Courthouse in Nanaimo. (News Bulletin file)

Province argues in B.C. Supreme Court for smudging in schools, says it relates to curriculum

Hearing concludes in case regarding indigenous cultural practice in Vancouver Island classroom

A five-day hearing for a Supreme Court case that could determine whether indigenous smudging ceremonies can happen in public schools concluded today, Nov. 22, in a Nanaimo courtroom.

Candice Servatius, a Christian mother from Port Alberni, filed a petition against Alberni School District 70, claiming that her daughter’s religious rights were infringed on when forced to participate in a Nuu-chah-nulth smudging ceremony at John Howitt Elementary School in 2015. Servatius is seeking a court-ordered ban on the practice in schools across the province. The Attorney General of B.C. is also named as a respondent in Servatius’s petition.

Throughout the week, lawyers from all sides presented their arguments in front of Justice Douglas Thompson, who will be ruling on the matter.

RELATED: Student tells Nanaimo courtroom she wasn’t allowed to leave indigenous smudging ceremony

During Friday’s session, Katie Webb, legal counsel for the attorney general’s office, told the court that the province takes no position with regards to the accusation that the school board wronged Servatius or her daughter, but opposes any order that would ban smudging ceremonies in schools.

“The proposed order would be in conflict with aspects of the provincial curriculum requiring the incorporation of indigenous knowledge,” she said.

Webb said Canada has a history of assimilationist educational policy towards indigenous children, specifically the residential school system, which has contributed to the disparities between indigenous and non-indigenous students today. She said the court should consider the “broader” historical context when rendering a decision.

“It would be an error for this court to consider [the case] in isolation from that broader context,” she said, adding that evidence suggests that 14 to 15 per cent of students at John Howitt Elementary are indigenous.

RELATED: ‘Our culture is not a religion,’ indigenous educator tells Nanaimo court in case of smudging at school

In order to address the “horrors” of the residential school system and to make the public education system in British Columbia more inclusive for everyone, Webb said the province began integrating a new curriculum with a focus on indigenous learning in 2016. She said the smudging ceremony reflects the efforts made by the school to implement that curriculum.

“The incorporation of indigenous knowledge and world views in the educational program promotes a more inclusive educational experience in a culturally safe space, for indigenous and non-indigenous students alike,” she said.

In this case, according to Webb, there hasn’t been a constitutional challenge of the province’s curriculum and therefore it would be “unfair” for the courts to impose any such ban. She said the Canadian Charter of Rights and Freedoms does not require the school’s administrators to “achieve a perfect calibration” between charter values and a statutory mandate, but rather a “proportionate” balance.

Webb also said it isn’t clear how such an order would be enforced and that the term “religious practices” – which she said had been debated heavily during the hearing – is vague.

“In my submission, that very vagueness is exemplified by the fact that seven lawyers have spent five days in this room arguing about whether we can characterize these events as religious,” she said.

Speaking to the News Bulletin afterwards, Jay Cameron, legal counsel representing Servatius, said the province needs a “statutory mandate” in order to permit smudging ceremonies in schools without parental consent, but that it has no such mandate.

“There is no statutory mandate to cleanse small children against their will without their parents’ knowledge or permission,” he said.

Cameron said his client respects indigenous history culture and is supportive of people wanting to learn about it, but that the province went too far.

“The state crossed the line when it imposed a spiritual ceremony on her children without proper notice to her or the ability to consider opting them out,” he said. “Her position is that shouldn’t happen to anyone no matter what they believe.”

RELATED: Teacher says student was ‘happy’ to watch smudging ceremony at Vancouver Island school







nicholas.pescod@nanaimobulletin.com 
Like us on Facebook and follow us on Twitter and Instagram

 

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

VIA Rail lays off 1,000 unionized workers across the country

Northern B.C. route Jasper to Prince George to Prince Rupert is not affected by VIA Rail layoffs

Sunflower Highway, art initiative to connect Fraser Valley, Thompson-Nicola and Okanagan

Sunflowers made out of reclaimed materials will be installed on public art trails

Residents warned to stay away from flooded Cache Creek park

Water might look shallow, but is several feet deep in places

Ashcroft receives grants to get new hot tub and lift station

‘The hot tub is a major benefit for many residents’

Cache Creek gets funding for improvements on Old Cariboo Road

Work will help to mitigate damage from water and debris flows during flooding

B.C. identifies 20 new COVID-19 cases, travellers specified in count

Pandemic total 3,028 cases, 51 people from outside Canada

Survey, hotline launched amid probe into racist blood-alcohol guessing game at B.C. hospital

Mary Ellen Turpel-Lafond has been appointed to lead an investigation by Health Minister Adrian Dix

Canadian policing organization calls for decriminalization of simple illicit drug possession

Canadian Association of Chiefs of Police want policing focus of opioid crisis to be replaced with a health one

Large rogue floating ‘island’ corralled by Lac la Hache residents

At least 60 feet wide, this large mass of plants is free-floating on the lake

Filing deadline in RCMP sexual-harassment class-action extended due to COVID-19

Plaintiffs now have until January 2021 to submit claims for up to $222,000

Jamie Bacon pleads guilty to charge in Surrey Six case

The plea brings an end to a complex legal case that has spanned more than a decade

Hefty undeclared driver charges piling up, ICBC warns customers

Average extra penalty $2,971 after an at-fault accident

B.C. appeals judge’s decision to leave three clubhouses in Hells Angels hands

The province has filed two notices of appeal related to the B.C. Supreme Court decision

Conservation officers relocate Spirit bear known to roam northwestern B.C.

Bear roamed valley north of Terrace for many years

Most Read