Introduction

Most people probably think of “local food” as food grown or caught by local farmers and fishers. But there is another sense in which food systems in Canada are increasingly “local,” as cities and other municipal entities take on leading roles in governing the food we produce and eat. A recent study by Rod MacRae and Kendal Donahue on “municipal food policy entrepreneurs” in Canada found that at least 64 cities and towns across the country are actively engaged in food policy initiatives that address the environmental, health, economic and social justice dimensions of food systems.¹ Cities now regulate key aspects of food production, processing, consumption and waste, and they are increasingly major players in purchasing and distributing healthy and sustainable foods. This domestic trend toward local food governance is also being reproduced globally, as cities become “key transition spaces where new food governance systems are being fashioned.”² In 2015, more than 150 cities from around the world signed the Milan Urban Food Policy Pact, “[a]cknowledging that cities … have a strategic role to play in developing sustainable food systems and promoting healthy diets”.³

At the same time, cities and municipal food advocates in Canada continue to express a certain ambivalence about cities’ legal authority to govern food systems. For example, even as they document and emphasize the active engagement of cities in food issues, MacRae and Donahue reinforce the idea that “[m]unicipalities have limited jurisdictional authority over the food system.”⁴ That ambivalence is also reflected in municipal practice, where—despite the many important initiatives that are being planned and undertaken—food governance remains primarily confined to conventional domains of local power over matters such as land use planning, business licensing and institutional procurement.

In this chapter we address the tension between, on the one hand, a growing optimism about municipal governance of food and, on the other, a persistent pessimism about the scope of cities’ legal authority to actually pursue these commitments. Despite the well-deserved excitement around the work of local food policy councils⁵ and the development of municipal food strategies,⁶ most participants and observers appear firmly committed to the idea that local governments are “entirely creatures of provincial statutes,”⁷ whose attempts to govern beyond their traditionally narrow roles will be “firmly repelled by the Courts.”⁸

Part 1 of the chapter provides a brief overview of cities’ efforts to govern food systems in Canada and traces the legal foundation for much of this work to the conventional domains of municipal power. In Part 2, we show that longstanding assumptions about municipalities’ limited jurisdiction over food issues are outdated. Over the past few decades, Canadian courts have developed a set of legal principles that ground a more modern—and expansive—interpretation of city power over food and other complex social, economic and natural systems. Based on our reading of the cases, we argue that the key problem facing cities is not a lack of legal principle to underpin local innovation in food governance, but the persistent uncertainty that arises from the inconsistent application of those principles by the courts. Core components of Canadian municipal law, in other words, remain in flux—a result that can understandably lead municipal actors to hesitate in expanding their scope of action. Nevertheless, in Part 3 we offer some early arguments as to why the current era of legal uncertainty in Canadian municipal law should not be approached as an insurmountable barrier for cities and their citizens with the political will to take on new and greater roles in food systems governance.

The Scope of Municipal Food Governance

Until the late twentieth century, Canadian municipalities engaged in a patchwork of food-related initiatives, each driven largely by individual champions, business interests, wars or other exigencies. Several of the earliest city ordinances governing the food system were motivated by public health rationales such as waste disposal and food safety. In 1884, Toronto’s first permanent Medical Officer of Health remarked scornfully that Toronto was filled with “all kinds of decomposing organic matter, such as rotten vegetables and fruit, dead animals and fish”; four years later, Toronto’s council approved the city’s first garbage incinerator.⁹ Throughout the 1890s, the city’s municipal public health department went on to imposed quality standards for food staples such as butter, milk and bread that were vulnerable to “adulteration.”¹⁰

In addition to regulating food standards, cities also invested directly in food production. With the introduction of railways in 1853,¹¹ Toronto acquired the nickname “Hogtown,” as abattoirs and packing plants emerged in great numbers to exploit the city’s capacity for mass shipment of livestock. The city itself owned a feedlot near Fort York in the late 1800s, and later opened the Toronto Municipal slaughterhouse—one that was later sold to a private company in the 1960s and remained in operation until 2014.¹² In the late 19th century, municipalities hosting rail stops also offered plots surrounding the station to enthusiastic residents and rail staff, who planted elaborate flower and vegetable gardens.¹³ Supporters of these initiatives proclaimed several benefits, including public proof of soil fertility and providing an incentive for immigration.¹⁴ Railway gardens were also perceived to offer the benefits of civic virtue to a progressive public. In 1868, the editor of Canada Farmer observed that “[t]he town artisan beholds with pleasure the little enclosure, and thinks how easy it would be to get up such a scene of beauty in front of his own cottage door… The little railway garden is thus not only a source of pleasure, but an educator.”¹⁵ Railway gardens were deemed an expression of, and conduit for, “a life of health, piety and community uplift.”¹⁶ During the World Wars, municipalities offered up vacant land to serve the dual purposes of producing food and action as a symbolic demonstration of patriotism.¹⁷

By the late twentieth century, Canadian cities faced growing public pressure to address a range of food system concerns, from food supply barriers in the form of urban food deserts¹⁸ to problems of obesity and other health impacts related to food consumption.¹⁹ In 1990, Toronto became the first municipality in Canada to create a Food Policy Council (FPC)²⁰ dedicated to reframing the city’s agenda for municipal food governance. Following Toronto’s leadership, eight FPCs formed in the 1990s, followed by 33 more in the 2000s—a trend that continues to build. Some of the earliest FPCs looked to ground municipal action in international human rights instruments and norms, bringing their focus on food to the intersection between health and social justice.²¹ In its early days, the Toronto Food Policy Council authored reports, fund-raised, and consulted on numerous municipal matters involving food, such as agricultural land preservation, food waste recovery and community food capacity building²²—but its pioneering Food Charter in 2001 placed primary emphasis on addressing food system barriers to combat poverty and hunger.²³ To date, the policy efforts of FPCs and other organizations have motivated more than 60 local and regional governments²⁴ and First Nations²⁵ to develop municipal food strategies adopting a range of approaches to and priorities for local food governance.

The development of local FPCs and municipal food strategies in Canada—and a broader awareness of and commitment to food issues at a municipal level—is also consistent with a global trend toward local involvement in the food sphere. The Johns Hopkins Center for a Liveable Future reports that between 2008 and 2016, the number of local or regional FPCs in the United States has more than tripled.²⁶ In 2014, the Mayor of Milan launched the Milan Urban Food Policy Pact, an international protocol targeted at urban food issues.²⁷ Inspired by the reality that over half of global citizens live in urban areas—and the projection that two-thirds of the world’s population will live in cities by 2050—the Food Pact commits its signatory cities to address several issues connected with food, including hunger, environmental degradation and protecting smallholder food producers.²⁸

Municipal Initiatives

Despite the popular energy surrounding municipal food initiatives, Wendy Mendes notes that a perceived lack of jurisdiction to implement ambitious food agendas has caused significant hesitation around policy-making at the municipal level.²⁹ As a result, cities have tended to rely on conventional modes and tools of municipal governance to enact their food agendas. While a more comprehensive survey and classification of local initiatives is beyond the scope of this chapter, we draw on Heike Schroeder and Harriet Bulkeley’s schematic of municipal governance as “a plurality of modes of governing in which the role of law takes on different forms” in order to sketch a picture of local food governance in Canada along four dimensions: (1) self-governance; (2) control and compliance; (3) service provision; and (4) enabling.³⁰

Self-Governance

Self-governing municipal action refers to the changes and improvements that cities make within their own operations, in order to “practice what they preach.” In recent years, new attention has been drawn to municipalities’ capacity to promote local food systems as a major purchaser of goods and services.³¹ Municipal food procurement policies may favour any preferred characteristic of certain goods, and municipalities have adopted policies that prefer fairly traded, sustainable,³² and, in particular, locally-produced foods. Though not without controversy,³³ the practice of buying local foods has been embraced by diverse institutions and levels of government to support several objectives, ranging from reducing carbon emissions to nurturing relations between producers and consumers.³⁴ In 2007, Markham became the first municipality in North America to announce a formal commitment to purchasing local foods.³⁵ Thunder Bay is one of several municipalities to follow Markham’s lead, after a 2013 report found that the city’s public sector institutions would spend $10 million on food in 2014.³⁶ Thunder Bay has since implemented an ambitious strategy, resulting in a dramatic increase in local food procurement for city-run institutions such as daycares, concession stands and residential facilities.³⁷ In 2013, Ontario also passed the Local Food Act³⁸ to encourage municipalities to adopt local food policies.³⁹ The Act was motivated both by a recognition of existing procurement efforts at the local level and by a provincial network of actors and advocacy organizations supportive of increased levels of local food purchasing.⁴⁰

Control and Compliance

Control and compliance in local food systems is mainly implemented through municipalities’ planning powers, along with the authority to enact regulations, sanctions and incentives to achieve food systems goals. Zoning by-laws constitute some of the most reliable municipal powers invoked to impact food systems. A recent study of food systems and zoning found that “[l]and use planning is a critical tool among the strategies needed to redirect our food system into a new trajectory toward improved health, environmental sustainability, small to midsize farm viability, and community engagement.”⁴¹

The Calgary Food Policy Council is one of a host of FPCs that have used land-use planning as a lever to effect food systems change. In response to the Council’s advocacy, Calgary approved a bundle of amendments to its land use by-laws in 2017 aimed at increasing local food production, processing and distribution.⁴² The approved amendments include new “food production” uses that legalize and regulate indoor food production in Industrial and Commercial zones;⁴³ official definitions of food production terminology that promote clarity of the by-law;⁴⁴ and the introduction of a Brewery, Winery and Distillery use in some Industrial districts.⁴⁵ Other revisions to land use by-laws are also underway across the country, as municipalities respond to various food systems challenges through their planning powers. For example, Squamish has recognized a need to define the role of food trucks in its zoning regulations,⁴⁶ while Waterloo Region’s Official Plan acknowledges that mixed-use zoning is critical to ensuring that healthy food destinations abut residential areas.⁴⁷ Halifax’s new Regional Plan will permit and regulate a host of food uses, including beekeeping, farmers’ markets and compulsory edible landscaping.⁴⁸ Though North American city planners are still relative newcomers to the food systems domain,⁴⁹ they have taken a particularly active role in using city planning powers to engage in food systems governance.

Provision

Schroeder and Bulkeley describe this category of municipal action as “the provision of infrastructures and services through which municipal governments are able to influence the practices of individuals and the trajectories of future development”.⁵⁰ In Canada, municipal governments manage the collection and disposal of waste, as well as recycling and composting programs.⁵¹ Municipal waste collection schemes arose in response to pressing issues such as groundwater contamination and rodent infestation.⁵² New strategies and technologies are perpetually evolving to ease the environmental repercussions of waste disposal.⁵³ The last decade has seen a notable increase in municipal composting systems, in recognition that “[b]iodegradable material such as food waste constitutes approximately forty percent of the residential waste stream”.⁵⁴ The introduction of municipal composting programs has resulted in a massive increase in household composting activities—for example, the introduction of a curbside compost collection program in Ottawa-Gatineau increased residents’ composting activity from 16 to 61 percent.⁵⁵

Public transit is another component of service provision that can seriously impact food systems. Pothukuchi and Kaufman note that low-income individuals frequently depend on the public transit system to access affordable food.⁵⁶ In 2010, Saskatoon Public Health Services undertook a study of public transit routes and access to supermarkets.⁵⁷ Finding that some neighbourhoods experienced poor transit access to healthy food retail, the report proposes provisioning solutions borrowed from other municipalities. These include specialized transportation services to supermarkets, mobile grocery stores and food markets, and municipally-run farmers’ markets.⁵⁸

Enabling

Enabling modes of municipal governing entail steering other actors—including private businesses and voluntary sectors—to contribute to public goods.⁵⁹ In this mode, a municipality may constitute one strand of a public-private partnership, or provide financial incentives to stimulate collaborative projects. FPCs typically advocate strongly for enabling initiatives. Unlike more discrete areas, a functional food system is particularly amenable to—and perhaps even dependent upon—the willingness of municipalities to seek out partners and opportunities for creative collaboration. Metro Vancouver’s Regional Food System Action Plan, for example, pivots on opportunities for collaboration, conceding that “[m]ost local governments rely on community organizations to be on the front lines for food security issues”.⁶⁰ The Guelph-Wellington Food Policy Working Group observes that FPCs themselves are generally composed of representatives from across the food system, including governmental and non-governmental actors, and as such, “[t]he quality of work of food policy councils is often a reflection of the quality of the collaboration between its members”.⁶¹

Enabling governance may be complex—involving many private and public bodies—or a relatively simple facilitation between local government and private citizens. An example of the latter is the Edible Fruit Trees interactive map, created by the City of Edmonton, which empowers residents to glean⁶² free, publicly accessible fruit.⁶³ More complex enabling actions include initiatives such as Thunder Bay’s gleaning initiative, for which the city provides free transportation for low-income families to private farms so they can pick vegetables at no cost;⁶⁴ Northumberland County’s Business Retention and Expansion project for local food, which began with a survey of local food businesses and has resulted in a municipally-owned, not-for-profit small-batch food processing facility;⁶⁵ and the Halifax mobile food market, a project that unites several municipal departments, civil society organizations and private businesses to deliver weekly food boxes to communities with barriers to food access.⁶⁶

Uncertainty in Municipal Food Law

Canadian cities’ initiatives to govern food systems should be applauded. But apart from some isolated examples, municipal action remains confined to a relatively small number of domains within historically core areas of local competence. This limited scope is in line with the widely shared assumption that the legal and regulatory authority of Canadian municipalities is narrowly defined and strictly controlled—both through their enabling legislation and by judicial review. In this section, we argue that longstanding assumptions about the narrow scope of municipal power are outdated and no longer represent an accurate picture of Canadian municipal law as it has evolved over the last few decades. Courts in particular have made increasingly broad and permissive interpretations of local authority, affording cities considerable freedom to address a range of issues affecting the health and welfare of their citizens and the environment, and to act in concert with other levels of government to achieve these ends. On our reading of the cases, the key problem facing cities is not that they lack plausible legal arguments to ground their authority over crucial aspects of food systems governance. The challenge, instead, is that cities continue to confront a set of deep uncertainties within and around evolving doctrines about municipal power. Despite some promising judicial decisions in this regard, without a clearer commitment on the part of courts to lay a solid foundation for modern municipal governance, cities have been understandably hesitant to embark on more ambitious interventions in the food system. These challenges are compounded by the broader context of rapidly shifting regional, provincial and national food policies, as all levels of government currently work to negotiate and define their respective roles and aspirations.

Nevertheless, as we argue in Part 3, these persistent legal and political uncertainties may provide the very rationale for more ambitious local action on food. Because local governments are especially well-suited to address the challenges associated uncertainty and to innovate in spite of it, there is good reason for cities not to wait for the law to resolve itself more clearly or for courts or higher levels of government to take the lead.

Municipal Jurisdiction

Municipal power in Canada is delegated power. The Constitution Act, 1867 grants provincial legislatures exclusive authority to make laws in relation to their respective municipal corporations.⁶⁷ Each province, in turn, defines the authority of municipal governments through what is often a complex suite of enabling legislation.⁶⁸ Whenever a municipality enacts a local ordinance or by-law, it must—like other administrative actors—point to the statutory source that grounds its law-making or rule-making powers. However, since municipalities are also representative governments in their own right, a key question for courts since Confederation has been how they should interpret the scope of delegated municipal power and the degree of deference that courts ought to show to municipal decision-makers in the process. While municipalities have well-recognized powers to carry out their functions in areas such as land-use control, building regulation, and waste management, the question of when a municipality’s by-law is ultra vires its delegated authority takes on renewed significance in new domains of municipal action such as food systems governance.

The municipal vires doctrine in Canada that underpins a narrow view of municipal power over food has distinctively American roots. “Dillon’s rule” marks the starting point in this history, so-called after John Dillon, an influential judge of the Iowa Supreme Court and the country’s leading authority on local government law who, writing in Clinton v. Cedar Rapids in 1868, remarked that municipalities “owe their origin to, and derive their powers and rights wholly from, the legislature. It breathes into them the breath of life, without which they cannot exist.”⁶⁹ As a rule of statutory interpretation later called the “express authority doctrine,”⁷⁰ Dillon’s rule was imported to Canada in the years after Clinton, with appellate courts embracing the idea that municipalities “should be confined strictly within the limits of their authority, and all attempts on their parts to exceed it should be firmly repelled by the Courts.”⁷¹ Municipal legislation would be found ultra vires whenever courts could not locate an explicit and sufficiently narrow grant of authority in the municipality’s enabling statutes. For much of the 20th century, municipalities would continue to be regarded, taxonomically, as mere “creatures of the province” in a way that strictly cabined their opportunities to innovate in policymaking and governance at the local level.⁷²

A dual shift in the last decade of the twentieth century, however, began to free municipalities from the confines of Dillon’s rule—if not wholly from the limitations inherent in their lack of constitutional status.⁷³ A series of provincial reforms, beginning with Alberta’s new Municipal Government Act⁷⁴ in 1994, introduced a “spheres of jurisdiction” approach to legislating municipal powers that identified broad categories or heads of power, rather than narrow and specific grants of authority.⁷⁵ Just as importantly, these reforms popularized omnibus provisions that included “good government” as a primary municipal purpose and proclaimed that municipal councils properly held jurisdiction over the safety, health and welfare of cities' inhabitants.⁷⁶ By 2001, most provinces had amended their legislation to include these omnibus provisions, authorizing municipal governments to act for the general welfare of their citizens.⁷⁷

Alongside these legislative reforms, by the early 1990s, courts were beginning to break from the long-running consensus around Dillon’s rule as a core principle of statutory interpretation in the municipal context. As late as R. v. Greenbaum in 1993, the Supreme Court was unanimous in its decision that municipalities “can exercise only those powers which are explicitly conferred upon them by a provincial statute.”⁷⁸ The following year, in Shell Canada Products Ltd. v. Vancouver (City), Justice McLachlin’s dissenting opinion defended the Vancouver council’s decision to boycott Shell for its support for the South African apartheid regime, regarding it as a “measure related to fostering and maintaining a sense of community identity” and therefore within the purview of “good rule and government of the city.”⁷⁹ Adopting a new principle of “benevolent construction” when interpreting municipal authority, Justice McLachlin’s dissent went on to caution that “…courts should be reluctant to interfere with the decisions of municipal councils. Judicial intervention is warranted only where a municipality's exercise of its powers is clearly ultra vires, or where council has run afoul of one of the other accepted limits on municipal power”.⁸⁰ The dissenting view in Shell would eventually be adopted by a majority of the Supreme Court in two cases at the turn of the century. Tentatively, at first, the Court in Nanaimo (City) v. Rascal Trucking Ltd. affirmed a broad, purposive approach to interpreting municipal powers, while being careful to note that municipalities may exercise only those powers conferred by the provincial legislature.⁸¹ By the time it had reached its decision in Spraytech v. Hudson (Town) a year later, finding that Québec’s general welfare provision authorized a municipal by-law limiting pesticide use, the Court appeared to wholeheartedly reject Dillon’s rule and embrace the principle of “benevolent construction”.⁸²

In United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), the Supreme Court reinforced Alberta’s “spheres of jurisdiction” approach to delegating municipal authority, finding that Calgary retained its power to regulate the taxi industry by way of its broad power to regulate businesses—even though the city’s specific power to regulate taxis had been repealed in the course of the broader legislative reforms.⁸³ The following year, the City of Toronto successfully defended its new pesticide by-law at the Ontario Court of appeal in Croplife Canada v. Toronto (City), with the Court citing the broad and purposive approach in United Taxi “as a new model for interpreting municipal statutes, regardless of whether or not a municipality is governed by an Alberta-like statute with flexible powers.”⁸⁴

On its face, this narrative about the ever-expanding nature of municipal powers should be good news for cities embracing progressive approaches to food systems governance. From this perspective, cities aspiring to pursue local policies around food linked to the health and well-being of their citizens and the environment might confidently rely on the expanded nature of their enabling provisions and general welfare powers, along with the courts’ more benevolent approach to judicial review. The shadow of Dillon’s rule, however, has proven to be difficult to escape.⁸⁵ In Neskonlith Indian Band v. Salmon Arm (City), the British Columbia Court of Appeal appeared to go out of its way to affirm Dillon’s rule, citing a late-19th century municipal law textbook expounding the doctrine.⁸⁶ As recently as 2015, the Saskatchewan Court of Appeal expressed a persistent uncertainty as to whether it should interpret municipal powers “on the basis of Dillon's rule or the softer approach espoused by the dissent in Shell.”⁸⁷ Other courts have reinforced the idea that “the full scope of a municipality’s powers has yet to be delineated by the courts.”⁸⁸

The Superior Court of Ontario’s decision in Eng v. Toronto (City) is instructive in terms of courts’ persistent ambivalence about municipal power in the food law context.⁸⁹ In 2011, the City of Toronto enacted a by-law providing that “no person shall possess, sell or consume shark fin or shark fin food products within the city of Toronto.”⁹⁰ In Eng, the city attempted to justify its by-law on the argument that “the consumption of shark fin and shark fin products may have an adverse impact on the health, safety and well-being of persons and on the economic, social and environmental well-being of the City of Toronto.”⁹¹ Despite the court’s reliance on Justice McLachlin’s approach in Shell, the city’s rationale was rejected because the harms associated with shark fin harvesting—namely threats to shark populations and the health of marine ecosystems—were not “municipal issues” within the meaning of the City of Toronto Act. In particular, the court adopted the majority’s view in Shell that the scope of municipal jurisdiction is “territorially” bounded and cannot be primarily directed at matters beyond the geographic boundary of the city.⁹²

Subsidiarity

One consequence of an expanded scope for municipal jurisdiction over food is that it produces new possibilities for conflict with federal and provincial initiatives and thus the possibility of being rendered inoperative. A second line of recent cases has generated a parallel source of optimism and confusion about local food governance—here, regarding the degree to which municipal governments are free to act in spite of, or in concert with, legislative action on the same matter by higher levels of government.

Other than the power to enact the by-law, a second issue in Spraytech, above, was whether the Town of Hudson’s by-law was inoperative because it conflicted with federal and provincial regimes that also regulated pesticide use. In upholding the by-law, the Supreme Court applied the standard “impossibility of dual compliance” test to evaluate whether or not there was an actual conflict in operation between the different regimes⁹³—but it was Justice L’Heureux-Dubé’s invocation of the principle of subsidiarity in the judgement’s preamble that has attracted by far the most attention.⁹⁴ In the judge’s framing, subsidiarity “is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity.”⁹⁵ The principle of subsidiarity was most recently invoked at the Supreme Court in the context of a municipal-federal conflict in Rogers Communications Inc. v. Châteauguay (City), with Justice Gascon, in a concurring judgment, observing that a municipality adopting “a resolution for the purposes of protecting the well‑being and health of its residents and ensuring the harmonious development of its territory would normally be considered to be the government at the level at which the adoption of such measures would be best achieved”.⁹⁶

Like Justice McLachlin’s approach to the benevolent construction of municipal authority in Shell, the subsidiarity principle ought to be good news for cities seeking more latitude over local food governance. However, subsidiarity remains a heavily contested legal concept, with some commentators going so far as to argue that subsidiarity “is not a justiciable doctrine but rather a political principle.”⁹⁷ The overarching problem is that subsidiarity raises a direct challenge to the delegated nature of municipal powers, offering an alternative source for municipal authority that, at its logical extreme, would radically upend the current structure of Canadian federalism. So far, the principle has remained largely confined to judicial speculation and side-statement. There is no question that a fuller embrace of subsidiarity would endow municipalities with greater freedom to act on food issues, but the degree to which courts have remained ambivalent about the principle’s status in Canadian municipal law only compounds the uncertainty that cities currently face.

Municipal “Entrepreneurship”

Cities may be justifiably frustrated with the failure of Canadian courts to build a more concrete legal foundation for local food system governance. At the same time, cities and their advocates must recognize that—at least from a legal perspective—it is inaccurate to characterize municipalities as simply having “limited jurisdictional authority over the food system.”⁹⁸ The larger challenge for cities, as we see it, is that the scope of municipal authority over the food system, and the degree of municipal autonomy to act, remain indeterminate, contested and uncertain. Our central point is that, when viewed in this light, municipal inaction on food can no longer be justified purely on the basis of legal barriers—though, of course, cities continue to confront other barriers to achieving their goals, not least of which is a lack of sufficient tax revenue and other financial resources. As we argue in this final section, implicit in the recognition of cities as “municipal food policy entrepreneurs” is the unique capacity of local governments to address, and sometimes innovate in spite of, legal uncertainty. That view is consistent with the idea, suggested by several prominent scholars of food studies, that “[w]ith their closer ties to the ‘grass roots’ of the nation, municipalities have frequently exploited ambiguities in jurisdiction and become the source of major innovations” in food law and policy.⁹⁹ Below, we briefly outline three arguments in support of this view based on historical experience, the nature of local political institutions and the trend toward local policy activism in analogous domains.

History

Our claim is that local governments may be especially well-equipped to act during moments of legal flux. This at least seems to be a central lesson from an earlier period of comparative legal history around the scope of municipal powers. While Dillon’s rule—the rule describing a narrow scope for municipal governments’ powers—would become firmly entrenched in American and later Canadian law by the early decades of the 20th century, the last half of the 19th century was one in which “American localities’ legal status was highly uncertain.”¹⁰⁰ At odds with Dillon’s perspective on local governments as “creatures of the state” was the competing view, developed mainly by the lawyer Thomas Cooley, that the American people had reserved a degree of sovereignty not delegated to the states and subsequently expressed in the principle of local self-government. It was this expansive idea of broad and quasi-independent local authority—one with echoes in the modern principle of subsidiarity, as well as popular movements toward food sovereignty—that Dillon sought to resist. After years of contestation between these competing ideas about local government both in and outside the courts, Cooley’s view of local government authority was eventually rejected in American law by 1900, and Dillon’s firmly entrenched.¹⁰¹ In the interim, the battle between these two ideas generated considerable legal uncertainty about the character of American cities and the scope of their powers throughout the last half of the 19th century.

Nevertheless, doctrinal battles and their consequent uncertainties did not prevent cities in the last half of the 19th century from making “remarkable innovations” in several key areas of local governance.¹⁰² Many of these innovations were in the area of public health, and in particular in municipal health planning, in an era before urban planning had any real statutory basis and was not yet seen as a coherent field of professional practice or governance. For example, municipal officials and engineers concerned primarily with urban sanitary conditions developed and implemented new comprehensive health planning procedures—such as the plan implemented in New York City in 1864—to identify the sources and causes of infectious disease in the city. ¹⁰³ The urban reformers who developed these early sanitary programs did so by building political and financial support on the ground, such as from wealth downtown merchants, rather than seeking formal authority or funds from the state. In other areas of urban life, local governments innovated in the gaps left by declining state and private action. When poor economic conditions during this era prompted state governments to withdraw investment from transportation infrastructure, local governments promptly filled the void. Fearing the consequences of declining access to railways and canals, cities assumed the fiscal and service obligations that are now widely accepted as areas of municipal responsibility.¹⁰⁴ While these historical examples are only suggestive, they certainly indicate that policy innovations at the municipal level during periods of legal uncertainty are by no means impossible.

Political Institutions

A second argument that legal uncertainty about city power should not be seen as a major impediment to city action around food rests on the unique structures of local political institutions—especially the office of the mayor. Conventionally marginalized as unimportant political figures, city mayors have received new attention for their roles in motivating progressive urban policies. Popular works such as Benjamin Barber’s If Mayors Ruled the World emphasize the extent to which cities’ initiatives on a range of social issues stand in stark contrast to the inertia that too often pervades higher orders of government.¹⁰⁵

How then does the institutional structure of the mayoralty help to combat uncertainty about the legal scope of a city’s powers? Canadian mayors are, in effect, unique among other political leaders around the country because they tend to be elected directly by their constituents, rather than through ward-based council elections or the mechanisms of party politics familiar at provincial and federal levels. While the structures of mayoral authority, autonomy and accountability vary considerably from one city to the next, strong mayors can be an antidote to legal uncertainty because they represent and must be responsive to city-wide interests in ways that make them salient to a broad cross-section of the urban electorate. These dynamics can lead mayors to act as focal points for policy solutions—even where legal ambiguities raise questions about whether those solutions definitively fall within the ambit of local power. In this sense, mayors themselves operate as “policy entrepreneurs” according to the definition of entrepreneurship given by institutional scholars who explore how leaders “look for and act on loose spots in the nexus of ideas, institutions and incentives” to promote new ideas that can shift policies and laws because they reconfigure how constituents think about the fundamental causal relationships between means and ends.¹⁰⁶

City mayors’ effectiveness in dealing with legal uncertainty is one of the key comparative lessons from looking at how cities have dealt with climate governance as a similarly uncertain, contested and complex policy area. As Katherine Trisolini notes, in the wake of federal inaction on climate change after the Kyoto Protocol, “hundreds of America’s mayors … enacted emissions reduction plans to combat a global problem extending far beyond their jurisdictions.”¹⁰⁷ In the United Kingdom, London’s mayor Ken Livingston was directly responsible for developing the city’s first energy strategy with a substantial focus on carbon dioxide reductions, “despite the lack of a statutory remit to do so.”¹⁰⁸ Of particular interest is that this early move by the City of London later motivated upstream action by Parliament to amend the city’s governing legislation and impose an explicit duty on the mayor to prepare, publish, and implement climate change mitigation and adaptation strategies.¹⁰⁹ In addition to serving as a comparative model for local initiative to govern food systems, municipal action on climate also has a substantive link to local food policy, with several municipal food strategies in Canada citing the need to address climate change as a primary justification for food systems governance.¹¹⁰

Local Policy Activism

Finally, legal ambiguities around the scope of municipal power in Canada may provide opportunities for cities to act in the register of what Lori Riverstone-Newell calls “local policy activism.”¹¹¹ While both the Canadian federalism jurisprudence and increasing scholarly support for different modes of “multi-level governance” have promoted opportunities for cooperation between local and senior governments, some cities have adopted a more confrontational stance to expanding the scope of their power. Riverstone-Newell cites the example of Sedgwick, Maine, which in 2011 passed a local ordinance declaring state and federal licensing and inspection regulations to be “unlawful” to the extent that they impede access to local foods.¹¹² Likewise, the prominent rise of so-called “sanctuary cities” in the United States acting to shield undocumented immigrants against federal immigration policies have coincided with a host of local ordinances that regulate immigration-related matters in areas such as housing and employment.¹¹³ While jurisdictional uncertainty may make it more difficult to negotiate cooperative rights and responsibilities across different levels of government, it simultaneously offers a broader range of plausible legal claims to cities operating as local policy activists in challenging the direction of policies being enacted at other levels.

Conclusion

Nothing in our analysis should be taken to suggest that a well-defined legal foundation for local governance of food is unimportant, nor that law is somehow irrelevant to local institutions and polices designed to address food system challenges. On the contrary, we suggest that an innovative and creative use of municipal law is crucial for cities to meet their aspirations to be full participants in Canada’s federalist food system. In is inherent in our system of law that doctrines and judicial attitudes evolve, sometimes bringing with them periods of considerable uncertainty. The present moment of instability, however, should not deter cities from building on the meaningful work they have already undertaken in food governance, nor should it distract from avenues that are readily available for cities to expand their scope of action in new directions.