First Cited: Declaration On The Rights Of Indigenous Peoples Act In BC Charter Claim

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 Declaration1 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...