Law, salmon, limiting sovereignty

When we treat fish as food and merely a commodity for humans to set quotas on and distribute within a rights based distributive model, food sovereignty for many communities is limited; this is largely the story of salmon fishing in the Canadian food system. While many Indigenous communities have traditionally been intimately tied to salmon, these relationships have been increasingly limited because of the exploitative nature of commercial fishing and exploitative farming methods.[1]

Discourse that first began to attempt to limit Indigenous food sovereignty and relationships with salmon focused on “conservation”, which has been used by courts to justify limiting First Nations’ hunting of salmon.[2] There was some success to expand notions of sovereignties through institutional change in marine governance by altering governance trajectories and fostering trust between organizations and individual communities.[3] In British Columbia, “conservation-based” fisheries had some success because of partnerships between levels of the Canadian government and First Nations, commissions run by First Nations, and individual First Nations.[4] Commercial fishing of salmon that resulted in catch limits attempts to limit Indigenous fishing relationships through this “conservation” rationale.

One case that exemplifies the exploitative development model of approaching fisheries reached the Federal Court of Appeal in 2015: Ecology Action Centre v Canada (Minister of Environment).[5] In that case, Ecology Action Centre questioned the Minister of Environment’s (“Minister”) approval of salmon eggs to be genetically modified in Prince Edward Island, sent to the Panama for commercial grow out, and then back to North America for consumption. The case was an appeal (inter alia) of whether the Minister’s environmental assessment was adequate and a breach of procedural fairness for lack of posted notice. In a short 14 paragraph decision dismissing the appeal, the Court held that the Minister’s actions were reasonable, as potential toxicity could be avoided.

The Court affirmed the court of first instance’s decision that an investigation around potential toxicity and escape in the considered location (the Panama) was discharged. Nowhere was there mention of Indigenous peoples or Panamanian interests, both of which would have been affected. Instead, the narrative was within a rights based sovereignty framework that limited the interests of those affected by approval of the grow out. That the exploitative and rights based frameworks of salmon fishing caused need for alternative grow outs is an example of attempting to fix problems caused by a development framework—rooted in capitalism and colonialism—with more development.

Food sovereignty does not fit within a framework of development—“that ‘growth or progress should be able to continue indefinitely … is an idea that radically distinguishes Western culture from all others.’”[6] A different trajectory requires movement beyond the idea that the human right to development continues as priority, which necessitates disruption: “[t]o the extent that … law continues to promote a state-based model of development, … the empowerment of historically marginalized communities may not be forcefully affirmed.”[7]

Nathan Bellinger and Michael Fakhri suggest that law is important if the food sovereignty movement is to achieve its transformative purpose.[8] Maintaining a broad definition of food sovereignty can nurture “many different groups to participate”—this prevents one group defining food sovereignty for all, and “who gets to define food sovereignty becomes an important part of how food sovereignty is implemented.”[9]

Food sovereignty in relation to salmon that does not extend beyond states based and rights based approaches within the legal and regulatory Canadian frameworks will continue the pattern of exploitation. Global North notions of state based domination and sovereignty as rights oriented and distributive further promote commercialization and exploitation of salmon. Fakhri questions: “if [trade] helps you, how are you going to think about those that are harmed by you benefitting?”[10] And “[w]hich rules and institutions enable the current uneven patterns of vulnerability?”[11] This questioning is a relational inquiry that extends into the broader realm of relationality between people, nations, and land.

[1] See e.g. Douglas C Harris, Fish, Law, and Colonialism (Toronto: University of Toronto Press, 2001); Kerri Garner & Ben Parfitt, “First Nations, Salmon Fisheries and the Rising Importance of Conservation” (April 2006), Report to the Pacific Fisheries Resource Conservation Council”, online: <>.

[2] Garner & Parfitt, supra note 1 at 2.

[3] Henrik Österblom & Carl Folke, “Emergence of Global Adaptive Governance for Stewardship of Regional Marine Resources” (2013) 18:2 Ecology & Society 4.

[4] Garner & Parfitt, supra note 33 at 2.

[5] Ecology Action Centre, supra note 4.

[6] Usha Natarajan & Kishan Khody, “Locating Nature: Making and Unmaking International Law” (2014) 27:3 Leidon J Intl L 573 at 588 [footnotes omitted]. See also Peter Rosset, “Food Sovereignty and Alternative Paradigms to Confront Land Grabbing and the Food and the Food and Climate Crisis” (2011) 54:1 Society Intl Development 21 (who focusses on peasant agriculture).

[7] Natarajan & Khody, supra note 6 at 837.

[8] Nathan Bellinger & Michael Fakhri, “The Intersection Between Food Sovereignty and Law” (2013) 28:2 Natural Resources & Environment 45.

[9] Ibid at 48 [emphasis in original].

[10] Oregon Humanities, “Michael Fakhri on Trade” (26 July 2016), online: <>.

[11] Michael Fakhri, “Food as a Matter of Global Governance” (2015) 11:2 J Intl L & Intl Relations 68 at 73.

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