Legal action
Law professor Darlene Johnston turns anger into impact.
For thousands of years, the Anishinabek occupied a massive territory near the Bruce Peninsula in southern Ontario. In 1836, as white settlement overtook the area, the Anishinabek (also known as the Chippewa and Ojibway) surrendered two million acres of that land in return for a promise that the Crown would protect the peninsula and fisheries in Georgian Bay and Lake Huron for the tribe forever.
Flash ahead to 1981.
Darlene Johnston, whose father had been raised on the Neyaashiinigmiing Reserve (on a part of the Bruce Peninsula called Cape Croker), takes a summer job on the reserve. The Anishinabek are considering making a land claim and have asked Johnston and some of her cousins to conduct research into the original treaties struck between the Anishinabek chiefs and the Crown in the mid-1800s. Those treaties left the Anishinabek with only three small reserves, and an ever-diminishing share of the fishery.
At this time, Johnston is a history student at Queen’s University. She had tried life sciences, encouraged by her paternal grandmother, who had been a midwife and healer for the tribe. “But it turned out I didn’t like the sciences very much, so I switched to history.”
Johnston had grown up in Alberta and Trenton, Ontario. She comes from a diverse ethnic background – her father, a career mechanic in the Canadian Air Force, is a full-blooded Anishinabek. Her mother is of Irish-Scots-Acadian descent. While Johnston had been aware of her Anishinabek background, the role she could play in the culture didn’t really strike home until the summer job in 1981.
“I started looking at what had happened with one of the treaties and how the Crown didn’t live up to its end of the bargain,” says Johnston, who today is an associate professor in U of T’s Faculty of Law and one of only three First Nations law professors in Ontario. “We were appalled by some of the things we found about how the land had been dealt with and how we were treated when we went to Ottawa to try to access records. And we got this idea that something had to be done.”
So she completed her history degree, enrolled in law at the University of Toronto and began what would become her life’s work – using her skills as a lawyer, legal scholar and researcher to amend what she and her people feel to be an injustice. In turn, she has broadened legal thought internationally with her unique perspective as a lawyer specializing in aboriginal issues.
Through her studies at U of T and then as a professor of law at the University of Ottawa, Johnston kept finding herself drawn back to her early research on the reserve. Finally, in 1992, she left her faculty position in Ottawa, moved back to the reserve with her husband and young children, and devoted the next decade to bringing the land claim to life. The first tangible result came in 1993 with judicial recognition of Chippewa commercial fishing rights. Since then, several sacred sites and burial grounds have received much-needed protection.
“My cousins and I had been part of the first generation to leave the reserve for university, so there was a lot of encouragement from our people to get educated and come back and see what we could do. The whole idea of my going to law school was so I could do this work for my people.”
The land claim has now been filed with the Ontario Supreme Court and Johnston thinks it will take a few more years to get to trial. “We found that after our chiefs obtained a title deed from Queen Victoria in 1847 confirming their ownership of the Bruce Peninsula, the government forced the surrender of the peninsula by threats, intimidation and misrepresentation. Our claim seeks a remedy for the Crown’s breach of its duty to protect our lands.” Through the claim, the Anishinabek hope to recover lands currently owned by the Crown and to receive financial compensation for loss of lands that are now in private hands.
With the research now completed, Johnston feels that the most useful place she can be is back in an academic environment.
“I want to write about the things I learned through the land claim and about the intuitions I developed about getting around some of the hurdles. I want to get these thoughts down so they can be shared with both the legal community and students. This is another way I can make an impact.”
To this end, she is teaching courses in Aboriginal Law and Property Law. She is also aboriginal advisor for the largest enrolment of First Nations law students in Ontario, a faculty member of the university’s Ethnic, Immigration and Pluralism Studies program, and a highly sought-after speaker in a variety of forums. And she continues with her research in totemic identity, territoriality and governance.
Having made this impact, Johnston seems to have found a comfortable place in life.
“When I first moved home to work on the land claim, I was angry all the time. The more research I did, the more harm I saw that had been done. But I learned that nothing burns you out faster than anger. I realized I had to turn that anger into something, and this may sound hokey, but something more constructive. I had to have a plan, instead of just anger. So we set about our work and even if we lose, we will have told the truth about what happened.”