of the Charter since the inability of Indigenous people to access healthy food reduces their health prospects.79 A similar argument may be made for the protection of food security pursuant to section 15 of the Charter as it guarantees the right to equality before and under the law.80 The possibility of these arguments being successful seems even stronger considering the government’s affirmation that the Charter can be interpreted as “guaranteeing the right to means necessary for an adequate standard of living.”81 This affirmation came with submissions to the Committee on Economic, Social and Cultural Rights during its second periodic review, where the Canadian government declared that while the guarantee of security of the person under section 7 of the Charter may not lead to a “right to a certain type of social assistance,” it ensured that persons were not deprived of the basic necessities of life.82 Nevertheless, when the issue arose before the courts, successive governments opposed interpretations of Charter provisions that would “provide remedies to hunger or other violations of the right to an adequate standard of living.”83 Although this opposition is confounding, it will be interesting to see whether such Charter-based arguments come forward in the future.
c) Accessibility, Affordability, and Availability
The final contemporary challenge to Indigenous food security relates to the accessibility, affordability, and availability of food across First Nation communities. As outlined in preceding paragraphs, colonial policies created an ongoing legacy of barriers to accessing healthy and traditional foods, and, as a result, Indigenous communities became dependent on imported Western foods. However, some communities have difficulty even accessing these “alternative” foods.
There are many remote Indigenous communities in Canada, and one significant challenge they face is limited access to stores and affordable, adequate Western food. Rural residents are forced to travel further distances to purchase food due to a lack of small-town grocery stores.84 Rural areas also lack physical infrastructure, such as buildings, roads, and transportation. With a combination of poor food access, low income, and inflation, many First Nation families living on reserve, especially in these more isolated communities, experience significantly high rates of food insecurity.85 Single, First Nation mothers living on-reserve are especially vulnerable, as many do not own a vehicle and do not have the option of relying on public transit. For them, accessing the grocery store means relying on the help of friends and family or hiring someone to drive them into the city at $20 to $40 per ride.86 These costs are “prohibitive” and can “severely limit their purchasing power at the grocery store.”87
The consequence of not being able to physically get to grocery stores leaves many Indigenous people with no choice but to shop at on-reserve convenience stores or gas stations, where foods are more expensive and consist mainly of canned, non-perishable foods.88 Similarly, although few and far between, conventional supermarkets located on-reserve tend to have only half of the items from a standard checklist, unlike off-reserve supermarkets where you can find 86% of items.89 Such scarcity includes a lack of access to lactose-free milk and fresh meat products and the prevalence of calorie-dense, sugary, fatty, and high-salt foods.90 This disparity is compounded by the geographical and political remoteness of many Indigenous communities, resulting in a lack of basic infrastructure, lower income levels, and unaffordable food prices.
The food at off-reserve stores near more remote First Nation communities may be more affordable than on-reserve convenience or grocery stores, but it is still relatively costly. This is partly because the availability of these stores is often dominated by a single corporation, leading to "limited retail competition."91 Surveys show that over 90% of remote First Nation communities rely on a single corporate food retailer.92 Though having a second retailer does not necessarily make food prices affordable, increased competition among grocery stores has been linked to better quality and pricing. The issue of food affordability is particularly pronounced in the Arctic and northern Canada, where many communities lack year-round road access, making it difficult to transport goods, with premium prices being charged to cover shipping costs.93 For fly-in and northern rural Indigenous communities, food prices are over 60% higher than in capital cities and as compared to national averages, and wages across these areas do not measure up.94 Although some may place food orders through online retailers or travel to larger centers with a broader food selection and lower prices, limited resources, like access to a vehicle, financial constraints, and inadequate food storage space, as well as other factors like time and internet access, can hinder or restrict the use of non-local retailers.95
d) Analysis of Current Initiatives and Supports
Given that the right to adequate food is not explicitly protected under the Charter, the issue of food security is most often addressed through a collection of policies, programs, and legislation at various government levels.96 However, such initiatives do not always recognize the right to food nor mandate food security data collection, and very few of them are directly concerned with food insecurity.97 Moreover, government and industry decisions concerning land and food often neglect the cultural and spiritual significance that food holds for many First Nations, and are instead grounded in colonial ideas of a food system that is devoid of any spirit.98 In turn, the belief that traditional methods of food sovereignty should be taught and preserved for future generations is often overlooked.
Despite government efforts, such as broad financial support and food security programs, some persistent challenges and gaps exist. For instance, although federal income supplement programs are general and not specifically directed at food issues, people experiencing food insecurity have expressed how these programs fail to consider and index the higher costs of operating, working, and living in more northern regions.99 Rather, federal transfer payments for households use scales designed for southern urban centers and overlook certain aspects, like the northern food basket which costs 50% to 100% more.100
Other government efforts include the implementation of a federal food policy created in 2019. This five-year plan offers a $50 million Local Food Infrastructure Fund for community-based and not-for-profit organizations to “strengthen food systems” and facilitate access to safe and nutritious foods for at-risk populations.101 Although Indigenous organizations are eligible to apply, the fund is directed broadly at non-profit organizations, and it is unclear what percentage of the fund has been allocated to projects supporting food infrastructure in First Nation communities.
Another initiative directly addressing food security in remote northern communities is the NNC program. Although intended to improve access to perishable foods by providing subsidies to retailers and food suppliers, some have raised concerns about its design and implementation.102 Retailers greatly benefit from the NNC programs’ reduced shipping costs initiative, yet, consumers have not experienced a significant increase in their food purchasing power.103 Rather, the Human Rights Watch found that NNC reduced food prices by only 1.03% in eligible communities.104 Addressing food security is also not an explicit goal of the NNC program, and those impacted by it suggest a hint of “neocolonialism” in the subsidized items.105 In particular, for wild or traditional foods to be eligible for the NNC subsidy, they must first be processed by an approved, federally licensed abattoir. Only three of these processing facilities exist in northern Canada, and they are all located in the far north, making it difficult for hunters who would have to ship harvested foods farther north or south and then back again.106
The government of British Columbia recently announced a comparable initiative to the NNC Program. The new $30 million program targets Indigenous food security and sovereignty and is administered by the New Relationship Trust, an independent non-profit dedicated to empowering First Nation communities.107 The program aims to help communities build and strengthen local food systems while revitalizing traditional production, harvest, and preservation practices. While this new initiative appears promising, evidence suggests that addressing food security requires a comprehensive approach that considers cultural values and local practices, and it is too soon to tell whether this program adequately considers the needs and preferences of Indigenous people and communities.
RECOMMENDATIONS
It is evident that government policies, actions, and inactions contribute to issues of Indigenous food sovereignty, food insecurity, and well-being. This poses the question: what are some potential solutions to address issues of Indigenous food insecurity and enhance Indigenous food sovereignty?
a) Recognizing Access to Sufficient and Adequate Food
Canada is a party to many international covenants and conventions which expressly recognize the right to food, however, it has yet to provide any legal recognition of its own.108 Therefore, one recommendation for addressing Indigenous food insecurity is to recognize the right to food for all people in Canada. By recognizing access to adequate food as a legal entitlement, the right to food provides an important tool for combatting hunger and malnutrition. It protects the rights of people in Canada to live with dignity while ensuring everyone has the resources required to produce enough food for themselves or purchasing power sufficient to procure adequate food.109
b) Establishing Indigenous Self-Governance and Encouraging Collaboration
A more crucial solution is establishing Indigenous self-governance and effectively collaborating with Indigenous communities. Decision-making power should be decentralized to address food security issues, with First Nation communities at the forefront. It must also be recognized that food sovereignty is a precondition to the food security of Indigenous people. The implications of food insecurity in First Nation communities indicate ongoing challenges and deficiencies to Indigenous food sovereignty, or in other words, the ability of Indigenous communities to grow, harvest, and exercise jurisdiction over their food systems.
Food sovereignty also refers to the ability to push back and engage in designing and implementing legislation, regulations, and policies that do not respect Indigenous rights and title.110 Sovereignty over the land, achieved through stewardship and harvesting, is crucial in connecting Indigenous people to the land and is a core component of food sovereignty.111 This means barriers such as those relating to section 35, requiring First Nations to prove and litigate their rights, must be reduced or eliminated to empower Indigenous communities.112 Accordingly, the Crown must be willing to cede authority, recognizing that decision-making authority and jurisdiction over essential elements should be allocated to Indigenous communities to ensure that needs and human rights are met for food infrastructure and more.
i. Removing or Amending Legal Barriers
State regulations imposing barriers may be amended or removed to further enable and empower First Nations’ self-governance over food-related matters. Amendments may extend to hunting, fishing and harvesting regulations, and rules relating to the selling, trading, and overall distribution of traditional foods. Upon removing these barriers, the government may work with First Nations to allocate power to make, oversee, and enforce regulations regarding hunting, fishing, harvesting, selling, and trading at the community level. These agreements may also include First Nation communities overseeing the conservation of their animals, enabling them to build up population numbers for generational food sources. Allowing First Nations to adopt their own laws and policies and implement programs to improve food security and food sovereignty is also necessary for the Crown to meet its legal duties under section 35.
Eliminating barriers to economic development arising from constraining provisions of the Indian Act may also be an option. Many Indigenous people see the Indian Act as impeding economic activity due to poor land certainty, lack of consistent document standards, complicated policies, and slow decision-making processes.113 Eliminating economic barriers from the Indian Act may better enable First Nations to own and operate community grocery stores or food markets. While some Indigenous people may not believe in or support the idea of selling traditional foods, removing this barrier will give communities more autonomy in exploring their options and offer better access to food for community members. After all, community ownership is central to culturally appropriate policy program development and supporting Indigenous food sovereignty through self-determination.114
ii. Why Localizing Decision-Making and Collaboration Is Important
Empowering decision-making at the local level is a key dimension of “enabling community members” to shape the qualities and characteristics of their local environment for food security.115 It helps incorporate traditional knowledge and management systems, both of which carry inherent benefits of proven sustainability. Moreover, supporting localized decisions considers each respective community’s environmental and geographical context.
Some Indigenous communities in Canada have been allocated relevant decision-making powers and have successfully developed traditional food programs to address food insecurity. One example is Nisichawayasihk Cree Nation in Manitoba, where a traditional foods program has been operating since 1975, employing four to five community members as year-round hunters, trappers, and fishers.116 Through the nation-run Nelson House Country Foods Program, community freezers are supplied with traditional food distributed to elders, single parents, and those facing hardships such as illness or unemployment.117
Along with increased localized decision-making, First Nations, state agencies, and other stakeholders may collaborate and apply Indigenous methodologies, knowledge, and views to address food-related issues. This may include working together to develop a comprehensive food security and food sovereignty plan that reflects the specific needs and values of communities, including elements such as land use, traditional food practices, sustainable agriculture, and community-led initiatives. This collaborative approach will help enhance food sovereignty, empower Indigenous communities, and acknowledge their inherent right to self-governance in managing food security issues, ensuring their involvement in decisions concerning land use, development, and conservation to enhance access to and availability of high-quality traditional food. Finally, in further supporting this transition, Agricultural and Agri-Food Canada and the Canadian Food Inspection Agency may enable the creation of new meat and traditional food processing facilities, especially in more northern regions, to support local harvesters.118
iii. Tailoring to Each Community
It is essential to acknowledge the diversity among Indigenous communities, recognizing that each community has unique strengths, challenges, and capacities. Therefore, decisions about the assumption of increased authority should be approached with a tailored and community-centric perspective, whereby only some communities may be able to take on and embrace additional responsibilities. Conversely, other communities may face constraints in terms of capacity or infrastructure, necessitating a more nuanced approach. In such instances, it may be imperative to provide targeted support, whether through capacity-building initiatives, technical assistance, or collaborative partnerships.
Ultimately, the success of collaborative agreements hinges on a holistic understanding of each community's context and a commitment to co-created solutions. By empowering Indigenous communities to tailor their level of involvement based on their circumstances and objectives, a more equitable and sustainable framework for Indigenous self-governance that respects the autonomy of Indigenous communities can be established.
c) Funding Initiatives and Programs
Another solution is for the government to provide funding based on the unique needs of each Indigenous community, whether they are located closer to urban centers or more isolated. Such funding mechanisms may include long-term and flexible funding or non-prescriptive grants to support self-governance regarding Indigenous food sovereignty and food security through strengthening access to traditional foods and local food systems. Developing and expanding grants in direct collaboration with Indigenous communities enables them to freely support their food priorities in the best way for them.119 Such agreements may permit communities to utilize funding and subsidies for community initiatives like greenhouses, markets, gardens, hunting workshops, and more. Further ways to use the funding include lunch programs offering traditional foods in schools, providing the support needed to respond to current and projected climate impacts on food, and more.120 The funding arrangement will hinge on what works best for each community based on cultural, environmental, and geographical factors.
Examples of funding initiatives that may be collaboratively expanded on include the Harvesters Support Grant121 and the Community Food Programs Fund.122 Such initiatives aim to increase access to traditional foods by providing funding to support traditional hunting, harvesting, and food sharing in isolated communities while respecting Indigenous people’s inherent rights. More importantly, these initiatives aim to create less reliance on store-bought food, encourage the restoration of harvesting culture and practices, and support local food production and community food sharing.123
Addressing inadequacies of already implemented programs is also an option. The mandates of programs, such as the NNC, may be changed to improve food security outcomes in communities, and state agencies may co-develop ways to ensure that communities have direct input in how program benefits are used. This may include monitoring the success of such programs and exploring the possibility of increasing community eligibility to reduce food price differences between major urban centers and First Nation communities.124 Furthermore, expanding the list of eligible items for subsidization to include non-food items sold in participating stores, such as equipment used for hunting, fishing, and gathering, may also be explored. Alternatively, some communities may prefer shifting entire programs and subsidies from “colonial” stores to Indigenous food co-operatives and on-reserve community members, thereby removing the “middleman.”125
CONCLUSION
In conclusion, the cultural and nutritional repercussions of Indigenous food insecurity are significant and deeply rooted in historical injustices, colonial policies, and government oversights. The prevailing inadequacies in addressing food accessibility, affordability, and the fulfilment of fiduciary obligations by the Crown underscore the urgency for a transformative approach. Indigenous food values and rights are systemically overlooked in decision-making processes, thereby perpetuating a cycle of neglect. While existing government initiatives exhibit good intentions, their inherent challenges and gaps unveil the urgent need for a more comprehensive and inclusive strategy.
It is evident that Indigenous food sovereignty should be recognized as a pre-condition to Indigenous food security. The legal recognition of the right to adequate food for Indigenous communities is vital in rectifying historical injustices. More importantly, the Crown must accordingly cede authority, actively listen to Indigenous voices, and empower Indigenous self-government over food-related matters. Such a paradigm shift should extend to state agencies at all levels. Through genuine collaboration, legal recognition of Indigenous rights, and the empowerment of self-governance, we may create an agreement that upholds the rights and objectives of First Nations, ensuring a future where Indigenous communities exercise autonomy and control over their food systems. The time has come for the Crown and all stakeholders to forge a path towards a more equitable and just food landscape for Indigenous people.
Bibliography
LEGISLATION
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JURISPRUDENCE
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Endnotes
3 Laurie Chan
et al, “FNFNES Final Report for Eight Assembly of First Nations Regions: Draft Comprehensive Technical Report” (Assembly of First Nations, University of Ottawa, Université de Montréal, 2019), at 6.
7 Shirley Thompson
et al, “The Northern Corridor, Food Insecurity and the Resource Curse for Indigenous Communities in Canada,” (2023) 16:20 U Calgary SPP.
9 Indian Act, RSC 1985 c I-5 (“
Indian Act”).
11 Jennifer Summer
et al, “Growing Community Sustenance: The Social Economy as a Route to Indigenous Food Sovereignty,” (2023) 14:1 Can Journal of Nonprofit and Social Econ Research 1.
14 Hannah Klassen, “Understanding the Traditional Food System of First Nations in Canada in the Context of Biodiversity” (Institute of the Environment, University of Ottawa, 2023), at 22.
15 Mojtaba Shafiee
et al, “Food Security Status of Indigenous Peoples in Canada According to the 4 Pillars of Food Security: A Scoping Review” (American Society for Nutrition, 2022), at 2550.
16 “UN Office of Human Rights”,
supra note 1, at 12.
18 Hannah Tait Neufeld
et al, “Exploring First Nation Elder Women’s Relationships with Food from Social, Ecological, and Historical Perspectives” (American Society for Nutrition, 2019), at 3.
21 Shirley Thompson
et al,
supra note 7, at 10.
23 Laurie Chan
et al,
supra note 3, at 2.
25 Matthew Little
et al, “The Retail Food Sector and Indigenous Peoples in High-Income Countries: A Systematic Scoping Review,” (2020) 17(23):8818 Int J Envrion Res Public Health, at 28.
26 Hannah Tait Neufeld
et al, supra note 18, at 3.
27 Laurie Chan
et al,
supra note 3, at 20.
28 Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5;
Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11 (
Constitution Act, 1982).
29 Honourable Marc Garneau, “Barriers to Economic Development in Indigenous Communities” (Standing Committee on Indigenous and Northern Affairs, House of Commons, 2022), at 4.
30 Wewaykum Indian Band v Canada, [2002] 4 SCR 245, at para 80.
31 Guerin v The Queen, [1984] 2 SCR 335 at 336.
35 Constance MacIntosh, “The Right to Safe Water and Crown-Aboriginal Fiduciary Law: Litigating a Resolution to the Public Health Hazards of On-Reserve Water Problems” in Martha Jackman & Bruce Porter, eds, “Advancing Social Rights in Canada” (Toronto: Irwin Law, 2014) 281, at 10.
36 Wewaykum Indian Band v Canada, supra note 30, at para 81.
37 Constance MacIntosh,
supra note 35, at 9.
38 Shirley Thompson
et al, supra note 7, at 31.
41 Tyler Paquette, “The Inhabitants of an Imagined Body: The Crown’s Duty to Consult and Accommodate Indigenous Communities in the Arctic Adversely Affected by Climate Change,” (2020) 15:2 McGill J of Sustainable Dev Law 141.
45 Government of BC,
supra note 17, at 12.
49 Yahey v British Columbia, 2021 BCSC 1287.
51 Honourable Marc Garneau,
supra note 29, at 14.
56 Tonya Smith, “Forest Management and Conservation Governance In Relation to Indigenous Food Sovereignty with the Líl̓ Wat First Nation In British Columbia”, Canada (University of British Columbia, 2022), at 19.
57 Robin Tabitha
et al, “Safe Food, Dangerous Lands? Traditional Foods and Indigenous Peoples in Canada,” (2021) 6 Frontiers in Communication, at 4.
64 Johnnie Manson, “Workmanship and Relationships: Indigenous Food Trading and Sharing Practices on Vancouver Island” (BC Studies, 2019), at 223.
65 Keira A. Loukes, “Sovereignty of and Through Food: Possibilities, Constraints, and Innovations in Northern Ontario First Nations” (University of Ottawa, School of Human Kinetics, 2023), at 19.
68 Robin Tabitha
et al, supra note 57, at 4.
69 Jane L. McMillian, “Colonial Impediments to Indigenous Rights and Food Security in Atlantic Canada” (Journal of International Law & International Relations, 2015).
72 Tonya Smith,
supra note 56, at 17.
74 A. Malli
et al, “Impacts of Colonization on Indigenous Food Systems in Canada and The United States: A Scoping Review” (BMC Public Health, 2023), at 7.
75 Steph Kwetásel’wet Wood,
supra note 46.
77 Robin Tabitha
et al, supra note 57, at 5.
78 “Canadian Charter of Rights and Freedoms”, s 7, Part I of the
Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11.
79 First Peoples Law,
supra note 50, at 10.
80 “Canadian Charter of Rights and Freedoms”,
supra note 78, at s 15.
84 Francesca Willard, “Food Availability, Including Traditional Foods, in Grocery and Convenience Stores in 6 High Obese Counties, including Native American Reservations” (South Dakota State University, 2018), at 3.
86 Chantelle⊄Richmond
et al, “Supporting Food Security for Indigenous Families Through the Restoration of Indigenous Foodways,” (2021) 65:1 The Canadian Geographer 97-109.
90 Mengistu Assefa Wendimu
et al, “Access and Affordability of Healthy Foods in Northern Manitoba? The Need for Indigenous Food Sovereignty,” (2018) 5:1 Canadian Food Studies 2.
91 Matthew Little
et al,
supra note 25, at 13.
96 Sarah Berger Richardson & Nadia Lambek, “Federalism and Fragmentation: Addressing the Possibility of a Food Policy for Canada,” (2018) 5:1 Canadian Food Studies 3.
97 “Human Rights Watch”,
supra note 4, at 86.
98 Robin Tabitha
et al, supra note 57, at 7.
99 Bob Bratina, “Food Security in Northern and Isolated Communities: Ensuring Equitable Access to Adequate & Healthy Food for All” (Standing Committee on Indigenous and Northern Affairs, House of Commons, 2021), at 12.
101 Human Rights Watch, s
upra note 4, at 86.
102 Bob Bratina,
supra note 99, at 21.
108 Amy Grann
et al, “Barriers and Supports to Traditional Food Access in Mi’kma’ki,” (2023) 10:1 Canadian Food Studies 1.
109 UN Office of Human Rights,
supra note 1, at 3.
110 Steph Kwetásel’wet Wood,
supra note 46.
111 Government of BC,
supra note 17, at 20.
112 R v Pamajewon, (1996) 2 SCR 821.
113 Honourable Marc Garneau,
supra note 29, at 34.
114 Keira A. Loukes,
supra note at 153.
115 Matthew Little
et al,
supra note 25, at 36.
116 Asfia Gulrukh Kamal
et al, “Is Community Economic Development Putting Healthy Food on the Table? Food Sovereignty in Northern Manitoba’s Aboriginal Communities” (Natural Resources Institute, University of Manitoba, 2011), at 28.
118 Bob Bratina,
supra note 99, at 3.
120 Human Rights Watch,
supra note 5, at 53.
121 Bob Bratina,
supra note 99, at 3.
124 Bob Bratina,
supra note 99, at 12.
125 Shirley Thompson
et al,
supra note 7, at 32.