Two steps forward one step back: Can the Charter be used as a sword to silence Indigenous perspectives in the classroom?
Last week, the British Columbia Court of Appeal (“BCCA”) heard the appeal of Servatius v. Alberni School District No. 70, 2020 BCSC 15, a provocative Charter case concerning the interplay between religious freedoms and Indigenous cultural safety in public schools. Our litigation group proudly represented the Nuu-chah-nulth Tribal Council (“NTC”) in its intervention in the appeal.
From NTC’s perspective, the BCCA’s decision will determine whether non-Indigenous litigants can use the Charter as a sword to prohibit demonstrations of Indigenous cultural practices in the classroom and other state-sponsored events, undoing years of progress made towards achieving reconciliation between Indigenous and non-Indigenous peoples.
In 2016, Candace Servatius, an evangelical Christian and mother of students enrolled in John Howitt Elementary School in Port Alberni, filed a petition in the BC Supreme Court seeking declarations that her and her children’s religious rights were infringed and a permanent injunction following Indigenous cultural demonstrations at the children’s elementary school: the first, a smudging demonstration by a Nuu-chah-nulth Elder in a classroom setting; the second, a hoop dance in the school auditorium, which included a traditional prayer by the dancer.
The demonstrations were part of an effort by School District No. 70 (the “School District“) and the Province to increase Indigenous content in public school curricula. In response to the persistent gap between Indigenous and non-Indigenous learners, and the TRC’s Calls to Action which call on governments to address this difference, the BC Ministry of Education worked in close consultation with Indigenous education stakeholders, including NTC, for over a decade to design a new curriculum aimed at integrating Indigenous perspectives and creating a culturally safe space for Indigenous students in schools.
At the petition hearing, Servatius asked the Court to weigh in on the constitutionality of the School District’s actions, which she argued were state-compelled participation in religious exercises. Servatius argued that her family’s faith as evangelical Christians require that they abstain from participating in “religious, spiritual, or supernatural ceremonies” of any kind outside their faith and that the teachings of Indigenous worldviews in the children’s school amounted to a breach of their Charter right to be free from oppression of conscience and religion.
Justice Thompson of the BCSC found that Servatius had not proven her case for a violation of her religious freedoms. The evidence accepted by the Court demonstrated that the student’s participation was limited to learning: The Elder explained the significance of the smudging tradition and the beliefs connected to it, but at no time did the students participate in the demonstrations. For instance, none of the students, their desks, or their belongings were smudged, and they were free to leave if they wished. Justice Thompson found similarly for the hoop dance demonstration. At no point were the students asked to participate in spiritual or religious practice.
You can read our full article on the BCSC decision here.
The Historical and Social Context
NTC intervened in the proceedings at both levels of court to ensure that the historical and social context underpinning the School District’s decisions to host the demonstrations was not forgotten.
NTC gave evidence that the School District is located on Nuu-chah-nulth traditional territories; one-third of the students are Indigenous; for Indigenous peoples, schools are often associated with abuse and trauma; and the intergenerational impacts of Indian Residential Schools (IRS) remain in the modern public education system.
The Alberni Indian Residential School operated from 1891 to 1973 and was located only four kilometers from John Howitt Elementary School where the events of this case took place. The Alberni Indian Residential School subjected students to cultural degradation and physical abuse, generally “appalling treatment” that was “extremely traumatic.” This is, in an exceedingly brief summary, the legacy of the public education system for Indigenous peoples in Nuu-chah-nulth territory.
Justice Thompson spends about half of his reasons for judgment on this unfortunate reality: the legacy of Indian Residential Schools continues to impact today’s Indigenous learners and creates a pressing need for curricula change. Indigenous learners have significantly higher drop-out rates than other students; however, the number of Indigenous students obtaining their grade 12 diplomas has risen as school curricula include more Indigenous content.
For all of these reasons, NTC has been advocating for over 20 years for the creation of inclusive programming in the public school system within its traditional territory, entering into agreements with school districts that seek to include “holistic and culturally relevant teachings in schools and [to] provide day-to-day support for Nuu-chah-nulth students.” NTC views this advocacy as a crucial part of reconciliation as it improves school success for Indigenous students, fosters mutual respect and understanding, and reflects the history of Indigenous knowledge and worldviews that are part of the foundation of British Columbia and Canada. According to NTC, schools in Nuu-chah-nulth territories need to be a place where Nuu-chah-nulth students can “see themselves and their culture reflected” to ensure that schools are a “culturally safe space.”
Before the BCCA, counsel for Ms. Servatius (“the Appellant”) argued that Justice Thompson had erred in finding that the events at the school were a “demonstration.” Instead, it was argued, Justice Thompson had committed a palpable and overriding error as the evidence proved that the smudging was “religious” or “supernatural.” The Appellant also argued that Justice Thompson erred by finding that the School District’s hosting of the Indigenous demonstrations did not amount to a breach of the state’s duty of neutrality – in other words, Servatius submitted, the School District had preferred or promoted one religious belief to the exclusion of all others.
In its submissions, NTC maintained that the Appellant sought to define Nuu-chah-nulth “religion” without regard for the Nuu-chah-nulth perspective on the demonstrations. The Appellant urged the Court to view the events through the lens of her Evangelical beliefs rather than through what she described as Justice Thompson’s “anthropological” lens. In response, NTC argued that whether something constitutes a “religious” belief or practice can only be determined by the alleged holder of those beliefs. In other words, what is required by the court to complete its assessment of the state’s compliance with its duty of neutrality is the Nuu-chah-nulth perspective on whether the smudging was “religious.”
In her evidence, Dr. Judith Sayers, President of the Nuu-chah-nulth Tribal Council, addressed this point: “To label Nuu-chah-nulth culture and ways of seeing and being in this world as religion and then to use this mislabelling to exclude those cultural expressions in schools on our territories, where many Nuu-chah-nulth students attend, and where we will have to learn to live peacefully and respectfully together, puts the true notion of reconciliation at risk.”
What’s at Stake
There are two ways this appeal could go. In NTC’s view, if the appeal is allowed, the result will be a chilling effect on reconciliation. Indigenous students will no longer see themselves reflected in the curricula, and our education system will be rendered devoid of cultural diversity and respect for Indigenous worldviews.
Alternatively, the BCCA could uphold the efforts of the School District and NTC to make schools a place where Indigenous learners see themselves, their communities, and their cultures reflected by dismissing the appeal. Giving students an opportunity to learn about Indigenous worldviews and heritage is consistent with the provincial education curriculum, UNDRIP Articles 14 and 15, and the TRC’s Calls to Action, the latter of which place a strong emphasis on education as a vehicle for reconciliation. Schools have a responsibility to increase student awareness and understanding of Indigenous culture, history, and language. This is the position supported by the Provincial government, the School District, and NTC.
The values that go to the heart of reconciliation are at issue in this appeal. If dismissed, the appeal could set a strong precedent for how courts will treat reconciliation objectives. Indigenous representation in school curricula is a crucial step in the constitutional imperative of reconciliation. Will the decision represent a step forward or two steps back?
Our Indigenous Law Group and Litigation Group work collaboratively to provide our Indigenous clients with the best possible representation and service. If you have any questions or comments relating to what we discussed above, feel free to reach out to Joelle Walker, Leah George-Wilson, Erin Reimer, Linette Lubke, or Katie Curry from our Indigenous Law Group and our Litigation Group.
 Respondent Attorney General of BC’s Factum, at paras 16, 17.
 Servatius v. Alberni School District No. 70, 2020 BCSC 15 (herein “Reasons”) at 3.
 Reasons, at 51.
 Blackwater v. Plint, 2003 BCCA 671, at para 127.
 Blackwater #2, at para 5.
 Affidavit of Jo-Anne L. Chrona, at paras. 3, 4, 18.
 Affidavit #1 of Dr. Judith Sayers at paras. 9, 11.
 Reasons, at para 25.