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First Cited: Declaration on the Rights of Indigenous Peoples Act in BC Charter Claim

By Jordan Ardanaz + Merle Alexander, QC - February 7, 2020 under First Nations

Case Review: Servatius v Alberni School District No 70, 2020 BCSC 15

With the recent passing of Bill 41, the Declaration on the Rights of Indigenous Peoples Act (“Declaration Act”), which MT+Co.’s Merle Alexander, QC co-drafted, British Columbia is one of the first jurisdictions in the world to take legislative action to implement the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”).  The legislation directs for consultation and cooperation with Indigenous peoples when implementing the Declaration[1] and to support the affirmation of, and develop relationships with, Indigenous governing bodies.  We are passionate and experienced in this area of law.  Follow us on Facebook and LinkedIn for future information on this topic.

Pursuant to the recommendations of the Truth and Reconciliation Commission, school districts in the Port Alberni area are working with the Nuu-chah-nulth Tribal Council to advocate for culturally relevant teaching and to provide day-to-day support for Nuu-chah-nulth students.  As part of an effort to “acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children”,[2] a Port Alberni elementary school introduced Indigenous cultural traditions in a classroom setting.

The District found themselves in a Charter claim – a mother, the Petitioner in this case, filed a petition on behalf of her two children alleging a breach of their rights to freedom of conscience and religion under section 2(a) of the Canadian Charter of Rights and Freedoms.

Ultimately, Mr. Justice Thompson determined that the Petitioner was unsuccessful in demonstrating such a violation.  Yet there are two further fascinating aspects about this decision: first, that it is the first judicial decision in BC to cite the nascent Declaration Act; and second, the Court’s disposition on aspects of the Petitioner’s arguments that were based on deep-seated colonial paradigms.

Update (February 10, 2020): The Petitioner has filed an appeal on this decision. We may be seeing the first consideration of the Declaration Act by the British Columbia Court of Appeal.

The Petition

On January 8, the BC Supreme Court released its judgement on the dispute between the Petitioner, an evangelical Christian mother of a nine-year-old daughter and a seven-year-old son, and the Alberni School District No 70.  The dispute arose from two demonstrations of Nuu-chah-nulth cultural practices: a demonstration of the practice of smudging by a Nuu-chah-nulth Elder in a classroom setting, and a hoop dance in the school auditorium, which included a traditional prayer.

As evangelical Christians, the Petitioner believed these two events to be a violation of her children’s Charter right to be free from oppression of conscience and religion primarily because she believed that her children had been compelled to participate in “state-sponsored religious exercises.”[3]

The Court found that the Petitioner had not established an infringement of religious freedoms, relying in part on evidence showing that the students’ participation was limited to learning: observing, listening, and taking in the smell of the burning sage.  The Elder described to the students the smudging tradition and beliefs connected with it, and in doing so, added words in the Nuu-chah-nulth dialect. At no time were the students, their desks, or their belongings smudged, and they were free to leave if they wished.[4]

With respect to the hoop dance in the school auditorium, Justice Thompson similarly found that students were not participating in a spiritual or religious practice, but observing one.

The Declaration Act

The Declaration Act, which came in to force this past November, mandates that the laws of BC must be aligned with the UNDRIP.  The law sets out processes by which such harmonization will be achieved, and encourages governmental transparency and accountability while providing a framework for increased government-to-government decision-making.  Generally, the Declaration Act is a recognition of Indigenous rights as human rights in British Columbia.

The Court’s decision did not directly apply the Declaration Act in its analysis, however, Justice Thompson emphasized that because section 3 of the Declaration Act requires the laws of BC to be consistent with the rights provided to Indigenous peoples under UNDRIP, the following UNDRIP articles were relevant to this decision:[5]

Article 12(1): the right for Indigenous peoples to “manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies”.

Article 15(1): the right to “the dignity and diversity of their cultures, traditions, histories and aspirations which shall be appropriately reflected in education and public information”.

Article 34: the right to “promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, [and] practices”.

The Court’s ultimate decision hinged on the issue of whether or not the elementary school, in implementing high-level curriculum developed by the Alberni School District and in light of its commitments to reconciliation, breached state neutrality as to religious teachings pursuant to section 76 of the Schools Act.[6]  However, given the tone of the decision, the UNDRIP articles that the Court highlighted were presumably contemplated in its consideration.

There is currently no language in the Schools Act that demonstrates its alignment with UNDRIP pursuant to the Declaration Act (undoubtedly because of how recently the statute came in to force).  However, the notable reference in this decision supports a conclusion that in similar future circumstances, courts may rely on Articles 12(1), 15(1), and 34 when interpreting the Schools Act where the cultural expression and teaching by an Indigenous community is at issue.

Addressing the Petitioner

A second interesting note on this decision is the tone taken by Justice Thompson in response to aspects of the Petitioner’s argument that reflected a deep-seated colonial perspective.  Particularly, the Petitioner took the position that the Alberni School District’s attempt to reconcile the harms of colonial history in the region, and its emphasis on “the disquieting history of the roles played by government and the churches in the mission to eradicate Indigenous languages and culture”,[7] was itself hostile towards Christianity. From this perspective, she argued that her children’s experience of witnessing the Indigenous demonstrations in the school environment was similar to the abuses of indoctrination of the residential school system.

Thankfully, Justice Thompson refused to accept this position. He found the argument provocative, being “insensitive and regrettable hyperbole, especially considering the magnitude of what occurred a few kilometres down the road during the 82 years that the Alberni Indian Residential School was open.”[8]

He took the opportunity to indicate that such legal arguments have no place in the courts.  Here, the decision was supported by a sweeping narrative that tracked the colonial history of the region from the time of contact between Nuu-chah-nulth nations and Europeans in 1774, to the rise of the colonial government and its implementation of the disastrous residential school system, and culminating in the important work of the Truth and Reconciliation Commission.[9]

One Step Forward

The clear consideration by the BC Supreme Court for the purpose of the Declaration Act and relevant articles of UNDRIP is cause for optimism.  Judicial decisions such as this certainly set a bar for its application at common law, and suggest that courts should be conscious of UNDRIP in making judgements on issues concerning the expression of Indigenous rights.

Additionally, future petitioners should take note: arguing that reconciliation is a guise for anti-religious sentiments will not be entertained by the courts.  As stated by the intervening Attorney General, integrating learning about Indigenous cultural traditions in the classroom and creating an inclusive environment is important work that will enhance and improve all aspects of education for both Indigenous and non-Indigenous students.

Want More?

If you have questions or want to discuss this topic, please reach out to Merle Alexander, QC or our Indigenous Law Group practice leaders, Tamara Napoleon and Tyson Lamarsh.

[1]As defined in the Declaration Act, means the United Nations Declaration on the Rights of Indigenous Peoples set out in the Schedule.
[2] Servatius v Alberni School District No 70, 2020 BCSC 15 at 1. [Servatius]
[3] Ibid at 13.
[4] Ibid at 51
[5] Ibid at 37.
[6] RSBC 1996, c 412 [Schools Act].
[7] Servatius, supra note 2 at 73.
[8] Ibid at 74.
[9] Ibid at 16–22.