Food Law Crash Course: what I learned in Halifax

By Abra Brynne- November 21, 2016.

In early November, I had the privilege of attending Canda’s first ever conference on Food Law and Policy, in Halifax, Nova Scotia. The conference was the brainchild of Glenford Jameson, a food lawyer practicing in Toronto, and Jamie Baxter, on faculty at the Schulich School of Law at Dalhousie University.

I anticipated that the conference would be distinct from the many food movement conferences I have attended over the years. It did not disappoint.

Conference content, attendees, and speakers had little overlap with those commonly found at, for instance, the recent Food Secure Canada biennial Assembly. And it was, for the most part, fascinating and provocative in that departure from my heretofore norm. I was among a few die-hard policy wonks and academics from the food movement and welcomed the familiar faces of Patty Williams, Peter Andree, Lucia Stephens, and Kristie Jameson. The rest of the 80 or so attendees were made up of legal scholars and lawyers from across Canada and the USA.

The conference organizers brilliantly framed the event with an opening keynote by Ron Doering and closing keynote by Michael Roberts. Ron Doering, Counsel with Gowlings WLG, set the stage for the content to follow by providing a history of food law in Canada, from early days in the confederation, through to the creation of the Canadian Food Inspection Agency under his oversight, and subsequent developments. He described what, in his opinion, were six significant developments in food law in the last 21 years: developments in analytical chemistry (the ability to measure parts per billion did not previously exist); the extraordinary growth of private sector third party audits; class action lawsuits for food borne illness (that are enabled in part by the change in regulation 25 years ago that enabled lawyers to work on contingency fees, based on the outcome of the case as opposed to fees up front); the introduction of criminal law prosecutions as part enforcement; the growth of what he called “soft law”, or the 95% of law in the form of regulations, policy and other measures that are being created by civil servants; and the linking of science and politics. This historical perspective is useful in understanding current trends and earlier models that may provide insight into effective advocacy.

Michael Roberts, the Executive Director at the UCLA – Resnick Food Law and Policy Clinic and considered North America’s first practicing “food lawyer”, conveyed the context and the global precedents from which Canada can learn as we develop our nation’s version of the discipline and practice of food law. His talk ranged over a wide scope of observations and thoughts to consider. He pointed to the role of the food movement in the inclination to apply moral and religious values to food. This may be a contemporary reality in matters such as animal rights, but builds on long-established precedents in both Islamic and Jewish food laws. He observed that today’s law students come with a sophisticated understanding of food systems, which augurs well for the development of the fledgling study and practice of food law in North America. In Michael’s opinion, the academy and practice of food law must develop simultaneously.

Among the highlights for me were insights provided by legal scholars and lawyers that shed some light onto the burgeoning conversation about a national food policy. Understanding that the federal, provincial and territorial governments share responsibility for agriculture and fisheries, but only in matters related directly to production – not distribution, access etc. – helps focus the efforts of civil society into areas that can produce fruit. The pointed question of what we are trying to achieve with a national food policy was well taken and answered, in part, by Robert Strang, Nova Scotia’s Chief Medical Officer of Health, who observed that a national framework can bring cohesion to our conversations and allow specific policy levers to be aligned over time. The caveat is for civil society to be clear on where we actually want our policy aligned so that we do not risk losing adaptability to very real and significant regional variations and needs. Ron Doering’s observation about “soft law” underscores the need for civil society to deepen our knowledge base and shift our “attention to the minutiae of policy making” (MacRae, Rod, and Elisabeth Abergel, 2012. Health and Sustainability in the Canadian Food System: Advocacy and Opportunity for Civil Society. Vancouver BC: UBC Press. Page 274) so that we can be opportunistic and entrepreneurial about advancing our agenda on public policy related to food.

Another highlight was the session devoted to Northern and Indigenous Food Systems. Constance MacIntosh from the Schulich School of Law directly linked the poverty, environmental and political dispossession experienced by Indigenous people to the colonial legacy of laws and practices mapped onto and imposed throughout their traditional territories. Malcolm Kempt, with the Nunavut Legal Services Board, spoke about the fact that the majority of people he sees in smaller communities are not getting proper nutrition, which is directly linked to poor mental health. The massive loss of “country food” (traditional foods) contributes directly to this crisis. Attempts to create commercial avenues to access country food have only partially succeeded because they run up against the deeply embedded cultural practice of sharing food. As a result, the success of country food regulation, production and distribution in neighbouring Greenland may not be a model readily transferred to Nunavut without acknowledging and creating ways to integrate the traditional sharing economy. Mi’kmaw scholar, Sherry Pictou, wrapped up the session and demonstrated the stark contrast between traditional Indigenous food and life ways with commoditized and colonial concepts of statehood and sovereignty.

For me, there is no doubt that this conference was a valuable addition to my own thinking and development as a sustainable food systems policy advocate. I shall be encouraging stronger links between those in the food law realm and those of us in the Canadian food movement. The happy convergence of a nuanced understanding of creation and practice of food law and policy with the on-the-ground expertise that tends to characterize the food movement can only result in more effective public policy shifts in the future.