What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today by Nicholas Shrubsole (review)

Abstract

Reviewed by: What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today by Nicholas Shrubsole Michael D. McNally (bio) What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today by Nicholas Shrubsole University of Toronto Press, 2019 THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES clarifies how particular rights to religion (Art. 12) and culture (Art. 11) should apply to Indigenous peoples, including rights to religious and cultural sites. But the Declaration elaborates protections for sacred places and a "distinctive spiritual relationship" (Art. 25) with traditional lands and waters atop a different conceptual foundation. Instead of basing protection for sacred places on the purportedly universal and equal rights to religion, the Declaration grounds protections for sacred places in Indigenous self-determination, in peoplehood. Nicholas Shrubsole's What Has No Place, Remains makes an important and timely contribution to the urgent task of growing the Declaration's legal teeth in the domestic law in Canada. Shrubsole does not endorse the language of religious freedom; instead he draws on a rich critical literature within religious studies to ask whether and how language of religious freedom can commend Indigenous efforts to protect and renew spiritual relationships with traditional lands and waters. Whether one thinks "religious freedom" discourse is too stuck in settler colonial categories or capacious enough to be reworked for meaningful legal protection, Shrubsole offers helpful intellectual framing for the conversation in the context of Canadian case law. Of particular note is his reading of Ktunaxa Nation v. British Columbia, a 2017 case in which the Supreme Court of Canada rejected arguments that a year-round glacier ski area development violated religious freedom because it would force the Grizzly Bear Spirit to withdraw from the sacred precinct, nullifying Ktunaxa religion. Although the developer was in the end persuaded to accept a settlement and back off the plan, the precedent is no less enduring and disappointing. Ktunaxa Nation was the Court's first consideration of Indigenous religious freedom under Canada's new constitutional order and decided amid Canadian efforts to make good on reconciliation. Shrubsole makes two key contributions. The first is his notion of the depth of religion. Advancing a reading of religion as a "four-dimensional phenomenon," he identifies how courts can effectively enlarge the length [End Page 144] and width of what counts as legally protectable religion while still failing to reckon with its depth and time dimensions (29). Thus, Canada's Supreme Court could affirm the sincerity of Ktunaxa claims while finding the proposed ski area would impact only the object of belief, the Grizzly Bear Spirit, not Ktunaxa religious belief per se, flattening the spiritual relationships among peoples, spirits, and land that give depth to religion. Secondly, Shrubsole develops what he calls a framework of "religions plus" in the book's pivotal chapter on "competing frameworks of Indigenous religious freedom," a discussion that is as instructive for U.S. law as it is for Canadian (78–99). In Canada, the tension is between universally applicable individual rights to religion under the Canadian Charter of Rights and Freedoms and the special collective rights pertaining to First Nations via the Constitution Act's Sec 35(1). "The problem," Shrubsole argues, "is that the courts have yet to read Charter right and Aboriginal rights together to construct a sort of 'religions plus' framework for the protection of Indigenous religious traditions" (79). "Religions plus" riffs on the language of "Citizens Plus" that emerged in in the late 1960s to underscore how First Nations persons and peoples hold more than the individual rights held equally by all Canadian citizens. Following the Ktunaxa assertion that Charter rights to religious freedom should be twinned with constitutional aboriginal rights, Shrubsole shows how a "religions plus" reading could correct for the vagaries of both religious freedom law and consultation standards under aboriginal rights. When [Charter] section 2(a) is pushed to its colonial limits within its Euro-Canadian common law framework, [the Constitution Act's] section 35(1) offers opportunities of redress incapable of realization under the Charter protection. At the same time, when section 35(1) is pushed to its historicized limit, [Charter] section 2(a...