Two Steps Forward One Step Back: Can The Charter Be Used As A Sword To Silence Indigenous Perspectives In The Classroom?

• Published date: 17 June 2022
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law, Indigenous Peoples
• Law Firm: Miller Titerle + Company
• Author: Ms Erin Reimer and Katie Curry

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.

Background

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.¹

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'² 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...