A smudging ceremony, hoop dance and prayer held in two Port Alberni classrooms seven years ago did not breach the religious freedoms of a mother whose children attended, the B.C. Court of Appeal has upheld.
Candice Servatius alleged the Nuu-chah-nulth demonstrations in September 2015 and January 2016 at John Howitt Elementary School took place without parental consent or sufficient notice to opt her children out, resulting in a violation of the family’s religious freedom.
She filed a petition for judicial review of the school district’s actions, and when a B.C. Supreme Court judge did not rule in her favour in 2020, appealed that decision. The appeal was dismissed Monday with the decision noting, “the needs of the community to advance multiculturalism and reconciliation and to teach children tolerance.”
“The trial judge did not make an error in his findings of fact that the children did not participate in the smudging or the prayer and the school did not promote or favour a set of beliefs,” it states.
The Nuu-chah-nulth Tribal Council (NTC) celebrated the dismissal, noting its importance for the integration of Indigenous knowledge and cultures in school systems broadly.
“If we had lost at this court level, we could have possibly eradicated all culture from the schools, and we’d be back in the dark ages where we were 10 or 15 years ago,” NTC president Cloy-e-iis Judith Sayers said. “It was important that the court see, understood what Nuu-chah-nulth are doing through the school district, through our workers.”
The NTC represents 14 First Nations on Vancouver Island.
Sayers, a Hupacasath First Nation citizen and lawyer, provided evidence in proceedings about the significance of smudging and how Nuu-chah-nulth cultures are a way of life, not a religion. She said it’s important to educate youngsters about their beliefs to help Nuu-chah-nulth children feel at home in schools, and to foster sensitivity, kindness and awareness in non-Indigenous children.
“The more you can bring culture into the schools, and other people can experience it, the more comfortable they’re going to feel and safe,” she explained.
“Really, in this day of racism, we’re just looking for tolerance. How do we teach young minds to respect our people, our culture, our worldview?”
In an emailed statement, the Board of Education of School District No. 70 , or SD70 Pacific Rim, said it was pleased with the dismissal.
“The Court’s focus on situating these demonstrations within the context of the residential schools’ legacy of harm to Indigenous children and their families was very important,” it wrote.
“Learning about the cultural and spiritual traditions of Indigenous peoples and incorporating Indigenous knowledge and worldviews into our curriculum, through demonstrations such as the Hoop Dance or a Smudging, is just one step on the journey to reconciliation.”
The district’s website outlines its goals to increase awareness, understanding and integration of Nuu-chah-nulth culture, history and language in all its schools as “part of our ongoing commitment to Truth and Reconciliation.”
The Justice Centre for Constitutional Freedoms (JCCF), which funded some of Servatius’ legal challenge, described the ceremonies and the way they were hosted as “a matter of substantial public concern.”
“Ms. Servatius and the Justice Centre stand against the governmental imposition of supernatural or spiritual practices and ceremonies on a captive audience of children or adolescents,” it wrote in a Monday news release.
“From the very beginning of this litigation, Ms. Servatius advised the lower court that she was fine with aboriginal practices (sic) and culture being taught in school, provided that religious rituals and spiritual ceremonies are not imposed on children.”
A September 2015 letter from the school to the students’ parents, the JCCF said, described the demonstrations as a “student cleansing,” and advised that children would hold onto cedar branches and have sage smoke fanned over them. The letter was not received by parents in time for them to opt out, the JCCF added.
While the trial judge found in 2020 that children did not end up holding branches or being individually brushed, Justice Centre president John Carpay said students “were effectively required to participate because this religious ceremony involved and embraced everyone present in the room.”
By email, he noted evidence that spirits and cleansing the classrooms of negative energies were discussed in the smudging ceremonies, and opined such evidence “makes it clear that a religious or spiritual ceremony took place.”
Sayers vehemently disagreed and found it “offensive” that non-Indigenous people tried to tell a court judge that Nuu-chah-nulth culture is a religion.
“Trying to bring in an expert that was trying to make this sound like it was something ugly or dark, or something like that — it was really hard to sit through the actual trial and listen to those arguments,” she told Global News. “We just wanted to show in this demonstration how (smudging) was done and explain a little bit about it so that the children could see.”
In 2020, the trial judge found the demonstrations were “efforts to teach, in a memorable way, about Indigenous beliefs,” rather than an effort to compel children to participate in Indigenous spiritual practices, or an expression of beliefs or religious favouritism by the school district.
The dismissal decision released Monday orders Servatius to pay the legal costs of the school district in the case.