What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today

by Nicholas Shrubsole

The desire to erase the religions of Indigenous Peoples is an ideological fixture of the colonial project that marked the first century of Canada’s nationhood. While the ban on certain Indigenous religious practices was lifted after the Second World War, it was not until 1982 that Canada recognized Aboriginal rights, constitutionally protecting the diverse cultures of Indigenous Peoples. As former prime minister Stephen Harper stated in Canada’s apology for Indian residential schools, the desire to destroy Indigenous cultures, including religions, has no place in Canada today. And yet Indigenous religions continue to remain under threat. Framed through a postcolonial lens, What Has No Place, Remains analyses state actions, responses, and decisions on matters of Indigenous religious freedom. The book is particularly concerned with legal cases, such as Ktunaxa Nation v. British Columbia (2017), but also draws on political negotiations, such as those at Voisey’s Bay, and standoffs, such as the one at Gustafsen Lake, to generate a more comprehensive picture of the challenges for Indigenous religious freedom beyond Canada’s courts. With particular attention to cosmologically significant space, this book provides the first comprehensive assessment of the conceptual, cultural, political, social, and legal reasons why religious freedom for Indigenous Peoples is currently an impossibility in Canada.

280 pages, Paperback

Published August 14, 2019

Reviews

[Margaux Petruska · Rating 4 out of 5]

Nicholas Shrubsole, in his highly informative book, presents the reader with a detailed understanding into the contentious relationship between Indigenous religious freedoms and legislation in Canada. He explores the historical implications and continued legislations which attempt to protect the religious liberties of Indigenous peoples. He takes a postcolonial approach; looking at social, political, and legal facets of Canadian society in order to detail the root of religious inequalities. He utilizes specific modern legal battles regarding religious freedom under section 2(a) of the Constitution as well as specifically Indigenous Religious rights defined in Canadian law, section 35(1) which protects Aboriginal rights.

The book begins by detailing the 8 main challenges to Indigenous Religious freedom. These freedoms mostly center around Indigenous cultural practices and some of the issues with a lack of inclusion within the law and by lawmaking bodies. He continues his argument by detailing the history of colonialism in Canada, and how liberalism has led to the policies which currently affect the Indigenous population. He focuses on the positions of the Supreme Court of Canada and how it has treated issues of Indigenous religion conflicting with other public processes. Because many Indigenous religions are based around the land, there became issues with the ability to practice religion once the Canadanian government took over these areas and made them available to the public. There became a battle over what should be private versus public land, which led Indigenous Peoples who previously refused to partake in the political public sphere to change their strategies. They became forced to exist in the public sphere in order to fight for their rights to their historical homelands and religious practices.

Shrubsole additionally focuses on the background and opposing legal perspectives on religion currently at play within the Canadian government. While on the outside, the addition of Aboriginal rights into the Canadian constitution would seem like a great success, the true application of the law has resulted in great contradictions. The author throughout the novel greatly criticizes the legal procedures put in place by the Canadian government meant to protect Indigenous peoples and their religion. He focuses on section 2(a) of the Constitution, which pertains to the freedom of conscience and religion in regard to Indigenous religions, while the consultation doctrine requires Canada and the court to consult Indiginous communities on issues regarding religious liberties. Both of these are riddled with problems and created with colonial and Christian connotations. In reality these additions have historically limited religious practices such as in the Ktunaxa Nation v. British Columbia where the court determined religious freedom doesn’t include the protection of objects of the religion and the consultation doctrine doesn’t allow for Indigenous people to veto state-led development. This displays the contradictory nature of the language of the law and the actual implementation of it.

Shrubsole writes thoroughly on the historical problems which continue to have repercussions and lead to the struggles of Indigenous Religious Freedoms. While most scholarly books utilize various outlooks and other authors/intellectuals, Shrubsole seems to go above and beyond with his level of detail and perspectives he provides into the legal histories and battles of Religious Freedom. This book attempts to tackle some of the greatest problems in all of Indigenous Religious history in Canada, which seems a hefty position, but Shrubsole is efficiently able to include extensive background and current policies to support his claims. His writing is well supported through the analysis of court cases and its implications to Canadian history and overall is an exceptionally well-written book.
While the book holds a large amount of information, at times it does feel bogged down by the extensive legal history and court cases if one doesn’t have an experience in legal writings. Much repetition is utilized in order to support his claims and outline the challenges of Indigenous Freedoms, and the book in the first half reads much more complex and repetitive than the more concise and flowing second half. The first half of the book, while attempting to cover a vast majority of information at once, continues to flip back and forth from past historical antidotes to current cases, which lead to a slightly discombobulated beginning.

Overall, Shrubsole writes a complex and intellectual account of the problems of Indigenous religious freedom in Canada and accomplishes his goal of issues to cover. He completely immerses the reader in Indigenous history and struggles of freedoms and brings light to the continued repercussions of Canada’s colonial history and present. He supported each of his claims with sufficient background information as well as evidence and utilized other authors' accounts to argue his opinion further. What Has No Place, Remains, attempts to provide the reader with the understanding of progress and emphasizes how deeply dynamic and changing our society is. The book, I believe, would be difficult for the average reader and would be geared much more toward a student or a scholar of Indigenous Studies or legal history.

While the book covers incredibly interesting material, the level of detail and constitutional history he provides can be difficult to understand. I will admit, if I wasn’t currently enrolled in a constitutional law class, a large portion of this book would leave me confused and would take a while to digest and analyze. The reader additionally should be very interested in Indigenous history and how religion can intersect with government and how political processes work. No matter the type of reader though, whoever finishes the book will come out with a vast amount of knowledge into Canadian Indigenous history as well as the political and legal considerations towards religion, a conclusion Shrubsole successfully achieves. It is highly informative and displays the realities of the Canadian legal system and how it deals with religion comparatively to other countries.