Hostname: page-component-cd9895bd7-mkpzs Total loading time: 0 Render date: 2024-12-25T01:59:19.806Z Has data issue: false hasContentIssue false
  • English
  • Français

Raising Indigenous Religious Freedom to a Higher Standard: Michael McNally's Defend the Sacred and the Canadian Legal and Legislative Landscapes - Defend the Sacred: Native American Religious Freedom beyond the First Amendment By Michael D. McNally. Princeton: Princeton University Press, 2020. Pp. 400. $99.95 (cloth); $26.95 (paper); $26.95 (digital). ISBN: 9780691190891.

Review products

Defend the Sacred: Native American Religious Freedom beyond the First Amendment By Michael D. McNally. Princeton: Princeton University Press, 2020. Pp. 400. $99.95 (cloth); $26.95 (paper); $26.95 (digital). ISBN: 9780691190891.

Published online by Cambridge University Press:  15 November 2021

Nicholas Shrubsole
Nicholas Shrubsole*
Affiliation:
Associate Lecturer, University of Central Florida
Get access Rights & Permissions [Opens in a new window]

Abstract

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.
Image of the first page of this content. For PDF version, please use the ‘Save PDF’ preceeding this image.'

Keywords

Canadacollective rightscultural rightsIndigenous rightsreligious freedomUnited Nations Declaration on the Rights of Indigenous Peoples
Type
Book Review Symposium on Defend the Sacred
Information
Journal of Law and Religion , Volume 37 , Issue 1 , January 2022 , pp. 182 - 190
Check for updates
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of the Center for the Study of Law and Religion at Emory University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Shrubsole, Nicholas, What Has No Place, Remains: The Challenges for Indigenous Religious Freedom in Canada Today (Toronto: University of Toronto Press, 2019)CrossRefGoogle Scholar.

2 McNally dedicates an entire chapter to this subject (69–93). For more on the Canadian context, see Waldram, James, The Way of the Pipe: Aboriginal Spirituality and Symbolic Healing in Canadian Prisons (Toronto: University Press, 1997)Google Scholar.

3 McNally deals with this subject regularly throughout his book. For more on the Canadian context, see Catherine Bell and Val Napoleon, eds., First Nations Cultural Heritage and Law: Case Studies, Voices and Perspectives (Vancouver: University of British Columbia Press, 2009).

4 Lyng v. Northwest Indian Cemetery Protective Association, 485 U.S. 439 (1988); Employment Division v. Smith, 494 U.S. 872 (1990); Navajo Nation v. United States Forest Service, 535 F.3d 1058 (9th Cir. 2008). For the current state of litigation by the Standing Rock Sioux Tribe over the Dakota Access Pipeline, see “The Standing Rock Sioux Tribe's Litigation on the Dakota Access Pipeline,” Earthjustice, accessed September 23, 2021, https://earthjustice.org/features/faq-standing-rock-litigation.

5 Ktunaxa Nation v. British Columbia (Forests, Lands, and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386.

6 UN General Assembly, Resolution 61/295, Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (Sept. 13, 2007).

7 As McNally points out, both Canada and the United States endorsed UNDRIP with reluctance in 2010 (259); see also Shrubsole, What Has No Place, 173–74.

8 Constitution Act, 1867, 30 & 31 Victoria, c. 3, § 93 (U.K.). These collective rights were also reaffirmed in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11, § 29 (U.K.). For more on the history of religion in the confederation of Canada, see Buckingham, Janet Epp, Fighting over God: A Legal and Political History of Religious Freedom in Canada (Montreal: McGill-Queen's University Press, 2014)Google Scholar.

9 Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, para. 94; see also Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, para. 137; Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, para. 182.

10 Loyola, [2015] 1 S.C.R. 613, at para. 64.

11 Loyola, [2015] 1 S.C.R. 613, at para. 67.

12 Constitution Act, 1982, being Schedule B to the Canada Act, 1982, c. 11, § 35(1) (U.K.). The recognition of the pre-existence of Indigenous rights is echoed in Felix Cohen's influential handbook on federal Indian law where he brought the quasi-sovereign nature of Indigenous rights into focus in the United States (234).

13 See Brian Slattery, “The Generative Structure of Aboriginal Rights,” in Moving Toward Justice: Legal Traditions and Aboriginal Justice, ed. John D. Whyte (Saskatoon: Purich, 2008), 20–48.

14 R. v. Sundown, [1999] 1 S.C.R. 393, para. 36.

15 For a more extensive investigation into the challenge of the incommensurability of options and choices and cultural incommensurability, see Shrubsole, What Has No Place, 15–17.

16 R. v. Oakes, [1986] 1 S.C.R. 103, paras. 68–70.

17 Ktunaxa Nation v. British Columbia (Forests, Lands, and Natural Resource Operations), [2015] BCCA 352, 78 B.C.L.R. 5th 297, para. 73. The Ktunaxa Nation case centered around the building of a ski resort on Qat'muk, home of the Grizzly Bear Spirit for the Ktunaxa. Negotiations between Glacier Resorts Ltd., the state, and the Ktunaxa effectively ended in 2009, when an elder communicated that there was no middle ground in the negotiation and that no permanent structure could be erected at Qat'muk. The government approved the ski resort permit and concluded that consultation and accommodations had been sufficient.

18 Cameron v. Ministry of Energy and Mines, 1998 CanLII 6834 (B.C.S.C.), para. 251.

19 R. v. Sparrow, [1990] 1 S.C.R. 1075, 1077.

20 Shrubsole, What Has No Place, 131–61. The 2014 Tsilhqot'in decision confirmed that Aboriginal Title significantly strengthened the mandate for Indigenous consent, but even lands held in title may be subject to state interference for compelling reasons. Tsilhqot'in Nation v. British Columbia, [2014] SCC 44, [2014] 2 S.C.R. 257, at para. 2.

21 See Cameron, 1998 CanLII 6834, at para. 227; Ktunaxa Nation v. British Columbia (Forests, Lands, and Natural Resource Operations), 2017 SCC 54, [2017] 2 S.C.R. 386, para. 84.

22 R. v. Van der Peet, [1996] 2 S.C.R. 507, para. 57.

23 Cameron, 1998 CanLII 6834, at para. 161.

24 Ktunaxa Nation, [2017] 2 S.C.R. 386, at para. 70.

25 Ktunaxa Nation, [2017] 2 S.C.R. 386, at para. 121.

26 Ktunaxa Nation, [2017] 2 S.C.R. 386, at paras. 150–55.

27 Jack and Charlie v. The Queen is another Canadian Supreme Court case considering Indigenous religious freedom. Despite being heard in 1985, the case dealt with a dispute over off-reserve, out of season hunting for a religious ceremony that occurred prior to the patriation of the Constitution and the establishment of the s. 2(a) right. See Jack and Charlie v. The Queen, [1985] 2 S.C.R. 332.

28 For more on the changing understanding of religion in Canada's courts, see Shrubsole, What Has No Place, 29–49.

29 Ktunaxa Nation, [2017] 2 S.C.R. 386, at para. 63.

30 Van der Peet, [1996] 2 S.C.R. 507, at paras. 55–56.

31 See Engle, Karen, Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham: Duke University Press, 2010)Google Scholar; Niezen, Ronald, The Rediscovered Self: Indigenous Identity and Cultural Justice (Montreal: McGill-Queens University Press, 2009)Google Scholar.

32 Van der Peet, [1996] 2 S.C.R. 507, at para. 44.

33 Vine Deloria, Jr., For This Land: Writings on Religion in America (New York: Routledge, 1999), 157.

34 Sparrow, [1990] 1 S.C.R. 1075, at 1078.

35 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: The Truth and Reconciliation Commission of Canada, 2015), 193; National Inquiry into Missing and Murdered Indigenous Women and Girls, Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls, Volume 1b (Ottawa: Privy Council Office, 2019), 177.

36 Declaration on the Rights of Indigenous Peoples Act, S.B.C. 2019, c. 44.

37 Bill C-15, An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, 2nd Sess., 43rd Parl., 69–70 Elizabeth II, 2020–2021, S.C. 2021, c. 14.

38 Bill C-15, s. 4–6.

39 See Francis v. The Queen, [1956] S.C.R. 618, 621.

40 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, para. 70.

41 Canada (Human Rights Commission) v. Canada (Attorney General), [2012] FC 445, [2013] 4 FCR 545, para. 353.

42 Simon v. Canada (Attorney General), [2013] FC 1117, para. 121.

43 Nunatukavut Community Council Inc. v. Canada (Attorney General), [2015] FC 981, para. 99.

44 Yahey v. British Columbia (Attorney General), [2021] BCCA 127, para. 15.

45 Somewhat strangely, the only mention of UNDRIP in a Supreme Court of Canada decision came in 2001, when the court contemplated whether a Mohawk of Akwesasne, an Indigenous community across the U.S.-Canada border, should pay border tax. The court cited an early draft of UNDRIP, the International Labor Organization Convention No. 169, and a comparable document at the Inter-American Commission of Human Rights before denying the claim. See Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911, paras. 80–83.

46 This case centered on what is known as Jordan's Principle. Children who qualify under Jordan's Principle receive services and resources specifically for Indigenous children. The tribunal has been instrumental in reformulating this principle in reference to UNDRIP.

47 First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indigenous and Northern Affairs Canada), [2020] CHRT 20, para. 135.

48 Indigenous Services Canada, “Joint Statement by Ministers Miller and Lametti on the Filing of a Judicial Review before the Federal Court, March 13, 2021, https://www.canada.ca/en/indigenous-services-canada/news/2021/03/joint-statement-by-ministers-miller-and-lametti-on-the-filing-of-a-judicial-review-before-the-federal-court.html.

49 R. v. Francis-Simms, [2017] ONCJ 402, para. 48. Both articles 5 and 8 of UNDRIP address the participation in and maintenance of culture. See UN General Assembly, Resolution 61/295, Declaration on the Rights of Indigenous Peoples, A/RES/61/295 (September 13, 2007).

50 In my book, I explore the differences between section 2(a) and section 35 claims related to religion. Section 2(a) may be more favorable for claims that cannot be easily connected to the collective and for those claims rooted in post-contact practices and traditions. See Shrubsole, What Has No Place, 78–99.

51 Servatius v. Alberni School District No. 70, [2020] BCSC 15, para. 122.

52 Servatius, [2020] BCSC 15, at para. 37, citing United Nations General Assembly, Declaration on the Rights of Indigenous Peoples, and the final report of the Truth and Reconciliation Commission.

53 Melanie Zumba et al., “Indigenous Protected and Conserved Areas (IPCAs), Aichi Target 11 and Canada's Pathway to Target 1: Focusing Conservation on Reconciliation,” Land 8, no. 1, (2019), article 10, https://doi.org/10.3390/land8010010.

54 Ministry of Environment and Climate Change, 2020 Biodiversity Goals and Targets for Canada (2016), https://publications.gc.ca/collections/collection_2016/eccc/CW66-524-2016-eng.pdf.

55 “Background,” Pathway to Canada Target 1, Conservation 2020, https://www.conservation2020canada.ca/the-pathway/.

56 Ministry of Environment and Climate Change, 2020 Biodiversity Goals and Targets for Canada.

57 Indigenous Circle of Experts, We Rise Together: Achieving Pathway to Canada Target 1 through the Creation of Indigenous Protected and Conserved Areas in the Spirit and Practice of Reconciliation, March 2018, 5, https://static1.squarespace.com/static/57e007452e69cf9a7af0a033/t/5ab94aca6d2a7338ecb1d05e/1522092766605/PA234-ICE_Report_2018_Mar_22_web.pdf.

58 Indigenous Circle of Experts, We Rise Together, 5–6.

59 For a list of the Target One Challenge initiatives, including IPCAs, see “Canada Target 1 Challenge,” Government of Canada, last modified May 4, 2021, https://www.canada.ca/en/environment-climate-change/services/nature-legacy/canada-target-one-challenge.html.

60 Tessa Byars, “Jumbo Valley to Remain Wild after Permanent Retirement of Development Rights,” Patagonia Works, January 18, 2020, https://www.patagoniaworks.com/press/2020/1/21/jumbo-valley-to-remain-wild-through-permanent-retirement-of-development-rights.