On January 8, 2020, The Honourable Mr. Justice Thompson decided that exposure to an Indigenous smudging ceremony and prayer associated with traditional hoop dancing in a Port Alberni elementary school did not infringe the religious rights of an evangelical Christian mother and her two children, aged 7 and 9.1 The Petitioner argued that the demonstration of smudging by an Indigenous elder and prayer by the Indigenous hoop dancer interfered with the religious freedoms of herself and her children guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms. She sought a declaration to this effect and an order prohibiting further Indigenous events of this nature in the school district.
Alberni School District No 70 (“the District”), situated in Nuu-chah-nulth traditional territory, argued that the children were not smudged and were not directly involved in the hoop dance or associated prayer. Rather, the children were observing the Indigenous demonstrations in keeping with the provincial educational curriculum and the District’s goal of increasing awareness and understanding of Nuu-chah-nulth culture, history and language — without in anyway advocating for the supremacy of one belief system over another. Approximately one third of the students in the school district are Indigenous and the impugned events form part of the District’s reconciliation action plan and efforts at improving cultural inclusiveness.
The District argued that the Petition must be considered in the context of the traumatic colonial history and legacy of residential schools, and how that history contributes to gaps in educational attainment and disparate outcomes for Indigenous students. Significantly, the elementary school in question — John Hewitt Elementary School — is located approximately four kilometers from the notorious Alberni Residential School that operated from 1891 to 1973 — a residential school responsible for inflicting egregious harms on Indigenous students for nearly a century following the forced removal from their family homes. The court agreed that this history is relevant and that it continues to adversely impact Indigenous students to the present day.
The court heard significant social fact history from the District and the Nuu-chah-nulth Tribal Council (“NTC”) — an intervener in the proceeding. The NTC, representing approximately 10,000 members from 14 different Nuu-chah-nulth Nations, enters into agreements with the District. The agreements reflect NTC’s intention to “cooperate in the development of an inclusive relationship that will enhance and improve all aspects of education for First Nations students” and “increase the knowledge and understanding of the First Nations culture and history for non-First Nations staff, students, and others working in association with the schools.”2
The NTC described smudging as a cultural practice, not a religious one. Incorporating cultural events into the mainstream curriculum is deemed a critical aspect of changing the relationship between Indigenous and non-Indigenous Canadians because according to the NTC “people cannot honour difference if they cannot understand it.”3 Further, to counter the lingering impacts from the residential school legacy, the NTC, in cooperation with the District, strives to implement culturally appropriate teaching strategies that make schools culturally safe places where Nuu-chah-nulth students “could see themselves and their culture reflected” in the curriculum.4
In adopting the viewpoints of the District and NTC regarding cultural inclusivity and reconciliation, the court considered the Truth and Reconciliation Commission — Calls to Action, the United Nations Declaration on the Rights of Indigenous Peoples and BC’s recent Declaration on the Rights of Indigenous Peoples Act. The theme of these documents, and the submissions of the District and NTC is that building student capacity for intercultural understanding, empathy and respect along with the rights of Indigenous peoples to promote, develop, teach and practice their distinctive cultural customs and traditions must be fiercely protected in light of our history. In the concluding remarks, the court referred to the smudging and dancer’s prayer as “admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs.”5
1 Servatius v. Alberni School District No 70, 2020 BCSC 15 (“Servatius”)
2 Servatius, para. 26.
3 Ibid. para 25.
4 Ibid.
5 Ibid. para 108.