Colonial Impediments to Indigenous Rights and
Food Security in Atlantic Canada
L. Jane McMillan*
The four pillars of food security identified by the World Summit on
Food Security in Rome 2009, as availability, access, utilization and stability,
are helpful guides to examining the experiences of Indigenous peoples1
food security and food sovereignty and the consequences of European and
settler colonialism in Canada.2 As Orford notes, “The first European colonial
settlers came from societies which were ‘constantly on the edge of famine and
demographic collapse’, and the liberal theories that justified their appropriation
of the ‘waste lands’ occupied by hunter-gathers were an attempt ‘to save the
lives’ of Europeans.”3
Modern humans (Homo sapiens sapiens) appeared in North America
during the Wisconsin glaciation, 50,000-10,000 BP.4 As cultural development
increased in the Americas, numerous Indigenous peoples, communities and
then nations began to occupy and shape the lands of what is now Canada.
Indigenous peoples believe this is the land of their origins and recount in
their many and varied myths and cosmological theories, descriptions of
their sacred and practical ancestral relationships to the lands and resources.
Canada Research Chair of Indigenous Peoples and Sustainable Communities, St. Francis University.
The term Indigenous peoples, is a collective name for the original peoples of a territory
and their descendants. The plurality of peoples is a political response and resistance to the
homogenizing effects of colonial policies that tended to erase tribal diversity by creating
simplified administrative identity categories (Indian, Métis and Inuit for example). The
cultural diversity of Indigenous peoples, their colonial experiences and views on sovereignty
and self-determination are noted and advanced through this plurality. For a discussion of the
significance of the ‘s’ see Ronald Niezen, “The New Politics of Resistance” in Roger Maaka and
Chris Andersen, eds, The Indigenous Experience: Global Perspectives (Toronto: Canadian Scholars’
Press Inc., 2006) at 286-306, particularly 289-292.
2.
Declaration of the World Summit on Food Security, Rome, 16-18 November 2009, WSFS 2009/2.
3.
Anne Orford, “Food Security, Free Trade, and the Battle for the State” (2015) 11:2 J Intl L
& Intl Rel at 8 [Orford], citing Richard Tuck, The Rights of War and Peace: Political Thought and
the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999) at 233
and Andrew Cunningham and Ole Peter Grell, The Four Horsemen of the Apocalypse: Religion,
War, Famine and Death in the Reformation of Europe (Cambridge: Cambridge University
Press, 2000) at 201.
4.
Olive Patricia Dickason, Canada’s First Nations: A History of Founding Peoples from Earliest Times
(Oxford: Oxford University Press, 2002) at 3.
*
1.
© 2015 Journal of International Law and International Relations
Vol 11 No. 2, pages 131-141. ISSN: 1712-2988.
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Archaeological evidence indicates food resources were copious; big game
abounded, fish were plentiful and foraging technologies for land and sea
evolved quickly.5 “Traditional Indigenous economies have tended to involve
the simultaneous and proximal use of multiple resources on a subsistence
basis, rather than the intensive, isolated, single resource use that characterizes
industrial capitalist economies.”6
Nicolas Denys, a French explorer and merchant, accompanied Issac
de Razilly who was commissioned by Cardinal Richelieu in 16327 to be the
lieutenant-general of Acadia, a colony of New France in northeastern North
America. Their mission was to establish colonies for France in the territories of
the Mi’kmaq, Maliseet, Abenaki and Passamaquoddy8 Denys’ writings depict
the time of early, but sustained, European incursions and settlement into long
occupied Indigenous territories. His publications remark extensively on the
availability, access, utilization and stability of sustenance resources and health
characteristics of the Indigenous peoples he encountered:
They still lived long lives. I have seen Indians of a hundred and twenty to
a hundred and forty years of age who still went to hunt the Moose…Their
subsistence was of fish and meat roasted and boiled…All the children do
their cooking like the others. All these kinds of roasts were only an entrée to
arouse the appetite; in another place was the kettle, which was boiling. This
kettle was of wood, made like a huge feeding trough… for making them they
employed stone axes, well-sharpened. … They always had a supply of soup,
which was their greatest drink. Their greatest task was to feed well and to go
a hunting. They did not lack animals, which they killed only in proportion
Bruce Trigger, Natives and Newcomers: Canada’s “Heroic Age” Reconsidered (Montreal:
McGill-Queen’s University Press, 1985).
6.
Charles Menzies, ed, Traditional Ecological Knowledge and Natural Resource Management (Lincoln:
University of Nebraska Press, 2006) at 5. Academics in anthropology and other social and
natural sciences have long studied Indigenous land-based practices and traditions. In recent
decades understanding the potential of Indigenous or traditional ecological knowledge (TEK)
has become a central focus of sustainable resource use and management and environmental
conservation. There are many excellent studies available; for example see Paul Nadasdy,
Hunters and Bureaucrats: Power, Knowledge, and Aboriginal-State Relations in the Southwest Yukon
(Vancouver: University of British Columbia Press, 2004).
7.
George MacBeath, “DENYS, NICOLAS” (2003), in Dictionary of Canadian Biography, vol.
1, University of Toronto/Université Laval, online: <http://www.biographi.ca/en/bio/denys_
nicolas_1E.html>.
8.
The Mi’kmaq are Aboriginal peoples as defined by Aboriginal Affairs and Northern
Development Canada (AANDC) and descendants of the original inhabitants of North America.
The Canadian Constitution recognizes three groups of Aboriginal people—Indians, Métis and
Inuit. These are three separate peoples with unique heritages, languages, cultural practices and
spiritual beliefs. The ancestors of the Mi’kmaq have occupied Mi’kma’ki, the region Atlantic
Canada comprised of present day Nova Scotia, New Brunswick, Price Edward Island, the Gaspé
Peninsula, parts of Newfoundland and Labrador and northern Maine, USA, for at least 11,000
years. See Stephen Davis, Peoples of the Maritimes: Mi’kmaq (Halifax: Nimbus Press, 1997).
5.
Colonial Impediments 133
as they had need of them. They often ate fish, especially Seal to obtain the
oil, as much for greasing themselves as for drinking; and the Whale which
frequently came ashore on the coast, and on the blubber of which they made
good cheer. Their greatest liking is for the grease; they eat it as one does bread,
and drink it liquid…They drank only good soup, very fat. It was this which
made them live long and multiply much.9
Across the expanse of North America Indigenous peoples developed
diverse and sophisticated farming, hunting and foraging strategies that richly
influenced their cultural, political, legal and economic structures, well in
advance of the arrival of settlers. Some communities were highly nomadic
covering large territorial ranges on foot, hunting and fishing on a seasonal basis
at known locales. Others, living in environments that allowed for horticulture
(usually maize, beans, and squash), aggregated and were more sedentary.
Indigenous peoples’ collective ingenuity and knowledge of their ecosystems
enabled them to survive and often thrive for thousands of years. Extensive
trade networks supported livelihood patterns. Their skill and acquaintance
with traditional ecological knowledge and subsistence technologies facilitated
the survival of the early settlers and the emergence of the dominance of a
Eurocentric nation-state.10
The history and experiences of colonialism are as diverse as the peoples
upon which colonial policies and laws were imposed. In the Atlantic region of
North America Indigenous peoples felt the pressures of newcomers on their
subsistence endowments as French and then British penetrations into their
territories resulted in the misappropriation of Indigenous lands and resources
for reallocation to settlers. Traditional broad-based diets, drawn from seasonal
exploitation of both marine and land resources, required access to coastal
regions. Settlers displaced Indigenous peoples from the coasts, cutting them
off from important nutritional foods, especially seals, eels and other culturally
significant marine foods, forcing them to rely on the less predictable fallback
foods of the interior. Indigenous communities suffered rapid population
Translated by the Champlain Society in 1908, Concerning the Ways of the Indians was first
published in 1672 by author Nicolas Denys. Other early accounts of the subsistence practices of
Indigenous peoples are found in the Jesuit Relations, particularly sections authored by Pierre
Biard (1611). See Reuben Gold Thwaites, ed, The Jesuit Relations and Allied Documents: Travels
and Explorations of the Jesuit Missionaries in New France 1610-1791 (Cleveland: Burrows Bros.
Co., 1896-1901).
10.
Richard White’s classic work The Middle Ground: Indians, Empires and Republics (Cambridge:
Cambridge University Press, 1991) examines the complexity of an initial period of cooperation
and accommodation between alien nations within the contact period in North America and
the eventual breakdown of coexistence through the recreation of Indigenous peoples alien and
exotic by European settlers.
9.
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declines due to European borne epidemics and warfare. Emerging food
scarcity heightened loss of life through starvation.11
Colonization requires formal political control of a territory, and a
population, by a state, through a specialized administrative apparatus, with an
ideology justifying such control. Anthropologist Laura Nader argues that law
as cultural control is inseparable from political and religious colonization, and
that the understanding of hegemonic ideational control must be connected to
our knowledge of social or institutional control.12 Colonial myths have long
held that North America was a vast, uninhabited, yet bountiful wilderness, ripe
for European conquest, and readily available for civilization through superior
technology and social mores of the more ‘evolved’ cultures of the ‘Old World’.
Portrayals of colonial encounters often celebrated the benevolent actions of
settlers, missionaries, and colonial officials and their generous assistance in
assimilating Indigenous peoples into settler society.
As settler populations adapted to the environment and expanded,
demands for Indigenous labour decreased. By violating or denying the
sovereignty, values and norms of Indigenous peoples, European colonizers
disrupted, often with force, political, economic, kinship, legal and religious
orders. Without doubt, settler activities destabilized Indigenous food security
by limiting availability, controlling access, and regulating utilization of
Indigenous lands and resources.13 Settler populations became increasingly
hostile, interfering with food procurement practices and seasonal rounds by
preventing access to the coasts.
In the Atlantic region of the ‘New World’, British efforts to promote
settlement among English speaking Protestants were largely unsuccessful
until the defeat of the French and creation of Halifax in the mid 1700s. In
establishing its new colony, the British created the Nova Scotia Council in
1720, as the King’s chief administrative body. The governor appointed the
council members, who possessed wide-ranging powers, including the right
to overrule the governor’s authority, and to act as a court of law in which
the French could be brought into submission.14 The British could not simply
ignore the Mi’kmaq (the predominate Indigenous peoples in this territory), as
their retaliatory efforts interfered with British commercial designs in the fish
James Waldram, D. Ann Herring & T. Kue Young, Aboriginal Health in Canada: Historical,
Cultural, and Epidemiological Perspectives (Toronto: University of Toronto Press, 1995).
12.
Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village (Stanford:
Stanford University Press, 1990) at xxiii.
13.
For an excellent analysis of the historical violence and the consequences of colonial
policies that destroyed the fur and sealskin trades as experienced by Innu and Inuit
communities see Gerald M. Sider, Skin for Skin: Death and Life for Inuit and Innu (Durham: Duke
University Press, 2014).
14.
William Wicken, Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (Toronto:
University of Toronto Press, 2002) at 89.
11.
Colonial Impediments 135
and fur trade. The British solution was to enter into treaty with the Mi’kmaq
and other Indigenous signatories. Here British laws were the, “cutting edge of
colonialism, an instrument of power of the alien state and part of the process
of coercion”15 that undermined Mi’kmaq cultural production and sovereignty
as framed by their geopolitical subsistence patterns. The imposition of colonial
policies and laws redefined Indigenous relations with the newcomers in
their territories.
Since the Mi’kmaq participated in treaty negotiations, they must have had
an explicit political order and a common political will or they could not have
exerted any influence on the treaty-making process. Without such a political
order the treaties would have been redundant, as the British could have
simply forced themselves on the Mi’kmaq through military means. That the
British did not, and recognized that they could not, and were worried even
as late as 1808 about the dangers the Mi’kmaq posed to British Nova Scotia’s
security, indicates that such an order did exist. There is no more telling proof
of this than the British signed not just one treaty with the Mi’kmaq but five
separate agreements over fifty-three years between 1726 and 1779.16
The 1726 agreement was a peace and friendship treaty designed to end
years of conflict between the British and Mi’kmaq, and end the “Indian wars”
taking place in the northeast. British planned to use the treaty to incorporate
the Mi’kmaq into a network of British colonies directed against their French
adversaries. The treaty consists of two parts. The first part - the articles of peace
and agreement—was signed by the Mi’kmaq, Maliseet, Passamaquoddy and
Penobscot delegates and intended to guide their future relations with British
colonies. The second part of the treaty encompasses the reciprocal promises
made to the aboriginal communities by Nova Scotia officials.
Indigenous peoples resisted to English encroachment on their lands. As
first inhabitants and rightful owners of the territories, they rejected the notion
of anyone else holding jurisdiction over them, or their resources. Indigenous
nations asserted their sovereignty; any right to settle their lands derived from
their authority, not some invisible king in a foreign land. In the reciprocal
promises of the treaties, it was guaranteed that Indigenous hunting, fishing
and gathering assets and strategies would be protected. The treaties thus
assured Indigenous peoples could continue to exercise their customary rights
on their lands and engage in trade. They also implied the British should
settle elsewhere so as not to interfere with Indigenous subsistence practices
on those lands. As was customary among the Mi’kmaq, permission to access
Martin Chanock, Law, Custom and Social Order: The Colonial Experience in Malawi and Zambia
(Cambridge: Cambridge University Press, 1985) at 5.
16.
William Wicken, Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (Toronto:
University of Toronto Press, 2002) at 40.
15.
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and ritualized reimbursement were required before lands could be used.
Trespassers had to pay for protocol violations to make things right according
to Mi’kmaq laws.17 These practices were necessary to honour their ancestral
connections to the territory and to rebalance their symbiotic relationships with
all things human, and other than human to secure future prosperity.18 These
Indigenous patterns of occupancy, management, and work, conflicted with
those of the British and French. Wicken concludes:
Thus, when the Mi’kmaq were told that the British would not molest them
‘in their persons, Hunting, Fishing and Planting Grounds nor in any other
their Lawfully Occasion,’ they understood this to mean that in these areas
they would exercise some form of control that would enable them to protect
their hunting and fishing lands from outside interference. This control would
include the right to regulate outsider’s travels through their lands - a right
that included regulating the movement of New England traders.19
Following the Peace and Friendship treaty period the British expanded
their colonial rule. The Royal Proclamation20 issued by King George III in 1763,
explicitly recognized Aboriginal rights, “And whereas it is just and reasonable,
and essential to our Interest, and the Security of our Colonies, that the several
Nation of Tribes of Indians with whom We are connected, and who live
under our Protection, should not be molested or disturbed in the Possession
of such Parts of Our Dominions and Territories as, not having been ceded to
or purchased by Us, are reserved to them or any of them, as their Hunting
Grounds … and “Trade with the said Indians shall be free and open to all.”21
As noted by Orford, “Colonial trade was enabled through government by
unrepresentative assemblies under intimidation by powerful companies that
had gained power and thus influence through commercial monopolies. The
merchants who carried on colonial trade had become the principal advisors
to the government on the regulation of that trade, with the result that the
interests of the merchants were ‘more considered than those of either the
colonies or the mother country.”22 Adam Smith’s cautions around colonial rule
and mercantilism rang true in these colonies.
L. Jane McMillan, “Mu kisi Maqumawkik Pasik Kataq: We Can’t Only Eat Eels: Mi’kmaq
Contested Histories and Uncontested Silences” (2012) 32:1 Can J Native Studies 119.
18.
Kerry Prosper et al, “Returning to Netukulimk: Mi’kmaq cultural and spiritual connections
with resource stewardship and self-governance” (2011) 2;4 Intl Indigenous Policy 1.
19.
William Wicken, Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (Toronto:
University of Toronto Press, 2002) at 132.
20.
Chute, Janet, “Frank G. Speck Contributions to the Understanding of Mi ‘ kmaq Land Use,
Leadership, and Management” (1999) 46:3 Ethnohistory 481.
21.
George R, Proclamation, 7 October 1763, reprinted in RSC 1985, App II, No 1.
22.
Orford, supra note 3 at 33.
17.
Colonial Impediments 137
In the late eighteenth century a special committee of the Legislative Council
of Nova Scotia ruled that the hunting way of life constituted an obstruction to
‘civilization’. Benefits and assistance to Indigenous peoples henceforth would
be directed wholly toward compelling bands to take up farming: any group
that failed to conform to official mandates would be ‘abandoned to their Fate’.
To this end the Mi’kmaq were being offered no protections, legal or otherwise,
against settler encroachment on the enclaves arranged for them by license.
Loyalist influxes after the Revolutionary War brought hunters into the interior
for moose hides, killing thousands of animals in a single season for their
profitable skins and leaving the carcasses to rot.23
Evidence in the pre and early Confederation context supports Orford’s
claim that, “European lawyers developed doctrines that rationalized the
acquisition of territory for agricultural settlement, posited freedom of trade
and navigation as inalienable rights, justified the enclosure of common land,
authorized the conduct of imperial trading companies, and justified the
policing of dispossessed people who resisted such practices.”24 With certainty,
“as territories were settled and colonial rulers were increasingly faced with
‘rebellion, resistance, and instability’, lawyers and colonial officials would
move from developing doctrines justifying war to those explaining the
principles of administration and policing.”25 Between 1763 and 1921 hundreds
of agreements, compacts, historical and territorial treaties were negotiated,
outlining trade, commercial activities and settlement.26 H.W. Crawley, an
Indian Commissioner in Cape Breton in 1849 reported that:
Under present circumstances no adequate protection can be obtained for
the Indian property. It would be in vain to seek a verdict from any jury in
this Island against the trespassers on the reserves; nor perhaps would a
member of the Bar be found willingly and effectually to advocate the cause
of the Indians, inasmuch as he would thereby injure his own prospects, by
damaging his popularity.27
The Colonial Office had legal functions, but was difficult to administer
from overseas, and more difficult to prevent corruption in its administration,
such as in the operation of truckhouses, which were to regulate trade.28
Janet Chute, “Frank G. Speck’s Contributions to the Understanding of Mi’kmaq Land Use,
Leadership, and Land Management” (1999) 46:3 Ethnohistory 481 [Chute].
24.
Orford, supra note 3 at 8.
25.
Ibid.
26.
Michael Asch, On Being Here to Stay: Treaties and Aboriginal Rights in Canada (Toronto:
University of Toronto Press 2014) provides an excellent argument for treaty recognition as a
means to reconcile Indigenous relations with the Canadian State.
27.
Sidney L. Harring, White Man’s Law: Native People in Nineteenth-Century Canadian Jurisprudence
(Toronto: Osgoode Society University of Toronto Press, 1998) at 181 [Harring].
28.
See Gerald Sider’s Skin for Skin (2014) for an analysis of Indigenous experiences with the
Hudson Bay Co. and Moravian missions.
23.
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Journal of International Law and International Relations
Bureaucratic crookedness facilitated the theft of Indigenous lands and
resources, and impeded legal challenges by Indigenous peoples. The Gradual
Civilization Act of 1857 was enacted to prevent such corruption and emerged
from an 1839 statute designed to protect Indian lands from squatters. This
legislation formed the basis of the legal dualism that characterizes the
Indian Act, 1876.29 The Indian Act was to protect Indigenous interests but
simultaneously prohibited them from exercising their rights as Indigenous
peoples. That legal dualism existed within the treaties is another dimension,
but one not recognized during colonial expansion and domination. The
historical record shows little to no enforcement of laws protecting Indigenous
lands. The Doctrine of Discovery, the fiction of terra nullius, frozen rights
theories, extinguishment and frontier myths justified doctrines of wholesale
assimilation and precipitated catastrophic marginalization and alienation of
Indigenous peoples from their lands and resources. With the Confederation of
Canada in the British North America Act 1867, and the consolidation of colonial
Indian policies into the Indian Act in 1876, the prohibition and criminalization
of Indigenous livelihoods became the order of the day.30
Indigenous peoples did not passively acquiesce to the imposition of the
colonial legal order. On the contrary, they resisted assimilation and continued
to invoke their own legal traditions.31 For centuries Indigenous leaders
petitioned Crown officials in London against British violations of the treaties.
Petitions made between 181432 and beyond 1982, cited numerous transgressions
of human rights, racial discrimination, theft of property, illegal confiscation
of lands, unjustifiable trade restrictions and violations of persons. They also
noted the extreme poverty, starvation and poor health in which Indigenous
peoples lived as consequences of British colonization and rules of containment.
The petitions went largely unanswered, but Indigenous peoples continued to
resist occupation of their lands, persisted in procuring food through hunting
Harring, supra note 27.
The scholarship detailing the systemic and racial discrimination perpetrated by Indian Act
legislation is very rich. See Val Napoleon, Taiake Alfred, Patricia Monture, Michael Asch, Glen
Coulthard, John Borrows, David Milward, Bruce Miller, Anthony Hall, Kent McNeil, and
Audra Simpson etc.
31.
Indigenous legal scholar John Borrows challenges the legal community and the Canadian state
to integrate the legal traditions and practices of Indigenous peoples with the system of Canadian
law in Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) and in
Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2010).
32.
For example the petition sent by Daniel Tony, who in 1814, requested that he and seventeen
families be allowed land for agriculture because moose and many other animal species had been
‘destroyed by the English settlements of late years’. Tony and his group requested land near Gut
of Annapolis, where they could hunt porpoise and fish (“Petition of Daniel Tony” 1814, PANS,
RG 1, vol. 430, 148 1/2). See Chute, supra note 23 at 534, n138.
29.
30.
Colonial Impediments 139
and fishing and to this day, when charged under Canadian laws, to resist
prosecution through claims to historical treaty and statutory rights.33
The details of the historical and contemporary legal struggles of Indigenous
peoples to exercise Aboriginal rights, sustain food security and participate
in trade are beyond the scope of this brief commentary. The Supreme Court
of Canada has recognized and affirmed Aboriginal treaty rights to hunt and
fish for food and earn livelihoods in a number of decisions, for example R.
v. Simon (1985), R. v. Horseman (1990), R. v. Badger (1996) and R. v. Marshall
(1999). The Supreme Court has also set out the meaning and significance of
the constitutional recognition and affirmation of Aboriginal and treaty rights
in s. 35(1) of the Constitution Act, 1982 in a series of cases including R. v.
Sparrow, R. v. Van der Peet and Delgamuukw v. B.C..34 Despite these important
legal advancements food security remains unobtainable for the majority of
Indigenous peoples in Canada. The health of Indigenous peoples is markedly
impoverished compared to most Canadians. Indigenous peoples are
constrained by state regulations that continue to infringe their Aboriginal and
treaty rights, their ability to trade and their access to customary, traditional
or country foods. Studies show that Indigenous peoples’ chronic disease
risk tends to increase as a result of government policies that infringe on
Indigenous peoples’ livelihoods and territories. Policies intended to increase
food security, including food aid, fuel nutrition transition, characterized by a
rapid westernization of diet and lifestyle associated with an intensification of
the prevalence of chronic diseases, such as diabetes and obesity.35
The UN Joint Brief on “The Right to Food and Indigenous Peoples”
presents the right to food as a collective right, although supplementary to an
individual right, and promotes a rights based approach to food security that
requires “particular attention to Indigenous peoples’ specific circumstances
and concerns.”36 Specific Indigenous concerns have not been well met in
international law. Answers to the crises of food security may be found through
management and trade alternatives directed by Indigenous peoples and, as
well, the full recognition and implementation of treaty rights. The answers
are less likely to be found internationally in ad hoc exceptions from WTO
regulations and EU bans which prejudice markets against Indigenous means
See William Wicken’s excellent account of the impacts of colonization in an extraordinary
treaty case litigation in the early twentieth century in The Colonization of Mi’kmaw Memory and
History, 1794-1928.
34.
Simon v The Queen, [1985] 2 SCR 387; R v Horseman, [1990] 1 SCR 901; R v Badger, [1996] 1 SCR
771; R v Marshall, [1999] 3 SCR 456; R v Sparrow, [1990] 1 SCR 1075; R v Van der Peet, [1996] 2 SCR
507; Delgamuukw v British Columbia, [1997] 3 SCR 1010.
35.
For example see Siri Damman, Wenche Barth Eide & Harriet Kuhnlein, “Indigenous peoples’
nutrition transition in a right to food perspective” (2008) 33:2 Food Policy 135.
36.
Food and Agriculture Organization, “The Right to Food and Indigenous Peoples” (2008),
online: <http://www.un.org/esa/socdev/unpfii/documents/Right_to_food.pdf>.
33.
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Journal of International Law and International Relations
of subsistence, and collapse commercialization potential of the products of
customary harvesting.37
Nor will the answers be found within state imposed regulations, licensing
programs and policies that produce obstacles to the procurement, distribution
and commodification of customary or country foods, while subsidizing
‘healthy food choices’ as well as “ice cream, bacon and processed cheese
spread” through programs such as Nutrition North. The Nutrition North
program is a government of Canada subsidy program to improve access to
perishable foods for remote northern communities. In order to qualify for a
subsidy, country or traditional food such as Arctic char, muskox and caribou
must either be, “shipped by plane from registered Country food processors/
distributors and processed in government regulated and/or approved-forexport commercial plants or shipped by plane from the South by a registered
Northern retailer or Southern supplier and subsidized at the same level as
other store-bought meat.” Country foods constitute less then 1% of the
available Nutrition North subsidies.38
Indigenous peoples around the world pressed for the adoption of the
United Nations Declaration on the Rights of Indigenous Peoples for decades.39
The Declaration provides an unambiguous assertion of the “…urgent need
to respect and promote inherent rights of indigenous peoples…especially
their rights to their lands, territories and resources”40 Many of the rights
specified concern the enabling of conditions that are critical to advancing
Indigenous peoples’ determination of their social and economic development.
For instance, the language in Articles 3, 18, 20, 21, 23, 27 and 32 affirms the
right of Indigenous peoples to self-determination and decision-making with
respect to access to and use of territories and resources for the purposes of
social and economic development. I agree with Orford that, “At stake are
core questions about the obligation of states to protect the welfare of their
own populations, the forms of political action needed to preserve democracy
in the face of rural distress and dispossession, and the means available to
societies seeking to preserve traditional or communal relationships to land.”41
The EU ban on seal products is controversial and has significant consequences for Indigenous
food security in Northern Canada. See Kamrul Hossain, “The EU ban on the import of seal
products and the WTO regulations: neglected human rights of the Arctic indigenous peoples?”
in Polar Record (Cambridge: Cambridge University Press, 2012, Volume 49:2) at 154-166.
38.
Government of Canada, “Eligible Food”, online: <http://www.nutritionnorthcanada.gc.ca/
eng/1415548276694/1415548329309>.
39.
James (Sa’ke’j) Youngblood Henderson, Indigenous Diplomacy and the Rights of Peoples: Achieving
UN Recognition (Saskatoon: Purich Publishing, 2008). Henderson recounts his experiences as an
advocate for adoption and analyses the provisions of the Declaration and the potential of the
implementation of its articles.
40.
UN GA, United Nations Declarations on the Rights of Indigenous Peoples, adopted 2 October 2007,
A/RES/61/295 at 2, online: < http://www.refworld.org/docid/471355a82.html>.
41.
Orford, supra note 3 at 66.
37.
Colonial Impediments 141
To move beyond stated intentions of the UN Declaration, nations must be
prepared to take on and resolve considerable challenges. First among these in
many settings is the need to change existing resource use and socioeconomic
development policies and practices so that Indigenous people are empowered
to exercise their rights within a context that enables respect for and expression
of traditional knowledge and culture. This starting point positively addresses
the current crises of availability, access, utilization and stability—the pillars of
food security.42
L. Jane McMillan and Anthony Davis, “What does this tell us about us?” Social research and
indigenous peoples: The case of the Paqtnkek Mi’kmaq” (2010) SPC Traditional Marine Resource
Management and Knowledge Information Bulletin #27 at 3-16.
42.