Final arguments delivered in smudge trial stress ‘Indigenous rights and the imperative of reconciliation’

Denise Titian, November 23, 2019

NTC President Judith Sayers and Ardith Walken, legal counsel for the Nuu-chah-nulth Tribal Council, stand outside the court room on the last day of the smudging trial in Nanaimo. (Denise Titian photo)

Nanaimo, BC — 

Four sets of lawyers delivered closing arguments in Candice Servatius versus School District 70, the case that seeks to ban smudging and Indigenous prayer in British Columbia's public schools.

In September 2015, the daughter of Candice Servatius attended John Howitt Elementary School in Port Alberni with her brother. One of the children brought home a letter informing parents that there would be a Nuu-chah-nulth-led cleansing ceremony at the school. The ceremony involved the use of burning sage and is commonly referred to as smudging.

Concerned that the ceremony would compromise Servatius' own religious convictions, she contacted the school to ask questions but learned that the ceremony had already taken place and that her daughter witnessed the event.

The following January the school hosted a hoop dancer who said an “Aboriginal” prayer over a microphone to an “unspecified ‘god’” before his performance at a school assembly, according the plaintiffs court documents.

Servatius contends that the school was allowing religious activities at school in contravention of the School Act and against their obligation under the Canadian Charter of Rights and Freedoms, which protects a persons' right not to be compelled to participate unwillingly in a foreign religious ritual.

Servatius retained the services of the Justice Centre for Constitutional Freedoms – free of charge.

Servatius is seeking an order declaring that the impugned actions of the 2015-16 school year violate the petitioner’s Charter rights. She is asking the court for an order that would prohibit the School District “from facilitating or allowing religious practices during mandatory instructional time, at mandatory student assemblies, or during any other time when student attendance is mandatory. Such practices include, but are not limited to, religious or spiritual rituals, ‘cleansings’, ceremonies, and prayer.”

Keith Mitchell, lawyer for SD70, argues that nobody was smudged against their will. Letters went home to the parents and the children were passive witnesses to the event, and were allowed to leave the room if that was their wish.

Mitchell noted that the assimilation policies of Canada's Indian residential schools were a detriment to Indigenous peoples and that the states' objective is to heal from Canada's colonialist, racist practices and move toward reconciliation.

“The goal is to heal some of those fractures and foster understanding and empathy; and the state has a duty to educate students as mandated by the act,” he said.

Both the school district and counsel for the Ministry of the Attorney General of British Columbia agree that the term 'religious act' is not defined.

“No one has grappled what the term religious practice means; What does it mean?” Mitchell asked.

He suggested that other activities could be considered religious under such a broad definition. Yoga, meditation and even sports could be considered religious under those terms. He asked how it would be interpreted. Mitchell argued that a prohibition would be an overly broad remedy.

The school district's position is that there was no violation of the Charter and therefore the plaintiff's petition should be dismissed.

Kaitlyn Chewka, lawyer for the Attorney General of British Columbia, pointed out that UNDRIP (United Nations Declaration on the Rights of Indigenous Peoples) is making its way through parliament and will likely be passed into law in the next two weeks. One of the things that UNDRIP does is guarantee the right of Indigenous Peoples to self-determination.

To prohibit selected portions of Indigenous culture in schools risks further harm and marginalization of Indigenous students, Chewka argued. The message for Indigenous children would be their culture is not welcome, therefore they are not welcome.

Chewka noted that many people are watching the trial and are imposing their own beliefs on Nuu-chah-nulth cultural practices. She reiterated that the Attorney General of British Columbia is opposed to a ban on cultural practices in schools.

Chewka pointed out that the federally mandated residential schools had an agenda to assimilate Indigenous peoples into colonist society. Attendance was compulsory and it did harm; the effects are still being felt to this day.

Truth and Reconciliation Commission documents show that the residential schools were rampant with physical, sexual and mental abuse. “Indian Residential Schools were institutionalized child abuse – cultural genocide,” said Katie Webber, lawyer for the Ministry of the Attorney General of B.C.

She went on to say that the TRC report lays the foundation for reconciliation in Canada. One of the calls to action is educational reform.

Ardith Walkem of Cedar and Sage Law Corporation presented the position of the Nuu-chah-nulth Tribal Council, who is an intervenor in the case.

The NTC has Local Education Agreements with SD70 that aim to improve success rates for Indigenous students. The LEA's are a crucial part of reconciliation and Indigenous rights are protected in the Constitution, Walkem argued.

She pointed out that the children of SD70 would be very impacted by the case and suggested that Section 2.A of the Canadian Charter of Rights and Freedoms, freedom of conscience and religion, is being used as a sword rather than a shield in this case.

The NTC also opposes the request for a ban on cultural practices in schools.

“The court must consider the Indigenous perspective when it comes to Indigenous rights and the imperative of reconciliation,” she said, adding that Aboriginal societies existed in British Columbia prior to colonization and only they can define what is religion for them.

She pointed out that graduation rates for Indigenous students improve when there is Indigenous culture in the school. She noted that it was the first time she was involved in a case with Indigenous issues that she was sitting on the same side as the provincial government.

The court heard from several sources in an attempt to define smudging, but none from the perspective of Nuu-chah-nulth-aht, Walkem noted.

Dr. Sayers, she said, takes the position that smudging is not religion but a way of life.

“For Nuu-chah-nulth, culture is a way of life. I do not see Nuu-chah-nulth culture and spirituality as a religion,” Dr. Sayers said. “For example, it would not be possible to convert to becoming of a Nuu-chah-nulth religion, and Nuu-chah-nulth people can and do participate as members of religions such as Catholic or Anglican.”

“We have two choices; we can take the word of Dr. Sayers – a member of Hupacasath First Nation, a member of the Order of Canada, former Chief of Hupacasath First Nation, current president of the Nuu-chah-nulth Tribal Council, adjunct professor at the Peter Gustavson School of Business and Environmental Studies at the University of Victoria, a former chief negotiator for the Hupacasath First Nation, with degrees in business and law and an honorary Doctor of Laws degree from Queen's University – or we can take a paternalistic approach,” said Walkem.