Lauren Strumos
In Canadian legal cases, the framing of religious practices as ‘culture’ most often appears as a strategy to maintain Christian majoritarianism. In the Saguenay case, for example,a city in the province of Quebec argued that a prayer, which was recited at the start of municipal council meetings, was part of its ‘cultural and historical heritage.’ This argument was affirmed in 2013 by the Quebec Court of Appeal, but later rejected in 2015 by the Supreme Court of Canada.
In this article, I suggest that the more recent Alberni case brings to light an alternative approach: the construction of Indigenous practices as ‘culture’ as a way to foster inclusion and confront the hierarchy of settler colonialism. The Alberni case took place in the province of British Columbia. It was first heard in 2019 by the Supreme Court of British Columbia, with the decision being appealed in 2022 to the British Columbia Court of Appeal. Below I provide a summary of the case, followed by a discussion of how ‘culture’ appears in the Court of Appeal decision. I conclude by noting the potential relevance of Alberni to those interested in (non)religion in law and society.
Servatius v. Alberni School District No. 70
The Alberni School district is situated on the territories of Nuu-Chah-Nulth Nations of the West Coast of Vancouver Island, British Columbia. ‘Nuu-Chah-Nulth’ means ‘all along the mountains and sea.’ During the 2015-2016 school year, a public elementary school in this district invited two guests to demonstrate Indigenous practices. The first was a demonstration of smudging conducted in classrooms by an Elder. The second was a hoop dance at a school assembly during which a prayer was said by the dancer.
Candace Servatius, an evangelical Protestant and mother with two students at the school, claimed that these demonstrations infringed upon her freedom of religion as protected under Section 2(a) of the Canadian Charter of Rights and Freedoms, which is part of the Constitution of Canada. She argued that (1) her children were compelled to participate in Indigenous ‘religious ceremonies’ that conflicted with her own religious beliefs, and (2) that the school board promoted Indigenous beliefs over others, breaching the duty of state neutrality.
In its 2020 decision, the Supreme Court of British Columbia determined that the demonstrations did not amount to an infringement of religious freedom, nor did they interfere with the school’s duty of religious neutrality. In its reasoning the court drew a line between religious education and education about religion. The students were witnesses of the smudging and prayer; they were not compelled to participate in them. Servatius appealed this decision to the British Columbia Court of Appeal, the highest court in the province. This court dismissed her appeal in December 2022.
Religion or culture?
In its 2022 decision, the Court of Appeal concluded that the hoop dancer’s prayer did not violate the duty of state neutrality. It compared this prayer to that of the Saguenay case, stating: “Unlike the situation in Saguenay, in this case, the one-off prayer said by a school guest as part of his performance of a hoop dance did not amount to the school showing a preference for a faith or creating a preferential space for anyone, Indigenous or otherwise” (para. 233). The Supreme Court of Canada concluded in its Saguenay decision that the prayer used to open municipal council meetings violated state neutrality.
In regard to the smudging, the Court of Appeal focused on determining whether it was a cultural or religious practice. It relied upon the submissions of Indigenous witnesses who made a distinction between cultural events on the one hand, and spiritual beliefs and practices on the other. It stated:
There was a strong evidentiary basis supporting the conclusion that the event that took place was not, as Ms. Servatius asserts, a “religious ceremony” or something akin to it. [The evidence] suggested that some members of the Indigenous community make a distinction between cultural events that they will share publicly, as a matter of community building, and spiritual beliefs and practices that they consider to be inherently private. (para. 186)
The court concluded that smudging in this context was a demonstration of Indigenous cultural practice. This approach rests in part on a conceptual public/private divide with culture belonging to the former. The public/private divide is also evident in arguments that frame majoritarian Christian practices as culture. The Canadian public sphere is viewed in and beyond law as multicultural. Hence if prayer is made to be cultural and not religious, it becomes suitable for the neutral and multicultural public sphere.
As Lori G. Beaman indicates, the defense of Christian practices and symbols in Canadian law has deployed a narrative of ‘us Canadians’ that is ‘singularly Christian’. The Saguenay case demonstrated how this line of reasoning can support the exclusion of the nonreligious. Alain Simoneau, the complainant of the Saguenay case, is an atheist who experienced discomfort and isolation because of the municipal council’s prayer. In itsdecision the Supreme Court of Canada noted: “Although non-believers could also participate [in the prayer], the price for doing so was isolation, exclusion and stigmatization” (para. 120).
The association between culture and public space in Alberni is operationalized to different ends. It does not work to erase difference in the construction of an exclusionary cultural narrative. Instead, the association between cultural practice (smudging) and public space (elementary school classrooms) is intended to build community and help Indigenous students feel more welcomed at school. Indeed, the demonstration arose from an initiative of the Nuu-Chah-Nulth Tribal Council to support Indigenous students in schools.
The smudging demonstration is also representative of actions being taken by educational institutions to redress the cultural genocide of Indigenous peoples. For instance, in its decision, the court referenced Canada’s church-run residential schools:
As part of its assimilationist policy, Canada adopted a residential school program for Indigenous children, separating them from their parents, indoctrinating them in Christianity, and punishing the children harshly if they spoke their own languages and engaged in their own cultural practices. Housed institutionally, without the protection and nurturing of their parents and community, many Indigenous children in these schools were subjected to emotional, physical and sexual abuse, and neglect. Indigenous parents and communities were left grieving and bereft. (para. 102)
The court explicitly situates the Alberni case in this sociohistorical context. It also maintained that educational institutions have a responsibility to advance reconciliation with Indigenous peoples. The ‘culturalization’ of smudging worked to make the practice appropriate for students at a secular school, and by extension, respond to the ongoing legacy of residential schools. (The court also notes that the Port Alberni residential school did not close until 1973.) In this sense, ‘culture’ was deployed in a way that works to advances the state’s interest in reconciliation. This raises the question of how ‘Indigenous culture’ might appear in cases that do not advance state interests but challenge them.
Conclusion
Although it is framed to not be religious, I hesitate to propose that smudging in this case can be thought of as a form of nonreligion. Viewing the smudging demonstration through a lens of nonreligion may overlook the social significance of the court’s reasoning. This reasoning rests upon the views of Indigenous witnesses, as opposed to a legal definition or conceptualization of religion on behalf of the court.
In Canada, affiliation to institutional Christianity is declining, the number of those who identify as having no religion is rising, and there is heightened awareness among the settler population of the ongoing legacy of colonialism. It is against the sociohistorical backdrop of settler colonialism that the court in Alberni determines what does not count as religion (i.e., smudging). If an understanding of nonreligion in law and society also entails an understanding of religion, then settler colonialism may constitute a relevant part of that picture.
Lauren is a doctoral candidate in the Department of Classics and Religious Studies at the University of Ottawa. She is currently a visiting student researcher at the Centre for Multidisciplinary Research on Religion and Society at Uppsala University. Drawing on theories of environmental and ecological justice, her research explores how religious and nonreligious settler activists conceptualize their opposition to an oil pipeline project in British Columbia.
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