THE LAND RIGHTS OF 'S INDIGENOUS PEOPLES

CHRISTOPHER ARIF BULKAN

A Dissertation submitted to the Faculty of Graduate Studies in partial fulfillment of the

requirements for the degree of Doctor of Philosophy

Graduate Program in Law YORK UNIVERSITY Toronto, Ontario

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While these forms may be included Bien que ces formulaires in the document page count, aient inclus dans la pagination, their removal does not represent il n'y aura aucun contenu manquant. any loss of content from the thesis. Canada ABSTRACT

This dissertation is an examination of the impact of colonization on the rights of

Guyana's indigenous peoples, with particular emphasis on issues of land, resource-use and governance. It is conducted within the framework of the common law, which became applicable to the as an incident of British sovereignty. It considers various doctrines on the subject of indigenous rights articulated and developed in other common law with a similar colonial history, and identifies through this comparative analysis several principles that have emerged as part of the common law.

Although historical materials provide much of the data for this study, the focus is not on policies or discerning motivations, but rather on an analysis of specific laws, and the extent to which these either support or deny a normative framework of recognition of indigenous rights in the present.

Commencing with an overview of the period of Dutch colonization, this study provides an outline of the legal and institutional structure that was established and the trajectory of relations between the newcomers and the territory's indigenous inhabitants. This is followed by a detailed examination of laws enacted by the British that impacted either directly or tangentially on Amerindian sovereignty, land and resource rights. Based on the Ordinances and regulations considered, this study demonstrates that while positive recognition was not accorded to customary indigenous rights of land ownership during the British period, neither did the wholesale legal dispossession of Amerindians occur. Where physical displacement took place, this was contrary to the common law and unlawful. Indigenous rights other than rights to iv ownership of land were regulated in increasing detail throughout the course of the nineteenth century, though these were not extinguished altogether.

This study concludes with an examination of legal reforms in the post-colonial period. It argues that while there have been some positive developments, notably in the recognition of indigenous land ownership rights, similar sensitivity has not been evinced towards other rights short of title. In certain instances, legislative changes may even be unconstitutional, given the entrenchment of key indigenous rights in the reformed Constitution.

v ACKNOWLEDGEMENTS

I wish to acknowledge, with deep gratitude, the guidance of my supervisor,

Professor Brian Slattery, and the members of my supervisory committee, Professors

Kent McNeil and Doug Hay. Each one read and re-read many drafts of this dissertation, scrutinizing (to my initial dismay I might add) even the most obscure footnotes. I thank them for their assistance, insights and patience, as well as their generous availability to me over the course of this project.

Belying the solitary nature of this exercise, many others have helped me along the way. I can only mention a select few: most especially I thank Shalisa and Kamal and

Pamela and her family for all of their kindness and care throughout my stay in Toronto.

Among the new friends I made here I especially wish to thank Diana Abraham and

Dionne Falconer, both of whom helped to ease the transition by including me within their extended circles. All of them along with my other friends here helped to enrich my experience immeasurably, ensuring that it will remain an unforgettable time for me.

I am forever indebted to Kenneth McLean, who generously and graciously put me up for all those months in when I was trekking daily to Kew Gardens. I also wish to acknowledge a number of people who photocopied material from various libraries in Guyana or otherwise helped me to locate information, and in particular I wish to thank Annette Arjoon, Gino Persaud and my siblings Howard and Janette. For carting stuff back and forth between Georgetown and Toronto on my behalf and for his unfailing friendship I wish to thank Joel Chee Alloy. More generally, for their

vi continued support and encouragement, I wish to thank my siblings (Joe included of course) and most of all my mother, who has always been both mother and father to me.

Finally, and perhaps most crucially, I wish to acknowledge gratefully the generous financial assistance of York University and the Canadian Commonwealth

Scholarship and Fellowship Plan.

vii TABLE OF CONTENTS

Abstract iv

Acknowledgements vi

Introduction 1

1. Historical Background 12

Theories of Aboriginal Title 21 Introductory Issues 21 The Doctrine of Continuity 31 Doctrine of Recognition 51 Aboriginal Title at Common Law 57 Application to Guyana 92

The 95 Essequebo and : (i) Incorporation and Infiltration 98 (ii) Consolidation 115 (iii) Expansion 119 128 Transition 134 Summary 138

The Evolution of Dutch-Amerindian Relations 140 Comity and Friendship 142 Entrenchment of the Dutch 15 8 The Status of Amerindian Land Rights under the Dutch 164

5. From Capitulation to Unification 178 Capitulation to the British 178 The Formation of 201

6. Consolidation of British Sovereignty 210 British-Amerindian Relations in the Early 19th Century 212 The Interplay between Local Customs & British Legal Jurisdiction 225 Becoming 'Subjects' 232

viii Crown Lands Legislation and Amerindian Title Rights 254 Legislation governing Land 260 Implications of the 'Crown Lands' Classification 274 Between Scylla and Charybdis 281 Analysis of the Crown Lands Legislation 309

Crown Lands Legislation and Amerindian Resource-use Rights 317 Amerindian Rights on 'Crown Lands' 318 Amerindian Rights in Crown Forests 342 Amerindians and Mining 348 Amerindian Reservations 355 Conclusion 362

Post-independence Developments 366 Land Rights in the Immediate Post-independence Period, 1966-1991 367 Post 1992 Reforms: 385 (i) Governance 391 (ii) Land Rights 402 (iii) Resource-use Rights: 413 (a) Traditional Rights 413 (b) Mining 417 (c) Forestry 432 Conclusion 437

10. The Land Rights of Guyana's Indigenous Peoples 440

APPENDIX A: Maps

Map 1: Boundary Lines, 1896 [Wikimedia Commons] 463

Map 2: Major Rivers and Towns http://www.lib.utexas.edu/maps/americas/guyana rel 1991.pdf 464

Map 3: Areas of Amerindian Occupation, 2008 [Guyana Marine Turtle Association] 465

Bibliography 466

IX INTRODUCTION

When the revision of the colonial legislation relating to Guyana's indigenous populations finally got underway in 2002,1 happened to be one of the lawyers involved in the process. This entailed, during the months of February to May of the following year, consultations with indigenous peoples and communities throughout the country.

To this end, hearings were held in all ten administrative regions, conducted simultaneously by two different teams. Given the relatively expansive area involved, along with the varying social, environmental, economic and other characteristics unique to the places visited, the teams were prepared for, and did indeed encounter, great diversity among the communities and their residents. However, one common concern that was always prominent on the agenda at every hearing, without exception, was the issue of land rights. And what struck me forcefully was a sentiment expressed by some of the participants, with no discernible pattern as to location or personal circumstance, regarding the supreme incongruity of our discussions of that issue. Time and again, many Amerindians asked, with no small measure of bewilderment, how they could be

"granted" what was already theirs. This was expressed in many different ways, but I came to recognise the sentiment at every hearing, and behind it, a proud assertion of their primordial status in the country.

Readers familiar with jurisprudence in this area will be reminded, as I was, of the testimony of the Nisga'a representative, David Mackay, to the first Royal

Commission in Canada in 1888, where he is quoted as saying: "what we don't like about the is their saying this: 'We will give you this much land'. How can 1 they give it when it is our own? We cannot understand it."1 Incredibly, these two sets of proceedings, separated dramatically by distance and in time, managed to evoke reactions from those involved that were strikingly similar. It would seem that whether it was 1888 in British Columbia, 1966 in British Guiana or 2003 in Guyana, indigenous peoples across the American continent are continually forced to grapple not only with the issue of their dispossession, but also with the arrogance of the newcomers.

At the hearings I was exposed, sometimes graphically and always painfully, to the often debilitating consequences to Amerindian communities of that invasion of their territories. Privately, I began to doubt the wisdom and benefits of our exercise - of what use would be settling esoteric issues as to who was or was not an "Amerindian", when many Amerindians simply had no economic opportunities for development? What value was there in debating restrictions on alcohol, when the unpoliced nature of the hinterland brought some communities into close contact with far more threatening substances? Why bother to formulate rules and regulations, when detailed provisions in other statutory enactments provided no buffer against the exploitative situations created by resource-extractive industries? But then, despite the crippling poverty in many places, the endless battles with miners and loggers, the institutional and administrative failures, and the overall despair brought on by a combination of these circumstances, I was continually reminded of the resilience of indigenous communities. In spite of their experiences that ought to have militated against it, our proceedings were well-attended and marked by vigorous participation, unreserved commitment and unquenchable hope.

1 Quoted in Calder v Attorney-General of B.C. (1973) 34 D.L.R. (3d) 145 at 178 2 It was this involvement in the law reform process, however limited, which piqued my interest in the specific issue of indigenous land rights in Guyana: not only because of the evident doubt as to its normative underpinnings that marked our discussions on the issue, but also because of its enormous relevance to contemporary

Guyanese society. As the teams witnessed first hand in the course of the hearings, threats to Amerindian settlements by the relentless invasion of their traditional territories were not confined to the early days of colonization, but remain as real today as they were in the past. Initially, plantation development on the coast and along the lower segments of the major rivers had minimal impact on the indigenous population in its entirety. However, once the economy diversified to include natural resource extractive industries, Amerindians in the interior began to face similar pressures as those of their kin on the coast. Forestry, mining, commercial and sport hunting and fisheries, ranching and the expansion of interior settlements are all activities with tremendously negative consequences for Amerindian communities.2 Despite some amount of legislative activity in the post Colonial period, the overall fragility of the national economy combined with the poor legal and administrative infrastructure have left Amerindian communities highly vulnerable to exploitation. Because of these realities, the issue of Amerindian rights to and in their traditional lands and resources is one that continues to have considerable relevance up to today.

Consequently, the focus of this dissertation is, broadly stated, the impact of colonization upon the rights of the area's native inhabitants. By 'rights' I mean

2 See generally Marcus Colchester, Guyana: Fragile Frontier (London: Latin American Bureau, 1997) 3 principally rights of ownership and/or use of land (inasmuch as these may be separate).

In addition, the existence of a wider category of derivative entitlements including ceremonial rights, spiritual rights, governance rights and so on are considered in passing, insofar as their existence may depend on the construction given to common law doctrines on the subject of traditional rights. The subject of this dissertation is therefore broader than its title suggests, though economy of expression is not meant to mislead but simply to draw attention to the central role land plays in relation to the continued existence of indigenous societies.

Equally ambitious as the subject of this dissertation is its scope, commencing at the time of contact, sometime in the late sixteenth century, and continuing all the way to the present. This approach is necessitated by the very nature of the issues under consideration, for the contemporary existence of the aforementioned rights cannot be determined without an historical examination of their treatment by successive colonial administrations. However, while historical materials comprise the foundation of this study, these materials will not be subject to the interpretive methods and concerns of the historian. In other words, we shall not focus on policies and motivations as much as on an analysis of specific laws, and the extent to which these either support or deny a normative framework of recognition of Aboriginal rights in Guyana.

Moreover, this dissertation will not examine the ethnohistory or the cultures and laws of the Amerindian Nations of the territory, partly because of the lack of information for certain periods, such as the pre-contact and the Dutch periods. Indeed, there is a conspicuous absence of indigenous arguments and claims in the historical 4 materials, and sustained accounts by indigenous peoples on this subject are of very recent vintage. Aside from these constraints, however, it would be difficult in one body of work to address comprehensively all issues relating to Indigenous societies, so that this dissertation takes as its predominant focus those related to land and resource use, examined within the context of common law doctrines.

Given the fact that this dissertation takes its approach from within the framework of Colonial law doctrines - that is to say, it examines how Aboriginal rights are constructed or treated by the dominant common law system, it mounts no challenges to the underlying applicability of that system. There are many thoughtful analyses of the latter issue - for example, Gordon Christie argues that Canadian jurisprudence has never questioned the fundamental fairness of the exercise of state power over

Aboriginal peoples. This has been a consistent theme also in the work of John

Borrows, who disputes the assertion of Crown sovereignty over Aboriginal peoples, questioning the morality and consequences of what he characterizes as a unilateral act.

These are valid concerns, but they raise profound questions as to the fundamental legitimacy of the entire colonial project, which I do not intend to re-examine in this limited space. Instead, my aims are decidedly less ambitious - and hopefully more practical - namely, to ascertain, within the framework of the imposed law, what rights do the indigenous peoples of Guyana possess to the occupation and use of land?

3 Gordon Christie, "A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation" (2005) 23 Windsor Y.B. Access Just. 20 4 John Borrows, "Sovereignty's Alchemy: An Analysis of Delgamuukw v British Columbia" [1999] 37 Osgoode Hall L.J. 537 5 To this end, I begin with a basic historical background of the territory that came to be known as Guyana, as well as a brief description of its principal indigenous peoples at the time. I then proceed in chapter 2 to outline in some detail relevant theoretical principles in the area of Aboriginal rights/title. This is an area that has spawned an enormous amount of litigation and academic commentary, particularly over the last three decades, and in the course of this discussion I draw upon this expanding jurisprudence particularly as it has embodied a profound re-evaluation of basic principles. I examine the pioneering work of Australian, Canadian and other common law courts with a view to identifying relevant principles, which may be applicable outside of their immediate domestic context as general principles of the common law.

However, while fascinating and certainly useful for its comparative value, the increasing prominence of indigenous issues means that the available literature is of voluminous proportions. Indeed, the subject areas of this study, namely Aboriginal title rights and Aboriginal user rights, have each been the subject of detailed examination by specialists both in the common law and at international law. This makes it difficult to cover all the nuances and complexities of the subject without this dissertation becoming more unwieldy than it already is. With these constraints in mind, I have confined the discussion to key issues related to the source of Aboriginal title and Aboriginal rights, as well as their continued existence. While this means that less emphasis is placed on other issues such as proof of title or the nature and content of Aboriginal rights, the latter are not ignored altogether.

6 After this outline of the applicable legal framework, I examine the development of the colony, organized according to discrete time periods. In chapters 3 and 4 I examine the Dutch period of colonization, which lasted from the early seventeenth century to 1803. In this section, I focus especially on the processes by which the hitherto sovereign peoples of the area were eventually subordinated to the laws, systems and institutions instituted by the invaders. The outcome did not entail a cataclysmic rupture with the past, but came as a result of a gradual process begun by the Dutch and completed under the English over a period of centuries. These events are important insofar as they set the stage for the analysis which follows, by providing a description of both the administrative and institutional infrastructure which came to operate in the territory, as well as the legal framework in which these institutions functioned. I also examine, insofar as the available historical material permits, the Ordinances passed by the Dutch on the subject of land and the existence of private interests and grants therein, as this naturally impacts upon the central issue of this study.

In the following four chapters I examine the period of British colonization, which is of pivotal importance to an informed determination of contemporary rights. I begin with, in chapter 5, the changeover from the Dutch. This specific period requires separate treatment on account of the fact that events at the time of conquest or cession of territory are crucial to the existence of rights thereafter. Consequently, in this chapter

I examine the actual terms of the Articles of capitulation and the later Treaty by which the territory was ceded to the British, along with their implications for the territory's inhabitants in light of prevailing common law principles. Also discussed here are the 7 terms and effect of Letters Patent of 1831 by which the three separate colonies were unified to form 'British Guiana', of special significance insofar as it established the constitutional framework of the colony. Particular attention will be paid to the limits placed upon the law-making power of the and the local legislature, as these bear upon the extent of the rights possessed by the inhabitants and the powers of the administration to grant lands.

After setting out this general background, in the following three chapters I examine the actual treatment and status of Amerindian rights during the century and a half of British rule, each chapter covering a different sub-set of rights. In chapter 6,1 focus on issues related to sovereignty, describing how the British consolidated their control over the territory. This chapter considers political issues of governance, and it outlines how legislation was used to gain control over Amerindians. To this end reservations were created over ancestral territories, and control of residents was effected through agents of the government. Although assimilation of Amerindians was generally articulated as the eventual goal of policies, actual laws reflected an overwhelming paternalistic bent - the specifics of which are outlined in this chapter.

In chapters 7 and 8 I examine economic issues related to ownership of land and use of resources, particularly through a detailed re-examination of the statutory regime as it related to Crown lands, Crown forests and the mining industry. In chapter 7 I focus on legislation of general application and how it affected Amerindian rights of ownership of land (or Aboriginal title rights). In particular, I consider the issue of extinguishment, with a view to identifying applicable common law principles on this subject. I then 8 examine, in light of these principles, various elements of the legal landscape, such as the classification of lands as 'Crown lands', the general system of conveyancing introduced, and the statutory provisions that created third party interests in lands so dubbed, with a view to determining whether rights that had survived the transition of sovereignty were terminated or otherwise interfered with during the period of British rule. In this chapter I also consider the legality and consequence of private grants on

Amerindian rights over lands dubbed as Crown lands. In chapter 8 I examine legislation specifically directed towards Amerindian rights over Crown lands, as well as the impact on Amerindian rights of twentieth century legislation regarding the forestry and mining sectors.

I conclude the examination of this subject in chapter 9 by a similar analysis of dealings with the land and resources by post-colonial . I treat this period in two discrete sections - the first dealing with the immediate post-independence period from 1966 to 1992, and the second from 1992 to the present. In the first period, I examine the nature and effect of the statutory provisions by which recognition was accorded of limited rights in Amerindians to selected areas of occupation. In the second period, I examine the legislative reforms instituted in relation to the key issues of governance, land rights, and resource-use rights. I attempt here a critical analysis of the recent Amerindian Act 2006, with a view to answering how profoundly, if at all, the law has been changed with regard to these issues.

Overall, through this chronological examination of the laws and regulations enacted in the territory as these applied to land and resources, this dissertation seeks to 9 answer the question of whether Amerindian rights to the territory survived successive periods of colonization. Ultimately, the aim is to determine the contemporary situation of indigenous peoples regarding their rights to the occupation and use of the land and its resources. It is crucial to note that no attempt is made to pronounce on the status of specific areas of occupation or the resolution of particular disputes over land, which would require evidence beyond the scope of this study. Instead, what I discuss are broad framework principles, the actual manner in which sovereignty was asserted and the consequences thereof, and finally the main legislative and acts in relation to both land and resources generally and Amerindian rights specifically. In other words, the ultimate aim of this dissertation is to explore the range and scope of rights possessed by Amerindians in Guyana with regard to the ownership, occupation and use of land, but not to resolve disputes as to specific areas of entitlement.

Finally, one last word is necessary regarding a somewhat controversial issue, namely that of nomenclature. During the consultation phase preceding the revision of the colonial legislation, Indigenous peoples objected to the continued use of the term

'Amerindian', arguing that it arose out of an historical mistake. They suggested that in keeping with the provisions of the revised Constitution, which refers to 'Indigenous

Peoples', the new Act should be called the "Indigenous Peoples' Act", which would also have the advantage of bringing it within an evolving body of jurisprudence at international law on this subject. Ultimately, this submission was rejected and the new legislation retained the name of the previous version. In this dissertation, I employ both

'Amerindian' and 'Indigenous Peoples', but my usage should not be interpreted either 10 as indicating a preference one way or the other, or as a judgment on the merits of the submission. My use of any given description is specifically to conform with its use in official documents or to retain an association with a particular jurisdiction (or a particular time period), and for this reason in other places I also refer to 'Aboriginal

Indian', 'native American' and even 'native title'. Indeed, for similar reasons I have generally retained the use of the descriptions 'Carib' and '', for even though these may not necessarily be what these groups call themselves, they are consistently used in all of the historical materials as well as the literature in this area.

More generally, over the course of the four centuries covered in this study, the names and spellings of place names inevitably changed. Likewise, I have retained the use of original spellings and/or names as appropriate to indicate context - so that, as the discerning reader might notice, 'Essequebo' during the Dutch period became

'Essequz'bo' under the British.

11 CHAPTER 1

HISTORICAL BACKGROUND

The area comprising the political entity of Guyana forms part of a larger geographical region known variously as 'Guiana' or 'The Guayanas'. Bounded by the

Orinoco river to the west, the Rio Negro and Amazon on the south and east, and the

Atlantic ocean on the north, this extensive land mass encompasses the three Guianas

(modern day Guyana, and ), as well as the eastern part of

Venezuela and the northern part of Brazil. Thickly forested and drained by an extensive network of rivers, and initially populated by a rich variety of peoples practicing what anthropologists classify as Tropical Forest culture, the earliest explorers were so daunted by this magnificent northern littoral and its inhabitants that the area between the mouths of the Orinoco and the Amazon rivers acquired the dubious epithet of the

'Wild Coast'.

Columbus reputedly first sighted the South American mainland on his third voyage, when he landed on 's southern coast. Observing the mouth of the

Orinoco, it was immediately apparent to him that the land mass stretching out before him was no island, as such a mighty body of water could only have been produced by a continent - though he mistakenly thought that he had finally reached Asia, the object of

12 his explorations. Shortly thereafter, in 1499, Vespucci, Ojeda and Cosa sailed along the entire Guiana coast, followed in 1500 by Nino and Pinzon.1

The American continent is generally agreed to be the only one in the world to have been consistently peopled by immigrants, as its earliest inhabitants are thought to have migrated there from Asia, over the Behring Strait - though the time of those migrations have been subject to constant re-evaluation. Initial estimates that the first waves of people arrived twelve to fifteen thousand years ago have been decisively rejected, principally because of the discovery of artifacts in Chile that suggest habitation of the Americas from before then, and possibly as far back as twenty and even thirty thousand years ago.3 This is a subject of fierce debates, but ultimately irrelevant to our present inquiry insofar as there is no disputing that when Europeans arrived in 1492, they encountered a continent populated along its entire length and breadth with flourishing and dynamic societies.

Equally controversial are theories regarding the specific settlement of the

Guianas, but the lack of factual evidence makes an assessment of their respective merits a somewhat difficult exercise.4 It is generally agreed, however, that the earliest settlers of the Guiana region were Amerindians who practiced what anthropologists have classified as a 'Marginal culture' - people who did not make pottery or have

1 Arie Boomert, "The Arawak Indians of Trinidad and Coastal Guiana, Circa 1500-1650" (1984) 19:2 Journal of History 123 at 125 2 N.O. Poonai, "Aspects of Amerindian History" (1963) 37 35 3 Charles C. Mann, 1491: New Revelations of the Americas before Columbus (New York: Vintage Books, 2005) 18 4 Boomert, supra note 1 at 130 13 agriculture.5 This group of people spoke a distinct language not belonging to either of the two main linguistic groups that came to dominate the region, and today their only descendants in Guyana are members of the Warrau nation. Sometime around AD 900

Arawakan-speaking peoples migrated into the region from south of the Orinoco, bringing with them the tropical forest culture based on shifting agriculture.6 They were followed soon after by Cariban-speaking-peoples, both of these groups eventually displacing the Warraus.7

By the time of European arrival, these were the three main linguistic groups inhabiting the coast, accounting in one estimate for some 19 individual tribes or nations in the year 1600.8 , a nineteenth-century ethnologist, identified 15 separate groups of people, whom he classified into four distinct branches: Warraus,

Arawaks, Wapianas and Caribs. The latter two - Wapianas and Caribs - encompassed several sub-groups or tribes. These sub-groups were identified by Im Thurn as true

Wapianas, Amaripas and Atorais in the case of the Wapiana branch, and true Caribs,

Ackawoi, Macusi and Arecuna in relation to the Carib one.10

' Colin Henfrey, Through Indian Eyes: A Journey Among the Indian Tribes of Guiana (NY, Holt, 1965), 257 6 Raymond T. Smith, British Guiana (London: OUP, 1962), 12 7 However it should be noted that this is merely a summary of an ongoing debate among anthropologists. While archaeologists contend that the tropical forest people migrated to this region at a comparatively recent time, another, more traditional school of thought holds that Guiana was the nexus from which the culture spread. See, for example: Michael Swan, The Marches of (London: Jonathan Cape, 1958)283 8 Henfrey, supra note 5 at 260; Arie Boomert estimates that there were about 22 different nations at the time of contact. 9 Everard Im Thurn, Among the Indians of Guiana. 1883, reprint NY: Dover Publications, 1967, p. 162 wIbid, at 165 14 While it is agreed that of these groups the Caribs were the last to arrive in the

Guiana region, doubts also exist regarding the trajectory of their migration. According to one view they arrived by land and then crossed over to the islands, while another posits a reverse journey, from the islands to the mainland. Although Im Thurn suggests that the latter route is more likely, this theory leaves unexplained how they got to the islands in the first place.11 At any rate, what is known for sure is that by the time the

Caribs arrived the Warraus were occupying the coastal swamps south of the mouth of the Orinoco, the were southeast of the Warrau territory and the Wapianas were occupying the interior savannahs.12 Moreover, although the Caribs were apparently more powerful than the Arawaks and Warraus whom they met upon arrival, and had even begun to replace the former in their coastal settlements,13 the Caribs never succeeded in doing so entirely. This was because of the presence of the more powerful

Europeans who came to the area at around the same time, in the late fifteenth and early sixteenth centuries.14

Indeed, European arrival in the region was a cataclysmic event, which disrupted existing settlements, trading links, economic activities and intertribal relations. It led to the reconfiguration of social and political dynamics and existing demographic patterns.15 One result of these upheavals was the disappearance of entire ethnicities, and by the twentieth century the hitherto flourishing diversity in the population of the region

u Ibid, at 172-3 12 Ibid, at 172 13 Boomert, supra note 1 at 131 14 Im Thurn, supra note 9 at 174 15 Boomert, supra note 1 at 155-8 15 had been reduced to a mere nine distinct groups, namely Caribs, Warrau, Arawaks,

Wapishanas, Macusis, Patamonas, Akawaios, Arekunas and Wai Wai.16

The initial size of the aboriginal population is another matter surrounding which there is considerable uncertainty. Written accounts of the Guiana region are notably lacking for the period prior to 1590, which is no doubt responsible for the sometimes dramatic variations in estimates of the nature and extent of the settlements at the time of contact. For instance, while one historian puts the total population of the region at

150,000 people at the time of contact,17 another has estimated just the Caribs alone as numbering some 140,000.18 Clearly, though, the initial numbers were far more substantial than what was later revealed by subsequent censuses. Based on counts done of the aboriginal population residing along the banks of the , Moruca, Waini and Barima Rivers in 1840 and again in 1881, Im Thurn extrapolated that the total

Amerindian population at that time was somewhere in the vicinity of 20,000 people.1

Altogether, one must acknowledge the difficulties in arriving at a precise figure, given that contact was restricted to coastal populations, and even then the extensive forest cover obscured the true extent of the population, which was also highly migratory.

Nonetheless, it is fairly certain that at the time of contact the entire area was populated with thriving settlements of numerous and diverse groups of peoples. According to one of the leading historians of the period, Amerindians once occupied more than 50,000 of

16 Henfrey, supra note 5 at 260; See also Report of the Amerindian Lands Commission, Government of Guyana, 1969, paragraph 30 17 Poonai, supra note 2 at 36 18 James Rodway, "The Indian Policy of the Dutch" (1896) X Timehri 13 19 Im Thurn, supra note 9 at 157 16 the present 83,000 square miles of what now constitutes the territory of Guyana. But in less than three centuries after contact, both their numbers and areas of occupation were to be dramatically reduced.

Although colonization by the Dutch and then the English caused tremendous upheaval among native societies of the region, including the disappearance of some groups altogether and the radical displacement of those that survived, Amerindians in the Guiana territory confounded predictions of their eventual extinction. The various groups of native people who began to interact with European explorers and traders from the late sixteenth century somehow managed to withstand the relentless crush of foreign encroachment, though the coastal populations were the hardest hit because of the manner in which the economy developed. In relation to interior areas though, patterns of distribution of Amerindian settlements remained very similar up to the present, as the following brief sketch indicates.

Along the coast were the Warraus, who occupied a wide swathe of land from the swamps of the Orinoco to the lower reaches of the Barima River.22 The Arawaks also dwelt on the coastal area, but more to the south and east of the Warrau territory.23

Immediately to the south of these coast-dwelling peoples were the Akawaios, who

Mary Noel Menezes, British Policy towards the Amerindians in British Guiana, 1803-1873 (Oxford: OUP, 1977), 19 21 See, for example, Rodway, supra note 18 at 31; or the comments of John Paterson, who wrote in 1893: "I simply look upon the obliteration of the Indian as inevitable, in short, a realization of Darwin's theory of survival of the fittest. At the same time I think it would be well to preserve a few Indians by reservations, etc., as is done in America, just as a curiosity for future generations." [ "The Crown Lands of British Guiana" (1894) VIII Timehri 331 at 348] 22 British Guiana/ Boundary Arbitration Proceedings, 1899, British Case, Volume 1, p. 11 hereafter 'British case']. See maps in Appendix A for a depiction of these locations. 3 Im Thurn, supra note 9 at 170 17 occupied the forested areas in the region from the Upper Cuyuni through to the

Pomeroon and Demerara.24 In the forested mid-section of the country also resided the

Patamona peoples, and scattered throughout the entire area were Caribs, whose settlements can still be found in the Upper , the Mazaruni, Upper Cuyuni,

Pomeroon and Barima Rivers.25 As mentioned before, it has been conjectured that since the Carib arrival in this region was around the same time as that of the Europeans, the former were prevented from replacing the original occupants of the area, but this helps to explain why Carib communities are interspersed in the same areas with those of other nations.26

To the west of the Akawaios were the Arecunas, who occupied the Pakaraima

97 region on the border with Venezuela, where they continue to live until now.

Immediately south of the Arecunas were the Macusis, who can still be found in the north along the Rupununi, Ireng and Takutu Rivers and between the

Pakaraima and Kanuku mountain ranges.28 Further south are the Wapishanas, and in the deep south of the country at the source of the Essequibo live the Wai Wai.29 In addition to these nine surviving groups there are remnants of other smaller tribes, such as the Atorad, Trio and Taruma, but these ceased to exist in distinct communities from

British case, supra note 22 at 10; William Hilhouse, Indian Notices. 1825. reprint (Georgetown: GNS Publishing Centre, 1978) 20 25 British Case, ibid 26 Im Thurn, supra note 9 at 169 27 Menezes, supra note 20 at 26 28 Ibid, at 27 29 Ibid 18 late in the nineteenth century and have been assimilated almost entirely within larger and more powerful groups.30

The convulsive effects of colonization and loss of land upon indigenous communities in Guyana were by no means singular. Across the , prospects for native communities were similarly dim, and striking parallels are to be found not only in experiences but also in the manner of the response and the substance of crown policies. In the course of the nineteenth century, as asymmetric relations between settlers and natives became more pronounced, friendship and respect gave way to policies of paternalism, assimilation and just plain neglect. This was compounded by appropriation of native lands, with the occupants confined to tiny reserves, and the predictable outcome was economic, social and cultural degradation of indigenous peoples. These are broad strokes, but detailed histories and current accounts of many

T 1 settler societies reveal only localized differences in timing and degree.

But by the 1970's, the status quo seemed about to change. Across diverse parts of the globe, from New Zealand to Canada, indigenous people began to awaken to a new consciousness. This resurgence was not confined to the more developed parts of

Im Thurn, supra note 9 at 170-1 31 In relation to Canada, for example, a sensitive overview of these problems is given in Andrew J. Orkin, "When the Law Breaks Down: Aboriginal Peoples in Canada and Governmental Defiance of the " (2003) 41 Osgoode Hall L.J. 445, and for a comparative approach covering Australia, Canada and the United States see Julie Cassidy, "The Legacy of " (2003) 51 Am. J. Comp. L. 409 and Peter Karsten, Between Law and Custom: High and Low Legal Cultures in the Lands of the British Diaspora - the United States, Canada, Australia, and New Zealand, J 600-1900 (Cambridge: Cambridge University Press, 2002) 32 See generally Hamar Foster, Heather Raven & Jeremy Webber, eds., Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) 19 the world, but could be felt even in the Caribbean.33 In Guyana, it was marked by statutory recognition of indigenous land rights in 1976, precipitated by the advocacy of

Amerindians themselves, who had become more organized and vocal as the century drew to a close. One result of this indigenous political and cultural reawakening worldwide has been an increasing recourse to the courts, which has led in turn to an explosion of jurisprudence and related academic commentary on the subject of indigenous rights generally. It is to an examination of this jurisprudence that I now turn.

33 See the collection of articles in Max Forte, ed., Indigenous Resurgence in the Contemporary Caribbean: Amerindian Survival and Revival (New York: Peter Lang, 2006) 20 CHAPTER 2

THEORIES OF ABORIGINAL TITLE

Introductory Issues

The issue with which we are concerned is, simply put, the impact of Dutch and

British assertions of sovereignty over the territory that came to be known as British

Guiana and later Guyana. Did these assertions of sovereignty, along with the acts they gave rise to, result in the abrogation of the rights of Amerindians to the land they occupied and used? If so, on what legal basis were such rights extinguished? If they survived, what is the contemporary form of such rights? Are they, for instance, mere rights of occupancy, or do they extend to full ownership with corresponding rights to use the land and exploit its surface and subterranean resources?

An examination of these issues requires first of all that the applicable theoretical framework be identified, against which the history of colonial and post-colonial dealings with land and natural resources can be analysed. This involves a determination of not only the rules themselves, but more fundamentally the legal system from which such rules should be drawn. Any approach constructed around the English common law, which was imposed upon native Amerindian societies, might be criticized as lacking in legitimacy. The stark reality is, however, that it is far too late in the day to question the fact of sovereignty acquired by the invading European nations, first Dutch and then

British. Whatever the rules were that governed native polities (not now easily discernible), the received common law eventually came to overshadow other systems, 21 and it now provides the existing legal and institutional structure of the State. This received law is thus a logical, and perhaps even the most practical, framework within which to commence any analysis seeking a determination of current legal rights.

Another preliminary issue that must be clarified at the outset concerns the class or species of the applicable rules themselves. A complicating factor here, though only superficially so, is the retention of some elements of Roman-Dutch law that had been enacted during the intervening period of Dutch rule in Guiana. Specifically, section

3(C) of the Civil Law ofGuyana Act preserves Roman-Dutch law in relation to land, providing that "the English common law of real property shall not apply to immovable property in Guyana." However, this provision does not mean that the issue of the survival of Amerindian rights to land falls to be considered under the principles and tenets of Roman-Dutch law, as this issue is one of constitutional, not property law. In this context, one is required to distinguish between what are two separate issues. The existence and incidents of property rights are matters of real property law, and it is the municipal law of real property that governs private transactions relating to land.

However, the Crown's authority in relation to those rights, which necessarily bears upon the question of native land rights, is a 'public' matter, or one that falls squarely in the area of constitutional law. This is how two Australian scholars expressed it in 1973:

"Questions of property law are irrelevant to native rights. With the obvious exception of

1 In Mabo and others v Queensland (No. 2) (1992) 107 A.L.R. 1 Brennan J said in relation to a similar issue in the Australian context (atp. 21): "sovereignty...was consolidated by uninterrupted control..." 2 This is a reality that has also been acknowledged in the academic literature: Keon-Cohen, B. and Morse, B., "Indigenous Land Rights in Australia and Canada" in Aborigines and the Law, eds. Peter Hanks and Bryan Keon-Cohen (Sydney: Allen & Unwin, 1984) 74 at 79 3 Chapter 6:01, Revised Laws of Guyana, 2002 22 broad humanitarian grounds, the obligation to respect native rights is found in a consideration of the aborigines' status as British subjects and of the Crown's power to abrogate the property rights of British subjects. This alternative conceptual framework, based squarely on constitutional law, explains and establishes the Crown's obligation."

An instructive case in point comes from Canada, another former British colony which, like Guyana, includes areas that were colonized by a different European nation prior to the accession of British rule - in their case the French. In R. v. Cote,5 decided by the Supreme Court of Canada in 1996, the appellants, all members of the Algonquin nation, were appealing their convictions for various breaches of fishing regulations in

Quebec. The Supreme Court allowed the appeals, holding that the fishing regulations infringed the appellants' aboriginal right to fish for food.

One of the preliminary issues that had to be determined by the court was whether aboriginal rights had in fact survived the assertion of French sovereignty in

Quebec, which was once part of the territory of New France. The respondents argued that the French crown had assumed full ownership of all lands upon symbolic possession and conquest, and that after capitulation to the British, pre-existing French colonial law was fully received under the terms of the Quebec Act of 1774, as well as in accordance with general principles of English law relating to conquest. Therefore, the respondents concluded, the common law incorporated the non-existence of Aboriginal rights within New France.

4 Geoffrey Lester and Graham Parker, "Land Rights: The Australian Aborigines Have Lost a Legal Battle, But..." (1973) 11 Alta. L. Rev. 189 at 196 5 R. v. Cote [1996] 3 S.C.R. 139 23 The Supreme Court did not accept these arguments, ultimately on the ground of the constitutionalization of Aboriginal and Treaty rights in s. 35(1) of the Constitution

Act, 1982. However, the Court's view of the implications of British sovereignty, in the absence of s. 35(1), is highly instructive. The Justices started off from the premise that

French law was not as clear as the respondents had submitted. While Aboriginal rights and title to land had not been explicitly recognised by the French Crown, the Court found no evidence that they had been extinguished either. That the French had never assumed ownership of lands occupied by aboriginal peoples was a supposition reinforced by historical materials which suggested that the French were outnumbered and had not extended beyond the St. Lawrence Valley into Aboriginal territory.

Moreover, it was the consistent practice of the French crown to treat with Aboriginal peoples as sovereign nations.

However, irrespective of the position regarding French treatment of Aboriginal rights and title, the Supreme Court of Canada was not prepared simply to apply French colonial practice to the present, as the Justices were of the view that it had not been

"mechanically received" by the common law. Instead, the common law recognizing aboriginal title came to be applicable to Quebec as a necessary incident of British sovereignty over the territory. In a passage that resonates with significance for Guyana with its own history of multiple colonizers, Lamer C.J.C., writing for the majority, put it this way:

It is true that under The Quebec Act, 1774, and under the legal principles of British conquest, the pre-existing laws governing the acquired territory of New France were received and continued in the absence of 24 subsequent legislative modification. It is by these legal means that the distinct civilian system of private law continues to operate and thrive within the modern boundaries of the province of Quebec. But while the new British regime received and continued the former system of colonial law governing the proprietary relations between private individuals, it is less clear that the advent of British sovereignty continued the French system of law governing the relations between the British Crown and indigenous societies. In short, the common law recognizing aboriginal title was arguably a necessary incident of British sovereignty which displaced the pre-existing colonial law governing New France.

In this passage, Chief Justice Lamer was quoting substantially from the writings of Professor Brian Slattery of Osgoode Hall Law School. According to Slattery, imperial constitutional law emerged out of Crown policies and practices to govern issues relating to Britain's expanding empire, such as the constitutional status of colonies, the legal parameters of the relationship between the Crown and its overseas possessions, and legal rights of Aboriginal peoples.7 Moreover, this embryonic

Colonial law was not developed in isolation, but was in fact shaped by the 'inter- societal custom and law' generated by the interaction of the native and settler societies.

In an illuminating passage, Slattery posits: "Although the doctrine [of aboriginal rights] was a species of unwritten British law, it was not part of English common law in the narrow sense, and its application to a colony did not depend on whether or not English common law was introduced there. Rather the doctrine was part of a body of

6 Ibid., at pages 172-3 [emphasis supplied] 7 Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 Can Bar Rev. 727 at 737; According to Mark Walters, "Imperial law" or "Imperial common law" emerged out of both crown usage and practice as well as the jus gentium: Mark D. Walters, The Continuity of Aboriginal Customs and Government under British Imperial Constitutional Law as Applied in Colonial Canada, 1760-1860 (PhD Dissertation, Oxford University, 1995) 21-4 8 Brian Slattery, "Aboriginal Sovereignty and Imperial Claims" (1991) 29 Osgoode Hall L J. 681 at 702 and generally Jeremy Webber, "Relations of Force and Relations of Justice: The Emergence of Normative Community Between Colonists and Aboriginal Peoples" (1995) 33 Osgoode Hall L.J. 623 25 fundamental constitutional law that was logically prior to the introduction of English common law and governed its application to the colony."9

Slattery's thesis is in turn firmly grounded in jurisprudence that emerged from the United States and diverse parts of the British Empire in the early period of colonialism. A trilogy of cases dealing tangentially or directly with the land or territorial rights of Native Americans, which engaged the United States Supreme Court in the first half of the nineteenth century, represents the earliest articulation of doctrinal principles on this subject. The rationale of these cases was based in part on the practice and policy of the British crown towards its overseas possessions, and they have proved to be of enduring influence in other jurisdictions where settler populations came into contact with native societies. One of the earliest examples of their application outside of the

American context is R. v. Symonds,10 a landmark case from New Zealand in 1847. In

Svmonds, Chapman J explains the genesis of Colonial law "higher principles" in a most helpful manner:

The intercourse of civilized nations, and especially of Great Britain, with the aboriginal natives of America and other countries, during the last two centuries, has gradually led to the adoption and affirmation by the Colonial Courts of certain established principles of law applicable to such intercourse. Although these principles may at times have been lost sight of, yet animated by the humane spirit of modern times, our colonial Courts, and the Courts of such of the United States of America as have adopted the common law of England, have invariably affirmed and supported them; so that at this day, a line of judicial decision, the current legal opinion, and above all, the settled practice of the colonial Governments, have concurred to clothe with certainty and precision what would otherwise have remained vague and unsettled. These principles

9 Slattery 1987, supra note 7 at 737-8 10R. v. Svmonds [1840-1932] NZPCC 387 26 are not the new creation or invention of the colonial Courts. They flow not from what an American writer has called the "vice of judicial legislation." They are in fact to be found among the earliest settled principles of our law; and they are in part deduced from those higher principles, from charters made in conformity with them, acquiesced in even down to the charter of our own Colony...u

Thus far, these decisions and the critical literature in support paint a decidedly progressive picture of Imperial law, insofar as its interaction with Aboriginal peoples is concerned. Left there, however, that would be a misleading picture, for in other jurisdictions the common law has been subject to a diametrically opposed interpretation, best exemplified by the first instance decision in the Australian case of Milirrpum v

Nabalco Party Ltd.12 This case concerned a challenge brought by the representatives of several native clans to proposed bauxite mining operations by the defendant company in an area known as the Gove Peninsula. The trial judge, Blackburn J, found in favour of the defendants on the ground that the plaintiffs had failed to establish that their predecessors had the same links to the disputed area at the time of assertion of British sovereignty in 1788. The judge based his finding on the possibility, arising from the evidence, that specific groupings or clans could have become extinct in as little as three generations, so that, in theory at least, the present plaintiffs need not have descended from the same tribal grouping that had occupied the Gove Peninsula some two hundred years earlier. Simply put, the plaintiffs failed to discharge the burden of proof. One may be tempted to ask why this onus was not cast the other way around, i.e., why was it not

11 Ibid, at 388; Note also the opinion of Strong J (dissenting) in St. Catharines Milling and Lumber Co. v The Queen [1887] 13 S.C.R. 577 at 608-617 (Supreme Court of Canada) 12 Milirrpum v Nabalco Party Ltd (1971) 17 Fed L.R. 141 27 for the defendants to disprove that the plaintiff clan had descended from the original occupants of the disputed area, but there are more fundamental difficulties with the ratio of the decision than its evidentiary premises.

In the course of the judgment Blackburn J reviewed the major decisions from the United States and around the British Commonwealth where claims by aboriginal peoples to land were litigated, concluding "I have examined carefully the laws of various jurisdictions which have been put before me in considerable detail by counsel in this case, and ... in my opinion no doctrine of communal native title has any place in any of them, except under express statutory provision."14 In finding against the aboriginal claimants, Blackburn J relied on Australian authorities, which in his view reaffirmed the "fundamental principle" of English real property law that no subject can hold land allodially, but only an estate or interest in it which he holds mediately or immediately of the Crown. He posited: "On the foundation of New South Wales, therefore, and of South Australia, every square inch of territory in the colony became the property of the Crown."15

Having found against the plaintiffs on the facts, Blackburn's conclusions on the law were, strictly speaking, obiter dicta. Moreover, this case has since been overruled by the Australian High Court.16 Nonetheless, it cannot be ignored altogether because,

13 For detailed commentary on the decision see Lester & Parker, supra note 4, John Hookey, "The Gove Land Rights Case: A Judicial Dispensation for the Taking of Aboriginal Lands in Australia?" (1972- 1973) 5 Fed. L. Rev. 85 and Richard Bartlett, "Aboriginal Land Claims at Common Law" (1983) 15 Uni of Western Australia Law Review 293 14 Supra note 12 at 244 15 Ibid at 245 16 In Mabo and others v Queensland (No. 2). supra note 1 28 aside from the wide-ranging discussion of case law contained in the judgment, whenever the subject of indigenous land rights has been raised in Guyana, and it would seem elsewhere in the Commonwealth Caribbean,17 Blackburn's approach has figured in the arguments, dicta or even scholarly commentary. By way of comparison, for example, in his 1966 treatise on land law in British Guiana, Fenton Ramsahoye reflected only fleetingly on the possibility that Amerindians might have had a customary legal system relating to land, before setting the record straight on Crown ownership. So brief was Ramsahoye's treatment that it can be quoted in full:

"The latter [aboriginal Indians who inhabited the colony] were nomadic tribes whose customary law, if indeed there was any, has not been the subject of academic treatment and may well be left to the anthropologists and historians of the future. The ownership of all land in British Guiana can be traced to the prerogative by virtue of which ownership of land vested in the Crown at cession, or to grants from the Dutch West India Company and later from the Crown in favour of the Colonial 1 8

Government, private individuals and in some cases, corporations."

More than three decades later, in the only suit brought in Guyana claiming aboriginal title to certain areas of land, the response of the State in its Defence to the

Statement of Claim was a denial of the claimed immemorial occupation of the plaintiff

Amerindian communities, together with the astonishing contention that "the sovereignty of the Dutch over the colonies of Berbice, Demerara and Essequibo was ceded in 1803 to Britain and these colonies were united into one, British Guiana, in 1831 by Sovereign Act and all traditional native title, if any, was superseded by the Crown's radical title."19

17 See Aurelio Cal et al v Attorney-General of Belize. #171&2 of 2007, paras. 69-71 [SC of Belize] 18 Fenton Ramsahoye, The Development of Land Law in British Guiana (Dobbs Ferry, NY: Oceana Publications, 1966)25 19 Van Mendason et al v Attorney General of Guyana, Action #1114-W of 1998, paragraph 5 of the Statement of Defence filed the 17th January 2000 (hereafter the 'Upper Mazaruni land claim') 29 These divergent views of the effect of British sovereignty are wholly incompatible, but the fact of their existence ought not to be entirely unexpected. The common law, dependent on judicial articulation and subject to the influence, however subtle, of the opinion of jurists, has never been static in a single jurisdiction. Factor in the size and diversity of the British Empire, combined with the enormous implications of the issue under consideration, and the result is that on the subject of the survival of indigenous rights, judicial approaches and scholarly discourses straddle a multiplicity of positions. In between the Cote acceptance at one end that the common law recognised aboriginal title, and the Milirrpum denial of this position at the other, still other approaches can be found. A number of cases from India between the late nineteenth and early twentieth centuries, for example, asserted that in the absence of some form of official recognition by the colonizing State, local rights to land are automatically terminated, whereas a conflicting line of cases from West Africa in the early twentieth century consistently applied the principle that on a change of sovereignty local proprietary rights survive intact. These disparate approaches and their underpinning rationales pose an initial task of identifying what, if any, common principles exist, and if so, whether they transcend their immediate domestic context and have any relevance as general principles of British colonial law. It is to an exploration of this subject that I now turn.

Note also the comments of Lord Watson in Cooper v Stuart (1889) App. Cas. 286 at 291, where the denial of any common law doctrine of aboriginal title was rationalized partly on the ground that at the time it was acquired by the British Crown, New South Wales did not have "settled inhabitants or settled law". 30 The Doctrine of Continuity

During medieval times, sovereignty over territory was not always distinguishable from ownership of the same, no doubt because the latter was often the thinly disguised purpose of conquest in the first place.21 At that time, Western European aggrandizement was confined to the immediate precincts of Eastern Europe, the

Mediterranean and northern Africa, legitimated by theories that denied to non-

Christians the capacity to own land. Such religious-inspired dogma inspired the

Crusades of the Middle Ages, and in this hallowed tradition were the Papal Bulls that authorised the conquest of pagans further afield and which explicitly excluded lands possessed by 'Christian Kings or Princes'. Of these Bulls, the most infamous is surely the one issued by Alexander VI in June 1493, which purported to divide the newly

'discovered' region of the Americas between and .23 Thus heathenism, or at least divergence from the Christian norm, not only constituted an impediment to eternal salvation, it also rendered natives devoid of temporal rights. And since they were not capable of owning property, then the land occupied by them was free for the taking.

In its most hideous manifestation this Eurocentric worldview found expression in the Spanish document of conquest known as the Requerimiento, which had to be read out to native communities which Spanish intended to subjugate. The text

21 John Thomas Juricek, English Claims in North America to 1660: A Study in Legal Constitutional History (Ph.D. Dissertation, University of Chicago, 1970) 120 Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (NY: Oxford University Press, 1990) Chapter 2 23 Juricek, supra note 21 at p. 60 et seq 31 of this document recited in summary form the Christian version of the creation of the world, the authority of the Pope, and his donation of the territory to the Spanish monarch. The natives were required to submit on pain of war, in the event of which the consequences would be their own fault. As spelt out in this bellicose document, those consequences were chilling:

"We shall take you and your wives and your children and shall make slaves of them, and as such shall sell and dispose of them as their highnesses may command; and we shall take away your goods and shall do to you all the harm and damage that we can..." 4

Another influential but somewhat distinct line of thought prevailing in the early period of Spanish colonialism was based upon Aristotelian theories of natural slavery.

According to these theories, humankind was ordered hierarchically, with some being natural leaders and others doomed to serve by reason of their inferior intellect and innate physical strength. Some Spanish theorists writing in the sixteenth century interpreted these arguments as justification of the conquest of Native Americans, who were deemed to be primitive and thus in dire need of the benevolent leadership provided by the rational Spaniards.

Closely aligned to justifications of proselytisation and/or the alleged barbarism of natives were related but more utilitarian notions of ownership that constructed peoples with a hunting and gathering lifestyle as undeserving of the territories they used. This philosophy has been most closely associated with Emmerich de Vattel, an

24 Williams, supra note 22 at 91-2; See also Ronald Wright, Stolen Continents: 500 Years of Conquest and Resistance in the Americas (NY: Mariner, 1992) 65-66 25 Martin van Gelderen, "Vitoria, Grotius and Human Rights: The Early Experience of Colonialism in Spanish and Dutch Political Thought" in Human Rights and Cultural Diversity, ed. Wolfgang Schmale (Goldbach: Keip Publishing, 1993) 215 at 217-8 32 eighteenth century Swiss jurist. Vattel theorized that the cultivation of the soil was fundamental to the prosperity of any nation, which consequently imposed an obligation on governments to promote husbandry within their territories. As benign as this seems, the corollary of this theory held significant extra-territorial implications - according to Vattel, nations like the modern Tartars that eschewed cultivation for plunder "deserve to be extirpated as savage and pernicious beasts."27 Such a harsh fate was not for Nations or peoples that did not prey on others, but nonetheless those that did not maximize the land over which they roamed could be justifiably confined to smaller areas, which would make room for more industrious people. In Vattel's view:

"...though the conquest of the civilized empires of Peru and Mexico was a notorious usurpation, the establishment of many colonies on the continent of North America might, on their confining themselves within just bounds, be extremely lawful. The people of those extensive tracts rather ranged through than inhabited them." 8

This perspective assumed that those who did not practice agriculture did not make constructive use of the territories over which they 'ranged' and so did not legally possess them, which in turn justified Europeans in appropriating such territories on both legal and moral grounds.

Thus it is no surprise that in the Royal Commissions and Charters issued and acted upon by European nations, particularly those seeking to challenge Iberian ascendancy, references can be found both to the unbelief of native inhabitants, as well

26 Emmerich de Vattel, The Law of Nations. Transl. Chitty (London: Sweet & Maxwell, 1834) Book I, paras. 77-80 7 Ibid, at para. 81 28 Ibid 29 Ibid, at para 209 33 as to their alleged barbarism. The patent granted to Robert Harcourt by the British monarch on August 28, 1613, for example, authorizes conquest of countries (Guiana included) "lyinge Waste and being savage", of which its inhabitants "make no tytle or noe use at all".

Jurisprudence from the settler societies that emerged from territories thus acquired acknowledged these narratives of dispossession - on occasion bluntly so.

Writing on this subject in 1833, Justice Story in his Commentaries on the Constitution of the United States disputed Blackstone's characterization of the "American

Plantations" as ceded or conquered countries, stating that despite the fact that these territories were inhabited they were treated by European nations as acquired by discovery. As for those prior inhabitants, Justice Story commented:

"...the title of the Indians was not treated as a right of propriety (sic) and dominion; but as a mere right of occupancy. As infidels, heathen, and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations. The territory, over which they wandered, and which they used for their temporary and fugitive purposes, was, in respect to Christians, deemed, as if it were inhabited only by brute animals."32

In this passage one can discern the unmistakable influence of John Marshall,

Chief Justice of the U.S. Supreme Court, who in his landmark 1823 decision in Johnson v MTntosh had first described the right of native Americans to their unceded territories as a mere 'right of occupancy'. Marshall, however, expressed himself far more

M. F. Lindley, The Acquisition and Government of Backward Territory in International Law. (New York: Negro Universities Press, 1969), 24-26 31 Juricek, supra note 21 at 556; See also the examples given by Marshall C.J. in Johnson v M'Intosh (1823) 21 U.S. (8 Wheat) 543 at 573-580 32 Joseph Story, Commentaries on the Constitution of the United States. Reprint, (New York: Da Cappo Press, 1970) Vol. I, para. 152 34 elegantly: "On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy."

Marshall was not entirely free of the prejudices he described, as betrayed later on in this very judgment when he suggested that an "excuse" for the expulsion of Native

Americans from their territories could be found in their "character and habits".34 Later on, he continued revealingly:

"But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness.. ."35

In other words, unenclosed land used communally did not conform to Eurocentric understandings of property use and ownership, and constituted 'wilderness' or waste lands - uninhabited and up for grabs.36

Yet at the time Marshall C.J. was writing this decision in 1823 there had long been in existence another body of scholarly opinion opposed to these views of the legal incapacity of non-Christians. The concepts of sovereignty (or imperium) and property

(or dominium) were distinct ones at international law,37 and emphasizing this distinction

33 Johnson v M'Intosh. supra note 31 at 572-3 34 Ibid., at 589 35 Ibid., at 590 36 See also Patrick Macklem, Indigenous Difference and the (Toronto: UT Press, 2001) 80-81 37 Sir Kenneth Roberts- Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966), 625 35 were equally hallowed principles of continuity that treated public and private rights differently on the acquisition of territory. Over half a century ago Professor D.P.

O'Connell stated that the protection of rights of private property on change in sovereignty had been acknowledged from since the seventeenth century,38 but in fact,

Oft the roots of this principle are far more ancient, reaching as far back as Roman law.

Certainly, from around the sixteenth century when Columbus's discovery unleashed a frenzy of exploration, there was an accompanying explosion of intellectual, and in some instances impassioned, debates as to the legitimacy of the conquest of the American natives. In this regard, the work of the pioneering Dominican theologian Francisco de

Vitoria figures prominently. Vitoria argued that natives were rational beings, and that their lack of Christian faith was no justification for stripping them of their property. In a celebrated lecture entitled "On the Indians lately discovered', Vitoria asserted that the

Pope had no power over the Indians and could not grant away their lands. In his own words: "Unbelief does not destroy either natural law or human law; but ownership and dominion are based either on natural law or on human law; therefore they are not destroyed by want of faith... Hence it is manifest that it is not justifiable to take anything that they possess from either Saracens or Jews or other unbelievers as such, that is, because they

JS O'Connell, "Change of Sovereignty and the Doctrine of Act of State" (1952) 26 Aust. L.J. 201-202 and Lindley, supra note 30 at 337 39 Juricek, supra note 21 at Chapter II generally; Mark D. Walters, "The "Golden Thread" of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982" (1998-9) 44 McGill L. J. 711 at 721-2 and Russel Lawrence Barsh, "Indigenous Rights and the Lex Loci in British Imperial Law" in Advancing Aboriginal Claims: Visions/Strategies/Directions, ed. Kerry Wilkins (Saskatoon: Purich, 2004)91 at 92 36 are unbelievers; but the act would be theft or robbery no less than if it were done to Christians."40

Vitoria not only rejected the characterization of native Americans as devoid of reason, pointing to the organized nature of their societies prior to contact with

Europeans, but more fundamentally he disputed the underpinnings of this theory, namely, the Aristotelian philosophy of natural slavery. Although he conceded that there were some, like Native American societies, which were at lower stages of development, any such deficiency did not render them incapable of owning property.41

Although they were based on medieval precedents, Vitoria's theories revolutionized the epistemology of indigenous rights, and his influence can be discerned in the writings of his contemporaries such as Dominic Soto and the famous Spanish missionary Las Casas, as well as in that of other commentators in subsequent centuries.42 Notable among the latter was the distinguished Dutch jurist, Hugo Grotius, who published his polemic in 1609 directed against Portugal's pretensions to a monopoly of trade in the East Indies. Relying upon Victoria, Grotius postulated: "But the Indians, when the Portugals came unto them, although they were partly idolators, partly Mahometans, and entangled in grievous sins, yet had they both publicly and privately authority over their own substance and possessions which without just cause could not be taken from them."43 Of course, Grotius' work was not primarily the product of altruistic concerns for the welfare of non-Europeans, but was crucially

40 Francisci De Victoria, De Indis et De Ivre Belli Relectiones, ed. Ernest Nys (rep. NY: Oceana Publications, 1964) 123 41 Ibid, at pp. 125-8 42 van Gelderen, supra note 25 at 218 & 221; Lindley, supra note 30 at pp 12-17 43 Hugo Grotius, Mare Liberum. transl. by Richard Hakluyt (Indianapolis: Liberty Fund, 2004) 14 37 shaped by prevailing Dutch resentment of Spanish rule and the perceived need to preserve their burgeoning commercial might. But, despite these political imperatives, it certainly formed part of a larger body of scholarship that challenged the intellectual and moral foundations of the dispossession and colonization of native peoples.

At any rate, whatever the precise evolution of the position at international law, the common law at least has long adopted a more consistent position of respect for the continuity of private rights.45 Initially, this was expressed as a presumption of law operating where the British Crown had succeeded a recognized sovereign - in other words, where new territory was acquired by conquest or cession - and it received its most famous judicial exposition for the first time in 1608.46 In that year, the issue arose in Calvin's Case47 whether the plaintiff, who was born in Scotland following the accession of James 1, was entitled to hold lands in England. In deciding in favour of the plaintifiXoke C.J. had this to say:

"...if a King come to a Christian kingdom by conquest, seeing that he hath vitae et necis potestatem, he may at his pleasure alter and change the laws of that kingdom: but until he doth make an alteration of those laws the ancient laws of that kingdom remain."

44 van Gelderen, supra note 25 at pp. 223-226 45 Brian Slattery, The Land Rights of Indigenous Canadian Peoples, as Affected by the Crown's Acquisition of their Territory (D.Phil. Thesis, Oxford University, 1979), hereafter 'Land Rights'; Hookey, supra note 13 at 88-89, and see Walters, 1998-9, supra note 39 at 722-9, where he identifies four justifications based on principle, as distinct from mere precedent, for the application of continuity principles. See Barsh, supra note 39 at 94-96 for a fascinating account of the history of the common law on this subject. 47 Calvin's Case (1608) 7 Co. R. 1 wIbid., at p. 19b 38 Calvin's Case was followed in a number of other cases and by the mid- eighteenth century it had become well-entrenched. In subsequent cases the principle was refined and expanded, and a whole body of law arose concerning the consequences of sovereignty and the power of the Crown upon the acquisition of new territory. In summary, it was laid down that in settled colonies Englishmen 'carried' their laws with them, whereas in colonies acquired by conquest or cession local laws remained.

Moreover, in settled colonies, as distinct from conquered/ceded colonies, the King had no prerogative power of legislation, but even in the latter such powers obtained only until such time as a local legislature was granted.50 These principles were enshrined in

Blackstone's highly influential Commentaries on the Laws of England, where it was laid down

"...that if an uninhabited country be discovered and planted by English subjects, all the English laws are immediately there in force. For as the law is the birthright of every subject, so wherever they go they carry their laws with them. But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws; but till he does actually change them, the ancient laws of the country remain, unless such as are against the law of God, as in the case of an infidel country."51

Blackstone's qualification regarding 'infidel' countries was not of his own invention, but was in fact drawn directly from Coke's judgment in Calvin's case.52 It

4" Blankard v Galdv (1703) 2 Salk. 411,91 E.R. 356; Lyons v East India Co. (1836) 12 E.R. 782; Kielley v Carson (1843) 4 Moo. PC 63, 13 E.R. 225 50 Ibid:, see also Kent McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989), 113-115 and Slattery, Land Rights, supra note 45 at pp. 11, 30-34. For a detailed discussion as to foundations of this principle at common law, see Walters 1995, supra note 7 at 27-8. 51 Blackstone, Commentaries on the Laws of England, Vol. 1, 1st edn. reprint, (London: Dawsons, 1966), 104-105 52 Supra note 47 39 was, however, of questionable authority, and was decisively rejected by Lord

Mansfield in Campbell v Hall,54 a decision that is regarded as a locus classicus in

Imperial constitutional law. In Campbell, the issue was the legality of certain export duties imposed by the Crown on leaving the colony of . The plaintiff paid the duties under protest, and commenced the action claiming that in instituting same the

King had exceeded his authority. The Court of King's Bench invalidated the duties, reasoning that once the King had granted a local Assembly in the colony he no longer had any prerogative power to make laws. Accordingly, his proclamation establishing the duty was a violation of the earlier order in which a Commission had been granted to the Governor with a power to summon assemblies and make laws.

In delivering the judgment of their Lordships, Lord Mansfield articulated certain seminal principles that are worth repeating in full:

"First, a country conquered by the British arms becomes a dominium of the King in right of his Crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain. Secondly, the conquered inhabitants once received into the conqueror's protection become subjects; and are universally to be considered in that light, not as enemies or aliens. Thirdly, articles of capitulation upon which the conquest is surrendered, and treaties of peace by which it is ceded, are sacred and inviolable, according to their true intent. Fourthly, the law and legislation of every dominion equally affects all persons and property within the limits thereof... Fifthly, laws of a conquered country continue until they are altered by the conqueror. The justice and antiquity of this maxim is incontrovertible; and the absurd exception as to pagans, in Calvin's Case, shews the universality of the maxim.

Slattery, Land Rights, supra note 45 at 13-19 Campbell v Hall (1774) 1 Cowp. 204, 98 E.R. 848 40 Sixthly, if the King has power (and when I say the King, I mean in this case to be understood as the King without the concurrence of Parliament) to make for a conquered country, this being a power subordinate to his own authority, as a part of the Supreme legislature in Parliament, he can make none which are contrary to fundamental principles; none excepting from the laws of trade or authority of Parliament, or privileges exclusive of his other subjects."55

Following these early cases, this doctrine of continuity was repeatedly reaffirmed, most clearly so in a series of decisions of the Privy Council from the mid- twentieth century concerning native property rights in British colonies in West Africa.

Perhaps the best known of these decisions is Amodu Tijani v Southern Nigeria,56 where the ownership of certain lands was in issue for the purposes of compensation payable upon a compulsory acquisition. The appellant, as head chief, claimed outright ownership, while the Crown argued that he enjoyed merely rights of control and management over the lands. The Privy Council held, overruling the lower courts, that the appellant had a "full, usufructuary title" in the lands, which was not affected by the

Crown's underlying or radical title. Accordingly, compensation was payable to him on the basis that he was transferring the land in full ownership. While the judgment of their

Lordships is instructive for their conception of the nature of native title to land, it is their discussion of the doctrine of continuity, still one of the clearest to be found on the matter, which is relevant at this point. Writing for the Board, Viscount Haldane said:

"No doubt there was a cession to the British Crown, along with the sovereignty, of the radical or ultimate title to the land, in the new colony, but this cession appears to have been made on the footing that the rights

Ibid., at pp. 895-896 Amodu Tiiani v Southern Nigeria [1921] 2 A.C. 399 41 of property of inhabitants were to be fully respected. This principle is a usual one under British policy and law when such occupations take place. The general words of the cession are construed as having related primarily to sovereign rights only... Where the cession passed any proprietary rights they were rights which the ceding King possessed beneficially and free from the usufructuary qualification of his title in S7 favour of his subjects."

CO

Tijani was followed in a number of other cases from West Africa, most notably so in Oyekan v Adele,59 another decision of the Privy Council. The latter concerned a dispute between the descendants of the original Oba of Lagos, King

Docemo, and the respondent, who was the present Oba, newly chosen but from a different family. The respondent was prevented from occupying the royal palace at

Lagos by the appellants, who claimed that the Crown had granted the palace to their family in 1870. Unfortunately for the appellants, however, a 1947 Ordinance had specified that Crown grants were subject to interests recognized by native law and custom. By native law and custom the Oba had a right to occupy the palace, so that the respondent as Oba could not be prevented from occupying the palace. In a passage that has become hallowed over time, Lord Denning declared that on a cession to the British

Crown, the "courts will assume that the British Crown intends that the rights of property of the inhabitants are to be fully respected."60

Ibid., at p 407 [emphasis supplied] 58 See, for example, Sobhuza II v Miller [1926] A.C. 518; Sunmonu v Disu Raphael [1927] A.C. 881 and note Barbara Hocking, "Does Aboriginal Law Now Run in Australia?" (1979) 10 Fed. L. Rev 161 at 164- 7, and Barsh, supra note 39 at 102-5 and authorities cited therein 59 Ovekan v Adele [1957] 2 All E.R. 785 60 Ibid., at p. 788 42 In Australia, there was a consistent denial for over 200 years of any doctrine of aboriginal rights or title at common law,61 a position that reached its nadir in Milirrpum.

In that case, faced with these authoritative pronouncements by the Privy Council,

Blackburn J glossed them over by stating that in the African cases, native rights were recognized by statute.62 This was quite inaccurate, however, for as was evident from the decision in Tjjani, the statute in question merely dealt with the question of compensation, and not with the more fundamental issue of the existence or recognition of native title. In the absence of any statute specifically recognizing native title, the latter's existence therefore could only have been presumed on the basis of recognition by the common law.

It took another two decades before these fundamental errors were rectified, and in Mabo v Queensland (No. 2) the decision in Milirrpum was finally overruled. This time around, representatives of the Meriam people successfully claimed a common law native title to the land of the Murray Islands, save for those portions where their title had been extinguished by the grant of Crown leases. In giving the majority decision,

Brennan J relied upon the principle that sovereignty did not necessarily confer beneficial rights to the land, as the Crown's radical (or ultimate) title could co-exist with the usufructuary rights of the natives. Moreover, the interest of a native community in lands occupied exclusively by them was held to be a proprietary one that survived the

61 Enshrined in such cases as Cooper v Stuart, supra note 20 and Williams v Attorney-General (NSW) (1913) 16 CLR 404, and see Samantha Hepburn, "Disinterested Truth: Legitimation of the Doctrine of Tenure Post-Mabo" (2005) 29 Melb. U.L. Rev. 1 at 11-15 and authorities therein 62 Supra note 12 at pp. 231-233 43 change in sovereignty - the native title becoming a burden on the Crown's radical

On the issue of the distinction between sovereignty and property rights, Brennan

J had this to say:

"Recognition of the radical title of the Crown is quite consistent with recognition of native title to land, for the radical title, without more, is merely a logical postulate required to support the doctrine of tenure (when the Crown has exercised its sovereign power to grant an interest in land) and to support the plenary title of the Crown (when the Crown has exercised its sovereign power to appropriate to itself ownership of parcels of land within the Crown's territory). Unless the sovereign power is exercised in one or other of those ways, there is no reason why land within the Crown's territory should not continue to be subject to native title. It is only the fallacy of equating sovereignty and beneficial ownership of land that gives rise to the notion that native title is extinguished by the acquisition of sovereignty."64

Later he decisively shattered Blackburn's thesis, concluding that:

"the common law of Australia rejects the notion that, when the Crown acquired sovereignty over territory which is now part of Australia it thereby acquired the absolute beneficial ownership of the land therein, and accepts that the antecedent rights and interests in land possessed by the indigenous inhabitants of the territory survived the change in sovereignty. Those antecedent rights and interests thus constitute a burden on the radical title of the Crown."65

The notion of radical or underlying title, which apparently confounded Justice

Blackburn in Milirrpum and which was more recently incorrectly invoked by the

Attorney General of Guyana in the pleadings of the Upper Mazaruni land claim, is simply part of the fiction supporting the feudal theory of land ownership under the

Mabo, supra note 1 at 34-36 Ibid., at 35-36 Ibid., at p. 41 44 common law. According to this theory, no subject can hold land allodially, as the

Crown is deemed to own the underlying or radical title, from which all other titles flow.

When the Crown extends its sovereignty overseas, a necessary incident of the application of colonial law to the new territory is its acquisition of radical title, but this does not prejudice private landholdings - the latter including, as indicated from the

Tijani decision itself, customary or native rights in the land. Such pre-existing property rights are not automatically abrogated, but simply constitute burdens on the

Crown's radical or ultimate title.

Since Mabo, there has been increasing acknowledgement throughout the British

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Commonwealth, in jurisdictions as diverse and varied as Malaysia, New Zealand,

South Africa and Belize, of the existence of a doctrine of aboriginal title based upon an application of continuity principles. The New Zealand experience is particularly instructive. Early doctrinal clarity there, embodied in the Court of Appeal decision in R

Note, however, that since Mabo there is a growing body of scholarship that disputes the existence of feudal doctrines of tenure in British colonies such as Australia. It is argued that given the proprietary pluralism embraced by the Australian High Court, for example, at best the doctrine of tenure applies only in form as in actuality substantive rights diverge substantially: see Brendan Edgeworth, "Tenure, Allodialism and Indigenous Rights at Common Law: English, U.S. and Australian Land Law Compared After Mabo v Queensland'' (1994) 23 Anglo-Am. L, Rev. 397. There is considerable merit in this view in relation to Guyana's situation, given not only the Roman-Dutch underpinnings of our land law but, in addition, the successive Crown Lands Ordinances (discussed in Chapter 7, infra) which authorised free grants of land without an obligation to pay rents to the Crown, land purchases at auction and the grant of absolute interests in land. Without further digression as to the theoretical foundation of land law, however, the important issue at this point is that under the English common law, what the Crown obtained in relation to privately owned lands was, at best, only the underlying title. 67 We will return to the specific issue of the continuity of customary rights in Chapter 5, infra 68 Adong bin Kuwau v Keraiaan Negeri Johor [1998] 2 MLJ 158, see also Chandra Kanagasabai, "Native Rights and Minority Rights: Promotion or Repression? A Commonwealth Review" Paper presented at the 12th Commonwealth Law Conference, Kuala Lumpur, Malaysia, September 1999, pp 16-17 and Kenneth Chambers, "Selangor v Sagong Tasi - A Case Study on Aboriginal Title Law" Paper presented at the 2007 Conference of the International Bar Association, , 17 October 2007, available online at http://www.ebalawyers.com.au/system/files/download/ol34/SIN51 .pdf (February 22, 2008) 45 v Symonds, was undermined both by the judicial and executive branches of government. In both Wi Parata v Bishop of Wellington70 and Re the Ninety-Mile

Beach,71 the existence of customary native rights was denied. The views expressed therein were codified in two key pieces of legislation - the Maori Land Act of 1862 and the Native Land Act of 1909. Under the former, native rights of occupation were appropriated by re-designation as freehold interests and then sold to settlers, while by the latter Maoris were precluded from challenging the validity of the extinguishment of

79 their customary land rights.

However, with what has been described as the 'Maori cultural renaissance' beginning in the 1970's - not dissimilar to the increasing awareness among Indigenous

Peoples worldwide - and influenced by developments in Canadian jurisprudence regarding Aboriginal rights, a number of cases were decided in the 1980's and 1990's that reconsidered and rejected the bases of the Wi Parata judgment.73 This led to the controversial Attorney-General v Ngati Apa in 2003, and though the latter's focus was a procedural issue, it remains of singular importance for its discussion of common law principles. At issue in the case was the survival of Maori customary rights in certain foreshore and seabed lands in an area known as the Marlborough Sounds in the South

Supra note 10 and see accompanying text 70 Wi Parata v Bishop of Wellington (1877) NZ Jur (N.S.) 72 71 Re the Ninety-Mile Beach [1963] NZLR461 72 Siegfried Wiessner, "Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis" (1999) 12 Harv. Hum. Rts. J 57 at 71 73 David V Williams, "Customary Rights and Crown Claims: Calder and Aboriginal Title in Aotearoa New Zealand" in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, eds. Hamar Foster, Heather Raven & Jeremy Webber (Vancouver: UBC Press, 2007) 155 at 162- 70 74 Attorney-General v Ngati Apa [2003] 3 NZLR 643 46 Island. In the Supreme Court it was held that the Maori Land Court had no jurisdiction to hear the application, on the ground that any Maori customary property in the disputed area had been extinguished, but this ruling was overturned on appeal. Although the

Court of Appeal did not actually decide the merits of the claim, it did overrule the discredited Wi Parata and Re the Ninety-Mile Beach decisions. The Court applied the doctrine of continuity, holding unanimously that when the Crown acquired sovereignty, native property rights continued until lawfully extinguished. Delivering the majority judgment, Elias C.J. stated simply: "The transfer of sovereignty did not affect customary property. They are interests preserved by the common law until extinguished in accordance with the law."75

A jurisdiction of considerable relevance to ours is South Africa, acquired by

Britain from the Dutch in 1806, shortly after the capitulation of the three Guiana colonies. Here too, in Richtersveld Community v Alexkor Ltd and South Africa, the customary rights of an indigenous community were held by both the Court of Appeal76 and the Constitutional Court77 to have survived the acquisition of sovereignty by the

British crown. At first instance in the Land Claims Court, Gildenhuys AJ doubted whether any doctrine of aboriginal title even existed in South Africa, but held in any

75 Ibid at p. 651 (para 13). The decision in Ngati Apa provoked such a firestorm of controversy that the government reacted swiftly, enacting the Foreshore and Seabed Act (NZ), 2004/93 in the following year, by which Crown ownership of the foreshore and seabed areas was definitively asserted and existing customary Maori rights extinguished: Williams, supra note 73 at 171. However, this was action of the Legislature, and in no way militates against the principled recognition of Aboriginal title by the New Zealand Court of Appeal. 76 Richtersveld Community v Alexkor Ltd and South Africa Case No. 488/2001, Judgment delivered 24 March 2003 77 CCT 19/03, Judgment delivered 14 October 2003; reported in [2003] AILR 41 47 event that he had no jurisdiction to decide that question. Relying on Re Southern

Rhodesia,78 he found that when the British assumed sovereignty over the area in the nineteenth century, the Richtersveld people were not recognised as legal owners of the land on account of their lack of civilization, and accordingly the Crown also acquired full ownership of the land at the same time.79 An appeal from his decision was allowed, and although the Court of Appeal did not frame the interest as 'aboriginal title', it held that the customary rights possessed by the plaintiffs prior to annexation had survived the acquisition of sovereignty, and amounted to a right of exclusive beneficial occupation and use. The Court of Appeal expressly declined to follow authorities80 requiring recognition of prior rights to ensure the latter's survival, relying instead on the

"doctrine of continuity". A further appeal to South Africa's Constitutional Court was dismissed, where the Court of Appeal's conclusions were expressly endorsed. Like the

Court of Appeal, the Constitutional Court applied principles of continuity as laid down in the Privy Council decisions from West Africa, finding that there was nothing either in the events preceding the annexation of the Richtersveld or in the subsequent acts and conduct of the Crown to suggest that the land rights of the plaintiffs had been extinguished.82 Accordingly, judgment was entered for the Richtersveld Community for

78 Re Southern Rhodesia [1919] A.C. 211 79 LCC 151/98, Judgment delivered 22 March 2001 80 The Indian 'Act of State' cases, discussed infra at pp. 51-57 81 Supra note 76 at paras. 55-62 82 Supra note 77 at paras. 65-82 48 restitution of the right of ownership of the disputed land, including minerals and precious stones, and encompassing its exclusive beneficial use and occupation.

Most recently, continuity principles were applied in a case brought by several members of Maya communities in Southern Belize seeking redress for alleged violations of their customary land rights, based on their traditional use and occupation of land. It was further claimed that these customary rights were enforceable property rights under the . One of the main planks of the defence was the argument that the territorial sovereignty acquired by the British crown and succeeded to by the independent government of Belize had effectively extinguished any rights or interests in the land not granted by the Crown or the State. Rejecting this submission, the Court held that the existence of the plaintiffs' customary rights had been established, and that these rights had indeed been violated by the State. Delivering the main judgment in the case, Conteh C.J. ruled that the "mere acquisition or change of sovereignty did not in and of itself extinguish pre-existing title to or interests in the land."85

Clearly then, the position of Blackburn J as regards the drastic consequences of the introduction of the English common law upon pre-existing rights has been thoroughly discredited, and despite the lingering attempts of some governments it is highly unlikely that any modern court will apply such dicta. Moreover, although many of the decisions discussed above proceeded on the basis that the continuity of local laws

83 Ibid at paras. 102-3 84 Aurelio Cal. supra note 17 at paras. 69-71 85 Ibid at para. 77 49 and private property rights was assured in territories acquired by conquest or cession, notable exceptions are Mabo and Ngati Apa, both of which were decided in settled colonies. Even before these cases, a close examination of common law jurisprudence indicates that there has never been an inflexible application of these principles within the general categories of'conquered/ceded' territories and 'settled' territories.86 One clue as to the possible genesis of the distinction based on the constitutional status of a colony is provided by Blackstone's exposition quoted above, which suggests that it had more to do with preventing a legal vacuum. In uninhabited countries where there were no 'settled peoples' or settled laws, English settlers had no choice but to apply their own laws and institutions, but in inhabited territories where there was a lex loci, there would have been no necessity for immediate recourse to English laws. In other words, this distinction was firmly rooted in practical considerations - a reality acknowledged by

Lord Holt C.J. in Blankard v Galdy when he explained that".. .it is impossible that the laws of this nation, by mere conquest without more, should take place in a conquered country; because for a time, there must want officers, without which our laws cannot be

0*7 executed." But since the distinction between settled and conquered colonies was contrived in order to forestall a legal vacuum, and seemingly not with local property

86 In relation to territories traditionally considered as acquired by conquest see Freeman v Fairlie (1828) 1 Moo. IA 305, 18E.R. 117, Ruding v Smith (1823') 2 Hag. Con. 371, Terrell v Secretary of State for the Colonies [1953] 2 Q.B. 482 and Story's Commentaries, supra note 32 at para 148; in relation to settled territories see Connolly v Woolrych (1867) 1 C.N.L.C. 70 and Mabo v Queensland, supra note 1. In a detailed account of these cases, Professor Mark Walters points out that 'conquest' and 'settlement' do not necessarily capture the variations that existed within the Empire, and that there were shades of varying complexity among these categories: "British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v British Columbia" (1992) 17 Queen's L.J. 350 87 Blankard v Galdy (1693) 2 Salk 411, 90 E.R. 1089 50 rights in mind, then there is no reason in principle why the continuation of the latter should depend upon this distinction at all. Once there is an indigenous lex loci, from which native rights can be deduced, then by virtue of established common law principles such rights are not affected or abrogated by the British acquisition of sovereignty - irrespective of the manner of acquisition.

Thus, in summary, under international law and certainly under the common law, it is well settled that upon a change of sovereignty, the private proprietary rights of local inhabitants remain intact. At common law, despite early authority to the contrary, this principle does not depend upon the manner of a colony's acquisition, and the latter is primarily relevant insofar as it determines the extent of the Crown's prerogative powers in the new colony. Generally, however, by virtue of principles of continuity the pre­ existing rights of an acquired territory's inhabitants are preserved, unless there is a clear expression of a contrary intention by the incoming sovereign.

Doctrine of Recognition

Nonetheless, as stated above, cases on indigenous proprietary rights to lands from various parts of the Commonwealth have not produced uniform results. This has been due not only to factual differences, but more critically to differences in judicial

88 There is considerable support for this view among indigenous law scholars - see: Hookey, supra note 13 at page 96, Hocking 1979, supra note 58 at 167, Gordon Bennett, "Aboriginal Title in the Common Law: A Stony Path through Feudal Doctrine" (1977-1978) 27 Buff. L. Rev. 617 at 627-631, P.G. McHugh, "The Common-Law Status of Colonies and Aboriginal "Rights": How Lawyers and Historians Treat the Past" (1998) 61 Sask. L. Rev. 393-429. 51 approaches. One errant strand of authority that has been the source of considerable confusion and uncertainty is a line of cases from India where the reverse of the continuity principle has been applied. Though small in number, they have been highly influential in cases such as Milirrpum where post-sovereignty native rights were denied.

These cases, often referred to as the Indian 'act of state' cases, assert that the assumption of sovereignty by the English Crown, however acquired, ipso facto displaces pre-existing proprietary rights, which are only saved insofar as they are explicitly recognized and affirmed by the incoming Sovereign. A dramatic example of the application of this principle can be seen in Joravarsingji v Secretary of State for

OQ

India, where the appellants sued unsuccessfully for a declaration that they were proprietors of certain lands situated within territory that had previously been ceded to the British government by treaty. The Privy Council found the absence of any explicit recognition of title in the appellants by the government to be determinative of the question, and accordingly held the appellants to be mere lessees. According to Lord

Dunedin, writing for the Board: ".. .when a territory is acquired by a sovereign state for the first time that is an act of state. It matters not how the acquisition has been brought about. It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler. In all cases the result is the same. Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized. Such rights as he had under the rule of predecessors avail him nothing."90

Joravarsingji v Secretary of State for India (1924) L.R. 51 LA. 357 Ibid., at p. 360 52 Other cases which form the backbone of this doctrine, and which were in fact specifically relied upon by the Board in Joravarsingji, are Secretary of State for India v

Kamachee Boye Sahaba,91 Cook v Sprigg,92 and Secretary of State for India v Bai

Rajbai.93 In Sahaba, the issue concerned the disposition of the property of the deceased

Rajah of Tanjore. The respondent, his widow, brought the action claiming to be entitled to inherit and possess his estate, the whole of which had been seized by the British government through its delegate, the East India Company. Lord Kingsdown outlined the consequences of that seizure as follows: "The result, in their Lordships' opinion, is, that the property now claimed by the respondent has been seized by the British Government, acting as a sovereign power, through its delegate the East India Company; and that the act so done, with its consequences, is an act of state over which the Supreme Court of

Madras has no jurisdiction."94

Sahaba was specifically cited and followed in Cook v Sprigg, an appeal from the judgment of the Supreme Court of the Cape of Good Hope. At issue here were certain railway, mineral, trading and other rights granted to the appellants by the native chief, made before the cession of the territory to the British government. The Privy Council held that irrespective of the authority of the previous ruler to make these concessions, the rights they purported to confer could not be enforced against the British Crown as

91 Secretary of State for India v Kamachee Boye Sahaba (1859) 7 Moo. I.A. 476; 15 E.R. 9 92 Cook v Sprigg [1899] A.C. 572 93 Secretary of State for India v Bai Raibai (1915) L.R. 42 I.A. 229 94 Supra note 91 at p. 540 53 there was no "bargain by the British government that Sigcau's supposed concessions should be recognized."95

The third case relied upon by Joravarsingji was Secretary of State for India v Bai

Rajbai, wherein pre-existing native proprietary rights were in issue. Here the respondent claimed ownership rights to a village, as well as rights derived from her ancestors who were 'kasbatis' of that village and thereby entitled to have new leases granted upon the termination of each previous one. Rejecting the claim, the Privy Council held that only leasehold rights had been conferred upon the kasbatis by the government of Bombay.

On the specific question of the survival of the proprietary rights of the kasbatis following the cession, their Lordships stated that Sahaba and Cook v Sprigg were the only relevant authorities, from which they deduced the following: "The relation in which [the kasbatis] stood to their native sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters.

They could not carry on under the new regime the legal rights, if any, which they might have enjoyed under the old. The only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied, or by legislation, chose to confer upon them."96

The question therefore is how persuasive is this line of authority? In Milirrpum,

Blackburn J opined that these act of state cases necessitated a reconsideration of

Blackstone's statement regarding the applicable law in conquered and ceded territories,

Per Lord Halsbury L.C.: supra note 92 at p. 578 Supra note 93 at p. 237 54 but the true position seems rather to be the other way around. The Indian decisions are decidedly isolated in relation to the principle they articulate, particularly when viewed against the mass (and antiquity) of authority to the contrary both at common law and

International law. However, even without reference to authority, and analysed simply on the strength of their rationales and the doctrine they purport to formulate, these decisions cannot convincingly undermine the principle articulated by the 'continuity' cases.

In Sahaba, for instance, the British government had seized the Rajah's property at his death on the ground that there was no male heir, so that an act of state had actually occurred dispossessing the Rajah's widow. In other words - and this is the critical point - the extinction of the respondent's property rights did not happen automatically on the assumption of British sovereignty (as later courts suggested), but rather occurred as the result of a specific act by the East India Company. If anything, this decision supports the principle enunciated in Campbell v Hall that on a cession or conquest, the incoming sovereign has the power to seize private property as an act of state.

In Cook, the appellants' rights against the old sovereign were derived from concessions, and the question was whether the new sovereign was obliged to respect them. In other words, the rights in issue were not rights in rem, but were merely rights in personam as arising under a contract. The ruling here is thus hardly applicable to the issue of whether proprietary rights (being good against the world) survive a change of sovereignty. 55 On the facts, therefore, Sahaba and Cook were not relevant to the situation that arose in Bai Rajbai, but by relying on them the result was a distortion, or unjustified extension, of the legal principles that the former two cases propounded - a mistake that was repeated and compounded in Joravarsingji. This derailment of legal principle (so to speak) has been exposed by Professor Kent McNeil, who comments insightfully that

"the recognition doctrine as formulated in Bai Rajbai and Joravarsingji is unsupported

07 even by the authority upon which it purports to rely."

There are more fundamental objections to the recognition doctrine as applied in the Indian cases. Principal among these is the fact that the act of state doctrine has always been understood as a procedural bar, which does not speak to the existence of substantive rights. According to O'Connell: "This [act of state] doctrine, which was affirmed in several cases arising out of the acquisition of territory in Africa and India, has been misinterpreted to the effect that the substantive rights themselves have not survived the change. In fact English courts have gone out of their way to repudiate the construction, and it is clear that the Act of State doctrine is no more than a procedural bar to municipal law action, and as such is irrelevant to the question whether in international law change of QO

sovereignty affects acquired rights."

In other words, the Act of State doctrine is concerned with the availability of remedies, not the existence of rights - and this is clearly evident from the earlier cases themselves.

In Sahaba, since the seizure of the Rajah's property constituted an act of state, the Privy

Council held that the Supreme Court of Madras simply had no jurisdiction to inquire

Supra note 50 at p. 176; and see generally Professor McNeil's penetrating discussion at 165-171 O'Connell, International Law, 2nd edn. (London: Stevens & Sons, 1970), 378 56 into it. The point was explicitly made by Lord Halsbury L.C. in Cook, when he stated:

"The taking possession by Her Majesty, whether by cession or by any other means by which sovereignty can be acquired, was an act of state and treating Sigcau as an independent sovereign - which the appellants are compelled to do in deriving title from him. It is a well-established principle of law that the transactions of independent states between each other are governed by other laws than those which municipal courts administer."100

In addition, as has been pointed out, if applied the recognition doctrine would produce harsh and potentially chaotic results, and thus commands little persuasive weight. After referring to Lord Dunedin's dicta in Joravarsingji, Professor Slattery asks incisively: "Can it be seriously maintained that at the instant of acquisition the total population of a country become squatters in their own dwellings, and trespassers in their own gardens? The result is so drastic that it seems implausible that it should occur by the silent and automatic operation of the law alone, without definite state action."101

For these reasons then, this doctrine is of little persuasive weight and does little to undermine the doctrine of continuity as explicated earlier.

Aboriginal Title at Common Law

Whereas the previous two doctrines discussed constituted presumptions of law, there exists a third approach to this subject, which treats indigenous rights to property as

99 See text accompanying note 94, supra 100 Supra note 92 at p. 578 1 ' Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon: University of Sask Native Law Centre, 1983), 9 [hereafter, 'Ancestral Lands'] 57 a substantive right recognised at common law. Put another way, aboriginal title is held to exist as a result of the legal effect given to pre-sovereignty native occupation of lands by the common law.

Many indigenous law scholars102 agree that the theoretical foundations of this doctrine received its earliest articulation in the trilogy of cases that came before the

United States Supreme Court in the first half of the nineteenth century: Johnson v

MTntosh,103 Cherokee Nation v Georgia104 and Worcester v Georgia.105 In all of them the leading judgments were given by Chief Justice Marshall, and though at times his language was offensive and his philosophy objectionable, one cannot examine any one decision in isolation as some of Marshall's harshest critics have done. Instead, in the nine years that lay between the first and last of these decisions it is possible to note an evolution in the doctrine of Indian title articulated by him, which doctrine must

* 107 accordingly be viewed from a consideration of all three decisions.

In Johnson v M'Intosh, the issue that arose was a relatively simple one. The dispute, in fact, involved not native Americans but their successors in title, so to speak.

The plaintiffs had purchased land from the Chiefs of certain Indian tribes, and sought an

102 Neil Mickenberg, "Aboriginal Rights in Canada and the United States" (1971) 9 Osgoode Hall L.J. 119; Daniel Kelly, "Indian Title: The Rights of American Natives in Lands They Have Occupied since Time Immemorial" (1975) 75 Colum. L. Rev. 655; Slattery, Ancestral Lands, ibid., 17-38 103 Supra note 31 104 Cherokee Nation v Georgia (1831) 5 Pet. 1 105 Worcester v Georgia (1832) 6 Pet. 515 106 See, for example: Howard Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States" (1977-1978) 27 Buff. L. Rev. 637 and A. Abinanti, "A Letter to Justice O'Connor" (2004) 1IPJLCR 1 107 In fact, as regards Native Americans, Marshall has been described as "far ahead of most of his contemporaries": J.E. Smith, "Marshall Misconstrued: Activist? Partisan? Reactionary?" [1999-2000] 33 J. Marshall L. Rev 1109 at 1122 58 ejectment order against the defendant, who had obtained the said land by grant from the

United States' government. As summarized by the court itself, at issue was the power of the Indians to give to private individuals a legally recognizable title to land, a question that it answered in the negative. Marshall CJ. delivered the only judgment in the case, holding that it was the nation state alone which could grant title to the soil. This power was derived from the discovery of the continent, which carried with it title to the lands that could be perfected by possession. According to Marshall, this was a principle recognized by all the European nations and adopted by the American States following the revolutionary war. Alternatively, while the Indians had a right to convey title to private individuals, such a grant would not be protected if they later chose to disregard it and make another inconsistent grant (as had in fact happened in this case). Marshall also pointed to the Royal Proclamation of 1763 as another source of the incapacity of private individuals from making purchases of land directly from the Indians.

As to the rights of the Native Americans, this is what Marshall had to say:

"In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it. "While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These

59 grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy."1 8

Marshall based his ruling on the established practice of the English government in the process of acquiring territory on the American continent. He pointed to the various Charters as evidence of the Crown's assumption of an exclusive power to appropriate lands, notwithstanding the presence of the Indians thereon. After surveying various Charters issued by the English Crown, some from as far back as 1496 regarding discovery and taking possession of unknown lands, as well as others issued in the early

1600s relating specifically to taking possession of territories on the American continent,

Marshall C.J. observed: "Thus has our whole country been granted by the Crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees."109

There are a number of questionable aspects of Marshall's reasoning in this case.

One of these is the proposition that title flowed from discovery, which was legitimated in turn by Royal Commissions and Charters unilaterally issued by the British Crown.11

Marshall asserted decisively: "this opinion conforms precisely to the principle which has been supposed to be recognised by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring."111 Concluding, he was even more

108 Supra note 31 at pp. 573-574 m Ibid., at p. 579 mIbid., at 576 m Ibid., at 592 60 expansive: "The very grant of a charter is an assertion of the title of the crown... and the charter contains an actual grant of the soil, as well as of the powers of government."112

This assertion of a consensus of opinion among European powers as to the juridical effect of discovery is of doubtful validity. This issue had in fact been debated long before Marshall's judgment in 1823, and some of the leading thinkers in this regard, such as Vitoria and Grotius, had expressed contrary views.113 More recently,

Juricek, in his detailed study of historical and constitutional issues relating to the settlement of North America, argues that "discovery" (or more accurately, first discovery) as a root of title was relied on more by the Iberian powers, who could point to the pioneering voyages of notable explorers such as Columbus and de Gama. On the other hand, the Western European rival states such as England, France and the

Netherlands adopted a broader view towards acquisition of territory, encompassing both discovery and possession.114 What is more, even among individual nations justifications for claims to territory were not static or consistent, and they were known to invoke the arguments of rivals when it suited their interests.115 Thus according to Juricek,

Marshall's theory as to the consequences of discovery was "untenable", even

"outlandish".116

U2Ibid., at 603 113 Note discussion at pp. 34-35 above 114 Juricek, supra note 21 at 186-200 U5Ibid., at 205 U6 Ibid., at 207 61 Aside from the legal consequences of discovery, a more troubling aspect of

Marshall's ruling is the fact that it amounts to, in blunt terms, the non-consensual appropriation of native lands. Even if all European nations are assumed to have consented to the principle asserted, it is a virtual certainty that such agreement would not have included the original occupants themselves, who had been living on those lands for millennia. Yet Marshall was very clear that the mere assertion of sovereignty by Europeans over these territories resulted in their acquisition of "exclusive title".

Although this was meant to operate as a distributional principle among European nations, in Johnson it was expressed more expansively than this. The rights purportedly conferred by the various charters to explorers included title to the soil, notwithstanding the occupation of the original inhabitants, whose rights to sovereignty and title to their lands were thereby immediately "impaired" and "diminished", to use Marshall's words.117 Legally, Native Americans were henceforth restricted in how and to whom

1 1 & they could dispose of their territories; practically, there was often little choice but to relinquish territory in the face of relentless settler expansion."9

But how did this loss of Aboriginal sovereignty and proprietary rights occur?

The source of the incapacity of the Indians to convey a title to an individual (except

117 Supra note 31 at 574; 576-583 118 An interesting thesis is that advanced by Eric Kades, who suggests that there was an economic motive for Marshall's ruling, which was that it ensured a restricted pool of purchasers and thereby effectively drove land prices downward, thus facilitating the efficient expropriation of Indian lands: "History and Interpretation of the Great Case ofJohnson v M'lntosh" [2001] 19:1 Law and History Review 67 at 111 119 Allen Trelease, Indian Affairs in Colonial New York: The Seventeenth Century (NY: Cornell University Press, 1960) and G. E. White, History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815-35 (New York: Macmillan Publishing Company, 1988) 736- 7 62 where the individual incorporated himself with the tribe and obtained their right of occupancy), said Marshall, lay in the nature of the title obtained by the discovering nation. The latter gained "ultimate dominion", which meant "a power to grant the soil, while yet in the possession of the natives."120 Marshall recounted a number of commissions and charters issued by the crown in the sixteenth and seventeenth centuries, which authorised the discovery and possession of foreign lands in spite of their prior occupation by native peoples. These various charters conferred not only the power of government, but also title to the soil.122 This principle was adhered to by all the nations in Europe, and it was acceded to by the United States upon independence.

However such agreement (if in fact it existed) could hardly suffice to cloak that principle with legitimacy, as it entirely excluded the perspective of the indigenous inhabitants whose sovereignty and territorial rights were automatically diminished. It is generally unclear as to how Marshall justified this position, particularly since he flirted with a number of different theories within the same judgment. At various points he adverted to the level of civilization attained by native societies, declaiming that "the character and religion of [the continent's] inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy."1 4 As he noted also, the charters and commissions to which England

120 Johnson, supra note 31 at 574 121 Ibid at pp. 577-9 122 Ibid at pp. 579-580 123 Ibid at pp. 584-5 124 Ibid, at p. 573 63 traced its title authorised the discovery and possession of "such remote, heathen, and barbarous lands, as were not actually possessed by any Christian prince or people."

Here the influence is unmistakable of scholarly discourses that considered non-

Europeans to be lacking in reason or too primitive or barbarous to have notions of property, in addition to justifications based on the superior right of Christians.

Presumably, because of these comments one historian criticizes this decision as

".. .most definitely based upon the same rationale that guided Columbus, Cortez, and crusaders to the Holy Lands for centuries. The roots of that jurisprudence can be traced to the Bible and medieval interpretations of it to fit expansionist interests of the Roman

Catholic Church."126

But as discussed above, on the subject of the alleged incapacity of Indigenous

Peoples, Marshall was by no means expressing a uniform position at international law.

In fact, by then the character or religion of foreign peoples had long been discredited as a legitimate justification for acquiring their territory. As far back as the sixteenth century, the Spanish theologian Vitoria had argued that the natural law rights held by aborigines meant that they were in possession of their lands, which could not be

"discovered" and appropriated by Europeans. In his words, mere discovery "gives no support to a seizure of the aborigines any more than if it had been they who had discovered us."127 Further, as discussed, Vitoria's position was taken up by respected jurists and found expression in doctrines at international law and the common law

125 Ibid, at p. 577; note also his reasoning at page 589 126 James H. Lengel, "The Role of International Law in the Development of Constitutional Jurisprudence in the Supreme Court: The Marshall Court and American Indians" (1999) XLIII A.J.L.H. 117 at 127 127 Vitoria, supra note 40 at 139 64 whereby the continuity of pre-existing laws and rights was respected on a change in sovereignty.

However, it is entirely plausible that Marshall himself was unclear as to the basis upon which European nations could appropriate the lands occupied by other peoples, as betrayed in the way he vacillated between various theories. Having initially justified his ruling on the legal implications of discovery, Marshall appeared to make a transition to a theory of conquest, asserting: "Conquest gives a title which the Courts of the conqueror cannot deny.. ,"12 To be fair, it is not entirely clear that Marshall actually relied upon conquest of Indians as a means of establishing title, and prominent indigenous law scholars remain divided on the point.129 However, the judgment opens itself to these multiple interpretations, and like Biblical text it has been invoked for entirely antagonistic purposes. Marshall also adverted to yet another possibility, which had nothing to do with either discovery or conquest. The acquisition of territory was simply a fait accompli:

"However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned."130

Johnson, supra note 31 at 588 129 Nell Jessup Newton, "At the Whim of the Sovereign: Aboriginal Title Reconsidered" (1979-80) 31 Hastings L.J. 1215 at 1243; But if Marshall C.J. was really referring to the revolutionary war or wars with rival European claimants, this still would not explain how victory for the United States entitled them to appropriate Indian lands. 130 Johnson, supra note 31 at p. 591 65 Indeed, a careful reading of the judgment makes it hard to resist the inference that Marshall was aware of the dubious aspects of certain assumptions made by him. At the outset when laying down the framework of his analysis, he almost defensively warned that his approach would be constructed around principles of law and policy, not

111 simply those of "abstract justice". Similar unease is evident elsewhere. Having trumpeted the absolute title acquired by the crown at the expense of Indian sovereignty,

Marshall declined to pursue inconvenient questions as to the existence of a hierarchy of rights between pastoralists on the one hand, and merchants and manufacturers on the other. Instead, the crown's absolute title could not be denied, "whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted." Later still, Marshall explicitly acknowledged that the inhibiting consequence of British sovereignty on Indian title is possibly

"opposed to natural right, and to the usages of civilized nations".133

Considering all of the above, it must be conceded that there are elements of this decision that cannot be satisfactorily explained. However it is important not to lose sight of one critical fact - namely that Marshall consistently maintained throughout this judgment that native Americans possessed a right to the lands occupied by them, which right he characterized as Indian 'title' - a position which was denied altogether in

1 Ibid., at 572 2 Ibid., at 588 [emphasis added] 3 Ibid., at 591 66 Australia up until 170 years later. After discussing the various principles at

International law by which European nations (in his view) justified the acquisition of territory, this was position settled upon by Marshall:

"The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment."

More importantly, this decision cannot be looked at in isolation, as Marshall's ruminations on the nature of Indian title, in embryonic form here, were more fully developed in two other cases decided by the Supreme Court in the ensuing decade.

The political background to these two other Supreme Court cases was the protracted and simmering dispute between the State of Georgia and the Cherokee

Nation over lands and sovereignty. By a 1791 Treaty, the Cherokee Nation had ceded vast amounts of territory to the United States in exchange for a guarantee to lands lying within the State of Georgia that they reserved to themselves. Georgia, however, in ceding lands to the United States, was anxious in turn for the Federal government to evict the Cherokee. As the Federal government failed to act, Georgia enacted laws purporting to replace Cherokee laws within Cherokee territory as recognized by the earlier Treaty. In the first of the two cases, Cherokee Nation v Georgia, the

In parts of Canada also, most notably the province of British Columbia, there has also been a consistent denial until recently of the existence of Aboriginal title: Tsilhqot'in Nation v British Columbia 2007 BCSC 1700 (20th November 2007) at para. 1136 135 Ibid at 592 136 This background is drawn from Berman, supra note 106 at pp. 656-657; For a more detailed account see Mary Young, "Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice" (1958) 64 Amer. Hist Rev 31-45 67 Cherokees sought an injunction in the Supreme Court to restrain the State of Georgia from executing any of those laws within their territory. By a majority, the Supreme

Court declined jurisdiction, on the ground that the Cherokee did not constitute a foreign

State and therefore could not maintain the action. According to Marshall, "Though the

Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations."137 Thus while the claim foundered on the question of sovereignty, the right of the Indians to lands they occupied was once again affirmed.

Justice Thompson, in fact, expressed this in grandiloquent terms, declaring that Indian title is "as sacred as the fee simple of the Whites".138

The issue of jurisdiction reared its head once again the following year in

Worcester v Georgia. The plaintiff, a missionary, was charged with residing in

Cherokee territory without the requisite licence, contrary to the laws of Georgia. In his defence he pleaded that the relevant statute was repugnant to the treaties executed by the United States' government with the Cherokee Nation by which the latter was recognized as a sovereign nation and entitled to govern itself. The plea was overruled and the plaintiff was convicted and sentenced to four years' hard labour. On appeal, the

137 Supra note 104 at 17 138 Ibid., at 48; Although Thompson J was dissenting, four years later Marshall C J. would be part of another decision in which identical language was used: see note 162 infra. 68 Supreme Court held that the laws in question were repugnant to the Constitution, treaties and laws of the United States, so that the judgment was accordingly void and ought to be reversed. In the course of his judgment Marshall modified many of the more controversial aspects of his decision in Johnson, describing the proprietary rights of the

Indians in their lands in unequivocal terms. In places he seemed to reverse some of his previous theories - the consequences of discovery, for example, were expressed far more moderately:

"America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered which annulled the pre-existing rights of its ancient possessors."

Referring to his previous elaboration of this issue in Johnson, Marshall clarified that this operated merely as a distributional principle among the European maritime powers - however, it could not affect the rights of those already in occupation: "It [discovery] gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell."1 Marshall took great pains to emphasize this, reiterating more than once in his judgment that discovery could not annul the pre-existing rights of native inhabitants.141 Whereas he had previously asserted that the various Charters and grants of the crown purported to convey "the soil as well as the right of dominion to the

Worcester, supra note 105 at pp. 542-543 0 Ibid., at p. 544; 1 Ibid., at 542-3 and again at 546 69 grantees", even when the land was occupied by Indians, now they were merely

"blank paper so far as the rights of the natives were concerned".144 Moreover, as now described by Marshall, the intercourse between Indians and Europeans was one of exchange, relations involving no claim to Indian lands or dominion over their persons.145

However, despite these attempts to moderate the harshness of his earlier pronouncements, there was no way to equivocate over the inevitably reduced status of

Indian rights. British sovereignty and acquisition of the exclusive, underlying title necessarily meant that Indian title was diminished, both in the obvious sense that

Indians could not freely alienate their land, as well as in the unacknowledged sense that the inexorable march of White settlement meant that Indians were often compelled to relinquish territory. This was a reality not only for the Cherokees, as discussed above, but had been so for myriad other Native American peoples.146

Another clarification concerned Marshall's position regarding conquest.

Whatever Marshall had meant by asserting in Johnson that British claims to Indian territory had been maintained and established "by the sword,"147 in Worcester he maintained, after conducting a detailed analysis of the Colonial charters, that only defensive war had been contemplated by them. Moreover, he posited that the crown

142 In Johnson, supra note 31 at 579; 588 143 Ibid., at 579-80 144 Worcester, supra note 105 at 546 145 Ibid., at 552 146 Joseph Burke, "The Cherokee Cases: A Study in Law, Politics and Morality" (1968-9) 21 Stan. L. Rev. 500 at 501 and 506-7 and generally Trelease, supra note 119 147 Johnson, supra note 31 at 588 70 sought conciliatory relations with the Indian nations, as evidenced by laws and policies of the period. This pattern was continued in the post-revolutionary war period, as evidenced by the nature of the treaties entered into with the Indian nations by the United

States government. Marshall then concluded his analysis in Worcester with this unequivocal statement:

"The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians."149

At the end of the day, it is important to consider the cumulative effect of

Marshall's decisions of the period dealing with Indian title. Together they amount to the clear acknowledgement of a doctrine of Indian or aboriginal title based on the prior occupation of land by aboriginal peoples, and respected by the British Crown in its dealings with them. Marshall C.J. was not unaware of the implications of principles of continuity upon private rights, given his application of this doctrine around this same time in another case. In U.S. v Percheman,150 at issue was the appellant's title to certain lands in Florida. The Supreme Court ultimately dismissed an appeal from a judgment affirming the appellant's title, the latter obtained from the previous Spanish administration, and in the course of his judgment Marshall C.J. said this:

Worcester, supra note 105 at 548-9; 552 Ibid., at p. 559 U.S. v Percheman (1833) 32 U.S. 51 71 "...it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled: The people change their allegiance; their relation to their ancient sovereign is dissolved: but their relations to each other, and their rights of property, remain undisturbed."151

One can only speculate that Marshall C.J. did not apply these continuity principles to those cases where Indian title was in issue because of his evident belief, expressed candidly in Johnson, that Indian nations were "savages", which would have meant that Indians did not possess established systems of law giving rise to proprietary rights. To remedy this, therefore, Marshall attributed what rights they possessed to the land as growing out of the embryonic Colonial law, generated by the interaction of the two societies. As constructed by him, original Indian title was not dependent on recognition or continuation by the foreign legal system, but was based instead on the prior occupation of the native inhabitants, respected by the Crown in its dealings with them, and ultimately forming part of both British colonial practice and Imperial constitutional law.

While these principles seem to be well-established by the early nineteenth century Supreme Court cases considered in toto, U.S. jurisprudence on this subject has not remained constant. Despite some degree of reinforcement in later cases, by the mid-twentieth century a significant paradigm shift occurred in the treatment of Native

151 Ibid at 86-87 152 See, for example: Cramer v. U.S. (1923) 261 U.S. 219 at 227 and US v Shoshone Tribes (1937) 304 US lllat 116 72 American rights by the American judiciary. This shift is embodied most graphically in

Tee-Hit-Ton v U.S.,153 where the Supreme Court denied that Indian title was a constitutionally protected property right under the Fifth Amendment. Thus the sale of timber on lands claimed by an Alaskan tribe of Indians by the federal government was held not to amount to a compensable taking. The majority rested its decision on the grounds, first, that no federal statute had recognized the Indians' right to unrestricted possession, occupancy, and use of the land; and second, that the history of the tribe did not indicate that it had a proprietary interest in the land which survived the conveyance of Alaska to the United States. Purporting to rely on the "great case" of Johnson v

MTntosh, the majority held that Indian title could be extinguished by purchase or by conquest.154 In their view, any compensation paid to Indians in the past was purely out of "grace", or "compassion", but not from any legal liability.155

Tee-Hit-Ton cannot withstand scrutiny, for the decision blatantly misrepresents the authorities on which it purports to rely. It applied, for sure, a distorted version of the thrust of the Johnson decision, and its description of Indian occupancy as arising out of

'grace' or 'compassion' cannot be reconciled with the robust characterization of Indian rights by the Marshall court. Another authority that was misapplied was the more recent case of U.S. v Alcea Band of Tillamooks,156 where the plaintiff tribes were held to have proved their claim of expropriation of their Indian title and accordingly to be entitled to compensation under a 1935 jurisdictional Act. In Tee-Hit-Ton the outcome in

153 Tee-Hit-Ton v U.S. (1954) 348 U.S. 272 154 Ibid, at 279-80 155 Ibid, at 281-2 156 U.S. v Alcea Band of Tillamooks (1946) 329 U.S. 40 73 Tillamooks was distinguished on the ground that compensation was awarded in that

I S7 case by virtue of the 1935 Act and not the Fifth Amendment. But this was a misreading of Tillamooks, which had expressly laid down that the 1935 statute merely conferred jurisdiction on the court but did not create any rights from a moral obligation. As Newton points out, even though the court did not explicitly base its holding on the Fifth Amendment, compensation could have been awarded on no other basis as there was no statutory basis for the award.159 Further, in Tillamooks the Justices made it clear that there was no basis for distinguishing between recognized and unrecognized Indian title, and any expropriation of the latter was accordingly compensable.160 For all these reasons Tee-Hit-Ton is an aberration in American native title jurisprudence,161 but since it did not explicitly overrule Johnson v MTntosh or any of the other nineteenth century cases affirming Indian title, those early cases remain highly persuasive expositions of common law recognition of aboriginal title. And, although there were undeniably many equivocal statements in Johnson, in totality the

Marshall doctrine affirmed a proprietary right of Indians in the land they occupied, 1 69 summed up in a later case "as sacred as the fee simple of the whites."

Tee-Hit-Ton, supra note 153 at 282 158 Tillamooks, supra note 156 at 45-46 159 Newton, supra note 129 at 1230 160 Tillamooks. supra note 156 at 52 161 For detailed critiques of this decision see James Youngblood Henderson, "Unraveling the Riddle of Aboriginal Title" (1977) 5 Am. Indian L. Rev. 75 and Newton, supra note 129, but c/McNeil, who contends that the "seeds" of Tee-Hit-Ton were planted from early on: Common Law Aboriginal Title, supra note 50 at 244-267 162 Mitchel v U.S. (1835) 34 U.S. 711, per Baldwin J at 746 (this was the last of the cases on the subject of Indian title on which Marshall C.J. sat); On the strength of Indian title as articulated in early US jurisprudence see Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney: Federation Press, 2008) 76-81 74 Significantly, while American courts in the twentieth century have articulated a different and far more fragile concept of indigenous proprietary rights, Marshall's early theories as to the strength of Indian or native title proved to be highly influential in other common law jurisdictions. One such instance occurred in New Zealand in the mid-nineteenth century, in the case of R. v. Svmonds,163 where the issue was identical to the one in Johnson v MTntosh. Here the claimant - another Mcintosh - had obtained a waiver from the Governor of the Crown's pre-emptive right to purchase lands, but his resulting purchase was subsequently granted by the Crown to the defendant under the public seal. The simple issue for the court therefore was the ability of the claimant to purchase land directly from the natives. The court unanimously ruled against the claimant, holding that the defendant's title, obtained from the Crown, took precedence over the purchase by the claimant. The Court reasoned that the Crown's right to pre­ emption was rooted in the protection of the natives - and central to this position was the fact that the native inhabitants possessed rights that could be pre-empted in the first place. Chapman J expressed this in clear terms:

"Whatever may be the opinion of jurists as to the strength or weakness of the native title, whatsoever may have been the past vague notions of the Native title, whatever may be their present clearer and still growing conception of their own dominion over land, it cannot be too solemnly asserted that it is entitled to be respected, that it cannot be extinguished (at least in times of peace) otherwise than by the free consent of the Native occupiers. But for their protection, and for the sake of humanity, the Government is bound to maintain, and the Courts to assert, the Queen's exclusive right to extinguish it. It follows from what has been said, that in solemnly guaranteeing the Native title, and in securing what is called the Queen's pre-emptive right, the Treaty of Waitangi,

Symonds, supra note 10 75 confirmed by the Charter of the Colony, does not assert either in doctrine or in practice any thing new and unsettled."164

Later, Chapman J was even more explicit when describing the legal underpinnings of this doctrine:

"...the full recognition of the modified title of the Native, and its most careful protection, is not theoretically inconsistent with the Queen's seisin in fee as against her European subjects. This technical seisin against all the world except the Natives is the strongest ground whereon the due protection of their qualified dominion can be based."165

As discussed above, Chapman based his judgment on what he described as settled legal principles, derived from the historical interaction between aboriginal peoples of America and elsewhere with the British. According to him, those principles were reaffirmed in both judicial decisions and the practice of Colonial governments - as reflected in the New Zealand's original Charter as well as treaties entered into with native tribes. Chapman pointedly made reference to the fact that these principles were not confined to any one colony, nor were they judicial lawmaking, but were deducible from centuries of British colonial practice and law. For instance, he recognized that

"...for more than a century certainly, neither in the British American colonies nor subsequently in the United States has it been the practice to permit any patent to pass the public seal of the Colony of States previous to the extinguishment of the Native title.. ."166 In other words, as pointed out by Professor Slattery, the clear influence of

Ibid., at 390 Ibid., at 391 Ibid., at 392 76 Marshall's decisions in this case, and its underlying rationale rooted in British colonial practice and law, indicate the wide relevance of the principles articulated here.

In Canada, the final and an influential common law jurisdiction yet to be discussed, aboriginal title is indisputably acknowledged to exist independently of statutory recognition.168 Having said that, it is less easy to ascertain its jurisprudential basis, for judicial decisions have been exasperatingly vague as to the source of aboriginal title. The leading judgments contain a degree of fluidity among distinct theories, and it is often difficult to identify whether principles of colonial law are being applied to give rise to a substantive right, or whether aboriginal title is found to exist simply by the application of principles of continuity, or both. In 1997 the Canadian

Supreme Court delivered its most comprehensive decision on Aboriginal title to date in

Delgamuukw v British Columbia,169 and for the first time many aspects of this subject were discussed in great detail. Lamer C.J.C., who delivered the leading judgment in the case, set out his opinion regarding the source of Aboriginal title, but in my respectful view his contribution has only added to the uncertainty. Regarding the source of

Aboriginal title in Canada, this is what Lamer C.J.C. said:

"...it is now clear that although aboriginal title was recognized by the Proclamation, it arises from the prior occupation of Canada by aboriginal peoples. That prior occupation, however, is relevant in two different ways, both of which illustrate the sui generis nature of aboriginal title. The first is the physical fact of occupation, which derives from the

Slattery, Ancestral Lands, supra note 101 at pp. 40-41; and see also John Hookey, "Settlement and Sovereignty" in Aborigines and the Law, supra note 2 at 12 168 There is at least a theoretical acknowledgement of the existence of Aboriginal title at common law, though there has never been a favourable determination of Aboriginal title in favour of any Canadian aboriginal peoples by the Canadian Supreme Court. 169 Delgamuukw v British Columbia H9971 3 S.C.R. 1010 common law principle that occupation is proof of possession in law... [in support Lamer C.J.C. cited Osgoode Hall Professor Kent McNeil's treatise, Common Law Aboriginal Title, and a passage from R. v. Guerin and Roberts v Canada, before continuing] What this suggests is a second source for aboriginal title — the relationship between common law and pre-existing systems of aboriginal law."

This passage is somewhat meandering, and among its defects is the fact that it is not entirely clear what is the connection between these two sources (pre-sovereignty occupation and the identified relationship). Critically, do they apply independently of each other or together? One may well ask also whether these sources are to be accorded equal weight, and whether each governs a determination of entitlement or instead relates simply to different aspects of proof- all questions raised but left unanswered in this inscrutable passage. More fundamentally, why is prior occupation relevant in terms of a common law principle of possession? In assessing occupation in this way, was

Lamer C.J.C. accurately interpreting previous Supreme Court decisions, not to mention general understandings of Aboriginal title at common law? To answer these questions, we should, perhaps, begin at the beginning.

In Canada, decided cases on the subject of Aboriginal title have embraced differing theories at different times. Initially, its existence was premised on the 1763

Royal Proclamation, so held by the Privy Council in St Catharines Milling & Lumber

Co v The Queen, where at issue was the ownership of lands upon a surrender of Indian rights.171 Delivering the judgment of their Lordships, Lord Watson declared that by the force of the Proclamation "the tenure of the Indians was a personal and usufructuary

170 Ibid at p. 1082 (para. 114) 171 St. Catherine's Milling & Lumber Co. v The Queen. (1889) 14 App. Cas. 46 [Privy Council] 78 right, dependent on the good will of the Sovereign." This decision was given in the late nineteenth century, and it stands alone in identifying the Crown's prerogative act as the source of Indian title in Canada.

Earlier in this very case, Strong J in the Supreme Court of Canada articulated an alternative approach to Aboriginal title. Drawing heavily on the US Supreme Court decisions of that century, Strong J adopted Marshall's language of'Indian title', and found the principles articulated in those seminal cases as reflective of British Imperial policy, declaratory of the "unwritten common law", and therefore equally applicable to

Canada which was a part of the British dominions.173 This represented an approach that treated Aboriginal rights as arising out of Colonial law and automatically applicable to

British acquisitions as an incident of British sovereignty, and more than 100 years later it was endorsed by the Canadian Supreme Court in R. v. Cote. In the latter case, none other than Lamer C J.C., delivering the opinion of the majority, adverted to the potential applicability of the common law doctrine of Aboriginal title as a distinct species of

"federal common law", irrespective of what the French civil law of property had to say about the survival of aboriginal rights.174

Between the Supreme Court decisions in St.Catharines and Cote there was, for a substantial period in the twentieth century, a complete absence of any decisions on

Aboriginal title in Canada. This was in part due to a provision of the federal Indian Act,

Ibid at 54 Supra note 11 at pp. 610-13 [SCC] Note discussion at pp. 21-3 supra 79 included in 1927, which effectively foreclosed litigation by Aboriginal peoples. After this provision was eventually repealed in 1952, it led to a renewal of the Nisga'a campaign for recognition of their land rights,176 as a result of which came one of the most significant cases on Aboriginal title in Canada. In Calder v AG of British

Columbia,177 an action was brought by the Nisga'a Peoples for a declaration of ownership to their traditional territories in British Columbia. In what is not an entirely unfamiliar approach to matters of this kind, the Canadian Supreme Court avoided the substantive issue and dismissed the appeal on a procedural ground, namely that the

Crown had not consented to the initiation of the action so that the Court lacked jurisdiction. Nonetheless, the case is of pivotal importance, because for the first time since Strong J a majority of the Supreme Court proceeded from the basis that Indian title was recognized at common law. Judson J, delivering one of the judgments, expressed this in a somewhat convoluted manner, saying that

"Although I think it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means.. ."178

The opening part of this statement is a clear recognition of Indian title, one that exists independently of the Royal Proclamation; for the rest, it would seem that the learned judge was linking that title to occupation of land by Indian societies at the time

175 Indian Act, R.S.C. 1927, c. 98, s. 141 176 Christina Godlewska and Jeremy Webber, "The Calder Decision, Aboriginal Title, Treaties, and the Nisga'a" in Let Right Be Done, supra note 73 at 2 177 Calder v AG of British Columbia (19731 34 D.L.R. (3d) 145 mIbid., at 156 80 of contact. Unfortunately, Judson J did not elaborate on the legal means or doctrine by which factual occupation gave rise to enforceable rights under a different system.

In a separate opinion differing from Judson J on the subject of extinguishment,

Hall J (with whom Spence and Laskin JJ agreed) discussed in far greater detail the source of Aboriginal title. Although Hall J referred to occupation as a source of title, it is unlikely that he meant occupation assessed from the perspective of property law, for elsewhere in his judgment he commented deprecatingly upon the approach taken towards aboriginal perspectives at first instance, insofar as it seemed that "the trial

Judge's consideration of the real issue was inhibited by a preoccupation with the traditional indicia of ownership."179 Moreover, Hall J also quoted Lord Haldane's warning in Tijani that native title should not be conceptualized in terms appropriate solely to English law.

In addition to this reference to Tijani, Hall J based his conclusions partly on

British Colonial law, by which a doctrine of aboriginal rights had developed out of crown practice. In finding that there existed "a wealth of jurisprudence affirming common law recognition of aboriginal rights to possession and enjoyment of lands of aborigines precisely analogous to the Nishga situation here",180 Hall J quoted extensively from the dicta of Marshall C.J., and subsequent US Supreme Court decisions that affirmed those rulings,181 as well as from the dicta of Strong J of the

m Ibid at 187 180 Ibid'at 190 181 At one point Hall J referred to Johnson v M'lntosh as "the locus classicus of the principles governing aboriginal title": ibid at p. 193 81 Canadian Supreme Court. After detailed consideration of these and other cases from around the commonwealth, Hall J concluded that "aboriginal Indian title does not depend on treaty, executive order or legislative enactment," with such rights existing either by virtue of the common law or the Royal Proclamation.

Ultimately, while Calder is rightly hailed in the evolution of Canadian

1 RS jurisprudence as a landmark decision, this is chiefly because of its acknowledgement of the existence of Aboriginal title independently of the Royal Proclamation. Over and above such acknowledgement, however, it is not clear from the two leading judgments what was meant by it being sourced in pre-sovereignty "occupation" - though Hall J at least seemed to lean in favour the Marshall approach as applied by Strong J.

Canadian decisions subsequent to Calder began to move away from rationalizations of Aboriginal title sourced in Colonial law doctrines as articulated by

Strong J, increasingly referring to continuity principles instead. Among this new wave of cases are Guerin v Canada and Roberts v Canada, the two cases cited by Lamer

C.J.C. in Delgamuukw in support of his theory as to the source of aboriginal title. In

m Ibid, at pp. 190-3 183 Ibid., at p. 200 184 Ibid., at p. 208 185 For some indication of the context in which it was decided and how it profoundly altered federal policy on the issue of Aboriginal rights, see Honourable Gerard V. La Forest, "Reminiscences of Aboriginal Rights at the Time of the Calder Case and its Aftermath" in Let Right Be Done, supra note 73 at 54-58. However, for an alternative (and provocative) perspective of how Calder is situated within Canadian jurisprudence, which, it is argued, has ultimately served to legitimate the diminution of Aboriginal proprietary interests and Aboriginal sovereignty, see Gordon Christie, "A Colonial Reading of Recent Jurisprudence: Sparrow, Delgamuukw and Haida Nation" (2005) 23 Windsor Y.B. Access Just. 20, especially at 33-4, and for similar arguments see John Borrows, "Sovereignty's Alchemy: An Analysis ofDelgamuukw v British Columbia" [1999] 37 Osgoode Hall L.J. 537 82 Guerin,186 Dickson J summarized the ruling in Calder as based on historic occupation and possession of tribal lands187 - though he himself did not indicate how that occupation was to be interpreted. Moreover, while Dickson J cited the US Supreme court decisions with approval, in places quoting extensively from Chief Justice

Marshall, like Hall J in Calder he also relied on Tijani, stating:

"The principle that a change in sovereignty over a particular territory does not in general affect the presumptive title of the inhabitants was approved by the Privy Council in Amodu Tijani v Southern Nigeria (Secretary) [1921] 2 A.C. 399. That principle supports the assumption implicit in Calder that Indian title is an independent legal right which, although recognized by the Royal Proclamation of 1763, nonetheless predates it."188

Given his reliance on both Johnson v MTntosh and Amodu Tijani, Dickson J seemed to be unaware that these cases espoused distinctly different approaches to the subject. But in spite of his possible misapprehension on that score, it is clear from his judgment that Dickson J did not view occupation as relevant in light of common law principles of possession, so this decision lends no support to Lamer C.J.C.'s analysis.

As for Roberts v Canada,189 the second of the two cases, this decision merely involved a dispute between two Indian bands over the issue of reserve lands, and the issue that engaged the Supreme Court was the preliminary one of jurisdiction. In dealing with this issue, Wilson J relied on the Calder determination, as applied in

Guerin, that Aboriginal title is a legal right derived from the Indians' historic occupation and possession of their tribal lands. Wilson J also adverted to the ruling in

Guerin v Canada [1984] 2 S.C.R. 335 Ibid at 376 Ibid at 378-379 Roberts v Canada [1989] 1 S.C.R. 322 Amodu Tijani that the Indians' right of occupation and possession continued as a burden on the Crown's radical title.190 In other words, despite the reference to Calder,

Wilson's judgment apparently embraced the continuity doctrine, by virtue of which the pre-existing rights of Indians survived and were later incorporated into federal common law. Ultimately, Wilson's judgment is unclear insofar as it treats the presumption of continuity and colonial law doctrines as interchangeable, but in any event neither of these approaches lends support to that of Lamer C.J.C. in linking pre-sovereignty occupation with English property law principles. Aside from these two cases, there are other influential examples of reliance upon or reference to continuity principles in

Canadian Aboriginal title jurisprudence, such as most recently by McLachlin J (as she then was) in her dissenting opinion in R. v. Van der Peet.191

The significance of all this is that prior to Delgamuukw in 1997, Canadian courts applied one (or both) of two approaches in analyzing the existence of aboriginal title at common law: one, the doctrine of continuity, whereby pre-existing indigenous laws continued upon a change in sovereignty, and the other, a substantive doctrine of colonial or Imperial constitutional law, whereby the common law itself gave rise to substantive proprietary rights in favour of indigenous peoples. The nineteenth-century decisions from the United States that recognised the rights of Indigenous peoples to their lands or territories based on prior occupation, repeatedly referred to with approval by Canadian judges, did not do so because they were applying 'narrow' common law

190 Ibid at 340 191 R. v. Van der Peet [1996] 2 S.C.R. 507 at para 268 84 principles of real property (whereby occupation is equal to possession which in turn gives rise to title).192 Rather, they were applying a broader doctrine of Indigenous rights as part of Imperial constitutional law, applicable irrespective of whether the common law came to be applied subsequently.193 There was, therefore, a conspicuous lack of authority for Lamer's approach in Delgamuukw.

More fundamentally, in reasoning as he did Lamer C.J.C. fell into the error of confusing the common law in its broader sense of a body of general constitutional principles that apply to British colonies, with the received common law in a specific jurisdiction - certainly not the same thing - thereby arriving at an unsettling brew of mismatched concepts. According to the theory formulated by Professor McNeil, factual occupation is said to give rise to title because under principles of real property law, occupation is proof of possession.194 Since the whole thrust of McNeil's approach is to place indigenous occupants of land in the same position as other (non-Aboriginal) occupants, a principled application of his theory arguably dispenses with the need to prove pre-sovereignty occupation. Indeed, McNeil himself makes this clear by stating:

"Some of these problems [of proving continuous occupation since the acquisition of

Crown sovereignty] can be avoided if the Aboriginals who claim title are presently in occupation of the lands claimed by them. In that situation, they can rely on their own

192 As described in 1996 by Lamer C.J.C. in Cote, supra note 5 at 173, this was the "common law recognizing aboriginal title [which] was arguably a necessary incident of British sovereignty". 193 Note the exposition by Professor Slattery: "The doctrine of aboriginal land rights does not originate in English or French property law, and it does not stem from native custom. It is an autonomous body of law that bridges the gulf between native systems of tenure and the European property systems applying in the settler communities. It overarches and embraces these systems, without forming part of them." supra note 7 at 744-5 194 See Common Law Aboriginal Title, supra note 50 at 198-204 85 occupation and the common law presumption that occupiers of land have title to fee simple estates."195 This is a crucial aspect of McNeil's theory apparently misunderstood by Lamer C.J.C., who, by finding pre-sovereignty occupation to be relevant in light of a common law principle, has made its application more difficult.196

Regrettably, this approach has crept into the academic literature, and in a recent article discussing what he describes as an "emerging common law doctrine on aboriginal or native title", Jeremie Gilbert identifies the source of common law aboriginal title in the pre-sovereignty occupation of land by indigenous peoples.197

Elaborating, he explains that aboriginal title is "based on the recognition of pre-existing indigenous laws, and on the common law principle that occupation is proof of possession."198 Thus Gilbert adopts the approach of Lamer C.J.C. of apparently conflating distinct sources of aboriginal title - one grounded in constitutional law and the other in property law. Immediately after making this pronouncement Gilbert then adverts to the warning issued by the Supreme Court of South Africa199 that indigenous claims to land should be determined in the first instance without recourse to English concepts of property law, apparently oblivious to the fact that this is precisely what he

Kent McNeil, "A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?" (1990) 16 Monash U. L. Rev. 91 at 107 [emphasis supplied] 196 This discussion should not be interpreted as a criticism of Kent McNeil's highly innovative approach. Instead, what is argued here is that Professor McNeil's thesis, constituting a separate approach to aboriginal title, is firmly grounded in English property law, and ought not to have been lumped together with constitutional doctrines relating to pre-sovereignty occupation. 197 Jeremie Gilbert, "Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title" (2007) 56ICLQ 583 at 590 198 Ibid, at 591 (emphasis supplied) 199 In Richtersveld Community, supra note 76 86 failed to do by locating aboriginal title in pre-existing indigenous law and simultaneously in common law principles of possession.

Possibly, Lamer C.J.C. had in mind yet another source of Aboriginal title, which he identified as existing in the relationship between common law and pre-existing systems of aboriginal law. At first blush, this seems akin to principles of Colonial law as discussed above, which were shaped by the interaction of native and settler societies, but later in the judgment this interpretation is belied. In his discussion on the use of aboriginal "perspectives", Lamer C.J.C. creates the impression that the latter have the limited purpose of proving occupancy.200 In other words, the "relationship" is not referable to Colonial law doctrines that found a substantive right to lands; rather, it merely fulfils an evidentiary purpose, being another "perspective" that must be taken into account alongside that of the common law.

Ultimately, importing substantive doctrines of English property law into this limb of Delgamuukw was at best wholly unnecessary and needlessly complicated; at worst, it constituted an approach that could potentially engender considerable confusion. Delivering a separate judgment with which L'Heureux-Dube J concurred, La

Forest J took pains to distance himself from this aspect of Lamer C.J.C.'s ruling, saying guardedly: ""aboriginal title" is based on the continued occupation and use of the land as part of the aboriginal peoples' traditional way of life. This sui generis interest is not

Delgamuukw. supra note 169, per Lamer C.J.C. at paras. 147-8 (pp. 1099-1100) 1 Ibid at paras. 149 (pp. 1100-01) and again at paras. 156-7 (pp. 1104-5) 87 equated with fee simple ownership; nor can it be described with reference to traditional property law concepts."202

One consequence of attributing relevance to prior occupation derived from a common law principle of possession is that courts are thereby forced to navigate the complexities of English real property law.203 The common law has not been entirely inflexible as regards the standard of legal possession,204 but dangers lurk in the problems potentially attendant upon this approach. English property law consists of intricate and arcane rules, starting with the fiction of original crown ownership of all lands. It has no experience of dealing with features of land use that are unique to

Aboriginal societies, such as their sacred, spiritual relationship with land, their concept of stewardship rather than ownership, their seasonal patterns of use and so on. In the past, many of these unique aspects of Aboriginal land use confounded Western jurists and theorists, embodied in the writings of Vattel206 whose theories were framed through a utilitarian lens and were invoked on occasion in order to justify the dispossession of migratory societies.207 Of course, in his judgment in Delgamuukw Lamer C.J.C. did not

202 Ibid at pp. 1125-6. It is worth adding that considerable respect should be accorded to the views of La Forest J, given his extensive experience on the subject of Aboriginal title: La Forest, supra note 185 203 As to the dangers of doing so in countries where the common law is applicable, see Brian Slattery, "The Metamorphosis of Aboriginal Title" (2006) 85 Can. Bar Rev. 255 at 269 204 McNeil, Common Law Aboriginal Title, supra note 50 at 196-204 205 For an authoritative discussion of this see the decision of the Inter-American Court of Human Rights in Mayagna (Sumo) Awas Tingni Community v Nicaragua. Judgment dated 31 August, 2001, Inter-Am. H.R. (Ser. C) No. 79 (2001); see also Gordon Christie, "Delgamuukw and the Protection of Aboriginal Land Interests" [2000-2001] 32 Ottawa L. Rev. 85 at 89 (note 5 and works cited therein) and Brenda Gunn, "Protecting Indigenous Peoples' Lands: Making Room For the Application of Indigenous Peoples' Laws Within the Canadian Legal System" (2007) 6 Indigenous L.J. 31 at 51 -55 See text accompanying footnotes 26-29 supra 207 See discussion above at p. 30 88 exclude the role of aboriginal perspectives and aboriginal law, but it does not require intimate familiarity with jurisprudence in this field to appreciate how easily those perspectives stand to be eclipsed by common law rules.

Indeed, there has already been at least one decision on Aboriginal title in Canada since Delgamuukw which highlights the incompatibility of the two systems. In R. v.

Marshall; R. v. Bernard,209 at issue were the rights of Mi'kmaq Indians to cut logs on what were described as Crown lands in Nova Scotia and New Brunswick. Restoring the convictions of both appellants, the current Chief Justice purported to rely on

Delgamuukw, but applied a test of Aboriginal title that significantly distorted the guidelines given by Lamer C J.C. in that case. McLachlin C.J.C. held that Aboriginal title "is established by practices that indicate possession similar to that associated with title at common law," which necessitated a process of "matching common law property rules to aboriginal practice". In her exposition of common law property rules regarding legal possession, the Chief Justice relied principally on the discussion by

Professor Kent McNeil in his seminal 1989 work,212 before proceeding to evaluate the requirements laid down in Delgamuukw for title, which she identified as exclusive physical occupation of land. Although McLachlin C.J.C. repeatedly paid lip service

Delgamuukw. supra note 169 at para 147; see also paras 156-7 209 R. v. Marshall and R. v. Bernard [2005] 2 S.C.R. 220 210 For detailed critiques of this decision see Kent McNeil, "Aboriginal Title and the Supreme Court: What's happening?" (2006) 69 Sask. L. Rev. 281, especially at 293-305, Paul Chartrand, "Marshall and Bernard: Return of the Native" (2006) 55 U.N.B.LJ. 135 and Slattery, Metamorphosis, supra note 203 at 279-86 211 Supra note 209 at p. 245 (para. 54) 212 Ibid, at pp. 245-6 213 Ibid, at p. 246 (paras 56-7); But this was not a wholly accurate summary of Lamer's dicta on the point - see Delgamuukw. supra note 169 at para. 149 (pp. 1100-01) 89 to the need for sensitivity to aboriginal perspectives, she appeared not to follow her own advice. In assessing whether the use made by the Mi'kmaq of the territory in question could found aboriginal title, the Chief Justice relied on an interpretation of the jurisprudence of the Canadian Supreme Court which led to a finding that although nomadic and semi-nomadic peoples are not necessarily disentitled from claiming title to aboriginal land, "occasional entry and use [of land] is inconsistent with... the approach to aboriginal title which this court has consistently maintained."214 Since aboriginal peoples are known to pursue migratory lifestyles, and often use the resources on the land occasionally as opposed to cultivating it, this test of occupation maximizes the difficulties of Aboriginal societies in claiming title to territory historically used by them. By way of comparison, the South African Court of Appeal in Richtersveld

Community held that "a nomadic lifestyle is not inconsistent with the exclusive and effective right of occupation of land by indigenous people," which accordingly entitled the plaintiffs to a declaration of ownership of the claimed land in spite of their seasonal use of it.215 This is clearly the preferable approach, and it is worth noting that in arriving at this conclusion the South African Court of Appeal placed reliance on indigenous laws, held to have survived British acquisition of sovereignty.

Ultimately, the approach espoused by McLachlin CJ.C, whereby common law rules are "matched" to aboriginal practices, was not an unforeseeable development of

Lamer's test that attributed relevance of pre-sovereignty occupation to a rule of English

2UIbid, at p. 247 (para 59) 215 Supra note 76 at paras. 23-24 90 property law. In the matching process conducted by the current Chief Justice, aboriginal practices alien to Western values were marginalized, highlighting the dangers of adopting this approach. Interestingly, more than thirty years ago Youngblood

Henderson opined that the Tee-Hit-Ton court erred precisely because they analyzed

'occupancy' in terms of Anglo-American common law.216 For these reasons, one ought to be very careful in adopting Lamer's approach in a foreign context, and the warning issued by their Lordships in the Privy Council more than eight decades ago remains as relevant today as it was then: ".. .in interpreting the native title to land, not only in

Southern Nigeria, but other parts of the British Empire, much caution is essential. There is a tendency, operating at times unconsciously, to render that title conceptually in terms which are appropriate only to systems which have grown up under English law. But this tendency has to be held in check closely."217

It cannot be gainsaid that the source of Aboriginal title in Canada remains an arcane issue in spite of more than a century of judicial engagement with it. Inscrutable language in Delgamuukw has been incautiously applied, even extended, in Marshall &

Bernard, demonstrating how essential it is for a proper understanding of the theoretical underpinnings of the doctrine. Nonetheless, uncertainty apart, what remains of crucial importance for our purposes is the fact that in Canada, like in many other parts of the former British Empire, aboriginal proprietary rights have been recognized at common law without specific legislative intervention.

216 Supra note 161 at 116-7; See also Hookey, supra note 13 at 89 217 Tijani, supra note 56 at pages 402-3 91 Application to Guyana

The foregoing discussion should certainly illustrate the claim made at the outset that judicial opinions on the subject of Aboriginal or native title within former parts of

British dominions span a variety of often conflicting positions. The geographic diversity of common law jurisdictions mirrors an equally diverse range of theories on the subject, and it may not be easy to justify a particular choice. Nonetheless, a cursory attempt will be made to extract applicable principles for Guyana.

The approach of Blackburn J in Milirrpum has been decisively rejected both in highly persuasive judgments of other common law courts and by a torrent of academic criticism. More pertinently, it has been overruled in Australia, so that the principle it stands for - in particular that of the cataclysmic effect of British sovereignty - can be easily discarded. Likewise, the presumption applied in the Indian Act of State cases that pre-existing rights are automatically superseded and apply only to the extent that they are specifically recognised, is demonstrably against the weight of authority both at international law and under the common law itself, and commands no persuasive value whatever.

This means that in the absence of an Act of State at the time of cession to the

British whereby private property was expropriated, or any subsequent (legislative) act of the Crown inconsistent with the continuation of indigenous rights, the latter would unquestionably have survived in the colonies that became British Guiana. However, such rights may be held to exist by virtue of a number of distinct theories under the common law. 92 At the outset it may be stated that Professor McNeil's thesis of grounding

Aboriginal title in physical occupation, which amounts to possession under the common law of real property, is inapplicable to Guyana. This is so because upon the changeover to the British crown, English common law of real property was specifically excluded in relation to immoveable property.218 Therefore, this theory can be safely laid aside without further consideration. This leaves two alternative approaches regarding the issue of the survival of native rights on a transition of sovereignty. In one, the doctrine of continuity would apply so as to preserve all existing proprietary rights of the native inhabitants, while under the other the common law itself would operate to give legal effect to the occupation of lands by native peoples in the form of aboriginal title. Either way, pre-existing proprietary rights would be recognized without the need for specific legislative recognition. Though it may not be essential at this stage to determine which of these approaches applies to Guyana, a decision on this issue will not be postponed indefinitely, for as described above the lack of doctrinal clarity can ultimately impact on the nature or proof of the title that is found to exist.

Applied to Guyana, these principles obviously provide only the overarching framework. Against them, the acts of the Crown and post-Colonial governments must be examined to ascertain what actually took place, in order to assess not only the purposes of legislative and executive acts, but whether those interventions had their desired effect. In this way it is hoped that an answer will be provided to the issue posed

Civil Law of Guyana Act, Chapter 6:01, s. 3(C), Revised Laws of Guyana, 2002 (see note 3 supra) 93 at the outset, namely, that of the contemporary existence of rights possessed by

Amerindians to land historically occupied and used by them.

94 CHAPTER 3

THE DUTCH WEST INDIA COMPANY

Colonization in Guiana took root insidiously and it was decades, if not centuries, before it became a fait accompli. From fitful, tentative beginnings in the late 16l century the Dutch slowly consolidated their footing in the area, prevailing against both internal and external threats to establish three separate colonies spanning some 213,000 square kilometers on the northern coast of South America. Called Essequebo, Demerara and Berbice, each of these colonies covered territory that enclosed rivers of the same names. Essequebo was founded first in the early 1600s by the Dutch West India

Company, and from it Demerara developed as an offshoot a century and a half later.

The first settlements in Essequebo were tiny and predominantly in the far recesses of the continent, as the Company was initially concerned with expanding its overseas trading network. By the early 18th century, however, trade declined in importance and the emphasis shifted to plantation agriculture, precipitating a shift from those inland settlements to the more fertile coast. It was then that colonization really soared. Land was freely distributed by the colonial authorities, attracting significant numbers of

English planters to both Essequebo and Demerara, which by then had come to be known collectively as the 'Two Rivers'. This free movement of capital was then a visionary policy which facilitated the expansion of the colonies, but it was to backfire eventually against the Dutch.

The settlement of Berbice commenced shortly after that of Essequebo, pioneered 95 by a prominent Zeeland family who obtained a Charter from the Company in 1627.

Almost nine decades later a privateering attack resulted in the termination of their control of the Colony, which then passed after a series of intrigues to a mercantile group known as the Berbice Association in 1720. For the remainder of Dutch rule Berbice continued to be administered separately from the Two Rivers, and it was not until after cession to the British that the three Colonies were unified to form British Guiana.

In relation to Essequebo and Demerara, the era of Dutch rule can be carved up into several key periods. The first covers the greater part of the 17th century commencing from the time of the incorporation of the Dutch West India Company

(WIC), during which tentative settlements were established. The second period, lasting from the waning years of the 17th century until the early 18th century, was a time of consolidation during which various institutions were established for the colony, and it was then that the Dutch became solidly embedded in the region. The final period lasted from the mid to the late 18th century, and it covered a most momentous chapter in the history of the colonies. Coinciding roughly with the tenure of Laurens Storm van's

Gravesande, the visionary Directeur-General who was at the helm of the Two Rivers for close to three decades from 1743 to 1772,' in this period agriculture came to replace trade as the main economic activity. This shift heralded a period of formidable growth and expansion as marshy coastlands were reclaimed, plantations multiplied and the population soared.

1 C.A. Harris and J.A.J. De Villiers, Storm Van's Gravesande: The Rise of British Guiana, Vol. 1, rep. (Nendeln/Liechtenstein: Kraus Reprint Ltd, 1967) 35; 50 96 As for Berbice, development also proceeded slowly in the first century after settlement. Later, when control passed to the mercantile association early in the 18thC, a greater period of prosperity followed, but generally Berbice faced many of the same obstacles to progress posed by external attacks, capital shortages and internal dissension, as did the Two Rivers. Altogether, for this entire period of roughly two hundred years, Dutch colonial authorities contended not only with the colossus that was the dominating to the west, but also with occasional forays by other

European naval powers. These external realities would play a decisive role in shaping the development of the three Colonies.

By the close of the eighteenth century, when Demerara, Essequebo and Berbice capitulated like ninepins to the English, their combined territorial limits had been definitively staked out and asserted. Internally, the demographic composition of the region had become irretrievably altered, with native polities and governance structures significantly overshadowed by those of the colonizers. In this chapter, I will describe these events in the early , particularly with a view to identifying the limits of the territory over which the Dutch were able to consolidate their control and the institutions which they established, which were to become the foundation for the country's legal and political infrastructure. This detailed history is relevant insofar as it provides the background and context in which the British came to operate and describes critical elements of the constitutional framework of the modern state. Moreover, Dutch laws and policies created a legacy of asymmetric power relations between the colonizers and the indigenous inhabitants, the evolution and outcome of which will be 97 explored in the following chapter. There I shall focus on the processes and policies through which the Dutch were able first to infiltrate the territory and eventually to consolidate their political ascendancy in the area. Ultimately, through this exposition, I hope to identify the impact of these shifting political realities on the proprietary and sovereignty rights of the region's indigenous inhabitants.

Essequebo and Demerara: (i) Incorporation and Infiltration

For close to a century after Columbus' voyages, the north coast of South

America remained relatively unexplored.2 Early Spanish incursions made very little headway and the Spaniards were never able to penetrate the region east of the Orinoco.

Their genocidal fury had resulted in the extermination of entire ethnicities in the

Caribbean archipelago, and for this they earned the enduring hatred of the Caribs, then one of the dominant indigenous groups on the northern littoral.4 The Arawaks of the

Greater Antilles, conservatively estimated at half a million, were the immediate casualties, and in the first century after Columbus' voyages they largely disappeared from the Caribbean islands.5 Although the Caribs put up greater resistance, they too were massacred eventually, and today only pockets of their descendants remain in the

2 Janette Forte, Early Amerindian-European Encounters on South America's Wild Coast (M.A. thesis, University of Texas at Austin, 1992) 1 3 James Rodway, "The Indian Policy of the Dutch" (1896) X Timehri 14 Noel Menezes, British Policy Towards the Amerindians in British Guiana, 1803-1873 (Oxford: OUP, 1977)22-24 5 Colin Henfrey, Through Indian Eyes: A Journey Among the Indian Tribes of Guiana (NY, Holt, 1965) 259-260; see also Forte, supra note 2 at 22-26 98 Commonwealth Caribbean, most notably in Dominica and St. Vincent.

Admittedly these are sweeping assertions, which have increasingly come under question by a number of historians. However, whether traditional accounts of indigenous extermination in the Indies are exaggerated or not, it is beyond dispute that the Spaniards were hell-bent on enrichment, and in the pursuit of this goal the

Caribbean archipelago was largely depopulated in a relatively short time after contact.8

By contrast, however, the indigenous inhabitants of the Guianas had the refuge of a continental expanse and dense forest cover, and motivated by their implacable opposition to the Spaniards they successfully averted a slaughter on the mainland on a scale comparable to what had occurred in the Islands. Thus for more than a century

Spain's most easterly presence in this region was at a small Amerindian village on the southern bank of the Orinoco, where they settled in 1596, renaming it Santo Thome.9

In the ensuing political vacuum among European maritime powers over this area, which lasted roughly for the first three centuries after contact, intense rivalry and competition prevailed among the Dutch, British and French for ascendancy in trade and

6 That is, the English speaking Caribbean, as distinct from the islands of the such as Hispaniola, Puerto Rico and where indigenous survival is now recognised to be far more significant than previously thought: Arthur Einhorn, "Before We Were Asleep: Now We Must Awake From Our Sleep and Move Forward" in Indigenous Resurgence in the Contemporary Caribbean: Amerindian Survival and Revival, ed. Max Forte (New York: Peter Lang, 2006) 271 7 See generally the collection of articles in Indigenous Resurgence, ibid. 8 Robert Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (NY: Oxford University Press, 1990) 82-5 9 British Guiana/Venezuela Boundary Arbitration Proceedings, 1899, British Case, Volume 1, 12 & 20 [hereafter 'British case'] 99 settlement on the Wild Coast.10 A number of exploratory voyages at the end of the sixteenth century - most notably those of the English explorer Sir Walter Ralegh in

1595 - served to keep the area firmly alive in the European imagination.11 This was, after all, the region where the fabled city of El Dorado lay concealed. At first, though, it was the Dutch who were to prevail.

At that time 'Dutch' denoted more correctly the united , a loose federation of a number of autonomous and sovereign Provinces. Common affairs were deliberated upon at an assembly in The Hague, majestically styled "the High and

Mighty Lords the Lords States General of the United Netherlands", or the 'States-

General' for short. By the mid-sixteenth century and largely as a result of a series of strategic royal marriages, the Netherlands had become part of the Spanish empire. Their revolt against Spain led to a protracted war for independence, which, save for a truce

1 ^ from 1609 to 1621, did not end until 1648 with the Treaty of Munster. The end of the truce in 1621 gave free reign to the Netherlands to pursue its own designs of empire, hence the formation of the Dutch West India Company in that year. Based on the

Charter granted to the WIC, its express purpose was to promote Dutch navigation, commerce and settlement in America, the West Indies and Africa, and indirectly to challenge what was then the monopoly of their archrivals (the Spaniards) where they

Leo Despres, Cultural Pluralism and Nationalist Politics in British Guiana (Chicago: Rand McNally & Co., 1967)31 11 Raymond Smith, British Guiana (London: OUP, 1962) 13 Cecil Clementi, A Constitutional History of British Guiana (London: Macmillan, 1937) 6 13 Mohamed Shahabuddeen, Constitutional Development in Guyana 1621-1978 (Georgetown: Guyana Printers Ltd, 1978) 2-3 100 could. The Company was a monumental undertaking, with diverse and ambitious objects spanning commerce, diplomacy, nation building and even war. It was to play a pivotal role in the development of the Two Rivers for the greater part of the latter's history under Dutch rule - a period of almost two centuries.

The WIC was divided into five chambers, representing the provinces that had subscribed capital. Directors chosen from each chamber formed an Executive Council, numbering nineteen in all and tasked with carrying out the general business of the company. This Council, unimaginatively called the 'Nineteen', sat alternately at

Amsterdam and at Middleburg in Zeeland.14 By the Articles of the Octrois of the

Company the States-General granted the Company an absolute monopoly of trade for

24 years, commencing from the 1st July 1621 over a vast territory extending from

"the coasts and lands of Africa, from the Tropic of Cancer to the Cape of Good Hope, [to] ... the countries of America and the West Indies, beginning from the southern extremity of Newfoundland through the Straits of Magellan, Le Maire, and other straits and channels lying thereabouts, to the Strait of Anjan, ...on the North [and] on the South Sea, [to] ...the islands situated either on the one side or the other, [and] between them both; [to] ... the Australian and southern lands extending and lying between the two meridians, reaching in the east to the Cape of Good Hope, and in the west to the east end of New Guinea, inclusive."15

Dutch citizens were forbidden from trading in any part of this region without the licence of the Company, and breach of this prohibition could render both ships and merchandise liable to forfeiture. The prohibition against trading was binding only upon

P. M. Netscher, History of the Colonies ofEssequebo, Demerary and Berbice: From the Dutch Establishment to the Present Day (Utrecht: Martinus Nijoff, 1888) 22 15 Articles of the Octrois of the Dutch West India Company, 3rd June 1621, Article 1, FO 420/27B, p. 27, National Archives [U.K.] 101 "natives or inhabitants" of the United Netherlands, but even so maintenance of a monopoly over such an extensive territory in what was the Age of Discovery posed an enormous military and naval challenge, which was to be constantly in the forefront of the Company's concerns.

Article 2 of the Charter was a significant one, empowering the Company to establish and maintain settlements, as well as to forge alliances with local inhabitants.

Specifically, it provided that the Company

"may make agreements, regulations, and alliances with the princes and natives of the lands comprised in them. They may equally raise fortresses and strongholds, name and officers of war and of justice, and take all measures necessary to the preservation of the forts, the maintenance of good order, policy and justice; They may further found new settlements in fertile and uninhabited lands, and take all measures necessary to the progress of the land and the increase of commerce..."

Presumably, the provisions for government and administration were intended to bind Dutch settlers, for the juridical capacity of the natives of foreign lands was expressly recognised by this article. Indeed, the policy of alliance embodied by this

Charter proceeded from a premise of equality, containing an explicit recognition of and respect for the sovereign status of native entities. Moreover, since settlements were to be established in "uninhabited lands", it would appear that the States-General had no ambitions of conquest, at least in the initial stages of this enterprise.

The States-General retained ultimate authority, reserving the power to approve of any elected Governor-General and all instructions given to him, and all officials up to and including the Governor-General were required to take an oath of loyalty to them

102 and to the Company.16 In exchange, the States-General was responsible for providing the capital to finance the Company.17 The Company was also authorised to defend its commerce, for the purposes of which the States-General undertook to supply soldiers, who were to be paid for by the Company. In the event of war, further support would be provided.18

Reinforcing the Charter were sailing regulations, enacted from time to time by the States-General, by which the Company's monopoly was proclaimed and attacks on

Spanish controlled territories were encouraged.19 Regulations first issued on the 16th

July, 1621 authorised Dutchmen to "sail westward of the Oronoque to do all hostilities and damage to the King of Spain, his subjects and adherents, by water and by land."

This provision is particularly instructive for the insight it provides into the geopolitical realities of the period, revealing not only the Dutch agenda but also actual patterns of settlement - in particular that Spanish occupation was from the Orinoco going west.

The various chambers of the WIC were permitted their individual concerns and interests independent of the Company at large, and in accordance with this facility it

90 was the Zeeland Chamber that spearheaded settlement on the banks of the Essequebo.

However, unlike comparable histories such as that relating to the founding of Australia for example, there is no traditional date marking the first European contact on the 16 Ibid, article 3. The original translation contained in FO 420/27B reads: "Supposing them to have elected [sic] a Governor-General, and drawn up his instructions, these must be approved by us and his commission given him..." Read in context "them" refers to the WIC, so in fact by "elected" what was really meant in this article was 'selected'. 17 Ibid., article 39 18 Ibid., article 40 19 British Case, supra note 9 at 25 20 Ibid., at p. 24 103 Guiana coast. The formal settlement of Guiana is often dated from 1621, the year that the WIC received its Charter, but in reality Dutch presence in the region predated this event. Already from the waning period of the 16th century Dutch navigators had traversed the Wild Coast in pursuit of trading links and networks.21 In various accounts

99 9^ the years 1580 and 1590 have been mooted, but for the most part historians have not been as definitive. Sir Cecil Clementi, who served as Colonial Secretary of British

Guiana from 1913 to 1922 and thereafter published a treatise on the colony's constitutional history, broadly estimated initial settlement as occurring sometime 94 between 1598 and 1613, while Sr. Noel Menezes, the doyenne of modern Guyanese historians, puts it at sometime in the late 16th century.25 A potentially authoritative source is that provided by J.A. Swettenham, an English officer who conducted a detailed survey of Dutch manuscripts housed in the Hague Archives in 1888 in preparation for the then impending boundary arbitration proceedings with Venezuela, but even his account is noncommittal, estimating early Dutch settlement as sometime between 1599 and 1616.26 Despite these variations the general consensus seems to be that preliminary voyages to and settlements in the area took place from the late sixteenth century. This timeline is perfectly consistent with the Charter issued to the

WIC in 1621, as formal validation would logically have been preceded by some 2X Ibid., at p. 12 22 James Rodway, History of British Guiana, 1668 to the Present Time (Georgetown: J. Thompson, 1891) Vol. 1,3 23 Netscher, supra note 14 at 14 24 Supra note 12 at 4 25 Supra note 4 at 44 26 British Guiana Boundary: Precis of Documents from the Hague Archives by J. Swettenham, September 1888, CO 884/4/28, p. 4, National Archives [U.K.] 104 knowledge of the area's value and potential.

Some uncertainty also surrounds what constitutes the first Dutch settlement in this region.27 In the popular imagination the ruined Fort on a tiny island called 'Kyk- over-al' in the Mazaruni River holds this distinction, but there are odd references that dispute the fort's provenance. Henry Dalton, a nineteenth-century historian, claims that it is not known when or by whom the fort was erected, but rather that its remains were found there in 1613 by the Dutch Commander Joost Van der Hoog, while in his report to the United States Boundary Commission Professor Burr claimed that the Spaniards had constructed the fort sometime prior to 1626.29 Despite these views, however, there is considerable authority for its Dutch heritage, reinforced by what are said to be Dutch engravings on the stone itself. Swettenham for his part was in no doubt that it was a

Dutch fort, initially dubbed Fort ter Hooge and only subsequently called Kyk-over-al.

Ultimately, if there were any Europeans prior to the Dutch in this area they left no trace of their presence, whereas by the time of the 1621 Charter there were at least three or four recorded Dutch settlements in the wide area between the Orinoco and the Amazon, in addition to Dutch settlers in Essequibo.31

Far less controversial is the fact that early settlement of the colony began in the interior, unlike modern Guyana where the majority of the population is concentrated on

27 Harris & De Villiers, supra note 1 at 146-153 28 Henry Dalton, The History of British Guiana, Vol. 1 (London: Longman, Brown, Green and Longmans, 1855) 132 29 British Guiana/Venezuela Boundary Arbitration Proceedings, Counter Case of the United States of Venezuela, Vol. 5, pp 69-70 30 Supra note 26 31 British Case, supra note 9 at 12 105 the narrow coastal strip. Dutch navigators and company officials, in search of goods as well as alliances through which to expand this trade, penetrated deep inland via the network of rivers that emptied out into the Atlantic.32 Trading depots, and in some cases forts, were established in order to store goods supplied by native trading partners while the ships were en route to and from Holland, and in this way the very first settlements were born. Forts ensured that there would be no delay in reloading the ships when they returned while at the same time provided protection against theft by both the neighbouring Spaniards as well as hostile native peoples.33 In addition, as part of their machinery for promoting and facilitating trade, the WIC employed commercial agents, who were designated to travel in the various rivers procuring goods.

However, the question of how far into the interior the Dutch penetrated, or more precisely what was the extent of the territory that they controlled, was one of great contention. It had always been accepted that in the east the Corentyne River was the boundary between Berbice and Suriname, and the greatest controversy has been reserved for the western boundary, that is, the one between Essequebo and Venezuela.

This matter was not definitively settled until an international Tribunal, set up pursuant to a Treaty of Arbitration signed between Great Britain and Venezuela in 1897, delivered its award in Paris in 1899. At the proceedings which gave rise to the award

Great Britain submitted that their predecessors had occupied and controlled all of the

32 Ibid., at p. 14 33 James Rodway, Handbook of British Guiana, 1848-1926 (Boston: John Andrew, 1893) 82 34 British Case, supra note 9 at 14 35 Award dated 3rd October 1899, published in the Official Gazette of 11th November 1899, CO 115/189, National Archives [UK] territory bounded by the Corentyne River in the east and the Orinoco in the west, and that such occupation had been accepted by the Spaniards. This was, however, somewhat of an exaggeration, for though the Dutch had in fact settled west of the Essequibo the precise extent of such occupation was in a constant state of flux and was unknown even to the Dutch colonial administration of the time.36 Indeed, there is correspondence that suggests that much less of this area was actually occupied by the Dutch than subsequently claimed, and that the Barima River (which flows east of the Orinoco) was at one time considered the boundary between the two colonies.

Even more doubtful was the claim that the Spaniards accepted Dutch occupation all the way to the Orinoco. In the first place Spain never relinquished her claim to the continent based on first discovery and Papal grant (whether or not she truly believed in the juridical validity of such arguments), and in turn those justifications were invoked by Venezuela at the arbitration proceedings.38 Despite such posturing, however, a considerable body of evidence existed (which was made available at the proceedings) indicating that Spain's most easterly settlement was on the banks of the Orinoco.

Moreover, Spanish officials were themselves aware both of the extent of Dutch occupation and of the close alliances the latter formed with the indigenous inhabitants

There is substantial correspondence between the Directeur General and the WIC evidencing such uncertainty - see, for example, Letters from Gravesande to WIC dated 7 December 1746, 23 March 1747 and 2 September 1754, reproduced in British Guiana/Venezuela Boundary Arbitration Proceedings, Venezuela No. 3, Appendix II, Nos. 78, 79 & 111 37 Letter from Gravesande to WIC dated 20 March 1767, ibid at No. 189 38 British Guiana/Venezuela Boundary Arbitration Proceedings, Venezuelan Case, Vol. 4, pages 229-236 107 of the region. However, the question whether Spain accepted such occupation is an altogether more subtle one, adamantly contested by Venezuela on the strength of the repeated attacks by the Spaniards on Dutch settlements in the Essequibo from the mid- eighteenth century onwards. While this is most definitely not the place to revisit what has turned out to be a protracted and highly complex debate, it is sufficient to note for our limited purposes that Spanish attacks were sporadic, furtive and did not succeed in dislodging the Dutch. By contrast, the Dutch did not abandon their settlements, all the while publicly asserting their claims before the Spanish Crown. The result of their perseverance was the retention of control over a substantial area west of the Essequebo, though not as far west as Orinoco, which occupation was finally recognised by the international tribunal award a century later. A brief sketch of the location of the largest of these settlements in the west may help to illustrate more clearly the extent of territory that eventually came under Dutch jurisdiction.

In the course of the seventeenth century, the Dutch came to occupy the watersheds of the Essequebo, Mazaruni and Cuyuni rivers, as well as various points along some of the larger rivers between the Corentyne and Barima rivers. At the time the WIC was incorporated in 1621 there were already Dutch settlers in the Essequebo,41 from where settlement gradually radiated outwards. Following the Treaty of Munster in

39 British Guiana/Venezuela Boundary Arbitration Proceedings, Venezuela No. 1, Appendix I, pages 52, 55 & 81; See also the Minutes of the Council of War dated 19 March 1676 and the Report of Don Eugenio Alvarado dated 20 April 1755, reproduced in Venezuela No. 3, Appendix III at Nos. 7 & 18 respectively 40 British Case, supra note 9 at 29; See Appendix A for maps depicting these and other rivers along with the surrounding areas 41 Ibid., p. 13 108 1648, by which their independence from Spain was recognised, the Dutch expanded their settlements, and besides those on the Essequebo a number of other trading depots came to be established at various points on the larger rivers and their tributaries. The first of these additional settlements to be made by the Company was on the Pomeroon

River in 1658,42 though it was to be short-lived. In 1665 it was captured and destroyed by the English, along with the Essequebo settlement which, however, was spared destruction.43 The Dutch managed to regain control of both Essequebo and Pomeroon in the following year, but because of their financial liability only the Zeeland Chamber of the WIC was willing to undertake responsibility for them. The administrative control of the Zeeland Chamber was expressly formalized in an agreement executed in April 1670, later confirmed by both the Nineteen and the States-General.44

In 1686 an attempt was made to resettle the Pomeroon River as a separate

Colony, and a separate Commandeur was appointed for the venture. However, despite military fortifications the settlement was plundered again in 1689, this time by the

French.45 This proved too much for the Company, and by a resolution made the following year it was decided not to persevere with resettlement there but instead to maintain just a token presence consisting of three company officers and a flag, while

42 Ibid 43 Clementi, supra note 12 at 18 44 Shahabuddeen, supra note 13 at 11-12 45 Swettenham, supra note 26 at p. 7; A fairly graphic firsthand description of the raid is recounted in a letter from de Jonge, Commandeur of Pomeroon, to the WIC, dated 6 July 1689, reproduced in Venezuela No. 3, Appendix II, No. 22 109 leaving it under the control of Essequebo. After this, it was not until late in the following century that a settlement was to be re-established in the Pomeroon.47

Apart from the Essequebo and Pomeroon Rivers, Posts were also established for areas further afield. In the far north-west of the territory there were main Posts on the

Maroco, Barima and Waini rivers. The one at Maroco was established early in the eighteenth century, and gradually its jurisdiction was extended over the Pomeroon given the difficulties experienced by the latter.48 Barima obtained a Post sometime late in

1683,49 and there are references to this Post at intervals throughout the following century. By the mid-eighteenth century the Dutch were firmly in control of the Barima area, with settlement there being closely monitored50 and attempts made to enforce some degree of law and order.51 In addition, the Caribs resident in the Barima area were closely aligned to the Dutch - they provided assistance in recapturing runaway slaves, they participated in the trade, including the trade in slaves captured from other indigenous Nations, and with increasing regularity they began to submit to the authority of the Dutch administration.53 The Waini was also considered to be included within

Dutch territory, so much so that when it was threatened by Spanish invasion in 1746 the

British Case, supra note 9 at 29 47 Swettenham, supra note 26 at 25 48 Gravesande to WIC, dated 27 September 1763, reproduced in Venezuela No. 3, Appendix II, No. 164 49 Commandeur of Essequebo to WIC, dated 25 December 1683, reproduced in Venezuela No. 3, Appendix II, No. 10 50 Gravesande to WIC, dated 30 May 1766, reproduced in Venezuela No. 3, Appendix II, No. 183 51 Gravesande to WIC, dated 20 March 1767, reproduced in Venezuela No. 3, Appendix II, No. 189 52 Gravesande to WIC, dated 3 April 1744, reproduced in Venezuela No. 3, Appendix II, No. 72 53 Gravesande to WIC, dated 12 March 1756, reproduced in Venezuela No. 3, Appendix II, No. 124 110 Essequebo Commandeur provided reinforcements to the Caribs residing there. As with the Barima settlement, the timber and other resources of the Waini were controlled by the Dutch administration, which had the river surveyed in 1753 in anticipation of making land grants55 and closely regulated applications to cut timber in the area.

Deep in the interior of the Colony were two Posts that were of immense economic and strategic importance - to the west one high up on the Cuyuni and in the south another at Arinda in the Upper Essequebo. The post at Arinda was established in

1737 and maintained from then onwards almost down to the end of the century.56 It was situated just below the Rupununi River at an estimated distance of some 70 hours from

Fort Zeelandia, which was close to the mouth of the Essequebo.57 Its main economic activity centered on the trade in Amerindian slaves and dyes, but its overriding importance to the administration lay in the access it afforded to the inland tribes and the links and control it thereby provided. The post on the Cuyuni was established in 1755,

CO at a distance of an estimated 6 weeks' traveling from the fort at Kyk-over- al. Once again, the presence of a Dutch settlement so far to the west was important not merely for the access it provided to forest produce and the extension of trading links, but also for its overtly political purpose in maintaining a Dutch presence against Spanish encroachment.

54 Gravesande to WIC, dated 20 July 1746, reproduced in Venezuela No. 3, Appendix II, No. 77 55 Gravesande to WIC, dated 14 April 1753, reproduced in Venezuela No. 3, Appendix II, No. 105 56 British Case, supra note 9 at 15 57 Gravesande to WIC, dated 14 August 1764, reproduced in Venezuela No. 3, Appendix II, No. 171. Note, Gravesande did not specify the means of traveling by which this time was estimated, but presumably it must have been by boat. 58 British Case, supra note 9 at 47 & 14 111 Government of these scattered outposts had very humble origins. In the early days of settlement a company official was left in charge, invariably the ship's captain who would be relieved when the next ship arrived.59 Eventually persons resident in the

Colony came to be appointed to carry out this function, the official being known as the

Commandeur, the first one for Essequibo being Jan van der Goes.60 In this early period the Fort at Kyk-over-al constituted the hub from which the colony was administered - in effect, the first capital.61

However, a number of unfavourable conditions combined to undermine the development of the fledgling colony. In part to address this situation, the Company issued a Charter of Privileges and Exemptions in 1629 so as to encourage plantation agriculture.62 This Charter provided for the acquisition by any member of the company of unoccupied land, either along the sea-coast or along the banks of navigable rivers,

"so far into the country as the situation of the occupiers will permit", by purchasing it from the Indians and establishing a private Colony thereon. Such founder was known as a "patroon", and he was to have civil and criminal jurisdiction over those colonists within his estate. The patroon was also empowered to create offences, found cities and

/TO appoint officers and magistrates as needed. Yet despite this 1629 Charter the WIC was apparently not minded to open up the trade in the Essequebo to patroons, and as shall be seen it was only the sister colony of Berbice that developed in this way. It appears that

59 Shahabuddeen, supra note 13 at 25 60 Clementi, supra note 12 at 10 61 British case, supra note 9 at 25 62 Clementi, supra note 12 at 8 63 Ibid, at p. 9 112 the situation in Essequebo became so grim that the Nineteen resolved to abandon the

Colony in 1632, whereupon the Zeeland Chamber stepped in and assumed direct responsibility for its development.64 Nonetheless the provision in the 1629 Charter by which purchase of lands from the Indians was rendered necessary is further evidence of the point made in relation to the 1621 Charter to the WIC above, namely that the Dutch certainly acknowledged both the sovereign capacity and the proprietary rights of the territory's indigenous inhabitants.

In 1645 the Charter of the WIC expired, and it was renewed for another period of 25 years commencing from the 1st January, 1647.65 Despite the difficulties faced by the Essequebo colony, the Company refused to grant a monopoly over it to the Zeeland chamber.66 Trading regulations issued in 1648 shortly after Spain's recognition of the independence of the Netherlands reasserted the Company's monopoly to the Wild

Coast, but none of this seemed to make a difference and the WIC continued to experience significant difficulties. There were several reasons for this situation, including a costly war against Spain and Portugal69 and the Company's gigantic expansion, particularly in Brazil, which caused a steady drain on its resources. Indeed, bad management meant that from as early as 1636 the Company had been forced to

Shahabuddeen, supra note 13 at 10 British case, supra note 9 at 26 Clementi, supra note 12 at 14 Swettenham, supra note 26 Dalton, supra note 28 at 141 Clementi, supra note 12 at 8 113 borrow from its shareholders. None of this augured well for the Essequebo colony. In response the Zeeland Chamber opened up the Guiana coast to colonization in 1655, and the 1629 Liberties and Exemptions were superseded by a newer version in 1657.71

Another factor inhibiting growth was the constant attacks of rival European powers, some of which have already been described. This was an era of great instability as rival imperial powers jockeyed for territories. In 1672 war broke out between

England and the United Provinces, and though the colonies were not plundered, by the time peace was negotiated in 1674 the WIC had become bankrupt. A new company, retaining the name 'West India Company', was formed to take over its debts and as well the Charter was renewed on the 20th September, 1674. However, the renewed Charter had vastly contracted territorial limits - henceforth, the monopoly was not to the entire coast of America, but was confined specifically to the Essequebo and Pomeroon. The directorate of the new WIC was also reduced to ten members and, as before, the trade with Essequebo remained under the control of the Zeeland Chamber.

Although Great Britain submitted at the Arbitration proceedings that the

Essequebo settlement was "prosperous" in this formative period, given the difficulties outlined above this claim was probably another exaggeration.74 While the WIC managed to stay afloat through trading, the various settlements in the Essequebo remained very small for much of the seventeenth century, amounting in most instances

70 Netscher, supra note 14 at 23 71 Clementi, supra note 12 at 17 72 Ibid., at 20 73 Ibid., at 21 74 British Case, supra note 9 at 28 114 to little more than depots for forest produce. As late as 1670 there were only three private plantations in the Essequebo region,75 and by the end of the seventeenth century there was evidently little progress, for a report by the Commandeur to the WIC in 1701 gave the total European population of the colony as 67.

(it) Consolidation

In spite of all the constraining factors the WIC (or more accurately the Zeeland

Chamber of the Company) persevered with the settlement of Essequebo, and by the late

17th century it embarked upon a process of formal consolidation. For the greater part of the century the legal structure and framework of the Essequebo colony was provided in the main by two separate documents that governed general WIC operations. The first was an "Order of Government", issued by the States-General on the 13l October, 1629, which comprised a set of fairly detailed rules relating to criminal and civil matters and

77 encompassing both substantive and procedural law. These were issued for the governance of West Indian colonies, including those of the Guianas.78 Invariably, rules were patterned after those obtaining in the mother country, particularly the provinces of

Holland and West Friesland.

The second was a code of laws known as the Articled Letter, which was drawn up by the revamped WIC shortly after it obtained its new Charter in 1674, and

75 Rodway, History, supra note 22 at 17 76 Clementi, supra note 12 at 25 77 Mohamed Shahabuddeen, The Legal System of Guyana (Georgetown: Guyana Printers Ltd., 1973) 178 Shahabuddeen, Constitutional Development, supra note 13 at 25 79 Shahabuddeen, Legal System, supra note 77 at 179 115 confirmed by the States-General on the 16 April, 1675. Although this code was intended for the ships, it came to operate on land as well, providing the nascent structure and framework for government. Commencing with a recitation of the authority of the company and its superior officers, the rest were a collection of sundry rules covering such matters as the administration of justice, the maintenance of order, the responsibility of company officers and so on. Various offences were listed, accompanied by (often severe) punishments. Notably article 64, third from the last, provided

"All persons, high or low, are charged not to ill-treat the native inhabitants of the countries they visit, or to injure them in any way in their persons, goods, women or children, but to regulate themselves by this Articled Letter and the Instructions and Orders of the Directors, and the commands of their superiors, on pain of a fine or corporeal punishment."81

Shortly after its enactment the authority of the Articled Letter in Essequebo was expressly confirmed. Upon the appointment of Abraham Beekman as the new

Commandeur on the 25th July 1678 the Ten issued Instructions for his guidance, article

4 of which directed: "The Commandeur shall keep all his subordinates in good order and under discipline, and exact from them the punctual fulfillment of the contents of the

Charter, and punish all those who disobey the Articled Letter, and other orders, instructions and Ordinances, made or yet to be made."

Although these instruments were supplemented from time to time by

80 Clementi, supra note 12 at 21; Text set out in foil In Rodway, History, supra note 22 at 23-28 81 Rodway, History, supra note 22 at 28 82 Ibid., at p. 32 116 intermittent Instructions of the WIC and those of the individual Commandeurs, more specific provision was not made for the Essequebo Colony until the waning years of the

Dutch period.84 By a resolution of the States-General dated October 4, 1774 it was provided that "all the laws of Holland in general, and more particularly all the decrees, orders, resolutions and ordinances of their High Mightinesses, heretofore given, or hereafter to be given to the Directeur General and the Court of Essequebo, or to the

Of

Governor and Court of Demerara, shall be the rule of their judgments." In addition, it was provided that criminal matters in Demerara and Essequebo were to be governed by a 1570 Ordinance on Criminal Law.86 Already old at the time of its application, both the

1570 statute and the rest of the applicable laws were considered to be outdated and inadequate to meet the needs of the Guiana colonies, but for the rest of the Dutch occupation there was to be no further legislating.

The genesis of the colony's legislative and judicial bodies lay in a tiny Council

(or Raad) formed in 1690 to administer Company affairs. This Council consisted of the

Commandeur and a secretary, along with the managers of the Company's plantations.88

Initially, the owners of private plantations, or 'free planters' as they were called, were not represented on this Council. In 1718 this Council was officially renamed the "Raad van Politie en Justitie", or the Council of Policy and Justice, and it was to exist in this

83 Ibid., at p. 115 84 Shahabuddeen, Legal System, supra note 77 at 180-181 85 Ibid 86 Ibid 87 Rodway, History, supra note 22 at 240 88 Clementi, supra note 12 at 24 117 conjoined state for another three decades. Its composition remained as before, with free planters still denied representation thereon.89 While the Council's mandate encompassed both administrative and judicial business, the Ten (and more particularly in the directors of the Zeeland Chamber) did not relinquish control.90 The latter maintained a tight rein on the colony, and minutes of the Council in these formative years reveal that no issue, not even applications to cut wood, was too minor for their consideration.91

In 1739 the capital was moved from Kyk-over-al to an island, originally known as Flag Island and thereafter Fort Island, situate lower down the and far closer to its mouth.92 In that year also, private planters were finally given a voice in the administration of the colony with one of their number being appointed to the

Council of Policy and Justice, whose membership had by then been increased by two.93

Shortly afterwards, in 1743, the College of Keizers was created, comprising electors who were responsible for nominating representatives of the planters for the Council.

Their first nomination occurred in that same year as the free planters were granted yet another seat on the Council. Even when the elected and appointed members in the

Court of Policy were equalized, the Directeur-General had the casting vote, thereby ensuring that the company retained its control over the affairs of the colony.

89 Shahabuddeen, Constitutional Development, supra note 13 at 26-27 90 Clementi, supra note 12 at 27 91 Extract of Minutes compiled by Darnell Davis, Comptroller of Customs, enclosed in Despatch No. 127 dated 14,h April 1888, CO 111/444 92 Harris and De Villiers, supra note 1 at 26 93 Clementi, supra note 12 at 28 Shahabuddeen, Constitutional Development, supra note 13 at 28 118 These evolving developments in both the location and constitutional structure of the government came as a result of both external and internal factors. The coastal migration constituted a recognition of changing external realities, for whereas the situation of Kyk-over-al at the intersection of a critical fluvial network was an ideal location from which to intercept Spanish marauders coming from both southern and westerly directions, the newer location closer to mouth of the Essequibo provided greater defensive opportunities against attacks originating from the Atlantic to the north.

It had only been at the turn of the century that the colony had been sacked by French privateers, and since then the security and defence remained high priorities. However the move to the coast and the gradual reordering of government symbolized a far more profound change in the political economy of the colony. As trading began to be eclipsed by plantation agriculture there was a decreasing need for access to or reliance on the remote hinterland, and the shift in economic emphasis was to usher in a new era of coastal dominance.

(Hi) Expansion

While there had been attempts to encourage agriculture in the early days of

rh settlement, it was not until early in the 18 century that there was to be a significant transformation in the commercial enterprise of the colony. Trade with the local inhabitants, once the mainstay of the Company's activities, began to wane, but mirroring this shift was an increase in the profitability of sugar cultivation. Recognising the trend, the attention of the Company shifted towards plantation agriculture and 119 settlement, and from as early as the second decade of the eighteenth century a steady movement began towards the more fertile coastal strip.95 By the 1740s, sugar cultivation came to dominate the local economy,96 creating a legacy that remains unchanged up to this day.

Fortuitously, arriving at the very time of this transitional period in the colony's affairs was Laurens Storm van's Gravesande, the man who was to become undoubtedly the greatest and most dedicated of its leaders. Gravesande was sent to Essequebo in

1738 to take up an appointment as secretary to the Company, and his manifest dedication and industry resulted in his elevation to the supreme post upon the death of the Commandeur in 1742. Ruling the roost for three decades thereafter, during his tenure the colony expanded greatly, his policies emphasizing plantation cultivation and settlement. At his urging Essequebo was opened up to all nations in 1740, with free grants of land and ten years' exemption from taxation. This led to an influx of English colonists from the islands of the Caribbean, with all of the plantations being established in Essequebo. But when after five years the demand for land had still not been satisfied,

Demerara was opened up for settlement in 1745.98 The WIC provided no capital for the

Demerara venture, with all investment coming from private settlers.99 Nonetheless the

Company's miserly policies did not inhibit growth and within the space of a mere seven

Harris and De Villiers, supra note 1 at 26 Neil Whitehead, Lords of the Tiger Spirit: A History of the Caribs in Colonial Venezuela and Guyana, 1498-1820 (Dordrecht: Foris Publications, 1988) 151 97 Harris and De Villiers, supra note 1 at 35 98 Rodway, History, supra note 22 at 119 99 Ibid 120 years most of the choicest lands in Demerara had been granted. Such was the growth of

Demerara that by 1750 it was decided that it required a separate administration, and in that year it received its own Commandeur, with the Commandeur of Essequebo becoming the 'Directeur-GeneraP of both colonies. Gravesande was to become the first occupant of this elevated position, while his eldest son Jonathan Samuel assumed the post of Commandeur of Demerara on the 22nd March 1752.100

The rise in plantation agriculture necessitated an entirely different set of conditions, which accordingly precipitated profound changes in the colony's demography, physical geography, constitutional structure, political life and overall economy. At first, the most dramatic of these changes was perhaps demographic.

Hitherto, since the focus of the company was trade, its settlements were small. Up to late in the 17th century native communities were scattered along the riverbanks, and could still be found in their lower reaches and even below Kyk-over-al.101 Plantations required land, however, and it was the land on the coast and that adjoining the rivers - described above as the choicest land because of its suitability for farming - which was given to settlers by the Dutch administration. More plantations also meant escalating numbers of Africans, who were brought in steady numbers through the transatlantic slave trade to meet the labour intensive demands of sugar cultivation. As the scale of this operation intensified, both in terms of land use and labour force, indigenous peoples were inexorably forced out of their traditional areas and pushed further and further

100 Gravesande to WIC, dated 20 April 1752, reproduced in Harris and De Villiers, supra note 1 at 279 101 Rodway, History, supra note 22 at 13 102 Swettenham, supra note 26 at 7 121 Sugar production also required formidable capital investment. The coastal region is some six feet below sea level, so planters faced the initial task of reclaiming and draining land, as well as constructing a sea-defence. Plantations had to be laid out, and required a network of canals for irrigation, drainage and transportation, all of which involved massive infrastructural works. Factor in the machinery, mills and slaves required, and the result was to create the need for a wealthy plantocracy to finance this undertaking. Given the historically limited vision of the WIC, its traditional emphasis on trading and its consistent reluctance to support growth and expansion on the Wild

Coast, the planter class that emerged in this period inevitably had divergent interests, and the result was new tensions in the government of the colony which ultimately led to the Company's downfall.104

A few key constitutional changes occurring in the mid-eighteenth century bear mentioning, as these were to provide the structure of government for a long time to come, even after cession to the British. In 1750 the Council of Justice was separated from the Council of Policy. Henceforth, the former was entrusted with matters of an executive, legislative and judicial nature, while the latter body was to conduct the business of the WIC. In keeping with this division, the two seats held by the free planters on the combined Council were transferred to the Council of Justice.105

In 1767 there was a further reorganization of the constitutional structure of the

103 Dalton, supra note 28 at 70 104 Clementi, supra note 12 at 27 105 Shahabuddeen, Constitutional Development, supra note 13 at 29 political institutions, reflecting a more traditional separation of powers. The Council of

Policy became entrusted with legislative and executive business, while all judicial matters became the sole preserve of the Council of Justice. At this time also, the free planters obtained two seats on each Council, a logical development given that the jurisdiction of the Council of Policy was now extended from merely company business to legislative and executive matters concerning the entire Colony.1

In 1772, following the resolution of a simmering dispute with the Zeeland

Chamber over the latter's claim to a monopoly of the Essequebo colony, the Ten initiated a series of administrative reforms.107 Among the changes was the creation of separate Councils for Essequebo and Demerara in 1773. Significantly, there was now equal representation for private and company interests in the Council of Policy, though as yet the company still had a controlling say by virtue of a casting vote given to the

Directeur-General in cases of deadlock.108

A key issue to note concerns taxation, as the constitutional arrangement governing this which evolved in the closing years of the Dutch administration was to bedevil the colony well into the following century. Essentially, it consisted of a bifurcated system whereby legislative matters were the preserve of the Crown through the , while fiscal power was vested in a '' in which free planters were a majority.109 This meant that while the Crown legislated for the colony,

106 Clementi, supra note 12 at 34 107 Ibid., at 34-35 Shahabuddeen, Constitutional Development, supra note 13 at 32-33 109 Ibid., at 44-7 the purse strings were controlled by private individuals who, predictably, were more concerned with profit. Over the course of the next century this unusual arrangement was the locus of several conflicts,110 but it managed to endure until 1928 when it was replaced by a constitution.

In this period of expansion it is important to acknowledge the role played by

Gravesande. His policies of promoting the shift to agriculture and facilitating the entry of foreign investors were pivotal in stimulating progress, but Gravesande's vision encompassed far more than mere economic growth. With equal ingenuity and foresight he approached the issues of security and territorial integrity, unwaveringly defending the Colony's borders and consolidating Dutch rule within. Unknown to him, his perseverance and thoroughness in this regard was to bear fruit more than a hundred years later when the long-standing boundary dispute with Venezuela was settled in favour of Great Britain.

Relying on the extensive collection of Gravesande's despatches to the WIC, impressive not only because of their considerable volume but also for their painstaking detail, it is possible to discern a coherent policy aimed at extending and consolidating the Company's possessions. In order to achieve this purpose he shrewdly managed all competing interests that were likely to undermine Dutch supremacy. This involved a carefully tailored approach with regard to the native inhabitants, balancing a policy of alliance on the one hand against one of manipulation where this could work to the

Despres, supra note 10 at 38 Colony's advantage. In relation to the colony's frontiers, Gravesande's policies espoused ceaseless vigilance against Spanish encroachment. On occasion, the objectives of internal control and external defence coincided, as when Gravesande enlisted

Amerindian allies to warn him of Spanish advances and even to repel these.111 But

Gravesande's approach was not merely reactive and he continually urged the settlement of the interior for the economic and political benefits such a policy could confer. In an account of the trading places of the WIC, which he titled 'A Brief Treatise concerning the Honourable Company's Trading Places', Gravesande stated pointedly that "the only means of preventing [the encroachment of the Spaniards], of keeping the colonies, and of rendering them eminently profitable and advantageous to the Republic is their population and proper encouragement for the inhabitants."112 In the same treatise he warned ".. .the Posts of which I have spoken [are] absolutely necessary and indispensable, and (be it said) if this matter is not taken in hand, our neighbours will quietly approach and surround us, and finally, without exercising any violence, drive us from this country."

A critical component of Gravesande's administration was his indefatigable stance regarding the preservation of what were considered to be Dutch possessions, demonstrated during his tenure in a number of attacks on various Posts by the

Spaniards. Although Gravesande was not always successful, his invocations of formal diplomatic channels came to be invested with significant weight insofar as they

'" Gravesande to WIC, dated 20 July 1746, reproduced in Harris and De Villiers, supra note 1 at 219 112 Enclosed in despatch dated August 1764, reproduced in Harris and De Villiers, supra note 1 at 473 125 embodied public assertions of Dutch rights. An interesting episode in this regard is provided by the experience of the Cuyuni post.

In 1758 the Spaniards sacked the Cuyuni post, taking all the persons found there as prisoners, including a Postholder and commercial agent.114 Gravesande immediately dispatched a remonstrance to the Commandant of Guayana which balanced an uncompromising assertion of Dutch rights with a thinly veiled threat:

"It is with the greatest surprise that I learned from some Indians a few days ago that our post in the River Cuyuni had been attacked by Spaniards [and prisoners taken].

"What, Sir, am I to infer from an offence so directly opposed to the law of nations...? I am thoroughly convinced that His Catholic Majesty, far from approving an offence of this nature, will not be amiss in rendering the fullest justice to my Sovereigns... "It would be by no means difficult to me to make reprisals, having the necessary resources at hand to do so, but I find no reason to make use of them, considering that contrary to the character of a Christian, and which it is not permitted to employ only in extreme cases, and when all other means are found unavailable."115

The Commandant responded by asserting his own authority to detain the prisoners on the ground that they were captured within the territory of the Spanish monarch.116 The

States-General then took up the matter, but it has been suggested that this was only because of Gravesande's tenaciousness since at that time the Netherlands was reluctant

113 Ibid, at 66 114 British case, supra note 9 at 48 115 Gravesande to Commandant of Guayana, 30 September 1758, reproduced in Venezuela No. 3, Appendix II, No. 136, enclosure 1 116 Don Nicolas de Castro to Gravesande, 10 November 1758, reproduced in Venezuela No. 3, ibid, enclosure 2 to get drawn into a full scale conflict with Spain."7 In any event on July 31, 1759 the

States-General sent a remonstrance to the Court of Madrid, claiming all branches of the

Essequebo River, including the Cuyuni, and asking for satisfaction as well as a proper

118 delineation of the boundary between the Colonies. This remonstrance was not answered, but this was not to be the end of the matter.

In 1766 the Cuyuni Post was re-established by the Dutch, though at a lower point than where the previous post had been situated. Further attacks led to another remonstrance on July 31, 1769 from the States-General to the Spanish monarch, wherein Dutch claims to the whole of the Cuyuni were reiterated and redress claimed.11

This remonstrance was taken up by the Dutch Ambassador to Madrid who urged the

Prime Minister to discontinue all hostilities and leave them in quiet possession of the

Colony "as they had possessed the same until now." Although the matter was then passed on from Minister to Minister, eventually the Dutch Ambassador secured a response from the Spanish government that it would be "reasonable and equitable" to 1 90 accede to their demands.

What this episode demonstrates is that regardless of the complicity of the

Spanish Court in the raids on Dutch settlements, when pressed diplomatically on the matter there was no attempt to dispute the justness of Dutch claims. Indeed, by the end

117 Harris and De Villiers, supra note 1 at 89-99 118 Resolution of the States-General, 31 July 1759, extracted in Venezuela No. 3, Appendix II, No. 136 119 Extract from the Register of Resolutions of the States-General, 2nd August 1769, reproduced in Venezuela No. 3, Appendix II, No. 224 120 Netherlands' Ambassador, Madrid, to States-General, dated 7th September 1769, reproduced in Venezuela No. 3, Appendix II, No. 227 127 of the third quarter of the eighteenth century the Dutch were spared further Spanish incursions from the west. Undoubtedly, Gravesande's policies which emphasized both interior settlement and frontier defence played a part in this reprieve and ultimately in the consolidation of Dutch control over a considerable amount of territory extending deep into the interior of the Essequebo region. This was no small feat, considering

Spain's historically obdurate stance regarding what she considered as rightfully hers.

Berbice

There is considerably less primary source material for the founding and early development of Berbice than for the Two Rivers, mainly because this colony originated as a private initiative, which meant that there was little if any official documentation or correspondence with the WIC or the States-General regarding it. Nonetheless, it is possible to sketch a basic account of its founding and subsequent development.

The monopoly obtained in 1621 by the WIC extended over the entire Wild coast, but occupied with Essequebo it entrusted settlement in the to the

Van Peere family from the Province of Zeeland. By the agreement entered into on the

12th June 1627 between Abraham van Peere and the WIC, the former undertook to transport 40 men and 20 boys to Berbice and there found a colony. Under the

'Conditions and Articles' of this agreement the Zeeland Chamber of the WIC laid down

121 Report on Constitutional Questions relating to Berbice, CO 116/137, National Archives [UK] 128 comprehensive duties for van Peere, covering such matters as provision for the colonists accompanying him, payment, obligations to the Company, restrictions on trade, procedures for government and obligations towards the native inhabitants. Among the clauses of this agreement, the following are particularly instructive:

"11. The Colonists shall have the right and privilege of establishing a fort in the aforesaid river in such a situation as they shall consider most advantageous to their trade with the natives, to open up the forests, fell trees, sow and plant, search for minerals, in short to do everything to advance the interests of the colony; to explore neighbouring rivers, and remove their settlements to any place they consider most profitable.

"18. The Religion of the Colony shall be that of the Reformed Church, and the Indians shall be encouraged to adopt the same; no person however shall be prosecuted for practicing his own religion, but should anyone vainly use the name of God or Jesus Christ he shall be punished according to the Regulations. "19. The Indians shall be treated justly and honestly, promises made or held out to them shall not be broken, they shall not be robbed, nor shall the colonists commit adultery with their wives. "20. The Commandeur and other officers which shall be placed over the Colonists shall be allowed according to his instructions to make arrangement with friendly princes and potentates to the advantage of the company, regardless of the private interests of particular Colonists."

Unlike the original Charter granted to the WIC in 1621 there was a clear assumption in these Articles of power or jurisdiction over the territory, given the authorization to van Peere to clear the land, extract its resources, and in short to establish settlements. Nonetheless this was still subject to the sovereignty of native occupants, for as made clear in the extracted articles above, favourable relations with them were to be actively sought. Moreover, when the provisions of article 20 above are

Rodway, Watt and Thomas, Chronological History of the Discovery and Settlement of Guiana. 1493- 1668 (Georgetown: Royal Gazette Office, 1888) Vol. 1, 97-98 129 interpreted in light of article 2 of the 1621 Charter, which authorised the WIC to make agreements and alliances with "the princes and natives of the lands" where trade was conducted, it follows that the 'arrangements' contemplated in article 20 above

19^ necessarily included agreements with native leaders. More importantly, since the

WIC derived its power from that 1621 Charter it could only authorise settlements in

"uninhabited districts" pursuant to that document, which meant in turn that the Van

Peeres had no power to appropriate lands or terminate pre-existing rights therein.

The Charter to the van Peeres was renewed in 1678 by the reconstituted WIC, as the initial one had lapsed upon the bankruptcy and winding up of the predecessor company in 1674. Pursuant to the renewed Charter, the Colony of Berbice "with all its belongings on the surface, minerals, forests, rivers, fountains, and whatever else shall be found there" was given to van Peere, his heirs and successors, for a further period of 22 years, to be held on payment of the requisite tax to the Zeeland Chamber at

Middleburg.124 Van Peere, as patroon of the Colony, was authorised to administer it, preserve good order and justice, ensure the teachings of the Reformed Christian religion, "make binding contracts and alliances with the natives of the country" and make the necessary provisions for defence and security. In return, the WIC agreed to supply the colony with slaves.125

Though Berbice escaped the inhibiting factors posed by the structure and operation of the WIC which served to plague Essequebo throughout the latter's history, 123 Article 2 of the 1621 Charter set out on p 102 supra 124 Quoted in Clementi, supra note 12 at 66 125 Ibid 130 its progress was nonetheless somewhat slow at first. The threats it faced were both external - namely that posed from rival maritime nations as discussed above - as well as internal, such as that posed by displaced native inhabitants and more particularly by disaffected slaves, as will be discussed below. The most cataclysmic of the former, which lead to the end of the van Peeres' control over the colony, occurred during the

War of the Spanish Succession. In November 1712 the colony was attacked and captured by a squadron of French privateers led by one Baron de Mouans, and as was the practice in these episodes, a substantial ransom was demanded. Part of this was paid locally in produce, and a bill of exchange was drawn up for the balance by the

Commandeur on the house of van Peere in favour of the Baron.127 However the patroons refused to honour the bills when they were presented for payment, and as a result the colony fell to the privateers.128 On this unusual situation Clementi commented: "Thus we have the extraordinary spectacle of a Dutch mercantile firm offering to commute a bill of exchange drawn upon it by surrendering Dutch territory, held by the firm as a fief from a company chartered by the States-General, without reference either to the Company or to the States-General."129

However, this amorphous state of affairs was not to continue indefinitely. A number of Amsterdam merchants got together and, having first secured the support of

Rodway, History, supra note 22 at 17 127 Account drawn from a letter from Van Batenburg, Governor of Berbice, to the British commanding officers on the surrender of that Colony to Great Britain in May 1796, dated 7th May 1796, CO 111/5, National Archives, UK 128 Ibid. 129 Clementi, supra note 12 at 68 131 both the WIC and the States-General, they paid off the bills of exchange and thereupon succeeded to the privateers' rights. Thus after 87 years of control, the rights of the van

Peere house formally passed to this new mercantile association on October 22, 1714.

These new merchants now assumed leadership of Berbice, but the progress of the colony and its resulting profits were trifling, owing to the huge capital costs of sugar production. In other words, economic concerns replaced political ones. In order to raise money for the improvement of the colony, a new joint-stock company called the

1 -3 1

Berbice Association was formed in 1720. The Association elected 7 Directors who were to administer the affairs of the colony on its behalf. These changes in ownership did not pass unnoticed by the WIC, which asserted its supremacy in 1721, demanding at the same time payment of the commuted taxes previously paid to it by the patroons. The

Association protested, claiming that when the colony had been seized by the privateers the rights of the WIC were superseded, so that when it was subsequently rescued by the group of Amsterdam merchants it then owed no allegiance to the Company.132 This seems logical enough, but the necessity of obtaining slaves meant that the Association could not stand its ground, and in 1730 it agreed to pay the WIC 300 guilders for the voyage of each vessel trading to Berbice on condition that the Company in turn supplied slaves at reasonable prices.133 In order to safeguard this agreement the Directors of the

Association appealed to the States-General, and after much wrangling with the WIC

130 Netscher, supra note 14 at 74 131 Report, supra note 121 132 Clementi, supra note 12 at 70 133 Netscher, supra note 14 at 77 132 who were opposed to any intervention, the States-General granted a Charter to the

Berbice Association on December 6th, 1732.134

Under this Charter, which was granted to the Association for an unlimited time, the Directors were empowered to grant lands on conditions to be arranged, to levy certain taxes, and to receive profits and distribute dividends. In turn, among the obligations of the Directors were those to erect and repair certain forts, provide stores, finance the defence and protection of the colony and defray the entire cost of civil government in the Colony.135

The Colony was to be governed by a Governor, to be appointed by the Directors, and a Council of Government, along with a Council of Justice, pursuant to "such regulations and form of oath as their High Mightinesses may think proper to publish."

Although the Governor was vested with supreme control in all civil and military matters, he was nonetheless subject to the ultimate authority of the Directors.137 Under article 24 the Governor and Council of Justice were entrusted with jurisdiction over criminal matters, while civil matters were to administered by a Council composed of the

Governor and six other persons. The Charter made provision for the composition and operation of the various Councils, whose members were required to serve without remuneration. Moreover, it was explicitly provided that no act of the administration was

Clementi, supra note 12 at 71 Full text of the Charter set out in Clementi, ibid at 433-6 Ibid, art. 19 Ibid., art. 22 133 to contravene the letter or spirit of the Charter.138

These detailed provisions for the structure of the colony and its government thus established in 1732 were to remain virtually intact for the rest of Dutch rule of

Berbice.139 In the meantime, the Colony progressed with fluctuating success,140 and save for a massive slave rebellion in 1763, the next changes of moment were to occur during the French Wars in the closing decades of the eighteenth century when, along with neighbouring Demerara and Essequebo, it was bandied between several of the

European powers before ultimately being captured by England for good in 1803.

Transition

The final two decades of the eighteenth century was a time of tremendous upheaval in the three Colonies, mirroring a similar tumult in Europe where the

Napoleonic Wars raged and some of the Great Powers were themselves wracked internally by revolution. The most obvious impact on the Colonies was the eventual change in sovereignty, but other, deep-seated changes in the structure of the government and constitution also occurred during this period.

In 1781 the three Colonies changed hands for the first time - Demerara was captured by English privateers on the 21st February followed by Essequebo ten days

Ibid,, art. 23 Shahabuddeen, supra note 13 at 60 Clementi, supra note 12 at 75 134 later.1 ' Berbice capitulated soon after the Two Rivers, and for the next three years until the Colonies were restored to the Dutch in 1784, they all came under the same administration.142 It was a bloodless transition, due possibly to the Commandeur's own extensive landholdings which he did not want to imperil.143 If this was indeed so the strategy worked, for under the Terms of Capitulation signed on the 14th March, 1781 both existing laws and private property continued undisturbed, and it was only the property of the WIC that was seized by the incoming forces.144

But in less than a year, on the 3rd February, 1782, the three Colonies were captured by the French, in whose possession they remained for another two years before passing back to the Dutch in March 1784.145 In all, the period of time out of Dutch rule amounted to just three years, but the differing administrations were to institute changes which were to have substantial and far reaching impacts. It was the French, for example, who founded the town at the mouth of the Demerara on its eastern bank,146 which in time developed to become the capital not just of the Two Rivers but of all three colonies upon their unification. More significantly, under the rule of the British there was a further influx of English colonists who came to take advantage of the land grants that were then being awarded.147 In the preceding decades the English had already been exposed to the attractions of Demerara through Gravesande's expansionist

141 Ibid, at 39 142 Ibid, at 77 143 Netscher, supra note 14 at 122 144 Clementi, supra note 12 at 40 145 Dalton, supra note 28 at 239 146 Smith, supra note 11 at 20 147 Dalton, supra note 28 at 239 135 policy, and the continuation of this practice only served to increase the non-Dutch element of the population, laying the foundation for the end of Dutch rule once and for all.

The restoration of Dutch rule in 1784, at least for the Two Rivers, was not to usher in a period of normalcy or stability - largely because of the unfortunate coincidence of a number of conditions. To start with it was a time of ferment in the

Colonies, caused by the collision of powerful interests. Under both English and French rule there had been an opening up of trade, so the return to the monopoly of the WIC under Dutch rule proved to be very unpopular. Also, upon restoration the WIC sought to revoke all land concessions awarded in Berbice by the French and the English in the preceding three years. Predictably this caused a huge uproar, which forced the Company to moderate the proposal somewhat. In the end, only grants in a certain area were reclaimed, namely those on the west bank of the Berbice River commencing from

Ithaca village to the coast. Remaining English and French grants were undisturbed provided that the grantees agreed to abide by the governing regulations and pay the requisite fees.149 Still, these measures led to severe economic repercussions for

Berbice, along with considerable dissatisfaction among the planters. While from the inception of settlement the interests of the WIC had always taken precedence, this was to prove increasingly unpalatable to the growing planter class, resulting in frequent clashes between the two groups.

148 Rodway, Handbook, supra note 33 at 84 149 Rodway, History of British Guiana, 1668 to the present time, Volume 2 (Georgetown: J. Thompson, 1891)88-89 136 Another contentious issue of the period was that of taxation, namely the planters objected to the prevailing status quo whereby control of this power was vested in representatives of the Company. These struggles gave rise to a number of constitutional reforms in 1788, which became known as the 'Plan of Redress', but the latter was to be short-lived. All the legal and political uncertainty had already impacted negatively on the Company, and combined with the war with England it had become heavily indebted and unable to pay dividends. The Company's creditors secured the intervention of the

States-General, which did not renew its charter when it expired in 1791 but instead took direct control of the Colonies. Thus after 170 years the WIC had come to an end, and under the new arrangement the Colonies were administered by a Colonial Council and

Governor instead of a Directeur-General.150

The WIC was not to be the only casualty of the times. In 1795 a revolution in

Holland led to the establishment of the Batavian Republic, and this political upheaval was to have a ruinous impact on Dutch commerce. War broke out once again, but this time the difficulties in the motherland were exacerbated by the presence of a large, hostile planter class in the three colonies. Various intrigues behind the scenes paved the way for a return of English rule, which happened painlessly in April 1796 when all three Colonies quickly capitulated to English troops.151 After the Peace of Amiens in

1802 the three Colonies were restored once again to the Dutch, but this was to prove

Clementi, supra note 12 at 46 151 Dalton, supra note 28 at 245-6 137 very short-lived. By then, Dutch rule had become extremely unpopular, owing not only to the considerable English presence but also to the period of prosperity during

English rule, which had ended the Company's stifling monopoly among other measures.

And so a mere one year after the restoration, on the 19th and 24th September 1803 respectively, first the Two Rivers and then Berbice capitulated in succession to English forces, the three passing out of Dutch rule for good.153

Summary

Thus, as described above, the Dutch presence on the Wild Coast began cautiously and proceeded slowly for most of the seventeenth century. The focus of the

WIC at the outset was trade not conquest, and to this end Dutch officials infiltrated themselves among the locals. The founding constitutional documents of the WIC as well as the laws and directives it later issued reinforced this approach by urging alliances with local leaders and mandating fair dealings. Although settlement was encouraged, officials of the Company were urged to purchase lands from the Indians.

While there are no records of this actually occurring in any of the three colonies, such directives in the early Charters indicate that that the Dutch recognised both the juridical capacity of the indigenous inhabitants, as well as their proprietary rights to the soil.

By the turn of the century however, as trade gave way to plantation agriculture, there was an inevitable shift in these dynamics. Despite both external and internal

Ibid., at 257 Ibid., at 264 138 threats, settlements were pushed steadily south and to the west of the Essequebo River, while the Colonies were opened to English planters. As the Dutch became more entrenched, their administration became more formal and various civil and political institutions were established for the colonies. By the mid 18th century jurisdiction was definitively exercised over the land and its resources through the issue of land grants and wood cutting permits. All this contributed to a growth in the population which served to physically displace the indigenous inhabitants from their traditional homelands, but Amerindians were not to be the only victims. As increasing numbers of

English planters flocked to the three Colonies, this would pave the way for a smooth and bloodless transition to the English.

139 CHAPTER 4

THE EVOLUTION OF DUTCH-AMERINDIAN RELATIONS

The success of the Dutch on the Wild Coast from the late 1500s onwards stands in stark contrast to the failure of the Spaniards to penetrate the area east of the Orinoco

River, despite the latter's superior resources and their longer, more established presence in the Americas. This success is best appreciated in a larger historical context. In possibly every recorded instance of European contact with indigenous Americans, the trajectory of post-contact relations followed the same, familiar path. Throughout the

Americas, where native populations were not annihilated, they were at least subordinated and colonized eventually, consigned to the fringes of the new settler societies that emerged. What is most remarkable about this pattern was the way in which it unfailingly replayed itself, despite the vast numerical superiority of the locals and irrespective of where they were living or who were the colonizers. The sprawling and wealthy Mesoamerican Empires, the smaller, egalitarian societies in the Caribbean archipelago and the large, complex confederations on the North-eastern Atlantic seaboard all bowed before European dominance: their populations winnowed, lands ceded and sovereignty eclipsed. It would be simplistic to explain these recurring tragedies as the outcome of a single, common factor, for disease, differences in technology and approaches to warfare, cultural characteristics and so on all played a part, to a greater or lesser degree. That said, however, what is particularly striking about each episode is the huge benefits that accrued to the invading forces from their ability to 140 exploit inter-ethnic rivalries. This was true of Cortez who gained a tremendous advantage against the Aztec because of his alliance with the Tlaxcala and other Aztec vassal states,1 and it was true of Pizarro whose conquest of the formidable Inca Empire with only 200 men was in part due to the Incas own dynastic troubles and internal discord. It was even true of the microscopic settlement of Pilgrims in Jamestown who started off with a precarious foothold in the midst of the highly populated north-eastern seaboard of North America: part of the reason for English successes in the face of overwhelming odds was their ability to capitalize on the deep animosity between rival groups such as the Pequots and the Narragansett. This was a narrative that would be replayed several times over in the re-settlement of North America, as warring indigenous societies were manipulated to the ultimate success of the newcomers.

In Guiana, there were admittedly no empires to contend with, but all the same the newcomers arrived in tiny numbers and faced thriving, organized peoples who were masters of the impenetrable, unfriendly environment. Indeed, as noted already, the

Spaniards never managed to subdue the natives of this area despite their superior military strength, while the Dutch succeeded in acquiring and maintaining political sovereignty without fighting any wars of conquest or purchasing the lands they occupied. An examination of how they accomplished this feat shows how critical to their success was their alliance with the Caribs, the most feared native group of the

1 Ronald Wright, Stolen Continents: 500 Years of Conquest and Resistance in the Americas (New York: Mariner, 2005) 46 2 Ibid., at 74-75 3 Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (New York: Norton, 1976)202-217 141 region. In this chapter I shall describe the processes of Dutch treaty-making and governance, which progressed from a mere foothold in the territory to the eventual acquisition of sovereignty over its indigenous inhabitants. Through an account of their laws and policies, I hope to demonstrate first the impacts on native polities and governance structures, and ultimately what this meant for their pre-existing rights.

Comity and Friendship

By the time Dutch navigators had begun to cruise off the Guiana coast in the late

1500s, the Caribs and other native populations were actively engaged in securing the integrity of their territory. The Caribs, accomplished seafarers who had developed a thriving network of trading links extending far up the Caribbean Sea,4 were no doubt aware of the tragic fate that had befallen the occupants of the Greater Antilles at the hands of the Spaniards in the century following first contact. Consequently they remained implacably opposed to Spanish incursions from the west, while explorers from other nations enjoyed a warmer welcome merely by establishing their own enmity with Spain.5

The Dutch, meanwhile, displayed no colonizing ambitions or proselytizing intentions, but shrewdly infiltrated the area in pursuit of trading alliances. Each party possessed goods that were highly prized by the other, and the fact that the trade was

4 Janette Forte, Early Amerindian-European Encounters on South America's Wild Coast (M.A. thesis, University of Texas at Austin, 1992) 24 5 James Rodway, "The Indian Policy of the Dutch" (1896) X Timehri 14; Note also Gravesande to WIC, dated 6 April 1766, reproduced in Venezuela No. 3, Appendix II, No. 182 142 mutually beneficial partly explains why the Dutch succeeded where others did not. On the one side the Dutch acquired valuable items such as cotton, hammocks, pita hemp, annatto, letter-wood, gum animi, balsam copaiba and tobacco,6 while on the other side the natives, though dazzled by inconsequential articles such as beads and "gaudy ornaments", also came to depend heavily on European metal works such as axes and knives.7 As trade blossomed in the seventeenth century it contributed to the early economic success of the Dutch and eventually their acquisition of political control over

Q the region in which the trade was carried on.

That the Dutch were acutely aware of their dependence on the continent's indigenous peoples in this formative period is reflected at the supra-national level in the formal treaties which they entered into with individual Amerindian leaders, and by which they promised friendship and guaranteed peace and freedom from slavery. These treaties were buttressed by public guarantees, whereby promises were made that

European settlement would be limited and slavery would not be practiced.1 These alliances, so beneficial to acquiring and then maintaining political control, continued

6 James Rodway, History of British Guiana, 1668 to the Present Time, Vol. 1 (Georgetown: J. Thompson, 1891) pp. 2-3 7 Anna Benjamin, "A Preliminary Look at the Free Amerindians and the Dutch plantation System in Guyana During the 17th and 18th Centuries" (1993) IV& V Guyana Historical Journal 3 8 British Guiana/Venezuela Boundary Arbitration Proceedings, 1899, British Case, Volume 1, 82 [hereafter 'British case'] 9 Noel Menezes, British Policy Towards the Amerindians in British Guiana, 1803-1873 (Oxford: OUP, 1977)184 i0 Neil Whitehead, Lords of the Tiger Spirit: A History of the Caribs in Colonial Venezuela and Guyana, 1498-1820 (Dordrecht: Foris Publications, 1988) 159 143 throughout the whole of the eighteenth century.11

At the internal level, the Dutch policy of maintaining peaceful and conciliatory relations with local inhabitants was expressed in a number of legal instruments. At the pinnacle of these was the founding Charter of the WIC, issued by the States-General in

1621. Article 2 of the Charter embodied respect for native peoples and their possessions and mandated a policy of accommodation and comity to be followed in overseas

19 * settlements. More importantly, all officials of the WIC and in fact, all Dutch citizens were expressly enjoined from contravening the provisions of the Charter. Article XLV provided, inter alia: "...we further command that the [articles] shall be kept and maintained by all the authorities, officials, subjects of these United Provinces, who shall in no way, directly or indirectly, act contrary to these orders, within or without of the said United Provinces, under pain of being punished as disturbers of the public welfare of said Provinces, and as transgressors of our orders be punished in property and person. Further promising to maintain the said Company in the substance of this octroi, in all Treaties of Peace, contracts, and alliances with neighbouring princes, kingdoms and States..."13

Thus officers of the WIC simply had no authority to seize lands or establish settlements or colonies other than in "uninhabited territories", such conduct being in direct violation of the Charter and consequently devoid of legal authority. Moreover, what is of considerable significance is that, as this provision made patently clear, this prohibition was intended to ensure the "public welfare" of the Provinces, including overseas lands.

11 British Guiana/Venezuela Boundary Arbitration Proceedings, Appendix to British Case, Vol. 1, p. 118; Appendix to British Counter Case, p. 182 12 Text of provision set out in Chapter 3, supra, at p. 102 13 Articles of the Octrois of the Dutch West India Company, 3rd June 1621, Article XLV, FO 420/27B, pp. 28-9, (emphasis supplied) National Archives [U.K.] 144 In turn the WIC likewise enacted rules and regulations for its overseas settlements and employees that were consistent with the Charter's dictates. For example, there was the 'Articled Letter' issued by the WIC in 1675 (and approved by the States-General), which expressly directed in article 6414 that indigenous peoples in countries visited by company officials were not to be ill-treated in any way. Though this was issued for the general conduct of WIC operations, it came to form part of the main structure of the laws applicable to Essequebo and remained in force there for the remainder of Dutch rule.

The WIC also issued specific legal directives for the Guiana colonies regarding the subject of relations with the indigenous inhabitants. Formal Instructions issued to the Directeur-General of Essequebo and Demerara by the Ten in 1773 provided that

"He shall pay particular attention to the Indians and see that none of them are oppressed in any way."15 After dissolution of the WIC in 1791, the post of Directeur-General of the Two Rivers was replaced by that of Governor General, and Instructions issued for him in 1802 were very detailed, providing:

"He shall take care that the natives or Indians shall be protected as much as possible, and that friendship and good understanding be cultivated as much as that can between them and the inhabitants. He shall protect them as much as possible against all the wrongs which should be attempted to be done to them."16

Similarly in Berbice, where settlement began independently of Essequebo, the

WIC expressly directed the founding 'patroon' and his colonists in their 1627

14 Full text set out in Chapter 3, supra, at p. 116 15 Article 29; quoted in Rodway, History, supra note 6 at 238 16 Instructions dated 6th July 1802, art. 42, CO 111/489, National Archives [UK] agreement that they were to treat the indigenous peoples "justly and honestly" and not

1 7 rob them. Thus at every level of decision making the policies of the Dutch were directed by the necessity of cultivating good relations with the indigenous inhabitants of the region - they did not invade the territories seeking to conquer and subdue, but strategically inserted themselves among native communities, bearing gifts and seeking alliances.

An integral component of Dutch administration in this regard was the appointment of'Postholders' at the various trading outposts. The actual posts had originated as trading depots, gradually built up for purposes of convenience as well as security, but their functions quickly came to transcend a mere economic component.

Official records of employees of the WIC for over a 70 year period dating from 1691 onwards indicate that Postholders were stationed throughout the Colony, from remote points on the Essequebo and Cuyuni rivers to various locations on major rivers 1 Q including the Demerara, , Pomeroon, Moruka and Barima. Postholders played a critical role in helping to maintain the Company's lucrative trade monopoly, for their principal aim was to oversee the trade in dyes, cotton and other goods. This entailed routine administration as well as monitoring traffic in the rivers, in the course of which they were authorised to seize contraband merchandise.19 However, as can be seen from formal instructions issued by the WIC to the various postholders, these

17 See Chapter 3, supra, at p. 129 18 British Case, supra note 8 at 31; See also the outline of Dutch settlements and major Posts, Chapter 3, supra, at pp. 105-111 19 British Case, ibid., at 87 146 officers also had a critical role in fostering friendly relations with the local inhabitants.

While these Instructions were adapted to the needs of individual posts, they each contained a recurring directive concerning how Amerindians were to be treated, indicating how important the necessity for comity with Amerindians was on the scale of the company's priorities. The Instructions to the Postholder at Canje in Berbice for example, which was issued on the 18th July, 1756, proclaimed in its first article that

"He shall not oppress nor molest (sic) the Indians but rather encourage them in a friendly manner to Serve the Colony as they used to do at the time of the late Commander A. Thierens."

In neighbouring Essequebo, the Instructions for the postholder in Cuyuni dated the 29th November, 1757 were even more explicit, directing, also in the first article:

"That the official in charge of the said post or guard, by our express and positive orders, will treat the neighbouring Indians with the greatest consideration and friendship, without distinction or favour of any kind, and be careful not to injure them in any way; and if, perchance, the said Indians should request his help against any of the savage nations, he is bound to assist them with the guard as far as possible."21

It is important to note too that although these Instructions consistently dictated that Amerindians were not to be ill-treated, the language of this edict often could not fully obscure the reality of Dutch dependence on maintaining good relations with surrounding Amerindians. For instance, article 1 of the Provisional Instructions issued on the 14th September, 1776 for Pierre Martyn, the postholder in Cuyuni, directed him to "take care that the free Indians are not molested or ill-treated but endeavour as much

iU CO 111/111, National Archives [UK] 21 FO 420/27B, National Archives [UK]; for other examples see British Case, supra note 8 at 88-89. As to the distinction between 'neighbouring Indians' and 'savages' see p. 149, infra 147 as possible to attract them to and in the neighbourhood of the post, and protect those residing in the neighbourhood in everything."22 In truth, as the sub-text of this provision suggests fairly strongly, it was more advantageous to the Dutch administration that the

Amerindians reside around the post than the other way around, because of the benefits to be had by trading and more critically for the protection Amerindians provided to the tiny Dutch settlements from attack.

As late as May 1803, when the Colonies were restored to the Dutch following the cession of hostilities with Britain and the conclusion of the Peace of Amiens, general Instructions were issued for Postholders in the Two Rivers which reinforced a policy of comity towards the region's indigenous peoples. By these Instructions,

Postholders were required to encourage Amerindians to settle near to their posts (Art 4), to maintain peaceful relations amongst Amerindian tribes and between them and other inhabitants of the Colony (Arts 5&13), not to trade with them or compel them to work, except for certain jobs such as woodcutting (Arts 10, 11 & 15), and to respect their persons and property (Art 12). Although postholders were required to monitor traffic on the creeks, the rationale for which was the monitoring of runaway slaves, they were not permitted to restrain the free movement of Amerindians (Art 18). Finally, Postholders were required to perform other administrative functions in relation to Amerindians, such as helping with the distribution of presents and rum as well as facilitating marriages

CO 111/485, National Archives [UK] 148 with non-Amerindians (Arts 14, 16 & 17).

As is to be expected, however, the careful prescriptions of these Instructions were not always mirrored by reality. The existence of Amerindian slavery, for instance, requires examination. To begin with, only four groups of indigenous peoples enjoyed protection from enslavement. These were those in the immediate precincts of Dutch settlements, namely the Caribs, the Arawaks, the Akawaios and the Warraus, who were referred to as "free nations".24 All others, characterized as "savage" in the Instructions quoted above, were liable to enslavement. The Dutch of this period have long been criticized as "corrupting" the Caribs by encouraging them in the exploitation and enslavement of other native peoples,25 but the reality is possibly more complex than this. Varying contemporary accounts by explorers, missionaries and colonists attest to the fact that inter-ethnic warfare and enslavement had long been a feature of these societies. Travellers in the of the Caribbean, for example, were astounded to find that women amongst acknowledged Cariban-speaking peoples spoke an Arawakan dialect, which has lead to the conjecture that island warfare between various Nations had resulted in the massacre of the men and the enslavement (sexual

Instructions for the Postholders with the Indians in Essequebo and Demerary, 15 May 1803, CO 111/16, National Archives [UK] 24 Anna Benjamin and Laureen Pierre, Review of Legislation in Relation to Land, Forestry and Mining (unpublished; Amerindian Research Unit: , 1995); Treaties of peace and friendship were only signed with these four nations by the Dutch: Menezes, supra note 9 at 41-2 25 This accusation was leveled by Edward Bancroft in an 1869 publication entitled "An Essay on the Natural History of Guiana", quoted in Rev. James Williams, "The Aborigines of British Guiana and Their Land" (1936) XXXI Revue Internationale d'Ethnologie et de Linguistique All at 423 149 and otherwise) of the women. This view has been questioned in some quarters, but it would be unwise to discredit altogether the contemporary accounts that advert to the hostile relations that characterized relations between some neighbouring peoples.27

At any rate, whatever was the true position in the pre-contact period, it is clear that neighbouring societies had established their own equilibrium and for centuries had managed to co-exist after their own fashion. The advent of Europeans, and more particularly the Dutch in the region under consideration, served to intensify inter-tribal conflicts in several ways. One of these stemmed from the profound disruptions caused to traditional economies. With the growth of Dutch settlement and enterprise there arose a corresponding demand for labor, which the Caribs in particular capitalized upon, controlling a thriving slave market that was located in the Barima river. Although slavery was ostensibly restricted to Amerindians living in Spanish territory, it is difficult to ignore the possibility that those living in Dutch-controlled areas were also captured and enslaved, particularly as plantation agriculture increased and with it the demand for labour. Since good relations with local indigenous peoples were vital to

Dutch interests, it was precisely to guard against this possibility that the WIC made successive attempts to regulate slavery. In 1686 Beekman, the Commandeur of

Essequebo, issued a regulation aimed at limiting slavery, essentially permitting

26 Arie Boomert, "The Arawak Indians of Trinidad and Coastal Guiana, circa 1500-1650" (1984) 19:2 Journal of Caribbean History 123 at 132 27 See, for example, James Rodway "Some Spanish Accounts of Guiana" (1895) 9 Timehri [New Series] 1, where the author quotes various contemporary narratives which contradict any assumptions of pre- contact societies living in Edenic harmony. 150 purchases only of Amerindians who were already enslaved. This was followed by a decree in 1717 by which a limit of six slaves was allowed each colonist, provided they were obtained from outside the Dutch territory,29 and for each of whom a head tax had to be paid. In 1735 a warning was published requiring the written permission of the

Commandeur for purchases of the children or slaves of free Indians and finally in

1793 Amerindian slavery was prohibited altogether.32

Slavery aside, the various Nations inhabiting the Guiana territory were not homogenous, so it would be simplistic to expect uniformity in Dutch relations with

'Amerindians' generally. Indeed, the Dutch administration did not hesitate to play

Indigenous groups against each other where it suited their interests.33 In 1724, for example, in response to reports of hostilities by the Magnouw nation against friends of the Dutch, the Commandeur and Court of Policy in Essequebo determined that "it was necessary for the protection of the whole Colony to extirpate and annihilate these rebels if possible".34 To achieve this the relevant Postholder was ordered to enlist as great a force as he could find from other Amerindian communities in order to defeat the

Magnouw, and as an incentive it was determined that two large axes would be given for

P.M. Netscher, History of the Colonies of Essequebo, Demerary and Berbice: From the Dutch Establishment to the Present Day (Utrecht: Martinus Nijoff, 1888) 6-7 29 Rodway, 1896, supra note 5 at 15 (It is also worth considering how such a regulation could ever be enforced effectively). 30 Rodway, History, supra note 6 at 76 31 Ibid., at 77 32 Rev. Williams, supra note 25 at 423 33 C. A. Harris and J.AJ. De Villiers, Storm Van's Gravesande: The Rise of British Guiana, Vol. 1, rep. (Nendeln/Liechtenstein: Kraus Reprint Ltd, 1967) 85 34 Minutes of the Court of Policy, Essequebo, 3rd September 1724, reproduced in Venezuela No. 3, Appendix II, No. 52 151 every head taken and cash for every live person captured.35 Gravesande himself was known to exploit inter-ethnic rivalries where occasion demanded it, such as when Dutch interests were threatened, and there are numerous examples among his correspondence that justify this assessment. In one instance, where Gravesande reported of attacks by

Acuways (Akawaios) on Dutch planters in the Mazaruni, he outlined his efforts to ensure securing a truce, continuing:

"But if I am unable to succeed in [making peace], and if, as I hear, [the Acuways] assemble in larger numbers and persist in their hostilities, I shall be compelled to choose the lesser of two evils and set the Carib nation at work, which I cordially hope will not be necessary, and which step I shall only take in the last extremity."36

Even the Caribs, their closest allies, were not spared such machinations. In one despatch to the company recounting a report from the Arinda Postholder of the intention of the neighbouring Manoas coming over from Brazil to open up trade relations with them, Gravesande warned of the possibility of hostilities as the Caribs were opposed to the competition, and continued frankly:

"On the other hand, the Caribs are assembling from all sides in order to oppose them, so that it is possible that we shall this year see one of the bloodiest and most obstinate fights that has probably taken place in these parts for 100 years or more. I hope the Caribs may get a good hiding, because I have always wished to see a few Manoas here, being convinced that it would be of considerable advantage to this Colony"37

Nonetheless, it is important to bear in mind that trading depended on the goodwill of the various tribes and their freedom from internal dissension, so the 'divide

35 Ibid. 36 Gravesande to WIC, dated 27 August 1755, reproduced in Harris and De Villiers, supra note 33 at 339 37 Gravesande to WIC, dated 22 February 1763, reproduced in Harris and De Villiers, ibid at 407 152 and rule' approach was only adopted where it had some specific advantage to the Dutch administration. Otherwise, Company officials were consistently directed not to interfere in local quarrels but to promote friendly relations wherever possible.

Even after trade began to decline in importance and the Company's emphasis shifted to plantation agriculture, this did not mitigate the necessity of maintaining alliances with the natives, mainly for two reasons. First, the Spaniards to the west remained a constant threat and it was the Amerindians who provided critical assistance to the Dutch in maintaining the control of their territory. As Spain succeeded in fortifying her occupation of the Orinoco delta by the mid-eighteenth century raids on

on the Dutch settlements in the western Guiana region increased in frequency. A number of these attacks have already been mentioned, but in addition there were several other convulsive ones in the north-west region, such as in the Wayni in 1746, in the Pomeroon in 1758, and in the Maroco in 1769 and again in 1777.40 In this climate the alliance with the Caribs proved invaluable. They provided intelligence to Dutch authorities regarding impending Spanish raids and they participated in clashes between the settlers, even to the extent of warring with rival aboriginal nations such as the Wapishanas who on occasion assisted the Spaniards.41 Indeed, such was the importance of the role that the Caribs played in these formative years that it is widely acknowledged among historians that, had their support been withheld, Guiana would have eventually passed

38 Rodway, History, supra note 6 at 226 39 Whitehead, supra note 10 at 154-5 40 British Guiana Boundary: Precis of Documents from the Hague Archives by J. Swettenham, September 1888, CO 884/4/28, National Archives [U.K.] 41 British Case, supra note 8 at 95 153 into Spanish hands.

Alliance with Amerindians remained virtually indispensable for another critical reason. Internal security was as great a threat, if not greater, as external aggression was to the stability and continuity of the Dutch colonies. As the number of plantations multiplied, this led in turn to a massive increase in the African slave population. The latter quickly came to outnumber the white settlers, leading to a precarious situation with both economic and political implications. Runaway slaves meant a loss of labour which was disastrous for the plantations, but potentially more ominous for the security of the Colony as a whole was the threat of a large oppressed population forming fringe settlements. Such dangers were averted by the native population, whose intimate knowledge of the forest was put to good use. Starting with giving rewards for the capture of runaway slaves, Amerindians systematically came to be used as an interior police force. From capturing runaway slaves they extended their services to breaking up bush Negro settlements and eventually assisting in the suppression of slave rebellions, most infamously in 1763 when an organized rebellion in Berbice threatened to engulf the neighbouring colonies of Demerara and Essequebo.43 According to a contemporary account describing the role played by Amerindians in this regard, it was chiefly due to their assistance that 'bush expeditions' to capture runaway slaves were successful, as this was a task for which European soldiers, unfamiliar with the terrain and unaccustomed to the climate, were totally unfit. By contrast, Amerindians were

42 Rodway 1896, supra note 5 at 34; Whitehead, supra note 10 at 159 43 British Case, supra note 8 at 92-95 154 extremely skilled in pursuit, and were it not for their assistance "the brigands would probably never have been subdued, perhaps not found."44 Ultimately, so successful was

Amerindian assistance that it forestalled any settlements of runaway slaves from forming or flourishing, as occurred in neighbouring Suriname where the native population offered no similar assistance.

The role played by Amerindians in this regard was repeatedly acknowledged by the official administration. Following the suppression of the Berbice slave rebellion, the

Governor of Berbice wrote to Gravesande, who had mustered his native allies to the rescue of the adjoining Colony, saying:

"I am delighted with the zeal and care which Your Excellency continually manifests in urging the Indians to march towards our frontiers. This is really the means by which the country may be kept in order. If they all put forth their best efforts I doubt not that matters will end well, and when Demerary is protected by a war-ship I trust that Your Excellency will find no difficulty in sending the brave Caribs of Barima out upon our rebels."45

More artless was Gravesande's son, the Commandeur of Demerara, who wrote in a letter to the Directors of the WIC:

"There is no one, your Lordships, who is more convinced how advantageous and necessary the friendship of the Indians is to this Colony, because so long as we are fortunate to have them living around us we are quite safe inland and have nothing to fear concerning the desertion of our slaves."46

In exchange for these vital services, Amerindians were rewarded with what the

44 CO 111/24, National Archives [UK] 45 Reported by Gravesande in correspondence to the WIC dated 29 February 1764, reproduced in Harris and De Villiers, supra note 33 at 444 46 Quoted in Menezes, supra note 9 at 47 155 Dutch colonists dubbed 'presents', or Indian subsidy as it was also called.

Anthropologist Greene-Roesel argues that the language of presents obscures the true nature of the exchange, since these were hardly philanthropic gifts but rather constituted payment for services provided,48 but in actuality, the language used was consistent with the spirit of comity in which the exchanges occurred. Describing the complex facets of the fur trade in the Great Lakes region of North America in the seventeenth and eighteenth centuries, Richard White observes that the relations it spawned were multilayered and highly nuanced. In this context, he elaborates that the gifts exchanged between the Algonquian and French cannot be reduced to the status of merely bribes or wages, for they were entangled amidst larger concerns relating to the fur trade, the overall economy and even political and imperial concerns such as the maintenance of peace among potentially hostile peoples.49

In much the same way, the presents distributed by the Dutch were not necessarily mere payment for services provided. That they served this function cannot be disputed, but both the process itself and the language in which it was cloaked hint at overarching realities, such as the respect and comity that, initially at least, characterized the relationship between the Dutch and the Amerindians. Although the policy of

British Case, supra note 8 at 91 48 Justin Greene-Roesel, Power, Identity and Development: The Decline and Rise of Amerindian Agency in North West Guyana (PhD dissertation, Cambridge University, 1996) 49 Richard White, The Middle Ground: Indians, Empires, and Republics in the Great Lakes Region, 1650- 1815 (Cambridge: Cambridge University Press, 1991) 94-119 156 presents has been excoriated by historians, and rightly so for its devastating consequences, viewed in another light at least the language in which it was couched indicates that Amerindians did not start off as the conquered vassals of the Dutch. Their relationship was not one of servitude to the colonizers requiring payment, but rather they were autonomous peoples whose alliance was initially sought, freely given and honoured with "presents".

As for the presents themselves, these have been described as "gaudy, glittering and novel" by Menezes,51 essentially amounting to inconsequential trinkets such as beads, looking glasses, blue drill, combs, corals, mouth organs and - the piece de resistance - lavish quantities of rum. In addition, the rewards included European metal tools like cutlasses and knives, and firearms, which served to transform indigenous agriculture and warfare and impacted in turn upon social dynamics. Since the colonists relied so heavily on their alliance with Amerindians for both external and internal security, this policy of presents was scrupulously maintained throughout the period of their occupation of the territory.

In time, the cumulative effect of Dutch presence was to have a significant impact on the local peoples, in particular on their livelihoods, economy, and material culture. The trade in goods, the Amerindian slave trade and the military and policing services all came to supplant traditional occupations, so that the original dynamic

50 Colin Henfrey, Through Indian Eyes: A Journey Among the Indian Tribes of Guiana (NY, Holt, 1965) 263; Menezes, supra note 9 at 71 51 Menezes, supra note 9 at 71 52 Ibid., at 48 157 shifted with the dependence becoming more that of the Amerindians upon the Dutch.

As Amerindians retreated to make way for Dutch plantations and settlements, becoming increasingly reliant on Dutch subsidies, they also began to surrender to the latter's political jurisdiction, and ever so insidiously the Dutch had transformed themselves from tolerated guests to masters of this domain.

Entrenchment of the Dutch

The progression from alliance in further of mutual economic interests to ultimate political dominance occurred gradually over the course of Dutch occupation, and it would be difficult to pinpoint a precise date by which the process was complete.

Certainly, however, the one followed on the heels of the other, and one way of illustrating the progression is through the evolving role of the postholders. Originally in charge of managing the trade at the outposts, these company officials began to assume overtly political roles, which ensured their continued employment even after the trade had come to an end. Thus Postholders were specifically directed to cultivate friendly relations with neighbouring Amerindian communities and not injure them in any way.

Other duties related to the employment of Amerindians,5 preventing sales of firearms, and even monitoring the traffic in the rivers. Sometime early in the eighteenth century a

'pass' system was instituted, whereby persons who wished to travel in the interior were

53 British case, supra note 8 at 89-90 54 "Instructions by which the Postholder of Canje shall regulate himself, Article 2, dated 8th July 1756, CO 111/111, National Archives [UK] 55 Ibid., article 4 158 required to obtain a passport, for a fee, literally entitling them to 'pass' the posts, and it fell to the postholders to enforce this regulation.56 It is unclear whether this prohibition applied to the native population - the British government thus submitted as part of their case at the Boundary proceedings in 1898,57 but more than one of the surviving

Instructions contradict this claim. For instance, article 3 of the 1757 Instructions to the

Postholder in Cuyuni specifically exempts Indians from the prohibition against passage

CO in the river without a passport, while Article 18 of the 1803 Instructions provided: "In case of Indians passing the post to go down the river, the Postholder shall recommend to them to wait on the Protector."59 Postholders were also required to be on the lookout for runaway slaves, and the Posts themselves became actual rallying points for expeditions to recapture runaway slaves.60 In all, by the end of Dutch rule the Postholders had become entrusted with a significant degree of political control, and this was explicitly recognised in the comprehensive Instructions issued by the Court of Policy in May 1803 on the subject of relations between the Postholders and Indians in Essequebo and

Demerary. ]

However the erosion of indigenous political autonomy is most graphically illustrated by the increasing degree of influence that the Dutch administration came to wield. At first, it was the specific policy of the WIC merely to prevent internal discord 56 Ibid., articles 3 & 5; Also on the same subject see 1803 Instructions, article 18, page 148 supra and Order dated 5th October 1761, CO 111/444 * 57 British case, supra note 8 at 88 58 Instructions for the Postholder in Cuyuni, dated 29 November 1757, FO 420/27B, National Archives [UK] 59 See page 148, supra (emphasis supplied) 60 Article 2, Provisional Instructions for Postholder in Cuyuni, dated 14 September 1776, CO 111/485 61 Page 148, supra 159 where possible as the success of trade depended on the existence of peaceful relations among the various Amerindian Nations. The Instructions to Postholders specifically promoted this role, in one case directing that the Postholder "shall endeavour on all occasions to prevent misunderstandings or quarrels between the several Indian tribes, and where any such exist, he shall exert himself to restore peace."62 In keeping with this directive, there are many recorded instances of both Postholders as well as the central authorities intervening in order to restore peace between warring Amerindian communities.63

Preventing internal discord also became necessary in relations between indigenous people and settlers, and early on the WIC sought to prevent conflicts between these groups too. Thus Instructions to the Postholder at Canje provided

"...whenever [the postholder] thinks that the Indians belonging to that district of the

Colony are molested or ill-treated by the free people he shall also give notice thereof to

His Excellency the Governor."64 Judicial tribunals grew up to mediate between Dutch subjects and Amerindians, which over the years dealt with a wide array of conflicts ranging from simple assault and abuse to murder, kidnapping and unlawful enslavement.65 Such mediation was carried out as far away as the Upper Cuyuni and

Upper Essequibo, which were very remote areas of the Colony.66

From mediating in disputes, inevitably the Dutch ultimately came to acquire a

62 Ibid., article 5 63 British case, supra note 8 at 85 64 Article 4, supra note 54 65 Extract of Minutes of Court of Justice of Essequebo at Zeelandia, 1-2 August, 1748, CO 111/444 66 British case, supra note 8 at 85-86 significant degree of jurisdiction over Amerindian affairs generally. Professor Menezes has described this outcome in categorical terms, asserting: "undoubtedly and irrefutably, as the records illustrate, the Indians accepted the jurisdiction of the Dutch."67 But the reality was certainly more nuanced than this as Menezes herself recognises, for she also points out the inability of successive colonial administrations to impose their precepts of law and morality on the local population.68 In fact, the Dutch administration only attempted to enforce its criminal laws in the more serious cases, such as those involving homicide.69 Even in relation to the latter, surviving records indicate that where investigations were launched or trials were conducted the results were invariably inconclusive. Many reasons could account for this lack of intervention, the most obvious one being a difficulty that exists even up to today, namely the inaccessibility of indigenous communities and related difficulties of detection and enforcement.

Additionally, even if the administration had the means to police all the scattered communities, they would have then faced the greater hurdle of imposing their own precepts of morality and justice, so that it was very likely that traditional beliefs and customs regarding personal vengeance were not so easily replaced. This was a reality that continued even after the Colonies passed out of Dutch hands, and in their submissions at the Boundary Arbitration proceedings the British admitted as part of

Menezes, supra note 9 at 49. The "records" referred to by Professor Menezes apparently include the Terms of Capitulation in 1803, by which the British were accepted as the heirs of the Dutch, as well as the British Guiana Boundary Arbitration proceedings during which this acceptance was used as a basis for the award in favour of Great Britain. 68 lb id., at pages 152-3 69 British case, supra note 8 at 86 161 their case that the "early days of British administration produced no immediate change in the custom of the Indians to exact a life for life..."

On the other hand, in all cases other than criminal matters there are many indications that state-centred law came to dominate eventually, an inevitable consequence of the increasing centrality of the Postholders to the economic life of native communities. An example of their expanding influence is provided by the selection of leaders of indigenous communities, a process which the Dutch were eventually able to manipulate for their own ends. Dr. Walter Roth, one of the colony's earliest ethnographers, described certain elaborate rituals attending the selection of a chief, some fairly extreme in nature.71 But whereas in the early days of colonisation the

Dutch sought out the chosen village leaders with whom to conduct business, they eventually came to subvert local processes, instead giving communities the names of those persons with whom they would negotiate, from which list the leader would then be chosen.72

By the closing years of Dutch rule the administration had gone as far as publicly anointing indigenous leaders.73 Beginning in 1778, chosen leaders had bestowed on them various insignia of office, such as sticks with large silver knobs bearing the

10 Ibid sit 101 71 W.E. Roth, "Old Time Indians" (1911) Vols 1-2 Timehri [N.S.] 62 at 72-3; see also Henry Dalton, The History of British Guiana (London: Longman, Brown, Green and Longmans, 1855) Vol. 1, p. 85 72 M.N. Menezes, "Amerindian Captains and Constables: A System of Alliance for Security and Control" RELEASE: A Quarterly of Cultural and Intellectual Affairs from Guyana, Vols. 6-7, 1979, pages 55-67; Regarding the initiation of leaders and the supplanting of this practice, see also Hartsinck, "The Indians of Guiana" (1893) 7 Timehri AA at 72-4 73 Harris and De Villiers, supra note 33 at 103 impression of the seal of the WIC and hats with large silver pointed plumes. These insignia had an undeniable symbolic value, proclaiming the alliance of the bearers to the

Dutch, and investing in them whatever weight such alliance signified. In fact, according to one historian, "recognition of status amongst others of their nation, therefore, became contingent on recognition by the Dutch." Obviously such ties enabled the Dutch to wield considerable influence over the indigenous population - however and wherever scattered. This was essential given the critical role of Amerindians in providing intelligence of Spanish encroachment as well as interior policing services.

Amerindians were encouraged to settle around the posts, and for those residing elsewhere, there were attempts to monitor their movement even if it could not be feasibly controlled or prohibited.76 Commercial activities were tightly regulated, and

Amerindians were not permitted to trade with individuals (described as free persons) other than those representing the company.77

Perhaps one of the clearest indications of the expanding political dominance of the Dutch administration is to be found in Gravesande's despatches, which illustrate the extent to which local leaders came to defer to Dutch authority. In these are revealed all the roles they came to play, as identified above: trusted spies providing intelligence of impending Spanish attacks from the west, faithful allies performing indispensable policing services, and ultimately loyal vassals seeking approval for major actions. In

74 Notes by Darnell Davis dated 13 April 1896, enclosed in Despatch dated 12 May 1896, CO 111/485 75 Benjamin 1993, supra note 7 at 8 76 Article 18, 1803 Instructions, page 148 supra 77 Article 3 of Instructions for Daniel Corte Gabriel at the Post in Wironje, dated 25th January 1740, CO 111/111; also articles 3 & 4 of Canje Instructions, supra note 54 163 one despatch to the Company Gravesande reported:

"The Caribs of Barima were here last week and complained that some of our deserters with a party of Spaniards were continually molesting them in Barima and robbing them of everything. I asked them whether they were not men and had no hands to defend themselves. They answered, "Indeed, they had," but that they did not know whether they might do so. I replied that they must indeed be careful to give the Spaniards not the slightest reason for complaint, but that if they were unjustifiably attacked they might stoutly defend themselves. This pleased them very much, because I had not yet been willing to grant them so much liberty."78

Thus, it was perhaps no exaggeration to state, as has one Guyanese historian, that

"Evidently there must have been some measure of confidence on the part of the natives for the Dutch judicial process. The exercise of this jurisdiction 'was not confined to any narrow area, but was recognised by the Indians even in the remote parts of the colony.'"79

The Status of Amerindian Land Rights under the Dutch

At the outset of their arrival on the continent the Dutch came professing peace and betrayed no colonizing ambitions whatever. A century and a half later they had unequivocally asserted jurisdiction over the land and resources of the territory, as evidenced by the laws and regulations passed and dispositions of land actually made. In the intervening period, however, there are no records of them having purchased any of this land from the original occupants or of entering into any Treaties (other than

Gravesande to WIC, dated 15 September 1768, reproduced in Harris and De Villiers, supra note 33 at 585 79 Caesar Gravesande, "Amerindian Jurisdiction in the Guiana Territory in the 17th and 18th Centuries" (1992) 44 History Gazette 6 164 Treaties of Friendship) with them. This raises certain questions: namely, how did this transformation occur, and more importantly, what was its impact on rights to the land held by its original occupants?

The first question is essentially an inquiry into the acquisition of sovereignty by the Dutch. As described already this happened gradually over the course of Dutch occupation, and given that most of the legislative activity relating to land and resources dates from the eighteenth century, it is a reasonable inference that the assumption of political jurisdiction followed Dutch ascendancy in the economic life of local communities. The impact of such jurisdiction on the status of indigenous land rights, however, is less easy to determine and any attempt to answer this question is best approached in stages.

It is fairly indisputable that at the inception of settlement in the early seventeenth century the Dutch were in no position either to terminate existing land rights or otherwise assert control. Admittedly, some amount of de facto appropriation of lands occurred, as the Company established forts and trading outposts, however humble or tiny. On the other hand, even though such actions were clearly contemplated by the original Charter granted by the States-General in 1621, which authorised the WIC to

"build fortresses and strongholds" and "encourage the population of fertile and uninhabited districts" in the lands falling within the territorial limits granted therein,80 the Company seems to have been conceived almost entirely as a commercial and

Article 2 of 1621 Charter of the WIC, set out on p. 102 of Chapter 3, supra 165 O 1 trading enterprise. To view the 1621 Charter in any other way defies logic, for as can be recalled its provisions related to territory extending over three continents (four, if

North and South America are counted as two). The United Netherlands, only now emerging as an independent State, certainly did not have the military prowess to dominate more than half the globe, so the territorial limits identified in the Charter cannot be construed as an assumption of sovereignty over the inhabitants of those lands or as an acquisition of the territory itself, but at best merely amounted to an assertion of trading rights exclusive to the Company and binding only on Dutch citizens.

In any event, irrespective of what was stated in this Charter, reality presented quite a different picture. The Dutch arrived in small numbers and in the intervals when the ships were en route from the Netherlands, their very survival would have depended on the generosity of their trading partners.82 Ironically, as their settlements grew this dependency did not wane but instead took on a different form - first for frontline assistance against Spanish incursion and later to secure the viability and safety of plantations. For these reasons, the Dutch would have been both unable and unwilling to abrogate indigenous rights to land. Put another way, wholesale proprietary dispossession at the outset would have undermined their policy of subtle and strategic infiltration, which eschewed outright land seizures in favour of fostering trading links and purchasing alliances.

81 According to its Preamble, the stated purpose of the Charter was to endow the Company with a trading monopoly over the lands specified in order that its unitary composition and governmental backing would strengthen its chances of success against the risks of piracy that were then so prevalent. 82 Benjamin, supra note 7 at 1-2 166 Since the Colonies progressed very slowly and trading remained the mainstay of the fledgling enterprise in the seventeenth century, it can safely be conjectured that during this time original demographic patterns remained the same, with foreign traders and settlers posing little if any threat to the existence and viability of native communities. Indeed, this probably explains why there are no Treaties to be found regarding Dutch land purchases, for there would have been no need for land in the early stages. Writing about the period immediately after the re-settlement of Essequibo following the sack of the colony by the British in 1668, Rodway comments that

Amerindian villages were then scattered all along the banks of the rivers including lower down from the fort, and not relegated to the interior areas as had become the case by the late nineteenth century.83 More crucially, evidence exists that the Dutch were cognizant of indigenous rights to land, most prominently so in the original Charter granted by the States General to the WIC in 1621 which evinced both an appreciation of such rights (article 2 directed that the Company was to enter into "agreements, regulations, and alliances with the princes and natives") as well as a notable absence of any intention to usurp them (by the same article, settlements were to be established only in "uninhabited lands"). Another early instrument that confirms Dutch recognition of indigenous proprietary rights is the Charter of Privileges and Exemptions, issued by the

WIC in 1629, which provided for the acquisition by prospective colonists of unoccupied land by purchase from the indigenous occupants of the territory.84 The latter's capacity

Rodway, History, supra note 6 at 13 See discussion in Chapter 3, supra, at pp. 109-110 167 to sell obviously meant that they were seized of rights in the land, and equally the necessity for purchase meant that Dutch arrival in the territory did not result in the automatic abrogation of such rights. The significance of these provisions cannot be overstated: as compared with Australia, for example, where for more than two hundred years aboriginal title to land was denied on the ground that at the time of settlement by the British Crown New South Wales lacked "settled inhabitants or settled law",85 the

Dutch obviously did not view the Guiana territory as terra nullius, appropriable merely by discovery or occupation.

In the eighteenth century, however, Dutch relations vis-a-vis the locals took on a different nature, in the process becoming decidedly more asymmetrical. In marked contrast to the formative years of settlement, as trade began to be eclipsed by plantation agriculture, there was now a flurry of both legislative and executive acts relating to land and resource use issues. By then the Dutch had become firmly entrenched in the region, and perhaps as a concomitant of their economic clout, they now purported to exercise jurisdiction over both the land and resources of the territory. This was expressed in the laws and regulations for the granting of lands as well as the actual grants made by the

Colonial administration.

An early assertion by the Dutch of jurisdiction over land appears in the Charter given by the States-General to the Berbice Association in 1732 over the Berbice colony.

Whereas the original Charter granted to the WIC a century earlier had focused on trade

Cooper v Stuart (1889) App. Cas. 286, per Lord Watson at 291 168 and navigation, containing no indication - outwardly at least - of proprietary dealings with foreign lands, the 1732 Charter to the Berbice Association expressly declared the granting of land to be one of its purposes. Article 1 provided imperiously: "It shall be permitted to the Directors of Berbice, under the sovereignty of their High Mightinesses and their patronage and protection, to grant lands to particular persons on such conditions as may be arranged between the contracting parties." Thereafter, both in

Berbice and in the Two Rivers as well, legislation was enacted in turn by the WIC to govern lands in the territory.

Regulations for Land Grants in Berbice passed in 1757 stipulated that "No person shall be permitted to take possession of any land, either to cut wood or cultivate the ground, unless he first receives permission from the Directors, and the Governor and

Council are bound to make the grant and receive the money within twelve months, on pain of confiscation of everything, and restitution for any timber that may have been

on cut." The remainder of the enactment dealt with the administrative mechanism to be followed, as well as the conditions attaching to individual grants and surrounding estates.

In addition, ARU historians Benjamin and Pierre reveal in their review of colonial legislation pertaining to Amerindians that laws governing woodcutting were passed as early as 1741 in Berbice, with subsequent Ordinances on the subject following in 1750, 1775, 1788 and 1792. The thrust of these was to require permission

86 Set out in Rodway, History, supra note 6 at 93-4 87 Regulations dated 16 April 1757, reg. 1, set out Rodway, ibid, at 167-9 169 from the Governor in order to cut timber. Benjamin and Pierre explain the existence of these Ordinances in Berbice (as compared to Essequebo where there were no similar prohibitions) on the ground that as a far smaller territory with less forest cover, the administration in Berbice was anxious to conserve its forest resources. Thus the prohibitions also applied to Amerindians in certain circumstances, as revealed in the following extract:

Warning Each and everyone, whoever he might be, is herewith warned, and prohibited from felling wood or having wood felled on the grounds belonging to the Honourable Colony, under whatever pretext it might be, without being provided with a permit from His Honour, the Governor; on penalty that those who are found to have felled any wood or have it , felled without being provided with such a permit, shall forfeit a fine of 25 guilders over and above the confiscation of the wood felled; and the slaves or Indians who are caught in the act of felling any wood shall be taken prisoner, and not be delivered again until the fixed fine shall have been paid.89

Apparently, however, this prohibition applied only to commercial harvesting of timber, for according to Benjamin and Pierre, "it was understood that the Amerindians could take any forest produce for their own personal use.. ."90 Benjamin and Pierre do not cite in their Review any authority exempting Amerindians, but a careful reading of the terms of the prohibition supports this interpretation. Whereas initially the warning is addressed broadly to "each and everyone, whoever he might be", the drafters felt it necessary to specify later that this included slaves and Indians felling wood. Thus Dutch

Benjamin & Pierre, Review of Legislation, supra note 24 89 Warning dated 16 January 1750, CO 116/68, transl. Velzing & Venton, quoted in Anna Benjamin, Amerindian Legislation 1681-2006 (forthcoming; used with permission) 9 Review of Legislation, supra note 24 170 persons could not evade the law by employing Indians to cut wood for them - but specifying the latter could only have been necessary because they were not subject to this prohibition in the first place. In other words, if Amerindians were included in 'each and everyone', there would have been no need to mention them later on as liable for felling wood. On this construction, this prohibition certainly seems directed specifically to commercial harvesting of wood by Dutch persons, and not to subsistence harvesting by Amerindians.

Legislation for Essequebo and Demerara regulating land grants date from much later in the eighteenth century. In regulations passed on the 14th April, 1773 by the

Assembly of the Ten at Amsterdam, the Company arrogated to itself the power of granting lands within the territory, providing that "all persons desirous of petitioning for grants of lands, shall address themselves to the Assembly of Ten..."91 Thereafter, detailed conditions were laid down in respect to land grants, which were to be issued only "up the river". Grantees were given one year to construct on the land and prepare it for cultivation, failing which it would revert to the WIC and be sold at auction. The

Fiscal was empowered to inquire into the actual land use and the observance of the various conditions, and to facilitate this he was to be furnished with a list of all the grants and grantees. Where land was abandoned, the grantees had six months in the case of those resident in the Colony and twelve months for those living abroad, to commence cultivation, failing which the land was to be seized by the Directeur-General and re-

91 Article 1, Extract from Register of Resolutions of the WIC, compiled in consolidated Laws of Guyana, [Institute of Advanced Legal Studies, London, UK] 171 granted.

Revised regulations were enacted for Essequebo and Demerara on the 241 July,

1792.92 Article 1 provided: "No person shall be allowed to cultivate any grounds, or to cut wood upon the same, or in any wise make use of such grounds, without having previously obtained a regular grant from the Colonial Council." These regulations also carefully stipulated the manner and size of land grants, as well as the manner in which its development was to proceed. And like its predecessor, conditions were attached to grants to ensure cultivation, breach of which rendered them revocable. The Colonial

Council also reserved a power to compulsorily acquire the lands granted, if required for the defence of the Colony or for certain public works.

In addition to land, the Dutch administration also purported to exercise jurisdiction over natural resources. The latter included fisheries and game, but the overwhelming emphasis was in relation to the valuable timber resources of the Colony.

Moreover, apart from one reference related to the Pomeroon that dates back to 1686 when a separate Colony was attempted in this river, at which time its Commander was ordered by the WIC to forbid all foreigners from carrying out any woodcutting, as in

Berbice the bulk of the regulatory acts in the Two Rivers occurred in the mid-eighteenth century. In 1734 the Zeeland Chamber of the WIC issued a general prohibition on

Regulations Respecting all Demands for and Grants of Land in Essequebo, Demerary and Their Dependent Districts, compiled in Consolidated Laws of Guyana [IALS] 93 Instructions to Canje Postholder, article 5, supra note 54 94 British case, supra note 8 at 83 172 timber cutting in Essequebo, Pomeroon and Demerara, but evidently there was some change in policy after this for in the minutes of the Court of Policy there are records of applications for permission to cut timber at various locations along the major rivers including the Pomeroon.96

Postholders formed part of the machinery in all three colonies to enforce these regulations, and an important part of their duties included patrolling the rivers to ensure that restrictions on wood cutting were not violated. The Instructions to the Postholder at

Wironje issued in 1740 illustrate how comprehensive the controls were:

"Firstly - Nobody shall be allowed to pass his post with any wood cut on Colony Land in said Creek, before first exhibiting to him the Ticket of consent from His Excellency the Governor, and in default thereof, he shall be allowed to stop (detain) the felled Blocks or other wood, and give notice thereof to His Excellency the Governor.

"Secondly - He shall write down properly (By the Ticket of consent exhibited to him) how many pieces of wood have passed his post, and make due report thereof on his arrival at the Fort to His Excellency the Governor."9

Thus it is clear that, dating from around the mid-eighteenth century, the Dutch government asserted jurisdiction over the land and resources in all three colonies, making grants, issuing permits and enacting regulations to govern such dispositions.

The issue which remains is what effect did these statutory provisions (and the grants or permits issued thereunder) have on the rights of the indigenous inhabitants? Can they be interpreted as effecting the extinguishment of all interests other than those derived from

Ibid, at 84 Extract of Minutes of Court of Policy compiled by Darnell Davis, supra note 74 Supra note 77; see also article 5 of the Canje Instructions, supra note 54 173 the Dutch administration?

In the first place, it must be noted that there is no evidence that amidst all this legislative activity the Dutch carried out any blanket extinguishment of indigenous rights to land or resource-use. As pointed out above, the Dutch were in no position to do this - either upon arriving in the Guiana region or during the length of their occupation, for throughout this period they remained dependent on the benefits of an alliance with the native population. Moreover, it does not seem reasonable that extinguishment could have occurred by implication, such as when Dutch law was received in 1774, for a number of reasons. In the first place, the existing regime of private rights largely continued as before, and there is no evidence that within indigenous communities matters relating to moveable property, marriage, family and so on continued to be governed by anything other than local customary laws. In other words, the Dutch did not purport to extinguish the validity of other native institutions, laws being passed to regulate the affairs of the Dutch population. Since personal laws governing indigenous peoples continued, there is no rational basis for assuming that their proprietary rights were treated any differently.

Second, as alluded to above, the Dutch never really succeeded in imposing certain aspects of their legal code even where they tried, and where relations among

Amerindians were concerned, personal vengeance continued to hold sway. Ultimately, the mere introduction of a foreign legal code could not automatically operate to abrogate all pre-existing laws and customs. Thus as with all other rights, the latter would have continued to exist and govern indigenous peoples amongst themselves. On this point, it is important to bear in mind that the pre-eminent Dutch jurist of the seventeenth century, Hugo Grotius, had already authoritatively affirmed the proprietary nature of the rights possessed by non-Europeans, which could not be taken from them by mere discovery or on account of their heathenism.

This leaves the question of whether pre-existing land or resource-use rights possessed by the indigenous inhabitants were extinguished in piecemeal fashion when specific legislation governing lands came to be enacted in the mid-eighteenth century onwards. But for a number of reasons as discussed hereunder, such legislation does not seem capable of having this effect. Principally, the relevant Orders could only have prospective effect - that is, they were expressly made to govern future grants. Put another way, regulations governing land grants were of an administrative nature, enacted for conveyancing purposes, and therefore could not operate as a retroactive abrogation of pre-existing rights.

As for actual grants, the effect of these upon pre-existing rights can only be determined by specific examination of the terms of the grants themselves. Where these granted limited interests - as the permits to cut timber invariably did - such grants at best would have operated to suspend pre-existing interests in the land. But even where larger interests were granted, the actual terms belie any intention to extinguish indigenous rights. Surviving records indicate that land grants were explicitly respectful of the pre-existing rights of local inhabitants, such as the following example taken from

98 Hugo Grotius, Mare Liberum. transl. by Richard Hakluyt (Indianapolis: Liberty Fund, 2004) 13-15 99 Benjamin and Pierre, supra note 24 175 the minutes of the Court of Policy:

"To Frederic Bysenbenfel are granted 1,000 acres to the west of Moruca, from the Nieuwe Brandwagt, the Creek up; also some provision grounds, provided the Indians do not suffer in any way therefrom.'"

Significantly, this clause guaranteeing the protection of the Indians was a usual condition of land grants issued by the Dutch}01 It indicates that far from extinguishing pre-existing rights, the administration acted to preserve them. Such an approach was perfectly consistent with the stated policy of the Dutch government from the time of the incorporation of the WIC, which outwardly at least entailed refraining from cheating the local inhabitants, robbing them or otherwise giving them cause for disfavour with the colonists.

Of course, there is substantial evidence that over time, Dutch colonization severely dislocated the indigenous inhabitants, who vacated their territories on the coastal region and retreated inland. However such occurrences must be viewed against the legal context as outlined above. First, Dutch jurisprudence as expounded by one of their leading scholars affirmed the proprietary nature of rights possessed by native peoples. Second, the original Charter granted to the WIC by the States-General authorised settlements only in "uninhabited lands" and mandated the making of agreements and alliances with the princes and natives of those lands. Finally, the actual terms of land grants made by the local administration, as quoted above, were framed in

100 Minutes of Court of Policy for Essequebo for 6th January 1760, extracted by Darnell Davis, supra note 74 (emphasis supplied) 101 Rodway, History, supra note 6 at 78-9; M.N. Menezes, "The Amerindians of Guyana: Original Lords of the Soil" (1988) 48:2 America Indigena 353 at 354 176 terms respectful of the rights held by Indians, the local inhabitants. Accordingly, actual dispossession, where it occurred pursuant to grants purportedly authorised by Court of

Policy, was unlawful because the local administration could not issue such grants as their powers were specifically circumscribed by the terms of the original Charter granted to the WIC in 1621. Alternatively, where the grants were intra vires, but the grantees evicted indigenous occupants of the land, this was equally unlawful as a violation of the express terms of the grants themselves that proscribed injury to the

Indians.102

For all these reasons, therefore, the inescapable conclusion is that despite the jurisdiction asserted by the Dutch government over lands and resources in the territory, there was never any wholesale extinguishment by the law of the pre-existing rights of the territory's indigenous inhabitants. Dispossession of indigenous peoples was expressly prohibited both by the actual terms of the land grants and the overarching law of the colony. Thus where dispossession in fact occurred this would have been contrary to the law - the corollary of this principle being that areas subject to occupation or use by indigenous peoples were arguably lawfully occupied.

A useful comparison may be made with the settlement of Australia, regarding which Professor Hookey has commented: "subsequent violence against the Aborigines did not constitute a conquest so much as a flagrant violation of their legal rights" - see "Settlement and Sovereignty" in Aborigines and the Law, eds Peter Hanks and Bryan Keon-Cohen (Sydney: Allen & Unwin, 1984) 1 at 5 177 CHAPTER 5

FROM CAPITULATION TO UNIFICATION

"I have traveled on these countries with much attention, and am pleased to assure your Lordship that they are an acquisition to the Crown of Britain of every quality and advantage and more particularly to support and nourish the West Indian Isles: and though in the latitude of 0/6 1/48 with constant rains and a flooded country banked up, yet more healthful than any of our islands or any other part of Spanish America in Guiana from Cayenne to Honduras."

Capitulation to the British

Before Demerara, Essequebo and Berbice capitulated to British forces for the last time in 1803, there had been two prior attempts at British rule, first in 1781 and then again in 1796. As described in the preceding chapters, by the first changeover there were already considerable numbers of English planters in Demerara, drawn there decades earlier by the open policies of Gravesande, the colony's first Directeur-General.

The dearth of records makes it difficult to estimate the precise extent of the English population: Neil Whitehead asserts that by 1760 they were already a majority in

Demerara,2 but that his assessment is slightly inflated is suggested by the fact that according to one of Gravesande's registers, in 1762 only 34 out of 93 plantations were owned by Englishmen.3 At any rate by the late eighteenth century there was a significant English presence in these Dutch colonies, and no doubt this accounted for

1 Letter from Edward Thompson, Commander of the British forces, on the capitulation of the three colonies to Great Britain, dated 22nd April 1781: CO 111/1, National Archives, UK 2 Neil Whitehead, Lords of the Tiger Spirit: A History of the Caribs in Colonial Venezuela and Guyana, 1498-1820 (Dordrecht: Foris Publications, 1988) 153 3 Raymond T. Smith, British Guiana (London: OUP, 1962) 16 178 the consistently favourable terms on which they successively capitulated. Each time - in

1781, 1796 and finally in 1803 - those terms included an assurance of the preservation of existing laws and customs. More pertinently there were assurances that private property would not be seized by the Crown. In 1781, at the time of the first capture of the Two Rivers by British forces, it was proposed that the local inhabitants would retain both their property and laws fully, until such time as the Crown saw fit to institute any changes. However, public property (that is, property belonging to the West India

Company) would be transferred to the Crown. These articles were duly ratified by the

Court of Policy of Essequebo on the 13th April 1781 and ratified and confirmed by

Edward Thompson, the Commander of the British forces, on the 16th April 1781 in

Essequebo. The second time around in 1796, not only were inhabitants of Berbice guaranteed the "full and immediate enjoyment of all their lawful properties, according to their ancient laws and usages",5 but troops sent to Demerara were even forewarned that all irregular conduct towards the inhabitants would subject them to certain disgrace and punishment, while plunder would be met with capital punishment.

Similarly, the terms upon which all three colonies capitulated in 1803 also ensured the stability of legal and administrative systems and institutions. In relation to the colonies of Essequebo and Demerara, the following articles,7 proposed by the

4 CO 111/1, National Archives, UK 5 Memo on the Constitution and Government of Demerary and Essequebo, 1795-1815, and of Berbice, 1804-1824, Appendix 2: CO 111/98, National Archives, UK 6 Henry Dalton, The History of British Guiana, Vol. 1 (London: Longman, Brown, Green and Longmans, 1855)244 7 CO 111/5/4, National Archives, UK 179 Governor and Court of Policy and signed on the 18 September 1803, are especially noteworthy:

Article 1 The laws and usages of the colony shall remain in force and be respected, the mode of taxation now in use be adhered to and the inhabitants shall enjoy the public exercise of their religion, in the same manner as before the capitulation; no new establishments shall be introduced without the consent of the Court of Police as the legislature of the colony. The public officers and the constituted authorities whether in the civil law or church establishments as well as the members of the respective courts (except the Governor General) shall be continued in their respective offices and situations, until His Majesty's pleasure shall be known.

Article 2 The inhabitants, those who are at present in the colony, as well as those who may be abroad, shall be protected in their persons and have the free enjoyment of their properties, without being molested or troubled for any acts whatsoever, other than such as they might commit subsequent to the capitulation and in violation of the oath of fidelity they shall be required to take.

Berbice capitulated on substantially the same terms less than a week later, on the

24l September 1803. Notably, article 1 provided: "The inhabitants shall have the full and immediate enjoyment of all property, whether onshore or afloat...", while by article

2 "The plantations, lands, manufactories, workshops, slaves, effects and possessions of the Berbice Association, of whatever nature, shall be considered as private property, in the same manner as is agreed to by the Capitulation with General Whyte in May, 1796.

All private property whatever of individuals to be respected."8

Also included in the Terms of Capitulation for Berbice was an explicit reference that all "fair grants of land" made prior to the changeover would be respected and

Appendix 3 of Memo, supra note 5 180 regularized, though certain others were left for future investigation as to their bona fides.9 Moreover, by article 12 it was provided that "The Governor and Council shall have the power to dispose peremptorily of yet ungranted lands, in any part of the colony, for cultivation, to persons that may petition for grants, on customary conditions or otherwise, as may be deemed most adapted to promote agriculture, and of course the prosperity of the colony."10

In keeping with the guarantee of a seamless transition, the first two Governors in

Demerara and Essequibo were Dutch: Beaujon, who served from 1803 until his death in

1806, followed thereafter by Bentinck, who served until 1812 when he was recalled on account of his extravagant mode of administration.11 Formal instructions were drawn up for Bentinck in 1809, mandating his administration to conform to the ancient laws of

1 9 the colony. Thereafter, no further Instructions were issued until 1831 upon the

1 ^ unification of the 3 colonies.

Although the colonies had surrendered to British forces and could legitimately be considered as being acquired by conquest, they were formally ceded to Great Britain by the Anglo-Dutch Convention signed in London on the 13l August 1814. This

Convention adhered to both the letter and spirit of the Terms of Capitulation, explicitly guaranteeing the protection of private property. According to article VI:

9 Article 9, ibid 10 Ibid 11 John Beaglehole, The Royal Instructions of the Colonial Governors (PhD Thesis, University of London, 1929) 566-9 12 Mohamed Shahabuddeen, Constitutional Development in Guyana 1621-1978 (Georgetown: Guyana Printers Ltd, 1978) 46 13 Beaglehole, supra note 11 at 567 181 "The High Contracting Parties, desirous to bury in entire oblivion the dissensions which have agitated Europe, declare and promise, that no Individual, of whatever rank or condition he may be, in the Countries restored and ceded by the present Treaty, shall be prosecuted, disturbed or molested in his person or property, under any pretext whatever, either on account of his conduct or political opinions, his attachment either to any of the Contracting Parties, or to any Government which has ceased to exist, or for any other reason, except for debts contracted towards Individuals, or acts posterior to the date of the present Treaty."14

A further Convention, agreed to on the 12th August 1815, related to trade between the Netherlands and the colonies in question. By article XI thereof it was agreed to restore to the Berbice Association all property formerly belonging to it which had been seized by the intervening Revolutionary government.15

Thus, as clearly emerges from the provisions in these various instruments, a prominent feature in the transition from Dutch to British rule was adherence to the doctrine of continuity. This doctrine, which involved a presumption of the continuity of pre-existing systems of laws and institutions along with respect for private proprietary rights upon a conquest, was well-settled at international law and from early on had influenced the development of the common law.16 As noted above, it had been decided as far back as 1774 in Campbell v Hall that upon a conquest the King had the power to alter existing laws as well as to confiscate property until such time as the new acquisition was granted a representative government, but where he chose not to exercise

Convention between Great Britain and The Netherlands, relative to the Dutch Colonies, London, 13 August 1814, reproduced in Cecil Clementi, A Constitutional History of British Guiana (London: Macmillan, 1937) at Appendix E, pp. 424-7 [emphasis supplied] 15 Clementi, ibid, at Appendix F, pp. 428-32 16 See discussion in Chapter 2, supra, at pp. 31-51 182 this power the pre-existing laws in the newly acquired colony continued intact. A plausible inference arising from this decision, therefore, is that the enjoyment of private property and other rights necessarily continued after conquest, unless at some time before the grant of a local legislative authority the crown exercised its prerogative power adverse to such rights. In Campbell a tax on sugar exported by the plaintiff was adjudged to be unlawful since it was imposed by prerogative act after the island of

Grenada, obtained by conquest from the French, had been granted a legislative assembly. According to the second proposition laid down by Lord Mansfield, "the conquered inhabitants once received into the conqueror's protection become subjects; and are universally to be considered in that light, not as enemies or aliens."

It was in this tradition that the Terms of Capitulation relating to the three colonies were framed, whereby existing laws and institutions were to remain in force and private property rights undisturbed. These were undertakings of considerable import, particularly since, as Lord Mansfield held in Campbell v Hall, "articles of capitulation upon which the conquest is surrendered, and treaties of peace by which it is ceded, are sacred and inviolable, according to their true intent."19 Thus, while in 1803 the change in sovereignty to the British had implications for public matters, such as title to the country as a whole and its government, private rights survived the transition

Campbell v Hall (1774) Lofft 655, 98 E.R. 848 Ibid at 741, 895

183 intact. As Professor McNeil succinctly expresses this point, "actual acquisition of

9 1 possession and ownership of lands is not a prerequisite to sovereignty in English law."

But did these provisions (and the underlying principles on which they were based) apply to native polities, customs and rights? In other words, were indigenous systems and landholdings covered by guarantees of continuity, or were the latter meant only to capture Western (or "civilized") legal systems? This inquiry is not as unimportant as it may first seem, and bound up in its determination is the larger issue of the status of customary or indigenous rights. Jurisprudence emanating from South

Africa, which shares a colonial history similar to that of Guyana's, provides an example of the obstacles inherent in attempting to situate indigenous rights within a Western legal framework. In southern Africa, transition from the Dutch to the British in 1806 was likewise accompanied by a guarantee of the preservation of pre-existing rights and privileges. However, article 8 of the Treaty of Capitulation in relation to the Cape was interpreted both by the new English administration and the courts in the Cape as applying only to Roman-Dutch law and not indigenous customary law, in part because the latter was deemed uncivilized.23 Mark Walters asserts more generally that this rationale became an "increasingly common" feature of nineteenth century

See Kenneth Roberts-Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966) Chapter 14 generally for an authoritative account of the distinction between sovereignty and title to land 21 Kent McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) 109. For more on the distinction between sovereignty and property see Chapter 2, supra, at pp. 43-4 22 Article 8 of the Treaty of Capitulation, quoted in T.W. Bennett, "Redistribution of Land and the Doctrine of Aboriginal Title in South Africa" (1993) 9 S. Afr. J. on Hum Rts 443 at 459 23 Ibid, at 459-461 184 jurisprudence, impacting not only on the continuity of Aboriginal customs but on their rights to land and resources as well.24

Indeed, as discussed earlier, the alleged backwardness of native peoples was one justification advanced for their dispossession by classical scholars, which in turn influenced jurists and found its way into legal doctrine. One of the most influential of these narratives is to be found in Johnson v. M'Intosh, although, as was shown earlier, this decision should not be read in isolation as it represents only the inchoate form of the doctrine of aboriginal rights eventually fashioned by the Chief Justice. By the time of Worcester v Georgia, Marshall C.J. stated unequivocally that whatever rights discovery conferred among rival European nations in a conquered (or newly discovered) territory, these did not trump the pre-existing rights of "those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery

97 made before the memory of man."

Notwithstanding the evolution of Marshall's doctrine regarding the subject of

Indian rights, subsequent courts and even academics have not been deterred from quoting selectively from earlier opinions. One of the most infamous instances where the

Mark D. Walters, "The "Golden Thread" of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982" (1998-9) 44 McGill L.J. 711 at 721 25 See Chapter 2, supra, at pp. 34-35 26 Johnson v M'Intosh (1823) 21 U.S. (8 Wheat) 543 27 Worcester v Georgia (1832) 6 Pet. 515 at 544; Admittedly, as discussed more fully in Chapter 2, supra (at pp. 70-72), there are cases from the United States (particularly during the twentieth century) that diverge from this position, most notably Tee-Hit-Ton Indians v US (1955) 348 US 272. However, many of these decisions turned upon the question of jurisdiction and dealt with issues arising under specific statutes. So far as we are concerned with Marshall's dicta regarding the sanctity of native title as laid down in Worcester, other cases to have reaffirmed the principle include The Cherokee Nation v Georgia (1831) 30 US 1; U.S. v Mitchel (1835) 34 U.S. 711; Cramer v. U.S. 261 U.S. 219 at 227; US v Shoshone Tribes(1937)304USlllatll6 185 subordinate status of indigenous occupants of a conquered territory has been excused or

explained by reference to their level of development occurred in Wi Parata v The

Bishop of Wellington. Here the dicta of Marshall C.J. were endorsed enthusiastically

by the Chief Justice of New Zealand, who found that the Crown had acquired title to

New Zealand by discovery and priority of occupation as it had been inhabited only by

"savages".29 But Wi Parata is a poorly reasoned case not supported by credible

authority, and even the cases cited therein do not support the radical positions

adopted. Nonetheless, it serves as a reminder of the discriminatory tendencies evinced

in the past, particularly in the view expressed by Prendergast C.J. that the doctrine of

continuity only applied to "civilized" polities.31

Another pertinent decision in this regard is Re Southern Rhodesia, where the

issue of native rights to land was considered by the Privy Council, albeit tangentially.

The larger issue before their Lordships was the ownership of unalienated lands in

Southern Rhodesia, which was complicated by the competing claims of the British

South Africa Company, the Legislative Council of Southern Rhodesia and certain

28 Wi Parata v The Bishop of Wellington [1878] 3 N.Z.J. (N.S.) 72 29 Ibid, at p. 78 30 There are several examples in the judgment of misapplied authorities, only two of which will be mentioned here. Prendergast C.J. cited Johnson v MTntosh as authority for the doctrine of the inalienability of native title resting in the supposed lack of "any definite ideas of property in land" held by the "uncivilized" aborigines (at p 77) - an interpretation that is patently wrong; later, he cited Cherokee Nation v Georgia as authority for the proposition that no Indian tribe has standing in "the Courts of the United States" (at p.81) - but this was a gross distortion of Cherokee, which merely held that the plaintiffs, an Indian Nation, had no standing to bring an original claim in the Supreme Court. Overall, the Chief Justice displayed a considerable degree of conceptual confusion regarding the interest possessed by the Maoris. At one point he proceeded as if they had none at all (see p. 77), while elsewhere he refers to "native title", "proprietary rights" and "rights of occupancy" interchangeably (see p. 78), in apparent ignorance that these terms could connote different meanings, and that invoking them contradicted his earlier pronouncements. 31 Wi Parata. supra note 28 at p. 78 32 Re Southern Rhodesia [1919] A.C. 211 186 "disinterested liberals" on behalf of the natives who were "incapable of urging, and perhaps unconscious of possessing, any case at all". The Company had been incorporated by Royal charter in 1889, and much like the Dutch West India Company it had a wide mandate including commercial as well as administrative objectives in

Africa. In the course of time, the Company managed to defeat the native Sovereign and thereafter administered the territory at tremendous financial cost. However, it was never the Company's practice to tax itself on revenues for the alienation of lands, and this attracted the notice of a newly created Legislative Council. In the ensuing dispute brought before the Board, the Legislative Council claimed, inter alia, that the unalienated lands had never become the private property of the Company.

Their Lordships held that the conquest of the territory by the Company was made on behalf of the Crown, but thereafter it lay with the Crown to determine how the territory should be dealt with. The subsequent Orders in Council relating to the lands and their administration, such as those passed in 1894 and again in 1898, were sufficient to indicate the Crown's intention to exercise proprietary rights over the territory, there being no need for a proclamation of annexation, and this was sufficient to dispose of the company's claim of ownership of the unalienated land within the territory.

In the course of the hearing, representatives on behalf of the indigenous inhabitants submitted that the latter were the owners of the land from time immemorial, and that their title could not be divested without legislation, which had never been passed, or without their consent, which had never been given. Their Lordships rejected

33 Per Lord Sumner, ibid at 232 187 this contention, holding that since white settlement had been successfully accomplished then native rights had been eclipsed, as settlement was inconsistent with native rights.

Without determining the actual position, their Lordships held that if in fact native rights were private rights, then they were clearly extinguished at the time of conquest.

However, Lord Sumner on behalf of the Board indicated that, as a matter of legal principle, the customs of Aboriginal tribes at a lower stage of development would not be captured by the doctrine of continuity. Though Lord Sumner did not specify how (or by whom) this estimation would be done, he elaborated at length in a passage that has attained lasting notoriety:

"The estimation of the rights of aboriginal tribes is always inherently difficult. Some tribes are so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or the legal ideas of civilized society. Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them. In the present case it would make each and every person by a fictional inheritance a landed proprietor 'richer than all his tribe.' On the other hand, there are indigenous peoples whose legal conceptions, though differently developed, are hardly less precise than our own. When once they have been studied and understood they are no less enforceable than rights arising under English law. Between the two there is a wide tract of much ethnological interest, but the position of the natives of Southern Rhodesia within it is very uncertain; clearly they approximate rather to the lower than to the higher limit."

34 Thus, although this case has been regarded by some as an aberration [see, for example, Michael Asch, Home and Native Land: Aboriginal Rights and the Canadian Constitution (Vancouver: UBC Press, 1984) 41], this limb of the decision does not collide with the continuity doctrine as the natives were held to have lost any proprietary rights they may have had by act of state in the course of conquest: see McNeil, Common Law Aboriginal Title supra note 21 at 171-9 35 Re Southern Rhodesia, supra note 32 at 233-4. For some insight into the historical context in which these remarks were made, see: M. K. Banton, "The Colonial Office, 1820-1955: Constantly the Subject of Small Struggles" in Masters, Servants, and Magistrates in Britain and the Empire, 1562-1955, eds. Douglas Hay and Paul Craven (Chapel Hill: University of North Carolina Press, 2004) 251, and 188 Indeed, Michael Asch argues that views resembling those of Lord Sumner's provide the sub-text for modern Canadian decisions that continue to deny First Nations anything more than subsistence rights to critical resources such as fisheries. According to Asch, the consistent failure of First Nations in Canada to this day to obtain commercial rights for many traditional activities and political rights of self-government, is due to a lingering racist or ethnocentric bias that regards Aboriginal societies as primitive and therefore incapable of possessing or undeserving of such rights.

Thus, because of these various pronouncements, it is essential to determine whether guarantees of the preservation of pre-existing laws and usages made at the time of capitulation in 1803 were intended to capture indigenous laws and proprietary rights.

In actuality, however, a thorough examination of British colonial practice precludes broad generalizations as to the treatment of aboriginal peoples and their rights under the law. Crown practice varied widely, but this was only natural given the sheer size of the

British Empire. While colonies such as New South Wales were founded upon the wholesale dispossession of its aboriginal occupants, this was by no means representative of standard practices across the Empire, and equally, many instances of respect for aboriginal rights can be found. For example, official policy towards native

especially at 291-4 where the author gives a fascinating account of the increasingly racialized attitudes of the late nineteenth century, manifested also in the Colonial Office. 36 Michael Asch, "Colder and the Representation of Indigenous Society in Canadian Jurisprudence" in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, eds. Hamar Foster, Heather Raven & Jeremy Webber (Vancouver: UBC Press, 2007) 101 at 104-9. But note that others have suggested an economic motive for the consistent restriction of Aboriginal rights and the scope of rights-holders - namely the competition that would result and its implications for access by non- Aboriginals to lands and resources: Gordon Christie, "Aboriginal Resource Rights after Delgamuukw and Marshall" in Advancing Aboriginal Claims: Visions/Strategies/Directions, ed. Kerry Wilkins, Saskatoon: Purich, 2004, 241 at 245-6 189 peoples in America almost invariably involved purchases of land for settlement and the negotiation of treaties of Friendship with the locals, a policy embodied most famously, perhaps, in the Royal Proclamation of 1763. Other examples can be found, such as in the settlement of New Zealand where the Treaty of Waitangi was concluded, under which certain governance rights were ceded to the British Crown while the rights of the

Maoris to possession and use of their traditional lands and resources were expressly guaranteed. In the cession of Fiji private property - including lands subject to native use or occupation - did not vest in the Crown.

Even in the course of its colonizing history, there are indications that the British government was not unmindful of the rights of indigenous peoples in its overseas colonies, as suggested by a unanimous resolution of the House of Commons in July

1834 which proclaimed:

"That His Majesty's faithful Commons in Parliament assembled are deeply impressed with the duty of acting upon the principles of justice and humanity in the intercourse and relations of this country with the native inhabitants of its colonial settlements, of affording them protection in the enjoyment of their civil rights, and of imparting to them that degree of civilization, and that religion, with which Providence has blessed this nation, and humbly prays that His Majesty will take such measures, and give such directions to the Governors and officers of His Majesty's colonies, settlements and plantations, as shall secure to the natives the due observance of justice and the protection of their rights,

37 Neil Mickenberg, "Aboriginal Rights in Canada and the United States" (1971) 9 Osgoode Hall L.J. 119 at 142-3 and Christina Godlewska and Jeremy Webber, "The Colder Decision, Aboriginal Title, Treaties, and the Nisga'a" in Let Right Be Done, ibid, 1 at 10-11 38 Pocock, "Law, Sovereignty and History in a Divided Culture: The Case of New Zealand and the Treaty of Waitangi" (1997-8) 43 McGillL.J. 481 39 M. F. Lindley, The Acquisition and Government of Backward Territory in International Law (New York: Negro Universities Press, 1969) at 346-7 190 promote the spread of civilization amongst them, and lead them to the peaceful and voluntary reception of the Christian religion."40

While many of these examples refer to Crown practice or policy, the latter was in turn firmly grounded in the common law, as reflected in decisions from the highest courts of the British Empire. Some of these decisions pre-dated the early nineteenth century U.S. Supreme Court decisions, and contributed to the nascent body of Colonial law on the rights of Aboriginal peoples upon which Chief Justice Marshall relied.41

Alternatively, as Mark Walters demonstrates in his detailed exposition of the subject, aboriginal customs in North America survived even after the acquisition of sovereignty by reason of well-established continuity principles, which were often applied to avert social and political chaos.42 Rights could be extinguished by conquest or treaty, or seemingly even unilaterally by charter,43 but in the absence of evidence to this effect or directions to the contrary, customary rights were presumed to continue.4

Examination of cases where indigenous land rights have been denied indicates that this has often been as a result of the misapplication of the common law, for reasons

Quoted in the Report of the Select Committee on Aborigines (British Settlements), House of Commons, 26th June 1837 (425) at pp. 4-5 41 James Youngblood Henderson, "Unraveling the Riddle of Aboriginal Title" (1977) 5 Am. Indian L. Rev. 75 at 96-101 42 Mark D. Walters, The Continuity of Aboriginal Customs and Government under British Imperial Constitutional Law as Applied in Colonial Canada, 1760-1860 (PhD Dissertation, Oxford University, 1995) 43 As established in Mohegan Indians v Connecticut, and particularly in the decision on the merits of the case, which Walters asserts has been generally misunderstood by commentators. In 1743 a majority of the Commissioners decided that aside from the effect of the titles by which the disputed lands were conveyed to the colony, all doubts were removed by a 1662 charter which succeeded in vesting absolute property in the land in the colony - discussed at length in Walters, ibid, at 69-93 44 Walters, ibid at 47 191 of a more political, rather than juridical, nature, a fact that was adverted to in Mabo.

Consistent with this interpretation, Barsh posits that the non-enforcement of indigenous rights in settler societies like Australia and Canada is possibly explicable on the basis that institutions were controlled by settlers with partisan interests, rather than by

Colonial officers who often had a different agenda.46 Imperial respect for aboriginal rights where it existed did not necessarily arise out of altruistic concerns, but was rooted in larger motives of monopolizing the benefits of trade and securing political alliances with natives against rival European powers.47 But whatever the motives, and without oversimplifying what was a complex and multifaceted period of history, there is no gainsaying that such respect existed in spite of localized variations.

Ultimately, while the historical position is equivocal to some degree, that trend has not persisted. In more modern times, distinctions based on the alleged backwardness of indigenous peoples have been eschewed by common law courts (though other avenues have been found through which to defeat indigenous land claims). Regarding the specific issue of the continuity of native laws, customs and rights, a number of recent cases indicate that rationales of the ilk of Lord Sumner or Prendergast C.J. can no longer command support, if indeed they ever did. In Australia this philosophy was rejected, albeit belatedly, in the Mabo decision in 1992, where the native laws and

45 According to Brennan J, it was the executive in Australia, not the operation of the common law, that continuously eroded the proprietary rights of aborigines: Mabo and others v Queensland (No. 2) (1992) 107 A.L.R. 1 at 50 46 Russel Lawrence Barsh, "Indigenous Rights and the Lex Loci in British Imperial Law" in Kerry Wilkins, 2004, supra note 36 at 112 and see also Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: UT Press, 2001) 86 47 Godlewska and Webber, supra note 37 at 10 192 traditions of the Meriam people were held to have survived the acquisition of British sovereignty by the application of the doctrine of continuity. Mabo is particularly instructive for its rationalization of the existence of aboriginal rights to land in the context of English property law, which developed from feudal origins. According to the doctrine of tenures no English subject owns land allodially but holds instead an estate in the land, either mediately or immediately of the Crown.48 However, contrary to what was once thought, the application of the common law to the overseas colonies did not result in the dispossession of those who could not legitimize their occupation in a

Crown grant. Instead, the doctrine of tenures as applied abroad simply meant that the

Crown became vested with the radical or underlying title, while pre-existing rights remained undisturbed. This is how Brennan J explained the position:

"Nor is it necessary to the structure of our legal system to refuse recognition to the rights and interests in land of the indigenous inhabitants. The doctrine of tenure applies to every Crown grant of an interest in land, but not to rights and interests which do not owe their existence to a Crown grant. The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant."49

This position was echoed recently in Ngati Apa v Attorney-General, where native property rights were held to have continued even after the acquisition of sovereignty by the British Crown.50 Delivering one of the judgments in the Court of

Appeal, Tipping J pointed out that Maori customary title became part of the common

Brian Simpson, An Introduction to the History of Land Law (Oxford, OUP: 1961) 1 Mabo. supra note 45 at p. 34 Ngati Apa v Attorney-General [2003] 3 N.Z.L.R. 643 193 law of New Zealand "from the start", and continued saying, ".. .it was not a matter of the Crown granting customary title to Maori. They already held it when sovereignty was proclaimed and continued to hold it thereafter unless and until it was lawfully extinguished."51

More recently, in yet another former British colony, the continuity of customary native rights subsequent to the acquisition of British sovereignty was affirmed once again. In Aurelio Cal v Attorney-General of Belize, the Supreme Court upheld the customary rights of the plaintiffs to lands in the Toledo district of Southern Belize, which were held to constitute enforceable proprietary rights under the Belizean

Constitution.52 According to Conteh C.J., who delivered the judgment in the case: "The nature of this title is communal, entitling the members of the community to occupy, use the lands for farming, hunting, fishing and utilizing the resources thereon as well as for other cultural and spiritual purposes, in accordance with Maya customary law and usage."53

To return to South Africa, even here it is important to note that the interpretation of the aforementioned article 8 of the Treaty of Capitulation, whereby customary law was replaced by the common law, applied only in relation to the Cape and not the other territories such as Natal and the Transvaal that were eventually united to form South

Africa. In the latter States, customary law survived to govern both personal relations as well as land tenure issues, albeit with caveats excepting customs viewed as repugnant to

51 Ibid at p. 699 (para 204); See discussion of this case in Chapter 2, supra, at pp. 46-7 52 Aurelio Cal v Attorney-General of Belize Claim No. 171 of 2007, Judgment delivered 18th October 2007 53 Ibid, at para 68 194 general principles of humanity. Most recently in this jurisdiction, discriminatory doctrines constructed upon assessments of the alleged level of civilization of indigenous peoples have been decisively rejected. In Richtersveld Community v Alexkor Ltd it was held by the South African Court of Appeal that the land rights of the plaintiff community survived annexation by Britain, covered by the guarantees of continuity contained in the Articles of Capitulation of 1806.55 This finding was expressly affirmed on appeal by the Constitutional Court.56

Equally, none of the divisions on this issue that existed among commentators in previous centuries seem to plague modern writers. Sir Kenneth Roberts-Wray, in his much-respected account of colonial law, states on the issue of the effect of Crown sovereignty on title to land,: "The Crown is... assumed to intend that rights of property are to be respected; with the result that private ownership is unimpaired and the tribal or other rights of the inhabitants (not amounting to private ownership) can be extinguished only by the consent of the occupiers or in accordance with statute, and they continue to exist unless the contrary is established."57 As Slattery has expressed the point:

"When the Crown gained sovereignty over an American territory, colonial law dictated that the local customs of the native peoples would presumptively continue in force and be recognizable in the courts, except insofar as they were unconscionable or incompatible with the Crown's assertion of sovereignty. In this respect, the rule resembles that applied in conquered or ceded colonies, where the local law is held to remain in force in the absence of acts to the contrary. But the rule respecting native

Bennett, supra note 22 at 460-1 55 Richtersveld Community v Alexkor Ltd and South Africa Case No. 488/2001, paras. 55-62 [24 March 2003] 56 CCT 19/03, Judgment delivered 14 October 2003; reported in [2003] AILR 41 (see discussion of this case in Chapter 2, supra, at pp. 47-9) 57 Roberts-Wray, supra note 20 at 636 195 custom applies regardless of whether the territory is deemed to have been acquired by conquest, cession, peaceful settlement or in some other

way."58

In other words, in territories acquired by the crown, however inequitable relations were between the executive and native peoples or between the colonists and native peoples, the common law recognised the rights possessed by the latter. Thus, in light of both the preponderance and strength of these authorities, provisions guaranteeing respect for private property rights in a Treaty cannot sensibly be interpreted as excluding indigenous rights. The latter were not automatically eclipsed, but were presumed to continue except for any elements that might have been incompatible with British sovereignty or principles of law and justice.

Applying these principles to the provisions of the various documents that governed the capitulation of the three colonies, exactly what did the British crown acquire in 1803? First and foremost, sovereignty meant ownership of the colonies as a whole, though not ownership in the proprietary sense of obtaining title to the land.

Instead, sovereignty conferred jurisdiction over the entire territory,59 which involved the power to administer the affairs of the colonies, jurisdiction over residents within the territory and the power to regulate relations with foreign entities - in short, the power of government. The acquisition of sovereignty also meant that in accordance with the usual principles relating to the doctrine of continuity, public property, which included

58 Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 Can Bar Rev. 727 at 738; and for a detailed treatment of the respect accorded to native rights, including rights to land, by the common law, see: R.L. Barsh, supra note 46 at 103-5 59 Roberts-Wray, supra note 20 at 625 196 property belonging to the previous government, passed to the British crown along with the radical title to private lands.60

However, exactly what constituted public lands? Once again, some of the older cases mentioned above provide a useful starting point in answering this question. In

Campbell v Hall, the fundamental premise of the decision was captured by the second of the six principles articulated by Lord Mansfield, namely that in a conquered territory

"the conquered inhabitants once received into the conqueror's protection become subjects; and are universally to be considered in that light, not as enemies or aliens".61

Such protection certainly implied that private rights - whether of the person or property

- would not be violated. On this interpretation, the 'public lands' which passed beneficially to the Sovereign would have included lands owned by the Dutch West India

Company, as well as vacant lands, or lands which were not subject to private interests.

This interpretation is consistent with subsequent decisions arising in other common law jurisdictions. In Amodu Tijanu for example, where the Privy Council found against the claim of the Head Chief to ownership of certain public lands in

Southern Nigeria, which had been ceded to the British crown, Viscount Haldane on behalf of their Lordships put it this way: "where the cession passed any proprietary rights they were rights which the ceding king possessed beneficially and free from the usufructuary qualification of his title in favour of his subjects." And in Oyekan v

Adele, where the right of the Oba under native law and custom to occupy the royal

60 Amodu Tijani v Southern Nigeria [1921] 2 A.C. 399 at 404 6i Supra note 17 at 895 62 Supra note 60 at p. 407; See also Attorney General of Southern Nigeria v John Holt [1915] A.C. 599 at 609 197 palace was in issue, the Privy Council found in his favour, holding that pre-existing proprietary rights continued after cession to the British Crown. According to Lord

Denning: ".. .the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law"

More recently, in Mabo v Queensland, this principle was given a ringing endorsement in relation to a territory acquired by settlement. Here Brennan J held:

"But it is not a corollary of the Crown's acquisition of a radical title to land in an occupied territory that the Crown acquired absolute beneficial ownership of that land to the exclusion of the indigenous inhabitants. If the land were desert and uninhabited, truly a terra nullius, the Crown would take an absolute beneficial title (an allodial title) to the land for the reason given by Stephen C.J. in Attorney-General v. Brown (95) See pp 13-14 above; (1847) 1 Legge, at pp 317-318: there would be no other proprietor. But if the land were occupied by the indigenous inhabitants and their rights and interests in the land are recognized by the common law, the radical title which is acquired with the acquisition of sovereignty cannot itself be taken to confer an absolute beneficial title to the occupied land." 5

It is true that in Mabo Brennan J also held that native title was subject to extinguishment by mere Crown grant, a defect which he rationalized in part by reference to the fact that native title did not originate in a Crown grant.66 Although this aspect of his ruling is of questionable validity,67 it has been consistently applied in

63 Ovekan v Adele [1957] 2 All E.R. 785 64 Ibid, at p. 788 65 Supra note 45 at page 34 66 Ibid, at p. 46 67 It has also attracted significant academic criticism: see Kent McNeil, "Racial Discrimination and Unilateral Extinguishment of Native Title" (1996) 1 AILR 181 and discussion in Chapter 7, infra, at notes 178-204 and accompanying text Australia ever since. Nonetheless, such dilution of the strength of the native title interest does not detract from the fact of Brennan J's ruling that the Crown was prevented from obtaining an absolute beneficial title in the first instance by reason of the prior rights and interests possessed by the indigenous inhabitants. According to

Brennan's own words quoted above, where public (or unalienated) lands were subject to pre-existing indigenous proprietary rights, then all that the Crown obtained on the acquisition of sovereignty was the underlying or radical title - but not an "absolute beneficial title" to such lands.69 Thus, provisions such as article 12 in the Terms of

Capitulation for Berbice, which conferred on the Governor and Council "the power to dispose peremptorily of yet ungranted lands",70 must be interpreted as applying to lands not subject to pre-existing indigenous interests.

In addition, at the time of conquest the Crown can extinguish private property rights, and as seen above this principle was enough to dispose of the claims made on behalf of the natives in Re Southern Rhodesia. In the three Guiana colonies, however, not only did the Crown refrain from seizing private property, but the documents of capitulation explicitly guaranteed the protection of private property rights. As set out above, in relation to the Two Rivers, article 1 of the Terms of Capitulation signed on the

18th September 1803 provided that the laws and usages of the colony would remain in force, no new establishments would be introduced without the consent of the local

68 Notable cases include Western Australia v Ward (2002) 191 A.L.R. 1 and Fejo v Northern Territory (1998) 156 A.L.R. 721 69 On this point see also Kent McNeil, "A Question of Title: Has the Common Law Been Misapplied to Dispossess the Aboriginals?" (1990) 16 Monash U. L. Rev. 91 at 105 70 See full text of provision at p. 181 above 199 legislature, and the existing administration of public officers would continue to function for the time being or until changed by the crown. Article 2 thereof provided that all inhabitants of the colony would be protected in their persons and, significantly, they were guaranteed the "free enjoyment of their properties" without molestation. The position was much the same for Berbice, and under article 1 of the Terms of

Capitulation signed on the 24th September 1803 all inhabitants of that colony were guaranteed the continued enjoyment of their private property. Eleven years later, when the three colonies were formally ceded to Great Britain, article VI of the Anglo-Dutch

Convention72 explicitly guaranteed to all individuals, irrespective of their rank, nationality or political affiliation, protection from the prosecution, disturbance or molestation of their persons and property.

These various guarantees were thus wholly in keeping with the letter and spirit of the continuity doctrine as outlined above, whereby the pre-existing laws and institutions of a conquered country remain in force, unless they are extinguished or otherwise modified at the time of conquest. Significantly, they were explicitly formulated to cover not only laws and institutions, but also the private rights (including those of property) possessed by the inhabitants. In light of the principles laid down above, these guarantees necessarily captured not only grants made by the previous

Dutch administration, but also lands subject to proprietary interests possessed by the indigenous population.

The full text of these articles is set out at page 180 above See page 182 above 200 The Formation of British Guiana

Thus far, it must be borne in mind that although the Terms of Capitulation for the Two Rivers and Berbice were substantially the same, which meant that these issues were in principle governed by the same considerations, the three colonies remained separate political entities. To recall, in 1792 after the charter of the WIC had expired, the States-General had taken over the administration of Demerara and Essequebo while

Berbice remained separately governed. However, persistent economic difficulties in

Berbice led to a movement for unification, though this did not achieve immediate results because of the inevitable reservations of some Berbicians who balked at the prospect of what they feared would be economic subordination to Demerara.

Nonetheless the impetus for unification grew, particularly in the Colonial Office where the financial gains of a consolidated administration were not overlooked.74 Eventually, by virtue of Letters Patent dated the 4th March 1831, the three colonies were united,75 each becoming a separate 'county' in the newly formed British Guiana. Existing forms of government, institutions, laws and customs were expressly preserved, except insofar as those laws relating to the separate government of the colonies were necessarily superseded. Moreover, in relation to some matters such as the public debt as well as certain aspects of private law, the colonies were to remain separate for some time.77

Shahabuddeen, supra note 12 at 78-80 74 Ibid at 81 75 Beaglehole, supra note 11 at 570 76 Letters Patent dated 4th March 1831, reproduced in Clementi, supra note 14 at Appendix H, pp. 437- 440 77 Shahabuddeen, supra note 12 at 82-3 Upon unification Sir Benjamin D'Urban, who was then the Governor of

78

Demerara, became the Governor of British Guiana. The Letters Patent constituting the united colony authorised him to make laws for the peace, order and good government of the colony with the advice and consent of the Court of Policy. However, the King expressly reserved his power to disallow laws of the local legislature, as well as the power to make laws from time to time, acting with the advice and consent of Parliament 7Q or with the advice of the Privy Council. Notably, by these Letters Patent the Governor was expressly conferred with the following power:

"to make and execute, in our name and under the Public Seal of our said Colony, grants of our waste land to us belonging within the said Colony, to private persons for their own use and benefit, or to any persons, bodies politic or corporate in trust, for the public uses of our subjects, there resident, or any of them".

In separate Instructions to the Governor issued on the 5l March 1831, his powers were also circumscribed by various rules and regulations. Noteworthy for our purposes were directions that no law or ordinance was to be enacted unless first

87 proposed by him, Ordinances respecting certain matters were not to conflict with his

Commission, Instructions or any Act of Parliament, and Ordinances were not to infringe upon certain matters, such as freedom of worship, equality of persons in the

78 Beaglehole, supra note 11 at 570 79 Letters Patent of 1831, supra note 14 at 438-9; for a detailed account of the development of local legislative power in the Colony see Shahabuddeen, supra note 12 at pp. 157-196 and Clementi, supra note 14 at 90-92 80 Ibid [emphasis supplied] 81 Reproduced in Clementi, supra note 14 at Appendix I, pp. 441-451 82 Ibid, Article 6 83 Ibid, Article 7 202 colony and various financial concerns. His power to make "Grants ofWaste Lands to us belonging" was reiterated, subject to certain preliminary requirements of obtaining surveys and limiting the size of private grants to under 100 acres. These provisions, in particular those authorizing grants of lands, raise a crucial issue - namely, exactly what was contemplated by and included in the term "waste lands to us belonging"?

As discussed in the preceding section, since the doctrine of continuity operates to preserve pre-existing private rights (including rights of property) on a change of sovereignty, and since this presumption captures rights possessed by native peoples, it necessarily follows that the "public lands" that pass to an incoming sovereign during this process cannot include lands subject to pre-existing customary interests. This alone ought logically to indicate that the expression 'our waste land' could only have included lands not subject to pre-existing customary interests, particularly as the latter have been repeatedly held to be of a proprietary nature.87 Remarkably, however, the Australian

High Court has espoused a contrary position, in defiance of both logic and precedent.

In Fejo v Northern Territory,88 the issue arose whether a fee simple grant operated to extinguish native title, and if so, whether the native title interest could revive if the land subsequently came into the possession of the Crown once again. The land in question had been granted in fee simple in 1882, but was later compulsorily

84 Ibid, Articles 8-16 85 Ibid, Article 24 86 Ibid, Article 25 87 In Australia, native title has been described as a proprietary right, per Brennan J in Mabo. supra note 45 at p. 36, while in Canada Aboriginal title has been described as a "right to the land itself, per Lamer C.J. in Delgamuukw v British Columbia [1997] 3 S.C.R. 1010 at 1096 (para 140) 88 Supra note 68 203 acquired by the Commonwealth for public purposes. Thereafter, crown leases were issued over the same lands, at which time the appellants launched these proceedings claiming native title rights therein. In the High Court it was held unanimously that the fee simple grant in 1882 had extinguished any native title interest in the land, as an estate in fee simple is equivalent to full ownership and is therefore incompatible with any other right or interest (unless the subsequent right or interest was granted by statute, the owner in fee simple or by a predecessor in title). Once extinguished, native title could not be revived when the land was resumed by the Crown, and this was sufficient to dispose of the appellants' claim.

The grant in question had been made pursuant to section 8 of the Northern

Territory Land Act 1872, which empowered the Governor to make freehold and leasehold grants of "waste lands". In construing this provision, the Chief Justice and five other Judges held in a single joint judgment that "The power to deal with waste lands in the Northern Territory (including the subject lands of the case) was to be found wholly within the 1872 Act. .. .That Act permitted the making of an unqualified grant of an estate in fee simple."89 However, even admitting the validity of the provision in the

1872 Act, the judgment omitted to explain how this power could include lands subject to pre-existing Aboriginal interests. As Kent McNeil has pointed out, since native title is a proprietary right, lands subject to it simply could not be included in the definition of

Ibid at p. 739 204 "waste lands". This meant that the Governor had no authority under the 1872 Act to dispose of lands subject to native title interests.90

Rejecting an alternative submission of the appellants that the fee simple grant should be read as having been made subject to native title rights, the majority held that even though at common law a fee simple estate could be subject to other interests

(easements and profits a prendre being obvious examples), this could not include native title rights as the latter owed their existence to a different body of law and traditions.91

In a separate concurring judgment, Kirby J echoed this point, adding that native title rights are "inherently fragile" since they are dependent on a different legal system for protection. Arguably, however, this was a fine and ultimately irrelevant distinction, since native title rights had earlier been acknowledged by this very Court to be of a proprietary nature. Moreover, the common law has never made distinctions based on the source of property rights,93 so there was no reason in principle why native title rights should be treated differently from an easement or other common law interest. In any case, the recognition of native title rights deemed necessary by the High Court had already been accorded, so the Justices' explanation was indefensible even upon its own terms.

90 Kent McNeil, "The Vulnerability of Indigenous Land Rights in Australia and Canada" (2004) 42 Osgoode Hall L.J. 271 at 279-280 91 Per Gleeson C.J. and Gaudron, McHugh, Gummow, Hayne and Callinan JJ, supra note 68 at p. 739 92 Ibid, at p. 757 93 Attorney General for the Isle of Man v Mylchreest (1879) 4 App. Cas. 294; and see Kent McNeil, Racial Discrimination, supra note 67 at 192-196 for a detailed account of the common law on this issue. 94 See note 87, supra 205 In his concurring judgment, Kirby J advanced two further explanations why native title could not be compared with other common law rights such as easements, which are capable of co-existing with a fee simple. To reason thus, he said, would be to pile "fiction... on fiction"; further, he continued, since the statutory grant created a fee simple interest, it was "impossible" to reconcile it with native title.95 With all due respect, however, neither of these reasons provided a cogent rationale for rejecting the appellants' submissions. By making an analogy with easements the appellants were presumably demonstrating the principle that at common law, a fee simple could be subject to other interests. Contrary to what Kirby J suggested, this argument did not require "coercing" notions of native title to fit common law concepts. Native title is no fiction but is a proprietary interest in its own right, so by analogy it ought not to be automatically extinguished by a fee simple grant, which may be held subject to other proprietary interests. Kirby J's final explanation was no more convincing. It depends for validity upon the origin of these competing proprietary rights, but as pointed out above, the common law has never relied upon such distinctions to dispossess the Crown's subjects.

Aside from these flaws in the reasoning of the High Court, this ruling contravened Australian precedent of very recent origin. In Mabo, Justices Deane and

Gaudron held:

"The ordinary rules of statutory interpretation require... that clear and unambiguous words be used before there will be imputed to the legislature an intent to expropriate or extinguish valuable rights relating

95 Supra note 68 at p. 757 206 to property without compensation. Thus, general waste lands (or Crown lands) legislation is not to be construed, in the absence of clear and unambiguous words, as intended to apply in a way which will extinguish or diminish rights under common law native title."96

Justice Toohey was equally direct, saying: "...traditional title may not be extinguished by legislation that does no more than provide in general terms for the alienation of the waste lands of the colony or Crown land."97 These statements arguably leave no room for doubt, so that under both precedent and logic the decision in Fejo embodied an unjustified and unjustifiable extension of the law.

Finally, it is interesting to note that courts in other parts of the British

Commonwealth have studiously rejected the Australian approach on this issue. In Ngati

Apa the New Zealand Court of Appeal, faced with a similar provision in their Letters

Patent of 1840 that authorised the Governor to make grants of waste lands, interpreted it subject to a Proviso that nothing therein was to be construed as affecting the rights of the natives regarding the occupation or enjoyment of lands. Thus, in the words of Elias

C.J. who delivered the leading judgment, lands in New Zealand "became subject to the disposing power of the Crown by Crown grant only once customary ownership had been lawfully extinguished."98

Mabo. supra note 45 at p. 84 97 Ibid, at p. 153; Note, there is even a passage in the judgment of Brennan J (on p 48) that can be construed in support of this position. 98 Supra note 50 at p. 657. Note, a similar proviso existed in Letters Patent establishing South Australia (under which the Northern Territory was initially established), but in Fejo this was not considered by the majority, while Kirby J {supra note 68 at pp. 751-2) held it to be inapplicable on grounds strikingly reminiscent of the reasoning of Blackburn J in Milirrpum v Nabalco Party Ltd (1971) 17 Fed L.R. 141 at 276-8 207 Both principle and precedent, therefore, lead inexorably to the conclusion that the provision in the Letters Patent of 1831, whereby the Governor was empowered to make "grants of our waste land", could not have included lands subject to indigenous proprietary interests. This interpretation accords not only with the common law, but is consistent also with British Imperial policy. The Royal Proclamation of 1763, for example, although having no application to British Guiana, provides a useful insight into the official practice of the British Crown, as its provisions indicate that the Crown did not countenance settlements on or disposal of lands over which there were existing

Indian rights. Rather, such lands had to be first obtained from Indians by the Crown

(whether by purchase or cession), before settlement thereon could proceed."

If this was the approach in 1763, there is no reason for supposing it had been abandoned by 1831. Indeed, there is evidence to the contrary, as Article 11 of the Royal

Instructions to Sir Benjamin D'Urban in 1831 provided: "And we do further enjoin and command you not to propose or assent to any Ordinance whatever by which Persons of

African or Indian birth or descent might be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent would not be also subjected and made liable."100 This was clear official endorsement of the principles outlined above. Indigenous rights to land, whether applicable by virtue of the principles of continuity or as an incident of the common law, were of a proprietary character, were therefore in the same position as the proprietary rights held by European residents of the

99 Royal Proclamation, 7 October 1763, reprinted in R.S.C. 1985, App. II, No. 1 [Can] 100 Reproduced in Clementi, supra note 14 at Appendix I, p. 444. Note, in 1831 East Indian immigration to British Guiana had not yet begun, so that "Indian" referred to the indigenous inhabitants of the territory - who were later called Aboriginal Indian and then simply Amerindian. 208 colony. Moreover, the instructions to D'Urban which authorised him to make grants of land also required him "to cause all necessary surveys to be made of the vacant or

Waste Lands to us belonging in Our said Colony".101 By no stretch of the English language could lands occupied by people - Indigenous or otherwise - be described as vacant, which reinforces the interpretation that 'Waste Lands' manifestly did not include lands where Amerindians lived. Accordingly, the cumulative effect of these provisions was, at a minimum, that lands occupied by Amerindians were not lawfully available for disposal by the Governor and legislature.

Against this background, in the following chapters we shall examine the legislative activity of the British colonial government, insofar as it related to or impacted on the rights of the indigenous peoples of the colony.

" Article 24, ibid at p. 447 209 CHAPTER 6

CONSOLIDATION OF BRITISH SOVEREIGNTY

In one of several Reports on Amerindian welfare and development in British

Guiana produced in the mid-twentieth century, Ray Greene, the Chairman of the

Committee in question which had been appointed to investigate Amerindian affairs, adverted to the transition of the Colony's indigenous inhabitants from "allies of the

British... into the position of subjects."1 Though terse, this was actually a reasonable assessment of the evolution of Amerindian sovereignty during the course of British rule, as borne out in a number of ways. In the early days it was recognised (albeit belatedly) that Amerindians still had a pivotal contribution to make in the development of the colony, with the result that laws and policies of the new administration were to a certain degree attentive to their welfare and respectful of their autonomy. But as the nineteenth century waxed Amerindians became perceived as increasingly irrelevant, insofar as their role became more localized and far less visible. This is not meant to detract from the multiplicity of ways in which Amerindians facilitated both Dutch and later English settlers in penetrating the interior and utilizing its resources. Such assistance was both physical, in the form of labour and the provision of services, as well as intellectual, through the knowledge of the forest and its resources that they freely imparted.

However, during the course of the nineteenth century Amerindians were no longer required at a national level to hold the balance of power or provide security from

1 Ray Greene, Interim Report of the Aboriginal Indian Committee, dated 9th May 1946, paragraph 9 210 external attack, hence the perception by legislators that they were perhaps dispensable.

To the planter class which wielded so much influence in Guianese political and economic life the colony's indigenous inhabitants came to represent an annoying and unjustifiable expense. These changing realities relentlessly eroded the few economic privileges enjoyed by Amerindians, and ultimately their needs came to be subordinated to the interests of those in the natural resources sector.

To economic subordination must be added political and social marginalization.

Jurisdiction over Amerindians came to be exercised with increasing decisiveness by the colonial administration, though the Western normative order inevitably took a while to replace customary practices and traditions. Amerindians themselves submitted to this process, not only through deference to creeping British occupation and control of their territory but also by publicly supporting the latter's claim to do so at the boundary arbitration proceedings involving Venezuela. Emboldened by Amerindian support and later an international award in their favour, the British government set about consolidating their control, in the course of which the native inhabitants experienced an ignominious loss of autonomy as well as convulsive social dislocation. At the turn of the century, particularly between 1890 and 1910, laws enacted to deal with the land and resource-use issues in the colony stripped Amerindians of many rights and freedoms they had always enjoyed, relegating them to tiny reserves in which their livelihoods, property, relationships and overall liberty became subject to the dictates of the State.

In this chapter I will outline the policies and more particularly the laws that were enacted which served to strengthen the political control of the State over the Colony's 211 indigenous inhabitants. To this end I intend to focus on the provisions impacting on matters of governance, leaving economic issues such as those relating to land and resource use for the following two chapters. Through this account of the laws and policies relating to the colony's political structure I hope to demonstrate how in this final phase of Guiana's colonial history the indigenous population was indeed transformed from a position of autonomy into "subjects" - though not subjects on equal footing with the rest of the population but rather subjects in the most literal sense of the term, namely that of wards subjected to the dictates of the State.

British-Amerindian Relations in the Early Nineteenth Century

Following the transition from the Dutch to the British, the operative principle guiding the new administration was, initially at least, that of continuity. This meant not only the preservation of laws and existing rights to private property as discussed in the preceding chapter, but also the retention of Dutch personnel in key official posts and the system of administration generally. Thus, despite the shift in political allegiance, at the outset of British rule there was no radical disruption in the functioning of the Colony.

This approach had significant implications for the Colony's indigenous population, as

Dutch policies in relation to them were largely informed by a philosophy of conciliation and accommodation. The British, however, did not necessarily share the outlook and goals of the Dutch, and it was clear from early on that these differences would eventually impact on relations between the new administration and the Amerindians. 212 At first, however, there was an attempt to maintain the existing system of governance. One of the offices that continued uninterruptedly was that of Postholder, a position of great antiquity in the Colony. This was the official who was initially left behind when the trading vessels were en route with goods between the Netherlands and the Wild Coast, and his was the task of dealing with the natives and acquiring articles for trade. In time the Postholder's role became overtly political, as he was required to mediate between warring factions and settle disputes - no doubt of course to minimize all disruptions impeding the smooth flow of the trading enterprise. The new government continued this office and by a resolution in 1803 they reaffirmed Instructions to

Postholders that had been enacted by the Court of Policy in May 1803 when the Colony had been under Dutch rule for a brief period.2 It was clear from these instructions that a premium was placed on the maintenance of good relations with the native inhabitants, for Postholders were required to maintain order at the post and promote peace among the various Amerindian peoples living in the vicinity as well as between Amerindians and settlers. To ensure their independence, Postholders were forbidden from trading personally with Amerindians, employing them or interfering with their property or families. Article 12 of these Instructions provided:

"He shall not take or appropriate to himself the property of the Indians, much less their wives or children, on pretence of their being indebted to him, even in case of an Indian having had goods from him on credit and refusing to pay for the same - the loss arising therefrom to be for the postholder."

2 British Guiana/Venezuela Boundary Arbitration Proceedings, 1899, British Case, Volume 1, 99 [hereafter 'British case'] 213 Postholders were also placed under the ultimate authority of the Protector of Indians in their respective districts, to whom they were to submit quarterly a copy of their Journal of occurrences and refer all complaints of ill treatment made by Amerindians.

These Instructions were republished on the 2" May 1815 and further reference was made to them on the 10th August 1824 in separate Instructions issued for the guidance of 'the Protector of Indians'.4 It is unclear as to precisely when this post of

'Protector of Indians' was first created. The first official reference to it occurs in the

1803 Dutch Instructions for Postholders described above, in which Postholders were directed to transmit their Journal of occurrences to the 'Protector of his district' on a quarterly basis.5 Shahabuddeen estimates that this office must have been created sometime between 1793 and 1803, as prior to 1793 only postholders were in existence.6

However according to the British case presented at the Boundary arbitration proceedings, the office was known to exist under the Dutch,7 in which case it could not have been created after 1796, which was the year that the Colony fell into British hands for the second time. It is a reasonable assumption therefore that the office must have been created sometime between 1793 and 1796. At any rate, by the time these

Instructions were issued for the Protectors in 1824, there were at least 5 or 6 of them

3 Articles 2 & 13 respectively of Instructions for the Postholders with the Indians in Essequebo and Demerary, 15th May 1803, CO 111/16 4 CO 111/60, National Archives, UK 5 Article 2 of Instructions for Postholders, CO 111/16; Note there were many other references to the Protector in these Instructions, who was given a supervisory role over the Postholders. 6 Mohamed Shahabuddeen, Constitutional Development in Guyana 1621-1978 (Georgetown: Guyana Printers Ltd, 1978) 577 7 British case, supra note 2 at 63 214 appointed for various districts in Essequibo and Demerara. Judging from these

Instructions, it seemed that the primary role of Protectors was a supervisory one over

Postholders - ensuring that the latter fulfilled their duties and even that they were "well liked" by the Amerindians residing at their Posts.9 In case of any abuse or even negligence on the part of Postholders the Protectors were to initiate investigations through which the offending Postholder could be removed and replaced. Additionally,

Protectors functioned as intermediaries between the Postholders and the colonial government, for the Protectors were required to make routine reports to the Governor of the numbers and welfare of Amerindians in their respective districts.1

Another indication that securing good relations between the new administration and the native population was initially viewed as important was the republication of the ban against Amerindian slavery. By Proclamation of 26th January 1808 it was recited that".. .whereas it is of the utmost importance for the welfare of the colony, that the aforesaid laws [forbidding the enslavement of free Amerindians] be strictly observed... no person or persons whatsoever shall be permitted in these Colonies either to purchase, possess or treat as slaves any of the free Indians of this country (it being understood that in this prohibition are included all such Indians as are offered for sale by other Indians, of whatever tribe, sex, age or condition that they may be).. ."n Although Amerindian

Sr. M. Noel Menezes, British Policy Towards the Amerindians in British Guiana, 1803-1873 (Oxford: OUP, 1977)94 9 Instructions dated 10th August 1824, supra note 4 at Articles 1 and 3 10 Ibid 11 Published on the 13th February 1808, CO 116/64, National Archives, UK 215 slavery had been wholly outlawed by the Dutch in 1793, it appears that the need for this Proclamation arose from blatant breaches of the earlier ban. The abolition of the

African slave trade in 1805 led to labour shortages which Amerindians sought to fill, and there are accounts of Amerindians being openly sold as slaves in Stabroek around

1 ^ this time.

Of all the measures, however, the one forming the most critical element of

Dutch policy towards Amerindians was the system of patronage, and it was towards this that the new administration was clearly most ambivalent. Initially, no presents were distributed, as a result of which the Amerindians simply retired inland away from the

Posts.14 It was quickly realized however that this was a risky approach, for Amerindians were known to provide critical services in relation to internal security. Thus presents for

1,000 Amerindians were ordered and a date was fixed for general distribution, and

Postholders were also ordered to distribute presents in the interim.15

Nonetheless, it seems clear that the British were only following the Dutch style of governance perfunctorily, lacking any substantial or enduring commitment for it.

Maintaining an approach of conciliation with the native population was a costly enterprise, anathema to both the mercenary planter-controlled government as well as the parsimonious Colonial Office in London. The expenditure necessitated for Amerindians under existing Dutch policies, covering payments to the Postholders and their assistants,

12 Rev. James Williams, "The Aborigines of British Guiana and Their Land" (1936) XXXI Revue Internationale d'Ethnologie et de Linguistique 417 at 423 13 Shahabuddeen, supra note 6 at 576 14 British case, supra note 2 at 104 15 Ibid 216 maintaining the Posts, the cost of presents and undertaking bush expeditions, all combined to exceed £3,000 annually.1 The reaction of the Colonial government to this was in marked contrast to that of their more pragmatic predecessors, and from as early

1 7 as 1812 expenditure on Amerindians began to decrease. By 1830, expenditure on allowances and rations for Amerindians declined to £594,18 and in 1830, with emancipation on the horizon, triennial presents were distributed for the last time.19

The ambivalence existing towards Amerindians at these upper echelons of the administration did not fail to contaminate its lower rungs. The Protectors, for example, were not paid a salary, and combined with the fact that they did not live in or among

Amerindian communities they had little impact on the latter's welfare. In fact,

Professor Menezes has summarily dismissed the office as "useless" and a "mere facade"

- on account of their distance from and lack of knowledge of Amerindians.22 As for the

Postholders, they were considered even more of a failure than Protectors and were condemned both by contemporaries and subsequent historians. Illiterate, underpaid and largely unsupervised, the Postholders not only failed to protect Amerindians from abuse by settlers but themselves exploited the Amerindians.24 According to William

Hilhouse, who was a tireless advocate for the rights of Amerindians, Protectors were

James Rodway, History of British Guiana, 1668 to the Present Time, Vol. 2 (Georgetown: J. Thompson, 1891)306 17 Menezes, supra note 8 at 57 18 Ibid, at 63 19 Davis, CO 111/485, National Archives, UK 20 British case, supra note 2 at 100 21 Rodway, supra note 16 at 306 22 Menezes, supra note 8 at 93-104 23 Ibid, at 91 24 Rodway, supra note 16 at 307; Shahabuddeen, supra note 6 at 582 217 "lazy" and Postholders "drunken" - "the one devoid of zeal from the thanklessness of his office, and the other from the meanness of his remuneration." Obviously a change was desperately needed, but this took some time in coming.

In 1833 the Court of Policy set up among its members a special committee to investigate persistent allegations made against the Postholders by William Hilhouse.

The ensuing Report found that increased alcohol consumption was having a disastrous effect on Amerindian communities, with no adequate support being provided by the existing system of Protectors. The findings and recommendations of this Report were reflected in an 1838 Ordinance, the first major statute touching upon Amerindian rights to be passed by the new British administration.

Entitled simply 'An Ordinance appointing Superintendents of the Rivers and

Creeks of British Guiana'?1 the Preamble of this statute gives a better idea of the multiplicity of its aims:

"Whereas the Rivers and Creeks of British Guiana afford great facility of communication with the interior of the Province, and unless the same be carefully watched, and the navigation thereof placed under very vigilant Superintendence, they will furnish a ready means to the idle and dissolute to remove themselves beyond the control of the Law; and whereas the existing establishment of Protectors of Indians and of Post Holders is inadequate to the efficient performance of these duties, which now are, and may hereafter, be required from those entrusted with the superintendence of the water communications of the interior: for remedying whereof... [be it enacted]"

William Hilhouse, Indian Notices, reprint (Georgetown: GNS Publishing Centre, 1978) 19; See also his commentary on these officials at 81 -2 26 Shahabuddeen, supra note 6 at 583 27 Ordinance No. 6 of 1838 218 As indicated by its Preamble this Ordinance evinced official recognition of the criticisms of the existing policy towards the native inhabitants. Though it did seek to address these criticisms somewhat, the focus of the Ordinance was overwhelmingly on issues of land and resource use by natives and settlers alike. Regarding the issue of

9Q governance, the Ordinance abolished the office of Protector of Indians, replacing it instead with that of 'Superintendent of Rivers and Creeks', with one such official T A appointed for each of the three counties. Unlike that of Protector of Indians, the position of Superintendent was to be a paid office with far more extensive and clearly defined duties attached to it. Among those were the duties of monitoring the Postholders and ascertaining by quarterly visits the state and condition of every Post within their respective jurisdictions, and reporting on the state of affairs to the Governor.

Superintendents were required to distribute funds allocated for Amerindians, and more importantly a limited jurisdiction was conferred upon them to adjudicate over minor criminal matters in the remoter areas where they were required to visit. For breaches of the peace and petty thefts, the Superintendents were even authorised to administer minor punishments, though more serious cases were to be referred to the Sheriff of the

County for disposition.34 Signaling perhaps a tougher stance towards official

For a discussion of land and resource use provisions of this Ordinance see Chapters 7 and 8 infra 29 Ordinance 6 of 1838, s. 1 30 Ibid, s. 2 31 Ibid, s. 4 32 Ibid, s. 6 33 Ibid, s. 12 34 Ibid, s. 13 219 malfeasance, the Ordinance provided for the removal of the Superintendents in cases of misconduct or neglect of duty.35

The office of Postholder was retained, though all existing laws, rules and

Instructions relative to the duties of this position were revoked.3 Detailed rules were laid down to govern Postholders,37 but in actuality the substituted regulations simply replicated the Dutch Instructions of May 1803. Essentially these Regulations sought to circumscribe the Postholders' authority by subjecting them to the control of the

Superintendents, possibly out of recognition of the fact that Postholders often lived in remote areas and therefore had considerable discretion. Specifically, Postholders were required to reside at their respective Posts, which they were to maintain in good order.

They were to keep a Journal of all occurrences and were bound to carry out the orders of the Superintendents. Their role as interior sentries - so important during the Dutch era for the multiplicity of purposes it served - was maintained, as they were required to monitor the rivers and creeks and ensure that all travelers had some satisfactory purpose or lawful authorization.

Regarding the native inhabitants, Postholders were required to encourage

Amerindians to reside in the vicinity of their Post, to promote peace among them and to pay them promptly for any services provided. Under no circumstances were

Amerindians to be paid in alcohol. Cases of oppression or other injustice inflicted upon

Amerindians were to be reported by them to the Superintendent forthwith, who was in

35 Ibid, s. 3 36 Ibid, s. 1 37 Ibid, s. 28 220 turn required to secure legal redress for the injured party. For whatever reason, although

Postholders were permitted to employ Amerindians to perform any kind of labour, both

TO they and Superintendents were strictly enjoined from trading with them in any way.

What is very obvious from these provisions, especially when they are compared with what came to be enacted by the turn of the century, is how much they bear out the observation made in the Greene Report that initially Amerindians were considered to be allies of the British. As yet there was no attempt to dictate to Amerindians where they should live or how they should conduct their lives, manage their property or organize their families. Most critically, as will be discussed in the following chapters, there was no attempt in this Ordinance to interfere with Amerindian land and resource use rights.

At best, Postholders could only "encourage" Amerindians to live around the Post, but in all their mutual dealings the law sought to maintain standards of honesty and decency.

Overall, the tenor of this law was consonant with the approach of conciliation and respect, maintaining peace and observing boundaries, which had been pioneered and maintained by the Dutch. As yet there was no encroachment - or at least no significant encroachment - upon the ultimate autonomy of Amerindians.

Predictably, however, such sensitivity was not destined for longevity. To begin with, the conditions faced by the Dutch when they first established settlements in this territory had long since altered, and more pertinently, the respective goals of the colonizers were significantly different. Settlements had become firmly established and could not be dislodged by the local inhabitants even if they so desired. Trading was

38 Ibid, s. 7 221 eclipsed by plantation agriculture, so Amerindians were not required to provide any goods; as well the constant attacks by the Spanish in the West had dissipated somewhat so that Amerindian services were no longer required for external defence. The final nail was slave emancipation, which meant that no further bush expeditions to hunt down and capture runaways were necessary, and with that possibly the most critical role played by Amerindians thereby vanished. Immediately following emancipation in 1838 when the future was uncertain and the need to police the interior still a possibility,

Amerindians could not be ignored nor could peaceful relations with them be ruptured, which explains the approach and tone of the Ordinance enacted in that year. However, fears of chaotic squatting on Crown lands failed to materialize as liberated African slaves and their descendants formed organized settlements on coastal areas. As these changing realities unfolded and the need for any deference towards Amerindians evaporated, the approach of the government towards them and their treatment by the law were inexorably transformed.

The more obviously expensive elements of the government's policies regarding

Amerindians such as the distribution of presents had already begun to be scaled back by the 1830s, and were eventually scrapped in 1837.40 Also costly was maintaining the network of Superintendents and Postholders, and once it became clear that disruptions to the security of the interior were unlikely, the retention of these positions became

These attacks were particularly acute in the mid-eighteenth century, but were decisively confronted by Gravesande with the help of Amerindian allies. A brief account is given in Chapter 3, supra, at pp. 125-8 40 CO 111/485 222 mired in unending controversy.41 As always the work of the legislature could be frustrated by the Combined Court, which was controlled not by the legislators drawn from officials in public service, but by planters who were in a majority. The problem lay in the fact that financial matters voted on by the legislature had to be approved by the Combined Court, but since planters had nothing to gain from an enlightened policy towards Amerindians, expenditure upon the latter was never a priority for them.42 As a solution, the office of Postholder was merged with that of Superintendent of Rivers and

Creeks in 1843, but this was to provide only a temporary reprieve for occupants of the latter position. Already during a financial crisis in the preceding year no money had been voted for the salaries of Superintendents, resulting in the "virtual abolition" of this office.4 Although the office was resuscitated in the following year one result of all the controversy over expenditure in the post-emancipation period was that the entire policy of the administration towards Amerindians came and remained under intense public scrutiny - both at home and in London.45 Largely as a result of the tenacity of the

Governor, fortified by the lukewarm support of a Colonial Office anxious about appearances, as many as six Superintendents were provided for in the Estimates of

1843,46 but their numbers did not remain constant in the following decades, and in one

47 year they were reduced to as few as two.

41 Menezes, supra note 8 at 85-90 42 See chapter 3, supra, at pp. 123-4 43 Ibid, at 90 44 Light to Stanley, despatch No. 104 dated 18 June 1842, CO 111/191, National Archives, UK 45 Menezes, supra note 8 at 105 46 Ibid, at 111-3 41 Ibid, at 121-3 223 Aside from reducing the numbers of Superintendents, the responsibilities of this office steadily evolved in the nineteenth century, moving away from overseeing

Amerindian affairs to monitoring land and resource grants in the interior and settling disputes between concessionaires relating to occupation. In 1861, by which time the office of Postholder had all but disappeared, the 1838 Ordinance was repealed in its entirety, which necessarily resulted in the repeal of all the detailed regulations directed to Postholders for securing the welfare of Amerindians. Amerindians obtained the barest mention in the new law, notably a prohibition placed upon Superintendents and the newly created Revenue Officers against trading with them, either directly or indirectly.49 Also retained for the protection of Amerindians was an absolute prohibition against paying them in alcohol, and henceforth employers were required to keep written accounts of the names of all their Amerindian employees, the tribe to which they belonged and the amounts that they were paid. These records were subject to inspection by both Superintendents and Revenue Officers.50

In 1873 the law as to Crown lands was comprehensively overhauled (not for the last time), with all the previous statutes being repealed and replaced by a new

Ordinance which established a Crown Lands Department.51 The new Ordinance was the forerunner of the modern law governing Crown lands, and regulations made under it some years later also came to delineate specific Amerindian rights in relation to lands and forests. There were no references in the new law to the position of Superintendent

48 Ordinance 14 of 1861, s. 1 49 Ibid, s. 13 50 Ibid, s. 21 51 Ordinance 9 of 1873 224 of Rivers and Creeks, and instead provision was made for the appointment of a Crown

Surveyor, Assistant Crown Surveyors52 and Special Magistrates.53 All the functions previously performed by Superintendents were now entrusted to the Crown Surveyor and his assistants, along with Commissaries of Taxation and Special Magistrates.54 The only protections retained for Amerindians were those that had survived in the 1861 statute relating to the prohibition on trading with them55 and safeguards for employment.56 By this time, then, the concern for Amerindian welfare manifested at the outset of British rule was no longer reflected in the law, and as will be demonstrated in the following chapter, this change was mirrored in other provisions regarding land and resource use by Amerindians.

The Interplay between Local Customs and British Legal Jurisdiction

Although attention towards the native population was gradually eclipsed in the nineteenth century by an increased focus on the natural resources sector, this did not mean that Amerindian Nations continued to occupy the territory as parallel and largely autonomous entities. Already during the period of Dutch occupation it has been demonstrated how some communities (perhaps those closest to the Posts) had begun to relinquish their autonomy, turning to the Postholders to settle disputes and submitting to

52 Ibid, s. 2 53 Ibid, s. 3 54 Ibid, s. 16 for example 55 Ibid, s. 6 56 Ibid, s. 16 225 the authority of the administration in several critical respects. For example, the Dutch did attempt to try Amerindians for serious crimes such as murder.57 Moreover,

Amerindians formed a crucial component in the internal balance of power against

African slaves, and they provided intelligence regarding impending attacks from

Venezuela. In these ways, they greatly assisted the Dutch in consolidating the latter's political control of the territory. Thus begun, Amerindian submission to the authority of the foreign colonizers was decisively completed under the British.

As the system of Postholders was not immediately scrapped by the British these officers, stationed at various points throughout the Colony, continued to play a crucial role in interior affairs. According to the Dutch Instructions republished by the British in

1815 and then incorporated in the law in 1838, a Postholder was to "endeavour, on all occasions, to prevent quarrels among the Indians; and whenever they take place, he

CO shall use his best exertions to restore peace, and to reconcile the parties." Under the

British, however, a more formalized approach came to be adopted towards law and order throughout the Colony. From very early in their rule the British appointed

Magistrates who traveled throughout interior districts hearing both civil and criminal cases. Although these would have been minor cases in keeping with the limited jurisdiction of summary courts, the important fact is that it was applied to Amerindians

- not only in their interactions with settlers but also in their dealings amongst

Records have survived of a trial of an Amerindian called 'Rose', circa 1766: CO 116/164; and more generally see British case, supra note 2 at 86 58 Ordinance 6 of 1838, s. 28 226 themselves. The territorial limits of British jurisdiction seems to have been fairly extensive, for the Superintendents were conferred with a limited power to hear and determine minor civil and criminal cases in remoter areas off the regular circuit of the

Magistrates.60 By 1861, persons occupying the office of Superintendent became ex officio, Justices of the Peace.61 By virtue of these powers Superintendents were able to play a highly valuable role in preventing exploitation of Amerindians by those employers who relied on Amerindian services, such as those involved in the timber industry. Regular complaints dealt with by Superintendents included those for non- payment of wages, ill-treatment, abduction and even stealing. No doubt such intervention contributed substantially to the consolidation of British authority throughout the territory.

But mediation in minor civil cases was one thing; submission to criminal laws based on an alien culture was asking of Amerindians too much, too soon. In a letter to

Lord Goderich in 1831, Benjamin D'Urban (the first Governor of the united colonies) wrote "Mr. Bagot's reports will I think have shewn your Lordship that protection is afforded to the Indians by the Magistrates of the Colonial Government, and that they willingly avail themselves of it, and are not altogether ignorant of the penalties of our criminal Code since they are disposed to rely on them for the punishment of great

British case, supra note 2 at 101-2 60 The jurisdiction of Superintendents extended to breaches of the peace, petty thefts, receiving stolen property under the value of two pounds sterling and unlicensed woodcutting: Ord 6 of 1838, ss. 12 & 13. 61 Ordinance 14 of 1861, s. 9 62 Menezes, supra note 8 at 147 227 crimes committed among themselves..." While it is true that Amerindians availed themselves of the adjudicatory role provided by Postholders and then later by

Superintendents and Magistrates, Governor D'Urban was overly sanguine in his assessment of their submission to the criminal laws.

At this juncture it is useful to be reminded of the fact that the designation of

'Amerindian' subsumes therein a number of distinct Nations or tribes of people who inhabited the territory, which possibly makes generalizations of customs and practices a hazardous exercise. Nonetheless, what studies there are of specific groups as well as of

Amerindians generally do support certain broad conclusions. John Gillin, an American anthropologist who studied the Caribs of one region in the north-western district of the country in the early twentieth century, described various cultural taboos that bound communities as rigidly as the laws or statutes of Western societies. Remarkably, some of these taboos did not diverge significantly from common law notions of justice, most notably in the requirement of intent to found culpability. Thus, where it was clear that a transgression occurred accidentally, including even homicide or non-fatal poisoning, it could be overlooked, but where intent was a necessary component of the offence, such as in theft, adultery or sorcery, retaliation was sure to result. According to Gillin,

".. .when a man commits an offence of his own free will, i.e. with intent, the origin of the cause can be reached and compensation extracted."64

63 D'urban to Goderich, despatch No. 39 dated 26th November 1831, CO 111/117, National Archives, UK 64 John Gillin, "Crime and Punishment Among the Barama River Caribs of British Guiana" (1934) 36.3 American Anthropologist 331 at 337 228 Nonetheless, Gillin also uncovered significant differences in both substantive rules and in the forms of redress between the northwest Caribs and the incoming common law. As regards substantive rules, for example, Gillin suggests that because the

Carib communities of this area were small and within themselves had no political functions and little social importance, this in turn stymied the development of abstract notions of justice. Retribution was the paramount consideration in punishment, and in some instances this could be extreme - such as death for adultery.65 Procedurally, the differences with European systems of justice were even starker. Notably, there was a virtual absence of any centralized authority - and though each settlement would have a headman, he lacked any institutional structure for enforcing his directions. In fact, there was a complete absence of any kind of formal penal or judicial system - no police or judges or courts - so that justice was wholly personal and meted out secretly.66

Professor Menezes provides a broader comment upon matters of crime and punishment, positing: "In the light of his beliefs regarding the avenging of evil, the

Indian neither understood nor felt himself bound by the British law. In his eyes such an act [that of avenging unprovoked homicide] was a right and fitting one, and not murder."67 Nineteenth century anthropologist Everard Im Thurn, who spent over two years among Amerindians in the interior of British Guiana, provides a useful insight into this situation, explaining: "In all primitive societies where there are no written laws and no supreme authority to enforce justice ... vengeance has been held as a sacred

65 Ibid, at 334-5 66 Ibid, at 332-4 67 Menezes, supra note 8 at 129 229 duty; for, in the absence of laws enforced by society, the fear of this vengeance to be inflicted by the injured individual, or by those nearest of kin to him, alone deters individuals from crime."68 Since Amerindians' customary beliefs surrounding crime and punishment and their ways of extracting justice were deeply embedded in their respective cultures and societies, it was hardly surprising then that these beliefs were to prove an enduring obstacle to the smooth transplantation of the common law.

At the Boundary Arbitration proceedings with Venezuela, the British government had actually acknowledged that the "early days of British administration produced no immediate change in the custom of the Indians to exact the penalty of life for life.. ."69 In truth, this problem was to persist long after the administration's early days. A number of documented cases of murder from the 1830s graphically highlighted the impotence of British law. In the first of these, which took place in 1831, an

Amerindian man was tried for the murder of his wife. At the trial the jurisdiction of the court was challenged on the ground that Amerindians constituted a free Nation. In addition, since the defendant had been motivated by his wife's infidelity, evidence was led to verify that by virtue of their customary laws his conduct was justified. Both defences were rejected by the Court. In his summing up the President of the Court held that Great Britain exercised rights over the territory which were not disputed by

Amerindians. On the contrary they were held to have "adopted our institutions formed

Everard Im Thurn, Among the Indians of Guiana, rep. (NY: Dover Publications, 1967) 330 British case, supra note 2 at 101 230 for their express comfort and protection." Thus, the trial Judge concluded,

Amerindians were bound by the laws of the new government and subject to the court's jurisdiction. The defendant was convicted and sentenced to death, but on account of his ignorance of the customs, laws and proceedings to which he was held subject, the Court actually recommended commutation of his sentence, a course to which the Colonial

Office agreed.71

The dilemma of how to deal with Amerindians accused of contravening British laws was to occur repeatedly throughout the nineteenth century. The issue was pithily expressed by Robert Schomburgh in one of the progress reports on his boundary mission. Arriving at Cumaka on the 10th June 1841, Schomburgh learned of a murder that had occurred there some two months before. Recounting the story in his report

Schomburgh waxed philosophical, asking whether an Amerindian "who has no knowledge of the Christian religion, and does not acknowledge our laws, can be punished for an act which civilized nations consider as capital crime, but which according to the manners and customs he has been brought up in, [is] a meritorious deed?"72 The government's hands were probably tied, for their assertion of sovereignty could hardly sustain the existence or exercise of a concurrent jurisdiction within the same territory. Perhaps in recognition of this reality the Colonial Office adopted a firm stance, bravely stating that there could be "little hesitation" in the assertion of criminal

70 Fiscal v Billy William, 28th February-1st March, 1831, extract from the notebook of his Honour Charles Wray, quoted in UK Parliamentary Papers relating to Aboriginal tribes of N. America, New South Wales, Van Diemen's Land and British Guiana, 1834 (617) 174 at 180 71 Goderich to D'Urban, Despatch No. 7 dated 21 July 1831, reproduced in PP 1834 (617), ibid at 181 72 Report of Robert Schomburgh dated 22 June 1841, enclosed in Light to Russell, Despatch No. 86, CO 111/179, National Archives, UK 231 jurisdiction over Amerindians. But the difficulties persisted. Invariably these cases turned out to be inconclusive - either because of the difficulties of prosecution where witnesses were not competent to give sworn testimony or were simply unwilling to come forward, or because the prescribed sentences were viewed as unsuitable and ended up being commuted.74 In either instance, one can only conjecture how the apparent ineffectiveness of the British legal system served to reinforce its irrelevance to those locals who were aware of the disposition of these cases. No wonder then, as

Menezes comments in relation to the murder cases of the 1830s, "it was clear that the

Indians had not succumbed to the legal authority of the British and were still obeying their own retaliatory law." Ultimately, it would take more than a century for customary practices - in particular the blood feud - to disappear, and even then enforcement of the common law continued to be frustrated by the difficulties inherent in accessing remote settlements where Amerindian communities were generally located.

Becoming 'Subjects'

In the course of the dispute with Venezuela over the Colony's western boundary, the British government compiled considerable evidence of their territorial control which they eventually tendered at the Arbitration proceedings. Included among this were sworn affidavits from Amerindians verifying the legitimacy of British claims

73 Goderich to D'urban dated 17 February 1832, CO 112/16, quoted in Menezes, supra note 8 at 133 74 Menezes, ibid at 133-144 15 Ibid, at 134 232 to the territory in dispute. One Waiaree, a Carib living in the northwest district, averred that the lands in question "belong" to the English, continuing

"...if I was much younger I would be able to carry anybody and show them where Spanish Country is and where English Country is. I know that from the Cuyuni mouth back to the Acarabisi on that side, is English. I also know that from the Acarabisi, on the other side upwards, including Waiboo country, and also one side of the Amacura, belong to the English. I never saw or heard that any Spaniards had occupied any part of this country. The Spaniards have their own Country and remain there."76

Regarding the political jurisdiction exercised by the British, Wairee made an interesting observation, that "Whenever my father required anything, or wanted justice he went up to Macaseema in the Upper Pomeroon where the English Magistrate lived, and also at Aikowinie mouth where the Postholder resided, a creek opposite Hacknew

Mission in the Pomeroon."77

Stephen Johnson, an Accawaio, deposed:

"I was told by my father that my grandfather was born at the source of the and I was told that that place belongs to the English. He left the source of the Cuyuni River and came to live at Cariyowco in the Barama. My grandfather never lived in Spanish territory."

"My father in his travels with me always used to show me where was English Country, and where was Spanish Country. He told me that the whole of the Amacura up to its source belong to the English he did not tell me only one side of the Amacura. He further told me that from the Amacura going to the source of the Barima River and all the Creeks belonging to the Barima River is English Country. All the surrounding parts from the source of the Barima River along Woeboo up to the Cuyuni River is reached."78

76 Sworn to on the 29th day of January 1897, CO 111/492, p. 4 National Archives, UK "Ibid at p. 3 78 Sworn to on the 29th January 1897, CO 111/492, p. 5, National Archives, UK 233 Jacobus Ingles, another Accawaio (whose contradictory surname apparently raised no questions), swore to an Affidavit along the same lines, attesting to Dutch control of the region in question. Ingles went further, legitimizing his assertions with the explanation that

"Among the Indian Nations it is the custom for parents to tell their children what parts of the Country they can go to and still continue among their family and friends. My father and mother instructed me in this matter. They told me that from Amacura round by Barima, Barama, and Waini was our country and under the English."7

Naturally, these various declarations must be viewed with great caution, and are ultimately of very limited value. In the first place valid issues of credibility arise, since the statements contained in the Affidavits were elicited for the very purpose of validating British claims and could hardly be expected to be objective. Untutored claims of 'ownership' of territory were clearly inserted by the British drafters, besides which they apparently conflated political jurisdiction with ownership of territory. Still, the depositions did not entirely obliterate the distinction between the two concepts, which crept in at times such as in Ingles' assertion that from the Amacura onwards was "our country" though "under the British". More problematic is the question of reliability, for the competence of these handpicked deponents to testify as representatives of the

Amerindian population of the entire region is nowhere laid out in these documents.

Leaving these concerns aside, however, these various Affidavits are useful insofar as they demonstrate the actual claim made by Great Britain, which was to physical control over the region in question and jurisdiction over its native inhabitants. As it turned out,

79 Sworn to on the 29th January 1897, CO 111/492, p. 7, National Archives, UK; emphasis supplied 234 the support provided by Amerindians proved to be decisive and on the 3r October

1899 the Arbitral Tribunal sitting in Paris made an award in favour of Great Britain.

Venezuela failed in her claim to the entire region west of the Essequibo, with the boundary being fixed much further westward starting from the coast at Point Playa in a straight line thereon to the River Barima and onwards. By an international ruling therefore, Great Britain was recognised as the legal sovereign of much of the disputed territory.

Around this time, during the final decade of the nineteenth century when the government was busy collecting all this evidence of its control as well as that of its predecessors over the territory, legislation enacted to deal with land and resources began to evince a different tone towards Amerindians. In 1871, about three decades before the boundary award, the Governor was empowered to make regulations

"defining" Amerindian rights and privileges, which power was exercised almost immediately after it was granted. However there was still no primary statute or regulation in existence which addressed Amerindian rights in general, the focus of the

1871 Regulations being more upon woodcutting and minerals - two of the most lucrative natural resources of the Colony. In 1890, however, with the boundary proceedings imminent, regulations were enacted by which, for the first time really, the reduced status of Amerindians became patently clear. Under the Indian Regulations of

80 M.N. Menezes, "The Amerindians of Guyana: Original Lords of the Soil" [1988] 58:2 America Indigena 353 at 358 81 Published in the Official Gazette dated 11 November 1899 82 Ordinance 12 of 1871, s. 2, which came into force on the 4th August 1871 83 Regulations were published pursuant to this power on the 12th September 1871 235 1890 the government asserted as before rights over the coveted timber and mineral resources of the territory, with Amerindians being given only limited privileges in this regard. Most striking, however, were the inroads made upon Amerindian autonomy, which had never before been so extensive or flagrant.

For the first time the question of who was an Amerindian was defined by law, being a person "whose parents are both of pure Indian blood and belong to the

Aboriginal tribes of this colony".85 Female Amerindians who were married to or living as the reputed wives of non-Amerindian men forfeited all the privileges granted by the regulations. However 'mixed race' children, defined by the regulations as children who had one Amerindian parent, were allowed restricted rights over ungranted and unlicensed Crown lands - namely, they could occupy and cultivate such lands in the same way as could a 'pure' Aboriginal Indian, but they could cut timber or remove anything from such lands only for building their houses. A distinction was made where the Amerindian parent of a mixed race child was a woman, in which case the offspring, described as "half-breed" in the Regulations, was to be treated on par with a pure-blooded Aboriginal Indian provided that he could convince the Magistrate that he

Made under the Crown Lands Ordinance, No. 18 of 1887 85 Indian Regulations 1890, reg. 2(1). This power had implications that transcended issues of mere identity. In neighbouring Trinidad in the nineteenth century, Amerindians were actively dispossessed through acts of 'arbitrary ascription' - in other words, the denial of Amerindian heritage facilitated the appropriation of indigenous-owned lands: Ricardo Bharath Hernandez and Maximilian Forte, "Tn This Place Where I was Chief: History and Ritual in the Maintenance and Retrieval of Traditions in the Carib Community of Arima, Trinidad" in Indigenous Resurgence in the Contemporary Caribbean: Amerindian Survival and Revival, ed. Max Forte (New York: Peter Lang, 2006) 107 at 114-5, and see also Janette Bulkan and Arif Bulkan, '"Protector of Indians': Assessing Walter Roth's Legacy in Policy Towards Amerindians in Guyana" in The Roth Family: Anthropology and Colonial Administration, eds. Russell McDougall & Iain Davidson (London: UCL Press, forthcoming in 2008) 255 at 257-8 86 Ibid, reg. 3 87 Ibid, reg. 4 236 grew up and lived as an Amerindian apart from his non-Amerindian father. Such privileges, however, were only to be enjoyed during his lifetime and could not be passed on to his descendants.88 In other words, it was the imposed law (as administered by Colonial officers) which would determine who was and who was not indigenous to the territory, and by extension where such persons could live and how they could make a living.

Remaining provisions in these Regulations sought to control Amerindians in other respects. Half-breeds were required to register within 6 months of the coming into force of the Regulations, and Magistrates were required to keep lists of all half-breeds.89

In addition, those indigenous persons described as "Spanish Arawaks" older than 21 years of age were required within 6 months of the coming into force of the Regulations to apply for a certificate from the Magistrate of the relevant district verifying their ancestry in order to qualify for these privileges.90 Altogether, these regulations impacted significantly on the autonomy of the territory's once autochthonous population, and once started this process was not to be reversed for the remainder of British rule.

The next casualties of British sovereignty were the formal political structures of

Amerindian communities. Since from the time of the Dutch the colonial administration had been able to exert its influence simply by dictating to communities with whom they would carry out trading operations, which had the effect of bestowing considerable influence upon the chosen persons. In 1896 the British institutionalized this process by

88 Ibid 89 Ibid, reg. 6 90 Ibid, reg. 5 237 empowering the Governor to appoint 'Captains' of Amerindian communities, who would serve at the Governor's pleasure.91 Captains would be remunerated at rates fixed by the Governor in Council, and were bound to carry out the Governor's bidding.92

But it was not until the turn of the century, fresh from its victory over

Venezuela, that the government asserted a more extensive and decisive control over the indigenous population. Informed by the protectionist ethos prevalent at the time, the

Aboriginal Indians Protection Ordinance of 1902 is viewed in some quarters as a quid pro quo for Amerindian testimony in their favour at the arbitration proceedings. If so, it was an equivocal gift. Admittedly, the reservation system instituted was intended to protect Amerindians from the worst effects of resource exploitation.95 At the same time, however, the protectionist philosophy that spawned this Ordinance gave rise to provisions that further eroded Amerindian autonomy and heralded what was to become their infantilisation by the state.

Under this Ordinance, the office of Protector of Indians - abolished in 1838 - reappeared, with the power reposed in the Governor to appoint both the Protector along with Deputy Protectors to serve in Indian districts as declared under the

91 Indians (Captains and Constables) Ordinance, No. 10 of 1896, s. 2 92 Ibid, s. 6 93 Ordinance No. 21 of 1902 94 Menezes 1988, supra note 80 at 358 95 Post-colonial legal theorists would probably disagree strongly with this perspective. The system of reservations, given its invariably limited sphere and insecure base, and too that it often entailed the separation of indigenous peoples from their territories, has been characterized elsewhere as a "key tool" in controlling and subjugating colonized peoples: see Brenda Gunn, "Protecting Indigenous Peoples' Lands: Making Room for the Application of Indigenous Peoples' Laws Within the Canadian Legal System" (2007) 6 Indigenous L.J. 31 at 33 96 21 of 1902, s. 3(1) 238 07

Ordinance. Both the Protector and his deputies served at the pleasure of the Governor, who could cancel their appointment in his sole discretion.98 The Governor was also empowered to appoint captains and constables for any district, to serve at his pleasure."

Captains and constables appointed under the Ordinance were bound to perform such duties and report to the Protector or Deputy Protector as determined by the Governor from time to time.100

The Protector and his Deputies were in turn granted extensive powers over

Amerindians, in relation to their collective and individual lives. The Protector was empowered to make rules by which reservations were to be governed.101 Moreover, it would appear that Amerindians were viewed as incompetent to manage legal and business affairs, for the Protector was entrusted with the responsibility of initiating and 1 09 monitoring both civil and criminal matters on their behalf. In the course of so doing the Protector could retain and instruct counsel (though at whose expense the legislation was silent) and he could "in all respects act on behalf of such Indian as if he himself were the principal in the cause".103 In addition, the Protector could terminate any contract for labour involving an Amerindian at any time104 - with no guideline or other safeguard in the Ordinance as to the manner in which this power was to be used. Even more personally invasive was a provision in the Ordinance by which married 97 Ibid, s. 3(2) 98 Ibid, s. 4(1) 99 Ibid, s. 11; Under s. 18, Ordinance 10 of 1896 was repealed 100 Ibid, s. 15 101 Ibid, s. 10 102 Ibid, s. 5 103 Ibid, s. 5(2) 104 Ibid, s. 6 239 Amerindian women were forbidden from cohabiting with non-Amerindian men unless they were first deserted by their Amerindian husbands, and non-Amerindian males party to a breach of this prohibition were guilty of a summary offence.105 Segregation, therefore, was obviously intended to be racial as well as spatial. Altogether, these provisions represented a significant assault upon Amerindian autonomy, though in less than a decade they were replaced by a more extensive version.

Adding to the regulatory scheme of the 1902 Ordinance was the Aboriginal

Indians (Intoxicating Liquors) Ordinance, which was enacted in 1908.106 Under this

Ordinance, the sale of intoxicating liquor to Amerindians was prohibited.107 Exceptions were provided for intoxicating liquor required for medical reasons or local beverages

1 OR used pursuant to traditional customs. The provisions of this Ordinance graphically demonstrated the reduced status of Amerindians, not just because of the control asserted over their personal and social lives, but also because of the manner in which its prohibitions could be enforced. An Amerindian found to be "in a state of intoxication" could be arrested by any policeman or rural constable without process of law, and thereafter detained until sober.109 There were a litany of abuses inherent in this power, beginning with the fact that it could be exercised by any policeman or rural constable in the latter's own discretion. No warrant or other official sanction was required, which meant that the arresting officer could invoke this power at will. Compounding this was

105 Ibid, s. 7 106 Ordinance No. 10 of 1908 107 Ibid, s. 2 mIbid,s. 13 109 Ibid, s.8 240 the fact that no guidelines were laid down as to what constituted 'intoxication' or how such a state could be fairly ascertained or verified, which meant that Amerindians could simply be arrested if they were only thought to be intoxicated. Detention was also open- ended and could last until the detainee reached a level of sobriety acceptable to the arresting officer; worse, such detention could be in "any place of confinement" - that is to say, not a lawful place of incarceration but any place or manner of restraint devised by the arresting officer. Altogether, this law, however well-meaning, demonstrates the further extent to which the indigenous population had become subjugated by and marginalized under Colonial rule.

The Aboriginal Indian Protection Ordinance of 1902 was eventually repealed and replaced by a far more detailed and extensive law governing Amerindians in 1910.

The revised Ordinance was heavily influenced, if not actually drafted, by Dr. Walter E.

Roth, whose official designation was 'Medical magistrate' of the Pomeroon district.

Arriving from Australia in 1907, Roth's influence was largely attributable to his background as Chief Protector of Aboriginals in Queensland.110 The 1910 Protection

Ordinance retained many of the elements of its predecessor, but it was far more sweeping in scope. As before, the Governor was entrusted with making the appointments of Protector and Sub-Protector,1" Captains and constables who were to serve at pleasure112 and Superintendents of reservations, which was a new position

Vincent Roth, Observations Upon the Operation of the Aboriginal Protection Laws of British Guiana and Cognate Matters (Royal Agricultural and Commercial Society, British Guiana: 1941) para 2 111 Aboriginal Indian Protection Ordinance, No. 28 of 1910, s. 4(1) n2Ibid, s. 7 241 created by the Ordinance. But in addition to this the Governor's powers were extended in very significant respects. For example, he became responsible for making regulations to govern a vast array of matters concerning Amerindians. Some of these were purely administrative in nature, such as defining the duties of the Protector, Sub-

Protectors and other officers employed under the Ordinance, prescribing the mode of distributing moneys allocated for Amerindians by the Legislature, allocating poor relief and making rules for the preservation of law and order upon reserves. In other instances, however, the Governor's powers touched upon matters at the very core of human dignity and liberty. For example, he was empowered to make provision for moving

Amerindians onto reserves or from one reserve to another, allowing others including non-Amerindians to enter reserves, allocating money earned by Amerindians, providing for the care, custody and education of Amerindian children, providing for the apprenticeship of Amerindian children, prohibiting traditional customs or rites found by him to be injurious to Amerindian welfare, and as a catch-all, to provide "for the control of all Indians and half-castes residing upon a reserve".114 Pending the making of any such regulations, the Ordinance empowered the Governor to move any Amerindian person onto a reservation or from one reservation to another,115 with certain categories of persons being exempt including those employed or holding a permit, females married to non-Amerindian men and any others for whom, in the Governor's opinion,

113 Ibid, s. 6 mIbid,s.S U5Ibid,s. 10 242 "satisfactory provision is otherwise made." As testament to his extensive discretion,

117 the Governor could exempt any Amerindian from the operation of the Ordinance.

Likewise, the powers of the Protector were also extended. As before, the

Protector could terminate any contract of employment entered into by an Amerindian, but in addition he was now required to consent to the employment of Amerindians, no which permission once granted could be revoked at any time. Written agreements had to be executed in his presence,119 and the failure to observe these restrictions amounted 190 • to a criminal offence. The Protector could even direct that wages due to Amerindians be paid to himself or an officer of the police force nominated by him, which would 191 subsequently be doled out to the Amerindian wage-earner in his discretion. As before, the Protector was authorised to institute and monitor criminal 1 99 proceedings on behalf of Amerindians, but in addition the Protector was now mandated to undertake the "care, protection and management" of the property of all

Indians in the district assigned to him. This responsibility included the power to dispose of such property, to institute legal proceedings relating thereto and more broadly to exercise "any power" which the owner might have been able to exercise for her or

UbIbid,s. 11 111 Ibid, s. 9 mIbid, ss. 20&21 119 Ibid, s. 23 120 Ibid, s. 22 121 Ibid, s. 25 122 Ibid, s. 18 243 himself.123 This power could even be exercised without the consent of the owner of the property, where it was necessary to do so for its preservation. 4

This Ordinance repealed the Aboriginal Indians (Intoxicating Liquors)

Ordinance 1908 but the key provisions of the latter were re-enacted. Thus it remained an offence for anyone to sell or otherwise supply any Amerindian with intoxicating liquor,125 and for any Amerindian to be found in possession of same.126 Exceptions were preserved for the use of intoxicating liquor for medical or religious purposes,127 but the celebration of certain traditional festivals outside of specifically prescribed months was

1 9R an offence. As before, police and rural constables were allowed to arrest any

Amerindian found in a state of intoxication and detain such person until sober.

The prohibition on cohabiting with the wife of an Amerindian man was retained, except where she was first deserted by her husband,130 and a number of other offences were created to govern mobility and the preservation of the racial purity of reservations. Ultimately, this law represented the most extensive collection of rules governing the indigenous population. The Governor's powers were buttressed by a network of agents comprising the Protector and his assistants, Superintendents, and captains and constables, through whom the State could, to the extent it pleased, control

123 Ibid, s. 17(1) 124 Ibid 125 Ibid, s. 28 126 Ibid, s. 29(3) 121 Ibid, s. 35 128 Ibid, s. 34 129 Ibid, s. 33 mIbid,s. 19 131 Ibid, ss. 12 & 15 for example 244 where Amerindians could live, how they could earn a living, manage their property and finances, take care of their children, conduct their personal lives and ultimately interact with each other.

The following year Regulations were made under this Ordinance to govern residence on the Reservations. Styled the Aboriginal Indians Protection Regulations,

1911,132 this collection of rules was primarily aimed at maintaining the racial segregation inherent in the reservation system - to be achieved solely through management and control by the State. Thus only Amerindians, female half-castes, missionaries and teachers as well as the families and servants of the latter were permitted to live on reservations, while all others were required to obtain written permission in advance from the Protector of Indians in order to do so.133 The only exception was made for lawful travelers, but even such persons could not camp within a reservation for more than one night and not in any place nearer than 1 mile to a dwelling or landing used by Amerindians. At no stage was any provision made for accommodating the wishes of the residents or leaders of those reservations regarding who would be permitted to enter therein. Permission to enter had to be obtained in advance from the Protector, and in the event of his refusal the only appeal possible was to the Governor, whose decision was final.134 Likewise, the nature of any permission granted as to its length or any conditions to be attached was solely in the discretion of

Regulations made on the 3rd October 1911, Official Gazette, Oct. 7m, 1911 Ibid, reg. 2 Ibid, regs. 3 & 4 the Protector, acting with the approval of the Governor and not necessarily with that of the residents of the reservation.135

Various conditions were included as to the management of reservations: for example, no "Pui-man" or sorcerer was permitted to live on a reservation, and could be ordered to leave by the Governor, along with any non-Amerindian man living with an

Amerindian woman or any person committing repeated acts of drunkenness or disorderly conduct.136 The regulations provided no guidelines as to who or what constituted a "Pui-man" or a sorcerer, so that the ability to control and prohibit altogether traditional Amerindian ceremonies was left in the unfettered discretion of

Colonial officials. Implicit in these powers were more sinister implications for the preservation of Amerindian culture and ultimately the survival of their societies intact.

In other words, the attempt to suppress certain customs and traditions amounted at best to a long-term policy of forced assimilation; at worst, together with the other restrictions, it could have hastened their eventual disappearance.

Finally, the Protector of Indians was entrusted with the power to make decisions for the care and custody of Amerindian children. This included the power to grant custody of children under the age of 12 years to another person deemed fit and proper by him, though where the parents of such child were alive and within reach of

Ibid, regs, 5 & 6 Ibid, regs. 9& 10 246 communication they were required to consent to the Protector's arrangements, including the "work to be performed by such child."137

Despite all these mechanisms for control, however, it would appear that both the

1910 Ordinance and its supplementary Regulations were observed in the breach.

Vincent Roth, a contemporary figure of considerable experience and influence, estimated that what he considered to be significant elements of the Ordinance were rarely or never enforced, such as those concerning the prohibitions on entering reservations, removing Indians from districts, the employment of Indians, payment of wages and sale of intoxicating liquor.138 Roth was eminently qualified to comment on these matters. Arriving from Australia as did his namesake, he spent more than 30 years in the interior. In the course of his sojourn in the Colony he acted in a multiplicity of roles - magistrate, surveyor, journalist, botanist, historian; and he can also be credited with the founding of the zoo and, for a number of years, with the publication of

'Timehri', a highly regarded journal. Roth advanced a number of reasons for the ineffectiveness of the Ordinance, chief among which was the disinterest of the

1 ^0 government as evidenced by the lack of staff to ensure enforcement of its provisions.

But he also laid some blame on the vagueness of the Ordinance as to whom it applied, as well as on Amerindians themselves who refused to cooperate with the authorities.141 Amplifying on this aspect, Roth pointed to

137 Ibid, reg. 12 138 Roth, 1941, supra note 110 at para. 5 139 Ibid, at para 7 140 Ibid, at para 6 141 Ibid, at para 14 247 "their general reluctance [to be] registered for employment, their general refusal to accept by way of advance the minimum amount allowed by law, their refusal to abide by the restrictions on the use of spirituous liquors and their native beverages, their connivance at miscegenation by often refusing, except under pressure, to expose the names of non- Indians cohabiting with their women or of those unauthorized persons visiting their camps and the continued efforts on the part of the younger females, in their desire to visit the towns and settlements, to resent any restriction of their movements."142

But Roth's assessment actually highlights an inescapable consideration.

However well-intentioned these various safeguards and restrictions were, their failure and the evident reluctance or refusal of Amerindians to abide by them only reinforces the fact that these were autochthonous peoples, who had been living in this region from long before the arrival of Europeans and were accustomed to shaping their own destinies. It was hardly surprising therefore that they would not accept or cooperate with rules and regulations designed by an alien state to restrict their autonomy and direct the conduct of their lives.

Roth's observations on the Protection laws were incorporated verbatim in the

Peberdy Report of 1948,143 which in turn led to another revision of these laws in

1951. P.S. Peberdy, an Amerindian Welfare Officer, was appointed as from 1st

November 1943 to carry out an investigation of Amerindian affairs in the remote interior. He carried out extensive travels from December 1943 to June 1947 throughout the colony, including in some of the most inaccessible places in the Pakaraimas, the

Upper Mazaruni district and the headwaters of the Essequibo. However, despite the

P.S. Peberdy, Report of a Survey on Amerindian Affairs in the Remote Interior: With Additional Notes on Coastland Population Groups of Amerindian Origin (Government of British Guiana, 1948) 14 Amerindian Ordinance, No. 22 of 1951 248 evident shortcomings of the 1910 Ordinance and despite some very insightful observations made by Roth, the new Ordinance passed in 1951 essentially proceeded on the same paternalist lines of the statute it replaced.

Principally, the new statute instituted a whole new language. For starters, the

'protection' moniker was discarded, the statute being called simply the 'Amerindian

Ordinance' this time around. In addition 'Aboriginal Indian' was replaced by

'Amerindian', Protector of Indians was replaced by a 'Chief Officer' and the system of

'reservations' was replaced by that of 'district, areas and villages'. However these changes were purely superficial, for the underlying paternalist philosophy and approach of the previous legislation was still very much present. Thus 'Amerindian' was defined as it had been before, as a member of one of the tribes of Guiana, or a descendant of an

Amerindian as decided by the Chief Officer.145 Although this removed strict definitions by way of blood, a significant change since the law could extend to any descendant of

"an Amerindian", ultimately as before any such determination was to be made solely by the State and not the community concerned. In keeping with this approach, new provisions for the registration of Amerindians - mandatory for all Amerindians over the age of 12 years - were to be implemented by registration officers, whose decision regarding whether an applicant for registration was an Amerindian could only be appealed to the Chief Officer and ultimately the Governor.146

Ibid, s. 2 Ibid, ss. 7-9 249 Despite the abolition of the offices of 'Protector' and 'Sub-Protectors', this did not mean that the State relinquished its control over Amerindians, as the powers previously exercised by these officers were simply transferred to the Chief Officer, district commissioners and on occasion simply "officers", the latter widely defined to include "any Government officer and... any person authorised by the Chief Officer to perform any duties under this Ordinance."147 Thus the Chief Officer was entrusted with powers to manage the property of Amerindians,148 to institute, conduct and discontinue legal proceedings on behalf of Amerindians,149 to appoint Captains of any District, Area or village150 and issue instructions to them,151 to grant permission to enter or remain in

Amerindian districts, areas or villages,152 to establish village councils,153 to authorise and oversee the employment of Amerindians by non-Amerindians154 and generally to exempt Amerindians from the ambit of the Ordinance.155 A general supervisory role was entrusted to the Governor, who was entrusted with the responsibility of reviewing the decision of the Chief Officer in most instances.156 In addition, the Governor retained many substantial powers, including those to make regulations concerning a wide variety of matters concerning Amerindians,157 establishing District and Area councils,158

147 Ibid, s. 2 148 Ibid, s. 12 ]A9Ibid,s. 13 150 Ibid, s. 14 mIbid,s. 15 152 Ibid, s. 5 153 Ibid, s. 18 154 Ibid, s. 31(5) 155 Ibid, s. 42 156 See, for example, ss. 5(2), 8(2), 14, ibid 157 Ibid, s. 40 15SIbid,s. 17 250 approving taxes levied159 and rules made160 by such councils for the residents of their districts, areas or villages, and broadly for the suspension of the Ordinance in relation to any area of the Colony.161 Rounding off this structure were district commissioners and

"officers", to whom the Chief Protector could delegate any of his responsibilities. In addition, district commissioners and any member of the police force could, in their own right, institute and conduct any legal proceeding on behalf of any Amerindian person.162

In addition to these mechanisms of control, the prohibitions enacted earlier regarding the use of intoxicating liquor163 and committing adultery with married

Amerindian women164 were also retained. Altogether, therefore, the wardship approach was firmly embraced and even expanded by this legislation. However, one critical innovation introduced by this Ordinance, which was to pave the way for subsequent developments, was a limited form of self-governance through the establishment of district, area and village councils.

District and area councils related to larger areas and were to be established by the Governor. They were to consist of prescribed government officers (such as the district commissioner, a district officer and other persons appointed by the Chief

Officer) along with the Captains in the district or area,165 whose appointments were all

15y Ibid, s. 20 m Ibid, s.2\ 161 Ibid, s. 44 U2Ibid,s. 13 163 Ibid, ss. 36-8 164 Ibid, s. 41 165 Ibid, s. 17(2) 251 subject to the discretion of the Chief Officer and the Governor.166 Village Councils

i en could be established by the Chief Officer, and were to consist of the Captain and such other persons appointed by the Chief Officer, who was required to pay "due regard" to 1 CO the wishes of the village in making his selection. All appointments could be revoked by the Chief Officer at any time.169 Essentially, these councils were intended to manage the affairs of Amerindian communities within their jurisdiction, and in so doing they 170 171 could levy taxes, make rules for an extensive array of matters, and even exercise a limited judicial role over breaches of rules.172

Ultimately, however, self government was highly circumscribed because of the overriding and at times highly invasive powers of various government officials. As described above, the Governor, Chief Officer, District commissioners and any government officer duly authorised had supervisory control over Amerindians. The

Governor had to approve of rules, taxes and judicial decisions which were made by the communities, and could himself make rules governing Amerindians. It lay entirely within the discretion of the government to decide whether to establish a District, Area or village council in the first place, and once established the Chief Officer could direct councillors and captains how to conduct their affairs and give them directions.

Presumably any such orders had to be followed, since in cases of non-compliance or

166 Ibid, s. 17(6) 167 Ibid, s. 18(1) mIbid,s. 18(2) 169 Ibid, s. 18(5) 170 Ibid, s. 20 171 Ibid, s. 21 172 Ibid, ss. 22-24 252 other insubordination recalcitrant members could be summarily relieved of their position. Any money raised by or for Amerindian communities, such as by way of taxation, or amounting to the proceeds of community fines or more generally through the Amerindian Purposes Fund, could only be spent in the manner and for such purposes as approved by the Chief Officer, and not by Amerindians themselves. Indeed, property belonging to Amerindians could even be taken possession of and managed by the Chief Officer against the owner's wishes, if such action was deemed "necessary for the preservation"174 of the property in question. More fundamentally, it was entirely up to the State to determine who was an Amerindian, while the boundaries of their districts, areas or villages could be varied or even revoked in their absolute, unfettered discretion.175

Thus, through the processes as described, Amerindians had become subject to the dictates of a colonial overlord, in theory at least no longer able to live, work or travel in the territory as freely as they had done prior to contact, or even to manage their affairs as before. Although in practice many of these laws were not enforced, their mere existence served to reinforce the reduced status of the colony's original inhabitants.

Once independent and autonomous, by the end of the colonial period they had become, gradually but incontestably, mere wards of the British.

Ibid, Part VI Ibid, s. 12(1) proviso Ibid, s. 3 253 CHAPTER 7

CROWN LANDS LEGISLATION AND AMERINDIAN TITLE RIGHTS

In the early days of the British administration it was not uncommon for the colonial officers to make expansive statements regarding occupation by the native inhabitants. Writing to Lord Goderich in 1831, Governor Benjamin D'Urban asserted:

"Mr. Bagot has justly said that 'we have not dispossessed the Indians of their territory', they occupy it as freely and uninterruptedly, for every purpose which is essential or agreeable to them, as if we had never come hither (by the way we only succeeded to the place of the Dutch) but the tribes who live within reach of civilisation, derive the most solid and important benefits from our regular and constant assistance..."

At other times in the course of the century these views were echoed in one way or another by prominent residents of the colony. John Hancock, a physician who traveled among Amerindians researching and writing on the natural history of the colony, opined that the "Indians themselves are the only rightful possessors of the soil of these regions."2 Henry Light, one of D'Urban's successors, acknowledged robustly in

1842 that the "territory is firmly Indian" in correspondence with Lord Stanley,

Secretary of State for the Colonial and War Departments. And as late as 1946, this telling passage appeared in the Interim Report of the Aboriginal Indian Committee,

1 D'Urban to Goderich, despatch no. 39 dated 26th November 1831, CO 111/117, p. 214 National Archives, UK 2 Hancock to Capt. John Washington, Secretary of the Royal Geographic Society of London, (undated) CO 111/195, National Archives, UK 3 Light to Stanley, dated 30th November 1842, CO 111/195, National Archives, UK 254 which was commissioned to make recommendations for the welfare and administration of the Colony's Amerindian population: "In the early days of British settlement in the

Colony, although the precise amount was not stated, what was then considered in some quarters as an "enormous" sum was appropriated yearly by the Combined Court for the purpose of the alliance and friendship of the Indians and to serve as a quid pro quo for the occupation of their territory by the white settlers."4

On the other hand, statements can be found from equally influential sources which either deny, or have been interpreted as denying, Amerindian proprietary rights within the territory. In a memorandum concerning a sketch of a map of the three colonies prior to their unification, written some four years before he agreed that the

Indians had not been dispossessed, the same Governor D'Urban commented: "With the exception of the estates estimated along the sea coasts and river banks, as indicated in yellow on the sketch, every other part of the colony is Crown land, and at His Majesty's disposal, and even of the portion so indicated, several parts are Crown land... which are held from the Crown for wood cutting or provision lands, upon provisional licences, and pay a certain quit-rent into the King's chest."5 Echoing these sentiments more than half a century later was T.G. Wight, the Crown Surveyor, who stated in his Report on the Crown lands and forests of British Guiana that "the entire Colony is composed of

Ray Greene, Interim Report of the Aboriginal Indian Committee, dated 9th May 1946, paragraph 8 (emphasis supplied) 5 Memorandum dated 18th October 1827, CO 111/61, National Archives, UK (emphasis in the original) 255 ungranted Crown lands."6 Robert Schomburg, a German botanist who carried out an extensive series of geographical surveys of the interior of British Guiana in the 1830s and 1840s, wrote in his border notes of the 10th June 1841 that "the territory once belonged to those tribes from whom European nations have wrested it."7 Although

Schomburg was no government officer, neither was he any ordinary explorer, for in the course of his travels he demarcated the boundary of British occupation, which later came to be known as the 'Schomburg line', for which work a knighthood was eventually bestowed upon him.

Ultimately, these disparate views reflected a pervasive uncertainty as to the true position, and nowhere is the ambiguity surrounding Amerindian proprietary rights better illustrated than in one of the arguments made at the British Guiana/Venezuela boundary arbitration proceedings. The Venezuelan government had submitted in its counter case that the Amerindian tribes occupying this area were nomadic and did not even have "possessory titles" to any defined territories which they could have passed on to the Dutch.8 In response to this Great Britain contended: "Although it is the fact that from local reasons the Indian tribes shifted their quarters from one part of a district to another, it is well established that they belonged to certain well known districts, generally connected with a river, and were constantly so spoken of in contemporary

6 Report dated 16th February 1881, CO 111/420, National Archives, UK. Taken at face value this is admittedly a neutral statement, but read in its wider context there is no doubt that Mr. Wight meant that ownership of these lands was vested in the Crown. 7 Enclosed in Light to Russell, despatch no. 86 dated 19th July 1841, CO 111/179, National Archives, UK 8 British Guiana/Venezuela Boundary Arbitration Proceedings, Counter Case of the United States of Venezuela, Vol. 5, chapter 5 256 documents."9 The Venezuelan argument based on Amerindians' lack of proprietary rights was thus deftly sidestepped by the British, who were still faced with the dilemma of being unable to claim an original title to the territory. By then, of course, it was far too late in the day to invoke any fictive notions of terra nullius as had been successfully done elsewhere in the Empire,1 so instead they artfully submitted that it was the

Amerindians who belonged to the area rather than the other way around. In this way they conceded nothing regarding the issue of title, while at the same time appeared to legitimize their own claim on the basis of sovereignty acquired over the native inhabitants.

The uncertainty in this area has been compounded by anthropologists and historians, who in trying to make sense of contradictory official statements have elevated various utterances to terms of art or attributed to them a legal meaning unjustified by any doctrine or authority. Some of the existing confusion can be traced to the writings of the Reverend James Williams, a passionate advocate for the rights of the colony's indigenous inhabitants. In the early decades of the last century Rev. Williams tirelessly maintained a series of correspondence with the Colonial Office in London, urging official recognition of Amerindian proprietary rights. There is no gainsaying

Williams' empathy or vision for he sought reforms in the early twentieth century that today still elude many Amerindian communities. However, the problem lies with his

9 British Guiana/Venezuela Boundary Arbitration Proceedings, Argument presented on behalf of Her Britannic Majesty, Vol. Ill, chapter 5 10 As in Australia for example, see: Cooper v Stuart (1889) App. Cas. 286 per Lord Watson at 291, Richard Bartlett, Native Title in Australia (Sydney: LexisNexis Butterworths, 2004) 1-3 and Samantha Hepburn, "Disinterested Truth: Legitimation of the Doctrine of Tenure Fost-Mabo" (2005) 29 Melb. U.L. Rev. 1 at 11-15 and authorities therein 257 conception of the legal issues, and in particular his evident misapprehension that an

"operative legal principle" was that all ungranted land in the Colony was owned beneficially by the Crown. In repeated letters to the Colonial Office Williams exposed the ruinous impact that white settlement was having on Amerindian communities, and in one letter he adverted to proposed measures to enhance law and order to protect the settlers and lamented: "Is it only Colonial law and order that is to be respected? Have not these Indians the right to say that they shall not be driven off the land over which their forefathers roamed at will? These people have no voice in the Government or in the Press, they can only shew their disapproval of measures taken without their consent, by acts now deemed to be against law and order."11 In a longer essay on the land rights of British Guiana's aboriginal population Williams cited Governor D'Urban's contention, quoted above, that the Amerindians of the territory had not been dispossessed, and in a vehement rebuttal he pointed to the fact that the lands had been

"alienated away as 'Crown lands' which the Governor himself had the power to grant."12

Modern historians have picked up exactly where Reverend Williams left off.

One instance is provided in the writings of historian Sr. Noel Menezes, most notably so in her treatise on British-Amerindian relations in British Guiana in the nineteenth century. Although this work remains an insightful and altogether invaluable study of

British policy during this period, Professor Menezes ventures into a legal analysis of the

11 Letter to the Undersecretary of State for the Colonies, dated 3rd March 1928, CO 111/674/15, National Archives, UK 12 Rev. James Williams, "The Aborigines of British Guiana and Their Land" (1936) XXXI Revue Internationale d'Ethnologie et de Linguistique 417 at 427 258 issue of Amerindian proprietary rights with regrettably unhappy results. Her reasoning and conclusions on this matter were coloured by the opinions of Reverend Williams, whose influence is unmistakably present in this passage where she opines:

"In 1831 Governor D'Urban claimed that the government had not dispossessed the Indians of their territory, which they occupied as freely and uninterruptedly as they had before the arrival of the British. But this claim was purely theoretical. Legally speaking, the land was alienated from the Indians as Crown land, and as governor he could grant it away. President Wray of the Criminal Court of Justice, in his argument that political jurisdiction over the Indians presupposed legal jurisdiction, affirmed that the Indians were 'a conquered nation', and a conquered nation loses its rights to land."13

We will return shortly to a more detailed examination of the propositions made here by

Professor Menezes, which are cited at this point simply as another example of the prevailing misapprehensions on the issue of indigenous proprietary rights. Indeed, this cross section of views serves to demonstrate how careful one must be when selecting sources, whether contemporary or modern, in seeking to ascertain the substantive legal position regarding Amerindian proprietary rights to land. Statements by government officials were not consistent, but even if they were they did not necessarily reflect the legal position accurately - much like the interpretation that came to be put on them subsequently by historians. One need only reflect on any modern land dispute - be it in the Upper Mazaruni of Essequibo, Guyana or in Caledonia of Ontario, Canada - to appreciate the extent to which the mass of commentary that they generate is possibly

13 M. Noel Menezes, British Policy Towards the Amerindians in British Guiana, 1803-1873 (Oxford: OUP, 1977) 205 (emphasis supplied) 259 misinformed, certainly self-serving and coloured by the speakers' respective interests, and ultimately of questionable legal value.

Bearing these considerations in mind, then, in this and the following chapter I shall examine the relevant legislation enacted during the period of British rule - as distinct from policies implemented - with a view to assessing its impacts upon pre­ existing Amerindian rights. For purposes of clarity I will divide this analysis into two discrete parts - in this chapter I shall consider the Ordinances and regulations governing land, along with the general types of interests they authorised therein. In the following chapter I shall examine regulations governing Amerindian rights in areas dubbed Crown lands along with the legislation regulating certain resource-extractive industries.

Altogether, by virtue of a critical examination of both laws of general application and those aimed specifically at Amerindians that were enacted during the period of British rule, I hope to determine the legal situation of indigenous peoples in the territory with regard to their rights of ownership, occupation and use of the land and its resources.

Legislation governing Land

While it is generally agreed that disruptions to Amerindian settlements and land use were fairly moderate during the period of Dutch colonization, this was to change dramatically under the British.14 However, it took the new administration some three decades before there was any significant legislative activity regarding land, which

14 Anna Benjamin and Laureen Pierre, Review of Legislation in Relation to Land, Forestry and Mining (unpublished; Amerindian Research Unit: University of Guyana, 1995) 260 meant that given the terms under which the colonies capitulated, Dutch regulations on the subject remained in force. The first set of regulations governing land grants was enacted by the local legislature on the 21st November 1835, though these did not disturb existing grants under the 1792 Regulations. The 1835 regulations mainly governed the size, duration and manner of future grants, and also made provision for two other types of interest over land, namely woodcutting permissions and licences of occupancy.15

These and all subsequent laws and regulations were made by the Governor and Court of

Policy, pursuant to legislative powers granted by Letters Patent of the 4th March 1831 under which the united colony of British Guiana had been constituted.16

The 1835 regulations were amended in 1839, primarily to provide for the sale of lands and to fix the procedure for sale and the price per acre.17 Transferring or subletting leases without the permission of the Governor was expressly prohibited. Of particular interest is regulation IV, which provided as follows:

"Without authority thus had and obtained, no person or persons shall hereafter be permitted, on any pretext whatever, to reside, work or cut timber, or other materials upon, or otherwise occupy any of the lands belonging to the Crown - such as are already in possession of grants and licences, duly registered according to the regulations except during the periods of their respective leases. All other temporary permissions for so doing, whether verbal or in writing, being hereby cancelled and annulled."19

15 Fenton Ramsahoye, The Development of Land Law in British Guiana (Dobbs Ferry, NY: Oceana Publications, 1966) 124-5 16 Letters Patent dated 4th March 1831, reproduced in Cecil Clementi, A Constitutional History of British Guiana (London: Macmillan, 1937) at Appendix H, pp. 436-440; and see discussion in Chapter 5, supra, at pp. 202-9 17 Regulations dated 28th May 1839, regulation I, CO 111/204, p. 62, National Archives, UK 18 Ibid, regulation III 19 Ibid, regulation IV 261 The apparent breadth of this provision has possibly contributed to the uncertainty in the area of indigenous land rights, so it is essential at the outset to identify the scope and extent of its operation. Part of the impetus for the regulations was to rationalize the situation regarding existing landholdings, it being found that there were many existing petitions concerning grants from the former Dutch government that were of questionable legitimacy.20 Thus lessees who had obtained grants prior to the

British takeover, and who failed to register them as provided, lost the right of occupying

Crown lands. But did this stipulation contained in regulation IV apply to all persons, such as the Colony's native inhabitants, whose occupation of the land was not by virtue of a grant traceable to the present or past administration? The answer to this question must definitely be in the negative, whatever the source of Aboriginal title - whether in

Aboriginal laws preserved by the doctrine of continuity or principles of Colonial law applicable to British colonies. According to the doctrine of indigenous proprietary rights constructed upon common law precedent by the Marshall Court in the early nineteenth century, for example, the acquisition of title by a discovering European nation did not

7 1 automatically "controvert" or "extinguish" the Indians' right of occupancy. This position - equivocally outlined in Johnson v MTntosh - was expressed more forcefully in Worcester v Georgia22 where Marshall C.J. laid down that mere discovery or the grant of a royal charter in relation to a previously undiscovered territory could not "give

Ramsahoye, supra note 15 at 124 21 Johnson v M'Intosh (1823) 21 U.S. (8 Wheat) 543 at 583 22 Worcester v Georgia (1832) 6 Pet. 515 at 559 262 the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors."2

This interpretation of regulation IV is even more defensible where the doctrine of continuity is applied, as demonstrated in Mabo v Queensland (No. 2)24 where the

Australian High Court was confronted with a similar legislative provision. According to section 91 of the Crown Lands Alienation Act 1876 (Qld), the occupation of any lands not originating from any valid lease or licence was deemed to be an offence. Did this mean that the State's aborigines who did not possess any such grant were illegally occupying land? The majority in Mabo refused to interpret s. 91 in this way. In the words of Brennan J, such a construction would be "truly barbarian" and made

"nonsense of the law", particularly since it would have immediately rendered the

Meriam people trespassers and liable to be "driven into the sea at any time after annexation". Thus, Brennan J concluded, "such provisions should be construed as being directed to those who were or are in occupation under colour of a Crown grant or without any colour of right; they are not directed to indigenous inhabitants who were or are in occupation of land by right of their unextinguished native title."

Ibid, at 543; Professor Kent McNeil argues [in Common Law Aboriginal Title (Oxford: OUP, 1989) at 244-267] that Chief Justice Marshall's dictum in Worcester stands alone, as it significantly diverged from earlier decisions and was later repudiated by the Supreme Court. In spite of the vagaries of US jurisprudence in toto, however, this limb of Worcester where Marshall asserted the rights of Indians in lands they occupied has unquestionably been highly influential in the development of the common law on Aboriginal title. 24 Mabo v Queensland (No. 2) [1992] 107 ALR 1 25 Ibid, per Brennan J, at page 48; Earlier at page 34 he put it this way: "The English legal system accommodated the recognition of rights and interests derived from occupation of land in a territory over which sovereignty was acquired by conquest without the necessity of a Crown grant." 263 Thus, applying these principles impels the conclusion that the enactment of regulations in 1839 in British Guiana merely for the purpose of regularizing land grants could hardly abrogate rights to land held by the colony's native inhabitants, irrespective of the source of those rights. A contrary interpretation would mean that the mere change in sovereignty, or the introduction of the common law, had automatically served to dispossess those inhabitants, transforming them into "squatters in their own dwellings and trespassers in their own gardens", to borrow the graphic imagery of Professor

Slattery.26

Of course, another possible interpretation could be that the regulation itself operated to extinguish indigenous land rights. However, this raises issues related to the constitutional authority of the local legislature to extinguish such rights, and, in the event that enabling authority existed, whether the required standard for extinguishment was met. These issues will be explored fully in the section below on extinguishment, and for now it suffices to say that under settled rules of the common law, legislation governing leasehold and freehold grants and woodcutting licences without more could not have lawfully extinguished pre-existing, proprietary interests in the land simply by

97 tangential effect.

The year before these regulations, in February 1838, the Court of Policy had enacted an Ordinance to deal with the interior and consequential Amerindian-related

Brian Slattery, Ancestral Lands, Alien Laws: Judicial Perspectives on Aboriginal Title (Saskatoon: University of Sask Native Law Centre, 1983) 9 27 See discussion infra, at pp. 282 et seq 264 matters. This Ordinance, referred to as the 'Creek Bill', was an important piece of legislation because of its provisions relating to Amerindian rights of occupation and use of land, as will be discussed in the following chapter. Of interest at this point are its provisions relating to land and timber grants, which together with the rest of the

Ordinance reflected the growing awareness on the part of the government of the importance of the interior. Granted, some of this concern was connected to perceived threats to internal security, as blatantly revealed in the Preamble to the Ordinance,30 but implicit in those fears was a recognition of the value of the Colony's resources.

In order to "enter upon, or reside upon, or build upon, or cultivate any land in the Colony belonging to the Crown", a licence of occupancy was required in advance

T 1 from the Governor. Similarly, any person intending to carry out timber harvesting operations "upon any of the ungranted lands of the Crown in this Colony" was required to obtain a woodcutting licence from the Governor.32 Occupiers without the requisite licence could be ordered to vacate the land by the Superintendent, who was authorised as well to seize any wood unlawfully cut pending official determination (by him) as to the merits of the seizure. Notably absent from the entire Ordinance was any definition or clarification as to exactly what land was covered by the description "ungranted lands of the Crown".

An Ordinance appointing Superintendents of the Rivers and Creeks of British Guiana, No. 6 of 1838 29 Menezes, supra note 13 at 105 30 See Chapter 6, supra, at pp. 218-222 for a fuller discussion of the implications of this Ordinance for Amerindian sovereignty 31 Ordinance No. 6 of 1838, s. 10 32 Ibid, s. 11 265 As part of their monitoring duties, Superintendents were required to familiarize themselves with all land grants and woodcutting leases within their counties, the names and descriptions of concessionaires, the state of cultivation and all other activities on the

IT land granted. Additionally, they were to note the names and occupation of all persons residing on the banks of the rivers within their jurisdiction, and to keep updated lists of all such residents.34 By an amendment in 1857, the duties relating to seizure and detention of illegally harvested timber were delegated to newly appointed sub- registrars, who were to act under the control of the Superintendents.

The Creek Bill, along with the 1857 amending Ordinance and the Crown Land

Regulations of 1835 and 1839, were all repealed in 1861, except insofar as the latter regulations related to plantations in cultivation. Under this new Ordinance, entitled 'An

Ordinance to make better provision for the care and superintendence of the rivers, creeks, crown lands, and forests of the Colony', scrutiny was no longer directed merely to the rivers and creeks, but henceforth the regulatory net included the "crown lands and forests". Moreover, whereas the focus of the 1838 legislation was on monitoring interior settlements to ensure stability and the preservation of law and order throughout the Colony, now the priority was the revenue promised by the Colony's resources. By the time of its passage, the government had noted the burgeoning timber trade and was acting in response to a perceived urgency of revising the procedures

33 Ibid, s. 8 34 Ibid, s. 9 "Ordinance 16 of 1857, s. 1 36 Ordinance No. 14 of 1861 266 relating to land grants.37 However, like the preceding Creek Bill and all the subsequent

Ordinances that were to follow it, this Ordinance did not contain any definition of

'crown lands' or 'crown forests'.

Specifically, under the 1861 Ordinance provision was made for the appointment of Superintendents and Revenue Officers for the rivers, creeks, crown lands and forests, along with a Crown Surveyor and assistants, all in such numbers as provided for by the

TO

Legislature and Combined Court. In the place of auctions for the sale of land as dictated by the previous regulations, land grants were now to be made at a fixed price of

$10 per acre, though remaining at a size of not less than 100 acres each.39 Detailed procedures were laid down for the making of grants, which included furnishing guarantees and diagrams as well as new requirements for publication of the intended grant and the entering of an opposition.40 In addition, under this Ordinance the

Governor could make free grants of land to immigrants for the purpose of cultivation, as well as issue lesser interests such as woodcutting licences and licences of occupancy of Crown lands. Woodcutting licences were to be issued for periods of 5 years each, and detailed procedures were also specified to govern the issue of these interests.42 Licences of occupancy could be issued "during pleasure" or for fixed periods up to 21 years.43 As part of the enforcement structure established by the Ordinance were provisions

37 Lucie Smith (Attorney General) to Lt. Gov. Walker, dated 5th August 1861, CO 111/331, National Archives, UK 38 Ordinance 14 of 1861, ss. 2&3 39 Ibid, at s. 15 40 Ibid 41 Ibid, at s. 16 42 Ibid, at s. 17 43 Ibid, at s. 19 267 requiring the Crown Surveyor to keep updated lists of subsisting grants and licences

and those mandating the Superintendents to carry out regular visits within their districts

and report back to the Governor and Court of Policy.45 Altogether, having regard to the

detailed provisions regulating the procedures for making land grants, controlling the use

of the land and imposing penalties for breach thereof, this Ordinance represented a

concerted attempt at rationalizing the timber industry.

The 1861 Ordinance was amended in 186946 and then again in 1871,47 both

times in relation to administrative and enforcement issues. Under the later amendment

revised regulations were enacted for granting woodcutting licences, and more

importantly enlarged powers were conferred on the Governor in relation to the Colony's

native inhabitants. The latter changes, which represented a seismic shift in the legal

treatment of indigenous rights, will be considered in greater detail in the following

chapter. For the present it is enough to note that the substance of the 1861 Ordinance

remained the same with regard to the types of interests that could be granted over

Crown lands.

The next major change occurred in 1873, when the three previous Ordinances

(passed in 1861, 1869 and 1871) were all repealed by an "Ordinance to make provision for the establishment of a Crown Lands Department, and for the care and

Ibid, at s. 31 Ibid, at s. 34 Ordinance No. 1 of 1869 Ordinance No. 12 of 1871 268 superintendence of the Crown Lands, Forests, Rivers and Creeks of the Colony". As reflected in the priority of wording in its title, the government's focus had now undergone a further shift, this time from rivers and creeks to the colony's lucrative forest resources. A Crown Lands Department was created, to consist of a Crown surveyor and such assistants as deemed necessary,49 and in which was vested the guardianship of all the crown lands, forests, rivers and creeks of the Colony.50 Other functions of the Department included executing surveys preliminary to the issuing of grants and licences in relation to Crown lands, superintending the issue of such grants and collecting all monies due in respect of land grants and licences.51 The Department was mandated to keep a register of all grants and licences, including those issued pursuant to the 1792 Regulations as well as those previously issued by former

Governors under the previous Ordinances.52 Once again, detailed provisions were laid down for the sale of Crown lands, free grants of land to certain immigrants, the issuing of woodcutting licences and licences of occupancy of Crown lands. As before, conditions were imposed on woodcutting licences and licences of occupancy,54 breach of which rendered them liable to forfeiture. Additionally, various provisions were laid down for the monitoring and enforcement of these conditions.

Ordinance No. 9 of 1873, s. 1; Once again, there was no definition of the term 'Crown Lands, Forests, Rivers and Creeks' in the Ordinance. 49 Ibid, at s. 2 50 Ibid, at s. 7 51 Ibid 52 Ibid, at ss. 8-10 53 Ibid, at ss. 11-14 54 Ibid, ats. 16 269 Following this Ordinance in 1873, the law as to Crown lands and forests was revised several times, with the procedures regarding the sale and leasing of interests therein becoming more detailed at each iteration. Major amendments occurred in

1887,55 189856 and in 1903.57 The final version passed in 1903 is still in force, though amendments have been made thereto over the years, and in its current form it is styled the State Lands Act.58 In the unamended 1903 version, power was vested in the

Governor to issue grants, leases, licences of occupancy and permissions to occupy

Crown lands and forests. The Governor was also empowered to make grants of Crown lands to the Colony, subject to such conditions as he saw fit or as provided by the regulations in force. Even under the largest of the permissible interests - grants of crown lands - although land was conferred "absolutely and forever", it was also subject to conditions, which were expressly stated to be revocable by the Governor for non­ compliance therewith. ' Under the 1903 Ordinance, the previous enactments on the subject of Crown lands were repealed, including the Dutch Regulations of 1792.

Regulations were also made under this Ordinance governing applications for grants and licences, the procedures to be followed and the conditions to be attached. It was

55 Crown Lands Ordinance, No. 18 of 1887 Crown Lands & Government Land Department (Amendment) Ordinance, No. 10 of 1898 57 An Ordinance to provide for the proper regulation of the Crown lands, forests, rivers and creeks of the Colony, No. 32 of 1903 58 State Lands Act, Chapter 62:01, Revised Laws of Guyana, 2002 59 Ordinance 32 of 1903, s. 3; Once again, the term 'Crown lands' remained undefined in the Ordinance. 60 Ibid, at s. 4 61 Ibid, s. 14 62 Ibid, s. 46 270 expressly provided that forested lands were not to be sold, but granted out only as leasehold interests for woodcutting purposes.

Although the 1903 Crown Lands Ordinance remained in place for the rest of

British rule, the Regulations thereunder were repealed in their entirety and re-enacted several times - in 1910, 1915 and then finally in 1919. The latter version is still in force, though it has been amended at various times in the course of the last century.

Essentially, under these Regulations a number of different types of interest could be granted in or over Crown lands, ranging from outright sales of land to leases for defined periods to mere permissions to occupy. The largest interest was represented by grants to small cultivators of up to ten acres of land, 4 which were subject to conditions as to beneficial occupation - these being variable at the discretion of the Governor.65 At the expiry of five years such grants could become "absolute" and free from conditions, provided that the conditions had been complied with and the purchase money paid.66

Minerals (including gold, silver, bauxite, precious stones, gems, mineral oil and so on) were reserved in favour of the Crown. However, it was expressly provided that everything else, such as timber, balata, gums and all other substance or things on the land, was the absolute property of the grantee.68

Crown Lands Regulations 1903, reg. 23 Crown Land Regulations 1919, reg. 26 Ibid, reg. 28 Ibid, reg. 29 Ibid, reg. 33 Ibid, reg. 24 271 A number of different types of leases could be issued under the 1919

Regulations: leases for agricultural purposes,69 leases for grazing purposes on the

Coast70 and in the interior lands,71 and yearly permissions for grazing in the interior which could be converted into leases upon the expiry of 5 years from the date of issue.72

These leases were all subject to conditions as to beneficial occupation as well as conditions regulating the rental and other terms. In every instance minerals were

•IT reserved as the property of the Crown, and in the case of grazing leases it was

74 expressly provided also that no rights to the soil or to timber were granted. Leases for grazing purposes were liable to disposal by the Governor for agriculture, timber harvesting and mining, and were subject to various third party rights. Amerindian rights were specifically protected over lands leased for grazing, as follows: "the Amerindians shall have the right at all times to enter upon any unenclosed or enclosed but otherwise unimproved part of the land leased for the purpose of seeking their subsistence therefrom in their accustomed manner without molestation but shall not have the right to disturb the lessee in the peaceable occupation and enjoyment of the land comprised in his lease"77

78 7Q

Leases and licences could also be issued to cut wood - the difference between the two being the size of the area and the duration of the term granted. Both

69 Ibid, Part V generally 10 Ibid, regs. 38&39 71 Ibid, reg. 40 12 Ibid, reg. 41 73 Ibid, reg. 37(e) 74 Ibid, reg. 39(1) & 40(1) 75 Ibid, reg. 39(h)(i) 76 Ibid, reg. 390) 77 Ibid, regs. 39(k) and 40(k) 78 Ibid, reg. 46 79 Ibid, reg. 47 272 were subject to a variety of conditions aimed at protecting the forest canopy, regulating the removal of timber and garnering revenue. Notably, not only were minerals reserved for the Crown as in all the other types of interest, but it was expressly provided that a wood cutting lease or licence "shall not confer on the holder any right to the land

01 in respect of which the lease or licence is granted..."

Finally licences could also be issued to collect balata or other like substances, or for quarrying stone, gravel or other clays. These were subject to the usual conditions related to the payment of rent, the duties of licencees and restrictions on transfer. Not only were minerals expressly reserved for the Crown, but it was also provided that licences were not to confer any right to the land. A power was reserved to grant concurrent licences over the same tract of land, though for different purposes.85

The above thus represents a brief account of the legislation enacted during British rule relating to land and the types of interests that could be granted therein. As this review has revealed, although following the changeover the government was slow to enact laws governing lands, once they began doing so in 1835 the regulation of this sector thereafter became progressively more comprehensive.

80 Ibid, at Part VIII generally 81 Ibid, reg. 58 82 Ibid, at Part IX 83 Ibid, at Part X 84 Ibid, reg. 75(g) 85 Ibid, reg. 60 273 Implications of the 'Crown Lands' Designation

Clearly, it was the successive Crown Lands legislation and the authority it purportedly conferred on the administration to grant lands that led to the opinion of

Reverend Williams and others that "land was alienated away from the Indians as Crown lands", thereby signaling the legal dispossession of the native inhabitants. How compelling was this reasoning, however, and was it an accurate assessment of the status quo?

In the first place, 'alienation' in the context of real property law connotes the formal transfer of an interest in land.86 Alienation can be effected at any time (such as during one's lifetime or upon death) and through a variety of ways, but the important factor is the element of voluntariness of any such transaction. In this sense, there was certainly no alienation of lands by Amerindians in favour of the British or even their predecessors, the Dutch. There are no records of treaties of cession, or of land sales, and as outlined in the previous chapters what the Dutch obtained and in turn passed on to the British was sovereignty over the territory. To speak of alienation therefore is misleading as it conjures up a process that does not match the reality of what in fact occurred.

A more substantive issue than this, however, is the claim made by Menezes, based on the summing up of President Wray in the Billy William murder trial, that as "a conquered nation" Amerindians had lost their rights to the land. In the first place, this

Megarry and Wade, The Law of Real Property (London: Stevens and Sons Ltd., 1984) 59 274 does not represent an accurate interpretation of the Judge's comments, for this is what he actually said:

"...their position appears to me to be that of a conquered nation, or, more accurately speaking, that of a nation whose lands the Dutch, our predecessors, occupied, peopled, and governed by their own laws and institutions, without any resistance from the former inhabitants; but the mere fact of non-resistance cannot change the character of the possession, nor the situation of those from whom the territory is taken; it is still a conquered country."87

As can be seen, in the same passage President Wray goes from a claim of conquest to one of long possession and acquiescence thereto; but more pertinently, given the context of his remarks, it seems clear that by 'taking territory' President Wray meant the acquisition of sovereignty and not dominion. The issue before the court was that of jurisdiction over the defendant, as distinct from that of ownership of the land, and this is what President Wray sought to establish by his reference to conquest or, in the alternative, succession from the Dutch. In any event, a summing up in a criminal trial is neither declaratory of the law on a tangential, constitutional issue nor is it binding on other courts, so irrespective of President Wray's meaning his statements could hardly suffice as authority for Amerindian dispossession.

In a similar vein are the opinions of legal historian Fenton Ramsahoye who,

OQ relying upon the Australian case of Williams v A.G. of New South Wales, argues that at the time of cession all land vested absolutely in the Crown, except for that already

Fiscal v Billy William, 28' February-Is' March, 1831, extract from the notebook of his Honour Charles Wray, quoted in UK Parliamentary Papers relating to Aboriginal tribes of N. America, New South Wales, Van Diemen's Land and British Guiana, 1834 (617) 174 at 179-80 [emphasis supplied] 88 Williams v A.G. of New South Wales (1915) 16 C.L.R. 404 275 subject to rights of private ownership. The latter, naturally, did not include those of the Colony's earliest inhabitants - the study of which Ramsahoye disdainfully relegates to "anthropologists and historians of the future".90 But as discussed above,91 neither conquest nor cession attracted the consequences attributed to these events by Menezes and Ramsahoye. Rather, at common law the relevant rule is that the acquisition of territory by means of conquest or cession only confers on the Crown the ultimate or radical title to the territory, with existing private interests therein, including customary or native rights, remaining undisturbed. In the course of conquest the Crown could in fact seize private lands, but in the absence of any acts of expropriation once the territory becomes a part of the British dominions no further acts of State are permissible. These are principles that have been repeatedly reaffirmed, often in very strong terms, by Her

Majesty's Privy Council as well as other courts throughout the Commonwealth. In delivering the judgment of their Lordships in Tijani, Viscount Haldane referred to it as a

"usual one under British policy and law". This ruling was applied in a series of

African cases considered by the Privy Council, where it was also made clear that

'private' rights included interests held under native law and custom.94 In particular, the very authority relied upon by Ramsahoye was eventually overruled in Australia, where it was held in Mabo v Queensland (No. 2) that upon the acquisition of sovereignty the

Crown acquired only a radical title to the land, upon which pre-existing native rights

89 Ramsahoye, supra note 15 at 113-4 90 Ibid, at 25 91 Chapter 2, supra, at pp. 38-51 92 Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966), 636 93 Amodu Tijani v Southern Nigeria [1921] 2 A.C. 399 at 407 94 Ovekan v Adele [1957] 2 All E.R. 785 at 788 276 survived as a burden. Based on the foregoing principles, therefore, it is beyond question that even if the Amerindian Nations occupying Guiana prior to the arrival of the Europeans were conquered - which they were not - such an occurrence by itself 'did not result in the abrogation of their rights to property.

This leads us to another issue, found to be so troubling to those writing on this period, namely, whether these principles were ousted by the classification of public lands as 'Crown lands'. Moreover, were the guarantees of continuity eclipsed by the detailed regulation of so-called Crown lands by successive waves of legislation in the nineteenth century? This inquiry is complicated by the absence of any definition of

'Crown lands' in all of the Ordinances dealing with land. However, legislative circumspection notwithstanding, the answer to these questions lies in the nature of the interest acquired by the Crown. According to the doctrine of continuity discussed above, on the acquisition of new territory the Crown obtained a radical title to all lands, and only acquired an additional beneficial interest in public lands, or lands not subject to any existing, private interest. Thus while public lands (and any private property of the previous Sovereign) passed to the Crown, this did not include property subject to private interests. Moreover, as the authorities discussed indicate clearly, private interests included those arising under customary laws.96

This conclusion is reinforced by the established rule of statutory interpretation involving a presumption against interference with vested rights, including property

95 Supra note 24, discussed by Brennan J at pages 34-36 & 62 96 Chapter 5, supra, at pp. 184-200 277 rights. In Main v Stark, where the ambit of an enactment from the colony of Victoria was under consideration, the Privy Council held that an interpretation taking away vested rights would be contrary to "general principles". According to Earl Selborne, delivering the judgment of the Board, "Even if there were not on the face of the Act something affirming those principles, words not requiring a retrospective operation, so as to affect an existing status prejudicially, ought not to be so construed."99 More crucially, this presumption forms part of a hallowed common law tradition of respect for property rights that dates back to the Magna Carta of 1215.' °

Mark Walters adds another perspective to that of the protection of property, pointing out that there have been instances where even blanket legislative provisions by which English law was applied to a colony have been held to be incapable of extinguishing existing local law in the absence of a specific directive to that effect.101 If such an explicit measure as the introduction of English law generally could not suffice to abrogate pre-existing customs and rights, then far less could such a result be achieved simply by the classification of lands as "Crown lands".

Kent McNeil, "Racial Discrimination and Unilateral Extinguishment of Native Title" (1996) 1 AILR 181 at 183-4 and authorities cited therein 98 Main v Stark [1890] App. Cas. 384 99Ibid, atp. 388 100 Magna Carta, 1215, 17 John, cl. 39; See also William Blackstone, Commentaries on the Laws of England, Vol. 1, 1st edn. reprint, (London: Dawsons, 1966) 134-5; Lester and Parker, "Land Rights: The Australian Aborigines Have Lost a Legal Battle, But..." (1973) \\ Aha. L. Rev. 189 at 218-9; Roberts- Wray, supra note 92; Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 Can Bar Rev. 727 at 748; Kent McNeil, "Aboriginal Title as a Constitutionally Protected Property Right" in Beyond the Nass Valley: National Implications of the Supreme Court's Delgamuukw Decision, ed. Owen Lippert (Vancouver: The Fraser Institute, 2000) 55 at 56-7 [and hereafter 'Beyond the Nass Valley'] 101 Mark D. Walters, "The "Golden Thread" of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982" (1998-9) 44 McGill I. J. 711 at 725-6 278 Aside from the critical literature, there is substantial support for this conclusion in jurisprudence from around the Commonwealth. In Tamaki v Baker, the plaintiff, an aboriginal native of New Zealand, claimed ownership of certain blocks of land under native customs, or alternatively under a previous order of the Native Court. Considering an 1841 statute by which all unappropriated lands within New Zealand were declared to be Crown or domain lands of the Queen, the Privy Council held that this designation was not sufficient to confer title on the Crown. Their Lordships reiterated this point when commenting on the issue as framed in the lower court, which asked whether the

"interest of the Crown in the subject-matter of this suit [could] be attacked by this proceeding?" Holding that this question revealed an embarrassing misapprehension of form, their Lordships pointed out that if the "interest of the Crown" is its prerogative title, then the assertion by the appellant of his native title did not constitute any "attack" on it, as the latter was not inconsistent with the seisin in fee of the Crown. In the words of Lord Davey, ".. .by asserting his native title, the appellant impliedly asserts and relies on the radical title of the Crown as the basis of his own title of occupancy or possession."104

Considering a similar issue in Mabo some nine decades later, this is what Justice

Brennan said: "No doubt the term "Crown land" was defined in these Acts in the belief, which has been current since Attorney-General v. Brown, that the absolute ownership of all land in Queensland is vested in the Crown until it is alienated by Crown grant.

102 Tamaki v Baker [1901] A.C. 561 103 Ibid, at 567 104 Ibid at 574 279 Nevertheless, the denotation of the term "Crown land" in the Land Act 1910 and the

Land Act 1962 is the same whether the common law attributes to the Crown the radical

title or absolute ownership."105 In other words, what Justice Brennan was saying here

was that the expression 'Crown land' did not necessarily have a specific meaning, and

could signify the Crown's radical title as easily as it could its beneficial ownership.10

In Tsilhqot'in Nation v British Columbia,107 the most recent decision on

Aboriginal title from a Canadian court, one of the issues raised at trial was the reach of

the B.C. Forest Act which was applicable to "Crown lands". One dispute between

forestry officials and the plaintiffs related to the control of logging within the claimed

area. In holding that Aboriginal titled lands are not subject to the Forest Act, Vickers J, the trial judge, applied similar reasoning to find that since Aboriginal title is a proprietary right, it could not be included within the definition of "Crown lands" in the

Act.1 Moreover, Vickers J pointed out that the Forest Act is a law of general

application aimed at the management and control of forests on Crown land - which by

105 Mabo supra note 24, per Brennan J at p 48. It is true that in Australia subsequent decisions of the High Court have sanctioned extinguishment of native title by inconsistent grant, but as will be argued below, this is contrary to well-established principles of the common law and of no persuasive value elsewhere. Crucially, however, Brennan's reasoning here reinforces the point that the designation of 'Crown land' by itself Aid not portend cataclysmic consequences of aboriginal dispossession. 106 Compare the reasoning of Kent McNeil in the course of his analysis of the power of the provincial to infringe Aboriginal title for the purpose of resource development in British Columbia. Construing the expression 'Crown land', McNeil concludes that where this was applied to lands subject to Aboriginal title, it could import no more than the provincial crown's underlying title, given that Aboriginal title is a proprietary right: "Aboriginal Rights, Resource Development, and the Source of the Provincial Duty to Consult in Haida Nation and Taku River" (2005) 29 S.C.L.R. (2nd) 447 at 458-9 107 Tsilhqot'in Nation v British Columbia 2007 BCSC 1700, decision dated 20th November 2007 108 Ibid, at paras. 963-980 280 definition, therefore, could not include privately owned forests, or forest resources located on Aboriginal title lands.109

Thus, applying these principles, the mere designation of public lands as 'Crown

Lands' in the colonial Ordinances was, as a matter of form and of substance, too general and vague to effect the abrogation of private (including indigenous) interests in the land.

Since a contrary interpretation would have meant the automatic dispossession of all the native inhabitants, this embodied a result far too drastic to be credibly attributed to the legislature. Wherever this term appeared in local legislation, therefore, it must be taken as referring only to lands over which the Crown obtained a beneficial interest and could thus lawfully alienate.

Between Scylla and Charybdis

Aside from the formal classification of land as 'Crown lands', however, a more complex issue concerns the substance of the legislation, insofar as it authorised the grant of various interests over public lands. What were the legal implications of the successive Crown Lands Ordinances and regulations thereunder, and can they be reconciled with the foregoing proposition that the mere designation of lands as 'Crown' lands did not vest title in the Crown? These are important questions, for the survival of indigenous rights in theory would be of little comfort to those Amerindians and their descendants who were uprooted from their traditional homelands to make way for

109 Ibid, at para 1012 281 incoming settlers, if physical displacement was permissible and legally defensible. To borrow the mythological allusion invoked by Brennan J in Mabo (No. 2),no having established that indigenous rights survived the Scylla of sovereignty, it must also be considered whether they avoided the Charybdis of subsequent extinction.

One way to commence an examination of this issue would be to identify the source of the Crown's power to grant land. Could the rights of indigenous peoples to occupy the land and use its resources, enjoyed without interruption for centuries, be unilaterally extinguished by the incoming settlers? If so, was this simply the assertion of raw dominance by the latter, or was this power legitimized in some way? According to one school of thought, the sovereignty acquired by the Crown conferred upon it not only the ultimate title to the land, but also the power to extinguish interests in the land and create other rights in their place by such means as were lawfully available.111 This approach, however, has been criticized by Professor Kent McNeil, who argues that at common law the Crown simply could not grant interests in land it did not own.112

Moreover, McNeil argues, executive powers of compulsory acquisition of land are exercisable for public purposes, which therefore preclude the taking of lands from one subject to give to another. While there is considerable authority for McNeil's propositions,1 there are also dicta, particularly of US origin,115 that can be interpreted

110 Supra note 24 at p. 45 111 Ibid, per Brennan J at p. 46 112 McNeil, Racial Discrimination, supra note 97 at 188 and 191-2 m Ibid, at 189 114 In addition to those mentioned by McNeil, see: J.C. Smith, "The Concept of Native Title" (1974) 24 UTLJ1 at 15 and Brian Slattery, "The Nature of Aboriginal Title" in Beyond the Nass Valley, supra note 100, 11 at 22-23 282 as supporting Brennan's position that sovereignty carried with it certain powers to extinguish pre-existing rights in the land by various means.116 Given these conflicting approaches, therefore, what is required is an examination of the existence of powers of extinguishment where they are found to exist, in order to ascertain their true nature and scope. This requires first some consideration of what is meant by sovereignty - or more precisely, who or what could exercise any powers over pre-existing interests in the land? Second, and assuming that sovereignty conferred some powers of extinguishment over pre-existing rights, how could such powers be exercised? In other words, by what means could extinguishment be achieved? There are no standard answers to these questions, for inasmuch as the common law has been transplanted globally, so too has its interpretation diverged significantly over time among various jurisdictions. In order to arrive at coherent principles therefore, the initial task presents itself of identifying and analyzing the divergent positions espoused by different courts.

The theoretical foundation of principles related to the extinguishment of indigenous rights can be traced to the dicta of Marshall C.J. in Johnson v MTntosh,117 which have proved to be of unmatched longevity and flexibility. Johnson has impacted

115 U.S. v Santa Fe Pacific Railroad (1941) 314 US 339 and Sobhuza II v Miller [1926] A.C. 518 at 525; See also Lysyk, K., "The Indian Title Question in Canada: An Appraisal in the Light of Calder" (1973) 51 Can. Bar Rev. 450 at 475-6 and Richard Bartlett, "The Aboriginal Land Which May be Claimed at Common Law: Implications oiMabo" (1992) 22 UWA L Rev 272 at 294. 116 Note, Kent McNeil takes issue with this view also: see "Extinguishment of Native Title: The High Court and American Law" (1997) 2 AILR 365. McNeil argues that contrary to what Brennan J might have thought, Santa Fe does not support this limb of his (Brennan's) decision, for in that case Douglas J held a series of congressional Acts was insufficient to extinguish the Walapais' title. However, one can understand how Brennan J might have been misled, given that Douglas J clearly stated that Indian title can be extinguished "by the exercise of complete dominion adverse to the right of occupancy". Moreover, Douglas J buttressed his position by stating that supreme congressional power in this regard was non­ justiciable [see discussion at notes 123-4 infra and accompanying text]. 117Swpranote21 283 both positively and negatively on subsequent decisions, but because of its negative influence some academics have blamed this decision for the retarded development of

110 the doctrine of aboriginal title. Indeed, there can be no disputing that Marshall C.J. made statements in Johnson that, taken in isolation, are capable of yielding a restricted view of the rights possessed by indigenous peoples to the lands occupied by them.

Marshall C.J. began from a position that discovery of a territory conferred an absolute title on the discovering European nation, subject only to an Indian right of occupancy.119 Although this principle applied among European nations, it had immediate repercussions for the native inhabitants: henceforth, their rights were

"necessarily, to a considerable extent, impaired", their sovereignty "diminished" and their powers freely to alienate their lands restricted.120 According to Marshall: "all our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians."

118 According to Daniel Kelly, for example, "By saying that the United States held fee title to all North American lands by virtue of previous European discovery and that the ancient dwellers retained only a right of occupancy defeasible at the whim of the sovereign, the courts have rationalized the uncompensated taking of native lands to pave the way for white dominance.": see "Indian Title: The Rights of American Natives in Lands They Have Occupied since Time Immemorial" (1975) 75 Colum. L. Rev. 655 at 686; Similar sentiments have been expressed by other scholars - see, e.g., Harold Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States" (1977-1978) 27 Buff. L. Rev. 637 at 644, Neil Mickenberg, "Aboriginal Rights in Canada and the United States" (1971) 9 Osgoode Hall L.J. 119 at 129 and more recently see Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney: Federation Press, 2008) 24 119 Supra note 21 at 574 120 Ibid 121 Ibid, at 588 284 Subsequent courts have invoked Johnson v, M'Intosh in order to disenfranchise

Native Americans,122 despite later cases where Marshall C.J. expressed his opinions more moderately. A notable instance occurred in U.S. v Santa Fe Pacific Railroad, where the rights of the Walapais to certain lands in northwestern Arizona were in dispute. The U.S. Supreme Court held that the Indian title had been extinguished by voluntary cession, so that the grant to the respondent railroad company was lawful. In a passage that itself has been repeatedly invoked,124 on occasion with devastating effect,

Douglas J asserted:

Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political not justiciable issues. Buttz v Northern Pacific Railroad 119 US at page 66 As stated by Chief Justice Marshall in Johnson v M'Intosh... at 681, "the exclusive right of the United States to extinguish" Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts. Beecher v Wetherby 95 US 517, 525125

The following decade, in Tee-Hit-Ton Indians v US, the Supreme Court went even further, denying that a clan of Native Americans in Alaska had a compensable proprietary interest in lands occupied by them on the ground that their occupation was

112 Ball, M.S., "John Marshall and Indian Nations in the Beginning and Now" [1999-2000] 33 J. Marshall L. Rev. 1183 at 1188-1193; McNeil, 1989, supra note 23 at 264-7; James Youngblood Henderson, "Unraveling the Riddle of Aboriginal Title" (1977) 5 Am. Indian L. Rev. 75 at 105 123 Supra note 115 124 As recently as 1992 by Brennan J in Mabo. supra note 24 at 46 125 Supra note 115 at p. 347 285 1 9A merely permissive and had never been recognised by treaty. In arriving at this conclusion, the Court relied on Johnson v MTntosh, stating:

"This position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained. The great case of Johnson v. Mcintosh ...denied the power of an Indian tribe to pass their right of occupancy to another. It confirmed the practice of two hundred years of American history 'that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest'."12

Tee-Hit-Ton is a deeply flawed decision, its rationale a distortion of the authorities on which it purports to rely,12 but this is precisely the point. Twentieth century developments in native title jurisprudence in the U.S. do violence to the actual text of the Johnson opinion, and certainly to the doctrine in its entirety as eventually fashioned by Marshall C.J. in subsequent cases.129 According to that doctrine, power was indeed reposed in the State to extinguish Indian title as an incident of its sovereignty, but this power could not be exercised other than with the free consent of the natives.130 In this sense, "free consent" imports no more (or no less) than what is also possessed by non- aboriginal citizens under the incoming system, whose title to lands are not subject to the dictates of the executive but remain subject to expropriation under normal constitutional means. In other words, according to the whole of Marshall's doctrine, Indian rights

126 Tee-Hit-Ton Indians v U.S. (1955) 348 US 272 127 Ibid, at pp. 279-280 128 Nell J. Newton, "At the Whim of the Sovereign: Aboriginal Title Reconsidered" (1980) 31 Hastings L. J. 1215 and Henderson, supra note 122 at 112-8. See discussion of this case in Chapter 2, supra, at pp. 66-7 129 See discussion in Chapter 2, supra, at pp. 73-4 130 Worcester v Georgia, supra note 22 at 545; See also Mitchel v US (1835) 34 US 711 131 Consider, however, the thesis of Youngblood Henderson that the congressional power to extinguish applied only to lands held by tribes under the federal system. Henderson argues that under the classic paradigm formulated by these early 19,hC cases, Aboriginal land under tribal dominion was a system of 286 were patently not "defeasible at the whim of the sovereign" as Kelly dramatically (and inaccurately) argues, but at a minimum they were subject to the ultimate power of the sovereign legislature like other private property rights.

While the Marshall approach proved to be influential outside of its own domestic setting, other common law jurisdictions, grappling with the enormous implications of a finding of Aboriginal or native title, have not always remained true to the classic doctrine, and departures similar to that embodied by the Tee-Hit-Ton decision have crept into aboriginal title jurisprudence elsewhere. Most notably in

Australia, principles of extinguishment diverge significantly from those applied in the majority of common law jurisdictions. In Mabo,132 where the plaintiffs' claim for aboriginal title to their ancestral territory in the Murray Islands was in issue, the

Australian High Court had to consider the effect of both legislation and executive acts in the years intervening since annexation of the territory. While it was held, incontestably, that 'clear and plain' legislation could suffice to extinguish native title, all the Judges were united in finding that this result could also be achieved by executive act. The difficulty with the decision lies in the frustrating degree of imprecision in the judgments as to exactly what was meant by 'executive act': did this import action of the

Executive pursuant to some enabling statutory authority, or did it mean an act of the tenurial rights distinct from the Anglo-American tenurial system, and therefore not subject to this Congressional power. Accordingly, such tribal title could only be relinquished consensually - that is, by voluntary agreement: Henderson, supra note 122 at 105-8. Adopting a more profound re-evaluation of the entire process of sovereignty asserted over Aboriginal Nations, John Borrows questions the fundamental legitimacy of the power to extinguish one Nation's rights by another "without their democratic participation or consent, merely through the distant assertion of sovereignty": John Borrows, "Sovereignty's Alchemy: An Analysis of Delgamuukw v B.C." (1997) 37 Osgoode Hall L.J. 537 at 586 132 Supra note 24 287 Executive under its prerogative powers? That at least Brennan J contemplated the latter is suggested by his discussion of the power of the Crown to extinguish interests in land.

Brennan J pointed out that the Crown cannot extinguish an interest validly granted by it without statutory authority. Since the Crown cannot derogate from its grant, a statute will be construed, if possible, as not authorizing any impairment of an interest in land granted by the Crown. However, Brennan continued, since native title is not granted by the Crown, no similar constraint exists preventing the Crown from extinguishing it without express statutory authority. This possibly indicates that since native title did not originate from a Crown grant, there was no need for statutory authority for the

Crown to extinguish it.

In another passage, Brennan made it clearer still that he had in mind prerogative powers when holding that native title could be extinguished by executive act, for he declared that Aboriginal rights had been denuded not by operation of law, but "by the exercise of sovereign authority over land exercised recurrently by governments" over the course of the preceding 200 years of settlement.134 Executive acts in the early years of settlement in Australia occurred long before statutory authorisation,135 so this would confirm that notwithstanding the proprietary nature of Aboriginal interests in land, in

Australia at least they were "defeasible at the whim of the Sovereign" in light of

Brennan's views.

133 Ibid, p. 46 lMIbid, at p. 50 135 In Australia land grants were initially made by Prerogative grant, and it was not until 1842 that the management and sale of land was first brought under statutory control: Wik Peoples v Queensland (1996) 141 A.L.R. 129 at 171 288 This approach taken by Brennan J, however, is indefensible. Once it is accepted that native rights in land are of a proprietary nature recognised by the common law,1 it ought to follow naturally that such rights become clothed with all of the protections accorded to property by the said common law. Included among such protections, as discussed above, is the hallowed constitutional principle that private property is not subject to arbitrary executive action. A corollary to this principle is that the Crown cannot commit acts of state against its own subjects, a protection that exists even in

1 "^7 times of war. Thus, while the Sovereign can extinguish private rights, this power is exercisable only under the law, which requires valid, enabling legislative authorisation.

Doctrinal confusion, however, is not reserved to Australia, as evidenced by a recent decision of the Ontario Court of Appeal. In Chippewas of Sarnia Band v

Attorney-General of Canada, at issue was the ownership of certain territory that had been alienated from its Chippewas owners to a private land speculator in 1839, and which had passed thereafter into the possession of innocent third parties. The lands had never been formally surrendered by the Chippewas, who brought this action almost a century and a half later claiming both declaratory relief recognizing their right to the land and damages for trespass and breach of fiduciary duty. The Chippewas were defeated both at first instance and on appeal. The Ontario Court of Appeal applied the equitable defences of laches and acquiescence to hold that in spite of the fact that their 136 As Brennan J himself did: supra note 24 at p. 36 137 Attorney General v Nissan [1970] A.C. 179 at 213, per Lord Reid 138 See notes 97 to 100, supra, and authorities therein 139 Chippewas of Sarnia Band v Attorney-General of Canada [2001] 1 C.N.L.R. 56 289 Aboriginal title had not been surrendered, the Chippewas' delay combined with the reliance of the landowners was fatal to their claim. In light of the fact that at common law, legal interests in land cannot be defeated by the equitable, good faith purchaser rule, Kent McNeil argues that this case departed unjustifiably from both precedent and principle to create a third mode of extinguishment of Aboriginal title in Canada - that of extinguishment by judicial discretion.140

On the other hand, many instances can be found of the application of classic constitutional protections to indigenous proprietary rights from elsewhere in the British

Commonwealth. In R. v. Symonds, for example, where the Supreme Court of New

Zealand held that the Crown possessed the exclusive right of extinguishing native title to land,141 Chapman J added that native title could not be extinguished "otherwise than by the free consent of the Native occupiers."142 This was reaffirmed more recently in

Ngati Apa, where Chief Justice Elias said, delivering the majority judgment:

"The applicable common law principle in the circumstances of New Zealand is that rights of property are respected on assumption of sovereignty. They can be extinguished only by consent or in accordance with statutory authority. They continue to exist until extinguishment in accordance with law is established."143

And in Canada, long before the Chippewas decision, the Supreme Court had clearly been moving in a similar direction. In Calder v Attorney General of British

Kent McNeil, "Extinguishment of Aboriginal Title in Canada: Treaties, Legislation and Judicial Discretion" (2001-2002) 33 Ottawa L. Rev. 301 at 327-346 141 R. v. Svmonds [1840-1932] NZPCC 387 at 388-9; see discussion of this case in Chapter 2, supra, at pp. 75-6 142 Ibid, at 390 143 Ngati Apa v Attorney-General [2003] NZCA 643 at 668; See discussion of this case in Chapter 5, supra, pp. 193-4 290 Columbia, while Judson J was of the opinion that the various Ordinances and

Proclamations cited by the colony of British Columbia had operated to extinguish

Indian rights and title prior to confederation, Hall J (with whom Justices Spence and

Laskin concurred) held that the Ordinances and Proclamations relied on by Judson J concerned the Crown's ultimate dominion. In Hall's view, they were irrelevant to the issue under consideration, which was whether the appellants were entitled to a declaration as to their right of occupancy. Further, insofar as those Ordinances and

Proclamations may have purported to extinguish Indian rights, Hall J found that such action was beyond the power of the Governor and the Council under their Instructions and the Letters Patent, making them ultra vires.145 In the words of Hall J: "Aboriginal title being a legal right, it cannot be extinguished except by surrender to the Crown or by competent legislative authority, and then only by specific legislation."146 Since the majority was divided on an unrelated procedural point, Canadian law on this issue remained unsettled until 1993 when the opinion of Hall J was impliedly vindicated, it being decided by the British Columbia Court of Appeal that Aboriginal title was not extinguished in British Columbia prior to confederation.147 As for the Chippewas judgment, its persuasive value must be measured against the constitutional implications of the ruling of the Supreme Court in Delgamuukw v British Columbia that Aboriginal title is a proprietary right, an issue perhaps for future consideration.

144 Calder v Attorney General of British Columbia (1973) 34 D.L.R. (3d) 145 145 Ibid at pp. 215-7 146 Ibid at p. 208 147 Delgamuukw v British Columbia (1993) 104 D.L.R. (4th) 470 at 530-1 (per McFarlane J.A.) 148 Delgamuukw v. British Columbia (1997) 3 S.C.R. 1010 at 1096, para. 140 (per Lamer C.J.C.) Thus, although there is a substantial body of jurisprudence from Australia, and to a lesser extent from Canada, which suggests a heightened vulnerability of indigenous title to land, the decisions to that effect are contrary to both principle and precedent. At common law property rights cannot be extinguished other than with appropriate legislative authority, and then only if the required standard is met. Since aboriginal title is a proprietary right, it benefits from this protection.

Accepting that the "sovereign power" which could extinguish aboriginal rights refers to the legislature, a more complicated issue to be clarified is how aboriginal rights

(including title) could be extinguished. In other words, exactly what is required in order for pre-existing aboriginal rights to be validly terminated? Allied to this is the issue of whether legislation impacting upon aboriginal rights inevitably terminated the latter, or whether in some instances those rights were merely suspended or held in abeyance.

Although there are commonalities to be found in how various common law courts have approached these issues, once again there have also been significant differences in both rationales and results.

In the United States, the ambiguities that dogged the Marshall decisions of the early nineteenth century were fated to linger, confounding later courts or, more cynically, providing them with text for both protection and disenfranchisement of

Native Americans as the need arose. On occasion, such as in U.S. v Santa Fe Pacific

Railroad for example, contradictory positions have emerged from even within the same judgment. Here Douglas J reaffirmed the strength of Indian rights in the course of his judgment, adverting to the historic need for peaceable relations with Indians which 292 necessitated a policy of respect for the Indian right of occupancy. He continued that it would take "plain and unambiguous language to deprive the Walapais of the benefits of that policy", 50 affirming robustly that".. .extinguishment of Indian title cannot be lightly implied, but doubtful expressions in acts relating to Indians, instead of being resolved in favour of the United States, are to be resolved in favour of the Indians."151

Yet in spite of these views, Douglas J explicitly endorsed the power of the United States to extinguish Indian title "by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise..."152 The equivocation in Douglas J's judgment is unmistakable - on the one hand, plain

Congressional language was required in order to terminate Indian rights of occupancy, while at the same time, the mere exercise of "complete dominion adverse to the [Indian] right of occupancy" could apparently achieve the same result. Plain statutory language is hardly reconcilable with adverse dominion, since the latter suggests the possibility of termination by mere implication or incidental effect. Still, despite these inconsistencies,

Douglas J left an enduring legacy in the test he flirted with of a requirement of "plain and unambiguous language" to effect the extinguishment of Indian rights, since followed by many other courts.

Supra note 115 at p. 345 mIbid, at p. 346 151 Ibid, at p. 354 152 Ibid, at p. 347. It should be noted that in this passage Douglas J was talking about unrecognized Indian title, but this makes little difference in principle given his endorsement of the decision in Cramer v. U.S. (1923) 261 U.S. 219 that Indian occupancy did not need to be formally recognised by treaty or other government action in order to give rise to enforceable rights. 293 In Calder, which arose in Canada before the constitutionalization of Aboriginal and treaty rights in 1982,153 Hall J articulated what was to become a guiding principle of

Canadian constitutional jurisprudence in relation to Aboriginal rights - namely that in the absence of surrender to the Crown, aboriginal title can only be extinguished by competent legislative authority, and then only by specific legislation.154 As Hall J went on to explain, what this meant was that the intention to extinguish Indian title must be

"clear and plain". However, this served only to postpone the required analysis, for as previous American and subsequent Canadian cases demonstrate, the standard of 'clear and plain' is an elusive one to define.

Calder was followed in R. v. Sparrow,156 where the issue under consideration was the existence of the appellant's traditional right to fish, called into question by successive regulations enacted in British Columbia prohibiting Aboriginal Canadians from fishing for sale and barter. As commercial fishery developed and then sport fishing increased in popularity, Indian fishery became subject to progressively more stringent regulatory control. Although Sparrow was sent back to trial for a determination of the constitutional issue involved, the Supreme Court laid down certain principles for the benefit of the lower court. In particular, the Justices referred to the dicta of Hall J, quoted above, and reiterated that the "test of extinguishment to be adopted, in our

153 Constitution Act 1982, s. 35(1), Schedule B to the Canada Act 1982 [UK]; The significance of constitutionalization in Canada is that since then Aboriginal rights cannot be extinguished: R. v. Van der Peet [1996] 2 S.C.R. 507 at 538 154 Supra note 144 at p. 208 155 Ibid, at p. 210 156 R. v. Sparrow (1990) 70 D.L.R. (4th) 385 294 opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an

i en aboriginal right."

This decision, however, did not put to rest questions surrounding exactly what standard is imposed by the requirement of a 'clear and plain' legislative intention.

Following Sparrow, a slew of cases engaged the Canadian courts on the nature of aboriginal rights and this issue of their extinguishment. These included an important trilogy of cases handed down by the Supreme Court on August 21, 1996, viz., Van der

Peet v The Queen,158 NTC Smokehouse v The Queen159 and Gladstone & Gladstone v

The Queen.160 For the most part these cases have been concerned either with the preliminary issue of the characterization of the activities in question as aboriginal rights, or the secondary one of the justification of an infringing measure, rather than the central issue of extinguishment. Still, enough obiter have been bandied about to confound the issue thoroughly. In Smokehouse, the appellant was a food processor that had been charged with selling and purchasing fish not caught under the authority of a commercial fishing licence, contrary to the relevant regulations. The fish had been initially caught by Indian bands under the authority of food fishing licences and sold to the appellant, which then resold the fish in the commercial market. The appellant's appeal was dismissed on the ground that it had not been established that the Indian bands possessed

[il Ibid,atp. 401 158 Supra note 153 159 NTC Smokehouse v The Queen [1996] 2 S.C.R. 672 160 Gladstone & Gladstone v The Queen [1996] 2 S.C.R. 723; On October 3rd of the same year the Supreme Court handed two more decisions related to Aboriginal rights: Adams v The Queen [1996] 3 S.C.R. 101; Cote et al v The Queen T19961 3 S.C.R. 139 295 an aboriginal right to fish commercially. According to this approach, since no right was established no question of extinguishment or justification even arose.

Justice L'Heureux-Dube dissented on the ground that the majority was misguided in their determination of the question of the existence of an aboriginal right, and having found that the sale of fish by the Bands to the appellant could be interpreted as a practice related to trade and barter for purposes of livelihood, in existence long before contact with Europeans, she proceeded to consider the issue of extinguishment.

On this she held:

"I am prepared to accept that the extinguishment of aboriginal rights can be accomplished through a series of legislative acts. However, Sparrow specifically stands for the proposition that the intention to extinguish must nonetheless be clear and plain. This is diametrically opposed to the position that extinguishment may be achieved by merely regulating an activity or that legislation necessarily inconsistent with the continued enjoyment of an aboriginal right can be deemed to extinguish it. Clear and plain means that the government must address the aboriginal activities in question and explicitly extinguish them by making them no longer permissible."161

From this passage, and in particular by her use of the adverb "explicitly", it seems that what the learned Judge had in mind was that for extinguishment to be effective, the legislation in question had to advert specifically to the aboriginal right or activity in question and then terminate it by express language. Almost as high a standard as this was required by McLachlin J. (as she then was) in Van der Peet itself, where the majority held that the Sto:lo people did not have an aboriginal right to fish commercially. This disposed of the need to consider the question of extinguishment, but

1 Smokehouse, supra note 159 at 712; emphasis in the original 296 both L'Heureux-Dube and McLachlin JJ. dissented, and on the issue of extinguishment

McLachlin J held:

"For legislation or regulation to extinguish an aboriginal right, the intention to extinguish must be "clear and plain": Sparrow, supra, at p. 1099. The Canadian test for extinguishment of aboriginal rights borrows from the American test, enunciated in United States v. Dion, 476 U.S. 734 (1986), at pp. 739-40: "[w]hat is essential [to satisfy the "clear and plain" test] is clear evidence that [the government] actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty" or right."162

Although these views espouse a credible interpretation of 'clear and plain intention', L'Heureux-Dube's interpretation at least seems to go beyond what was required in Sparrow and has not taken root. Indeed, in Gladstone, the last of the cases making up the trilogy, Lamer C.J.C. left no room for doubt that he was not in agreement with her. In Gladstone, the central issue for the court concerned the constitutionality of regulations that required obtaining a licence for the sale or trade in herring spawn or kelp. The appellants, Native Canadians, were convicted of attempting to sell herring spawn caught without the proper licence, contrary to those regulations. The appeal was allowed on the ground that the acts in question did not constitute an attempt to sell in law, but Lamer C.J.C. proceeded to discuss the nature of an Aboriginal right and the question of its extinguishment, countering with his own perspective: "While to

Van der Peet. supra note 153 at p. 652; Interestingly enough, in US v Dion, where the issue before the Supreme Court concerned the extinguishment of the defendant's treaty right to hunt bald eagles as a member of the Yankton Sioux tribe of South Dakota, Justice Marshall acknowledged the vagaries of the 'clear and plain' test in US jurisprudence. Delivering the Opinion of the Court, Marshall J pointed out that previous cases had adopted different standards in relation to the same test, ranging from a requirement of an "express declaration" to merely that of considering the statute's legislative history and surrounding circumstances: (1986) 476 U.S. 734 at 739 297 extinguish an aboriginal right the Crown does not, perhaps, have to use language which refers expressly to its extinguishment of aboriginal rights, it must demonstrate more than that, in the past, the exercise of an aboriginal right has been subject to a regulatory scheme."163

This issue was revisited in Delgamuukw, though only perfunctorily so in the

Supreme Court. In the British Columbia Court of Appeal,164 where it was discussed at great length, Macfarlane J.A. stated (Wallace J.A. concurring): "In my opinion, express language such as 'all aboriginal rights are hereby extinguished' is not required. The intent to extinguish aboriginal rights may be inferred from less explicit language."165

Left here this interpretation might have been unobjectionable, but Macfarlane J.A. went on to suggest that extinguishment could be effected by necessary implication, where that was the only possible interpretation of the statute.166 In his view, the requirement of a 'clear and plain intention' could be met either by an express declaration, or

"manifested by unavoidable implication" .l(>1 Macfarlane J.A. reinforced this position by articulating the need for considering colonial legislation to determine whether Indian interests could have co-existed with that authorised by legislation in the same land. By holding that "If the consequence is only impairment of the exercise of the rights it may follow that extinguishment ought not to be implied",168 the learned Judge seemed to be suggesting that extinguishment could be implied where the interests cannot co-exist. If

163 Gladstone, per Lamer C.J.C., supra note 160 at p. 750 164 Delgamuukw. supra note 147 165 Ibid, at p. 522 166 Ibid, at p. 524 167 Ibid, at p. 523; emphasis in the original 168 Ibid, at p. 525 298 so, this interpretation cannot be reconciled with the test laid down in Sparrow, which

McFarlane J.A. attempted to distinguish on the ground that in that case, regulations as opposed to legislation were involved. He observed that there the Supreme Court had not said that "express legislation was required." However, with all due respect, this was an argument of great sophistry. In Sparrow, the "clear and plain" test was laid down as the standard for determining whether an intention to extinguish Aboriginal rights was demonstrated. Nothing turned on distinctions between 'regulation' and 'legislation', and in fact, the judgment actually suggested the contrary, that the same standard applied to both primary and delegated legislation.

On the facts, Macfarlane J.A. concluded that aboriginal title in British Columbia had not been extinguished prior to 1871,169 but he felt unable, based on the evidence led, to conduct the "detailed and complex analysis" required to decide what had happened after the colony became a part of Canada.170 It is clear that McFarlane J.A. conceptualized the governing consideration to be whether different interests could co­ exist, or whether in the circumstances some degree of infringement would have necessarily occurred by virtue of inconsistency. On this aspect, however, McFarlane

171

J.A. was studiously vague as to the outcome and clearly wrong as to the applicable approach. According to McFarlane's test, a number of relevant factors had to be taken into account in determining whether there had been an "infringement" of the aboriginal m Ibid, at p. 531 170 Ibid, at p. 533 171 Regarding the outcome McFarlane J.A. said this (ibid, at p. 533): "in my view, if the competing interests cannot be reconciled, they are properly the subject of an action in which the parties whose interests may be affected are represented" - without specifying which of the "parties" he had in mind. 299 interest, involving essentially a comparison between the nature of the aboriginal

t 79 interest, the nature of the governmental grant and the possibility of co-existence.

However, as shall be discussed below in relation to Australian jurisprudence where a similar approach has been followed, proprietary rights cannot be extinguished (or, arguably, infringed even) merely by inconsistent grant. Ultimately, therefore, the Court of Appeal decision in Delgamuukw lends very little assistance on the elucidation of the issue of extinguishment.

Delgamuukw was of course appealed further, but in the Supreme Court the issue of extinguishment was primarily dealt with from the angle of its constitutional validity.

As to how extinguishment could be effected, Lamer C.J.C. merely reiterated the position he had earlier taken in Gladstone that extinguishment did not require express language, though he continued saying (somewhat unhelpfully, one might add) that "the standard is still quite high."

The unfortunate result is that in Canada, despite the adoption of the 'clear and plain' test by which to assess legislation purporting to extinguish Aboriginal rights, there is no consensus as to what exactly this standard imports. While it does not seem that Sparrow requires an explicit statement of extinguishment of an aboriginal right under consideration as Justice L'Heureux-Dube J has suggested, Macfarlane J.A.'s interpretation that Aboriginal rights can be extinguished by 'unavoidable implication' is patently wrong. At best, therefore, all that can be safely said in relation to Canadian 172 Ibid; For discussion on other issues raised by this aspect of McFarlane J.A.'s judgment, see Kent McNeil, "Aboriginal Title and the Division of Powers: Rethinking Federal and Provincial Jurisdiction" (1998) 61 Sask. L. Rev. 431 at 432-442 173 Supra note 148 at para. 180 300 jurisprudence is that, prior to 1982 when Aboriginal and treaty rights became entrenched in the Constitution, 'clear and plain' statutory language was required in order to extinguish Aboriginal rights. Whether a specific statute met this standard, however, is an entirely separate issue left up to the interpretation of the specific court trying the matter.

Despite these ambiguities in the application of the clear and plain test, it has been applied by other common law courts. Most recently, in Aurelio Cal et al v

Attorney-General of Belize, the Supreme Court of Belize held that the Crown Lands

Ordinances and grants made thereunder had not extinguished the pre-existing interests of the Maya peoples in and to certain disputed territory in the Toledo District of

Southern Belize.17 Delivering the judgment of the Court, Conteh C.J. said simply:

"Extinguishment of rights to or interests in land is not to be lightly inferred. There must, I think, be clear and plain legislative intent and action to effect it. I can find no evidence of this in this case, as I can find no authority for this in any of the several Crown Lands Ordinances put before me in this case."

In Australia, while Judges have paid lip service to American and Canadian authorities, their interpretation of the test for extinguishment contains significant departures in principle with regard to the contentious issue as to the standard required in order to do so. In Mabo the test of 'clear and plain' was adopted by the High Court, including even by Dawson J, the lone dissenter in that case.176 However, as in other common law jurisdictions, the difficulty lies in ascertaining exactly what is imported by

174 Aurelio Cal et al v Attorney-General of Belize. #171&2 of 2007; and see discussion of this case in Chapter 2, supra, at p. 49 175 Ibid, at para. 89 176 Supra note 24 at p. 106 301 this test. Since the various judgments in the case adopted differing reasons, each one requires separate examination.

Brennan J, who delivered the leading judgment, accepted that a clear and plain intention was required in order to extinguish native title given the "seriousness of the consequences" of such actions.177 But having espoused this laudable position, Brennan J proceeded to rule that:

"A Crown grant which vests in the grantee an interest in land which is inconsistent with the continued right to enjoy a native title in respect of the same land necessarily extinguishes the native title. The extinguishing of native title does not depend on the actual intention of the Governor in Council (who may not have adverted to the rights and interests of the indigenous inhabitants or their descendants), but on the effect which the grant has on the right to enjoy the native title. If a lease be granted, the lessee acquires possession and the Crown acquires the reversion expectant on the expiry of the term."178

For Brennan J, therefore, native title was extinguished by grants of inconsistent interests, such as fee simple estates and even leases, but not by the grant of what he termed "lesser interests", such as authorities to prospect for minerals.179 On this issue,

Brennan J's reasoning has been excoriated by Professor Kent McNeil as "seriously

1 SO flawed". Aside from the impermissibility of extinguishment by "executive act", discussed above, elsewhere McNeil has pointed out that at common law, the intention to confiscate private property must be clearly expressed in the relevant legislation, and that where property is in fact statutorily expropriated, a presumption Ibid, at page 46 178 Ibid, per Brennan J at page 49 m Ibid, at p. 51 180 McNeil, Racial Discrimination, supra note 97 at p. 203 181 Ibid at pages 194-7 and authorities cited therein, and see also discussion above, at notes 97-100 and 132-8 and accompanying text 302 exists that compensation must be payable unless this right is expressly excluded by the confiscating legislation.182 Accordingly, in McNeil's view, the heightened vulnerability of the native title rights as articulated by Brennan J was racially discriminatory and constitutionally unsound.

As discussed above, there is abundant authority in support of McNeil's thesis.

In addition, the common law protection of private property has consistently been applied to native title rights, particularly in cases arising from Africa. In Oyekan v

Adele, for example, Lord Denning had this to say in relation to the right of a native ruler to remain in occupation of the official palace in Lagos, which had been ceded to the British crown:

"The courts will assume that the British crown intends that the rights of property of the inhabitants are to be fully respected. Whilst, therefore, the British Crown, as Sovereign, can make laws enabling it compulsorily to acquire land for public purposes, it will see that proper compensation is awarded to every one of the inhabitants who has by native law an interest in it; and the courts will declare the inhabitants entitled to compensation according to their interests, even though those interests are of a kind unknown to English law.. ."184

Against this background, the approach espoused by Brennan J constituted a significant derailment of legal principle, which the remaining judgments in Mabo did little to deflect. Deane and Gaudron JJ in a joint judgment posited that native title is

"merely a personal right unsupported by any prior actual or presumed Crown grant of any estate or interest in the land", so that an inconsistent Crown grant would naturally

McNeil, Extinguishment, supra note 140 at 310 Supra note 100 Supra note 94 at p. 788 303 1 SS take precedence. This, however, was a weak argument. In the first place, it is generally understood that the characterization of "personal" in the context of native title simply refers to its inalienability, and does not imply that it is a non-proprietary interest.186 Lamer C.J. of the Canadian Supreme Court put it this way: "Lands held pursuant to aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and, as a result, is [sic] inalienable to third parties. This Court has taken pains to clarify that aboriginal title is only "personal" in this sense, and does not mean that aboriginal title is a non-proprietary interest which amounts to no more than a licence to use and occupy the land and cannot compete on an equal footing with other proprietary interests..." In any event, Justices Deane and Gaudron themselves had earlier accepted that pre-existing native interests with respect to land did not have to 1 RS conform to common law concepts of tenure in order to gain recognition. This was a pointed rejection of Lord Sumner's reasoning in Re Southern Rhodesia in favour of a more enlightened approach, so it was therefore both illogical and inconsistent for them to conclude later that native rights in land constituted a lesser interest than one recognised by the common law. In other words, if the native interest in land was but one species of property right recognizable by the common law, by what principle or authority was it subordinate to other types of common law property rights?

Per Deane & Gaudron JJ, supra note 24 at page 67 186 A.G. of Quebec v A.G. of Canada |~1921] 1 AC 401 at 408: Canadian Pacific Ltd. v Paul T19881 2 S.C.R. 654 at 677 187 Deleamuukw. supra note 148 at 1081-2 188 Mabo. supra note 24, per Deane & Gaudron JJ, at pages 62-4 304 Most risible of all, however, was the additional ground advanced by Deane and

Gaudron JJ that where aboriginal occupation was terminated by third parties, the "lack of effective challenge would found either an assumption of acquiescence in the extinguishment of the title or a defence based on laches or some statute of limitations".189 Given Australia's notorious history of violent Aboriginal dispossession,190 for centuries underwritten by apologists in the Judiciary (including one of their own number), did they seriously believe that the legal system was ever available for vindication of aboriginal rights, and that acquiescence or laches could amount in such circumstances to a valid defence?

Indeed, as Professor McNeil has pointed out, the judgment of Deane and

Gaudron JJ contains many irreconcilable statements.191 Although they took pains to establish the egregious nature of the wrongs suffered by Australian Aboriginals, whose rights were therefore not "illusory", the Justices concluded by privileging Crown grants over native interests in spite of the acknowledged illegality of such executive acts. In an embarrassing display of convoluted legal reasoning they concluded that "the power of the Crown wrongfully to extinguish the native title by inconsistent grant will remain but any liability of the Crown to pay compensatory damages for such wrongful

Mabo, supra note 24 per Deane & Gaudron JJ at page 67 190 For a succinct account of this aspect of Australia's history see Mark Cocker, Rivers of Blood, Rivers of Gold (NY: Grove Press, 1988) at 115-184 191 McNeil, Racial Discrimination, supra note 97 at p. 207 192 Per Deane & Gaudron J J, supra note 24 at p. 83 305 extinguishment will be unaffected"193 - leaving entirely unanswered how such a power could be possessed by the Crown in the first place if it is wrongful.

The remaining Judge making up the majority, Toohey J, was the only one who did not articulate his position clearly, although he did reject the various bases advanced for the power of unilateral extinguishment. There is no need for any speculation as to the views of Toohey J, however, for in a later case194 he ended up effectively endorsing

Brennan's approach. Thus, although the 'clear and plain' test for evidencing the extinguishment of native title was adopted in Mabo, this was dubiously held to include a power to do so by inconsistent grant of both freehold and leasehold interests.

In spite of the sustained criticism of this aspect of the Mabo decision,195 later cases have embraced this ruling. In Wik Peoples v Queensland,196 there was some attempt to mitigate the harshness of some aspects of Brennan J's ruling - particularly as it related to the effect of leases. The issue under consideration there was the effect of pastoral leases on the plaintiffs' native title rights in the land in question. By a bare majority of one, with Brennan (by now Chief Justice) joining Dawson J in dissent this time around, the High Court held that the pastoral leases did not necessarily extinguish the rights and interests of the indigenous inhabitants. The majority adhered to the

m Ibid at p. 84 194 Wik Peoples v Queensland, supra note 135 195 Most persuasively by Professor McNeil in Racial Discrimination, supra note 97, and see also Noel Pearson, "204 Years of Invisible Title" in Mabo: A Judicial Revolution. Eds Stephenson, M. A. and Ratnapala, S., (St. Lucia: University of Queensland Press, 1993) 75, Lisa Strelein, "Conceptualising Native Title" [2001] 23 Syd. L.R. 95 and Maureen Tehan, "A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act" (2003) 27 Melb. U. L. Rev, 523 196 Supra note 135 306 principle laid down before that grants inconsistent with native title rights operated to extinguish the latter, with their point of departure being the factual one that pastoral leases did not grant inconsistent rights. According to the majority, one of the important issues was whether the grant conferred exclusive possession, and if so, whether such exclusive possession was inconsistent with native title rights and whether they operated to extinguish native rights as opposed to merely suspending them for the duration of the lease.197 Toohey J identified a number of considerations to consider when making a determination as to inconsistency - such as the size of the grant, the length of the term, derogations on or reservations to the grant, powers of resumption retained by the

Crown, rights of access granted to third parties - any or all of which were relevant to the issue of whether a 'clear and plain intention' to extinguish native title rights over the area of the grant was evinced.1 8 However, where a grant was clearly inconsistent, such as in the case of a fee simple estate, the majority did not depart from Brennan J's ruling in Mabo that this sufficed to extinguish native title.199

After Wik, the issue of extinguishment of native title rights arose again in

Western Australia v Ward,200 and once more the approach of extinguishment by inconsistent grant was endorsed by the High Court. This time around, the majority judgment stressed the need for identifying the rights and interests possessed under traditional laws and customs, and comparing these to the legal nature and incidents of

197 Per Toohey J, ibid at p. 170 198 Ibid at p. 188 - reminiscent of the approach suggested by McFarlane J.A. in the British Columbia Court of Appeal: Delgamuukw [CA], supra note 147 at p. 533 199 Ibid at p. 184: See also Fejo v Northern Territory (1998) 156A.L.R. 721 200 Western Australia v Ward (2002) 191 A.L.R. 1 307 the right granted. To the extent that the two were not inconsistent with each other they could co-exist, with native rights yielding to those subsequently granted. Insofar as the two were incompatible, however, native rights and interests would be extinguished by the inconsistent grant.202

Thus in Australia, despite lip service to the test of 'clear and plain intention', indigenous rights and title are essentially in a vulnerable position, being subject to extinguishment by mere implication. However, as has emerged from the discussion of decisions arising from the Privy Council and endorsed in New Zealand, Belize and

Canada, the Australian interpretation is actually a distortion of the principle it purportedly espouses. Once it is accepted that indigenous rights are of a proprietary nature, and once it is accepted that these rights are recognised by the common law - propositions for which there can be little doubt - then such rights can only be terminated by lawful, constitutional means. Since the standard for so doing has long been settled as clear and plain statutory authorisation, this necessarily precludes extinguishment by implication or by inconsistent grant and, more fundamentally, extinguishment by prerogative power. Extinguishment by any of these means, therefore, is indisputably contrary to law.

1 Ibid, at pages 78-82; and see discussion of this case by Bartlett, 2004, supra note 10 at 65-73 2 Ibid, at pages 170-195 308 Analysis of the Crown Lands Legislation

Applying these principles of extinguishment to the legislative scheme instituted in British Guiana governing land grants, the first point to be noted is that no legislation was ever enacted that directly addressed the rights possessed by the territory's indigenous peoples in relation to issues of ownership of land. The various Crown Lands

Ordinances described above instituted a system of issuing grants over Crown lands, but none of them specified exactly what constituted Crown Lands, nor did any explicitly terminate the pre-existing rights held by indigenous peoples. As pointed out above, the mere designation of 'Crown Lands' was too general to extinguish pre-existing indigenous rights to land, and coupled with the lack of any specific references to those rights, this means that there was no blanket legislative extinguishment of indigenous proprietary rights during the period of British rule.

But this leaves open the question whether extinguishment could have occurred in piecemeal fashion by implication. In other words, did any of the statutory provisions providing for grants of land operate to terminate pre-existing indigenous interests where these may have existed in relation to the same area issued or granted pursuant to the enabling legislation? Since indigenous interests in land are incontestably of a proprietary nature, as discussed above, they could only have been lawfully extinguished or infringed in circumstances where two preliminary conditions were satisfied: first, the body purporting to do so must have had the requisite constitutional authority, and second, only legislation demonstrating a clear and plain intention would have been sufficient to achieve this effect. 309 So far as the issue of constitutional authority is concerned, it will be recalled that the various Crown Lands Ordinances and other legislation were made by the Governor and Court of Policy, who were authorised to do so by Letters Patent constituting the colony of British Guiana. However, the power to grant lands was explicitly restricted to

"waste land", and in the accompanying Instructions issued separately to the Governor, this was reiterated as "vacant or waste lands". According to the interpretation of this provision discussed above,203 this empowered grants of lands over which the Crown obtained a beneficial interest, but not lands occupied by Amerindians - that is to say, lands subject to Aboriginal title. Thus grants authorised by the Governor and Court of

Policy, whether of a freehold or leasehold nature, could not have extinguished or infringed Amerindian rights to live on lands traditionally occupied by them. That said, we know that one consequence of expanding British settlement in the Colony was significant Amerindian displacement - such, after all, was the concern of Rev. Williams highlighted at the beginning of this chapter. However, in light of the principles discussed at length herein, any grants of land by the administration that resulted in the physical dispossession of any of its indigenous occupants were unquestionably unlawful, entitling the affected occupants to legal redress. As to the precise nature of possible redress, this can only be ascertained on a case-by-case basis, upon consideration of all the relevant circumstances including the nature of the prior occupation, the grant in question and the effect of defences such as limitation and laches.

203 See chapter 5, supra, at pp. 203-9 310 But what of lands not subject to indigenous occupation, but which indigenous peoples of the colony may have used for a variety of purposes not giving rise to a right of ownership of the land itself?204 Those other uses, though not amounting to rights of title, could nonetheless give rise to rights of a proprietary nature. The validity and effect of any private grants on lands subject to such pre-existing Amerindian rights depend equally on a consideration of the conditions identified above. Since it is possible to interpret lands subject to Aboriginal rights (as distinct from Aboriginal title) as vacant, the administration could have validly enacted legislation to grant interests in such lands

- but only legislation demonstrating a clear and plain intention would have been sufficient to extinguish or infringe pre-existing indigenous rights therein. Therefore, regard must be had to the specific terms of the enabling legislation to determine its consequences.

The summary of Crown lands legislation outlined above reveals that by 1919, which was the last year that regulations on this subject were issued during the period of

British rule, there were at least four different types of interests which could be granted over land classified as Crown lands. Beginning with the largest, these were grants of up

The distinction made here is between Aboriginal rights and Aboriginal title, the former being capable of existing independently of the latter. Aboriginal title is one species of Aboriginal rights, but the latter is a wider concept that encompasses other rights not necessarily rooted in a claim to the land. Thus far, this chapter has been primarily concerned with the issue of Aboriginal title; hereon, the issue of Aboriginal rights will be considered. For more on this distinction, see Adams v The Queen supra note 160 at 116-9 (paras 25-30), per Lamer C.J.C.; As regards Australia, where they speak of 'native title right', the content of this right is variable - extending at one end from a right of full ownership of the land to the other end of a lesser right importing, perhaps, a right merely to come onto the land for ceremonial purposes: Mabo, supra note 24 and see also Kent McNeil, "The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law" in Emerging Justice?: Essays on Indigenous Rights in Canada and Australia, ed. Kent McNeil (Saskatoon: University of Saskatchewan Native Law Centre, 2001) 416 at 420-5 311 to 10 acres to small cultivators which became absolute once the conditions of the grant were complied with, and thereafter everything in and on the land excepting sub­ surface minerals became the absolute property of the grantee.20 These grants are therefore akin to fee simple estates under English property law, and the enabling legislation leaves no room for doubt that the intention of the legislation was to extinguish all other interests in the land. To be clear, this would not have captured pre-existing indigenous interests amounting to ownership in the land, as there was no constitutional power to grant lands subject to Aboriginal title, but absolute grants of

Crown lands would have operated to extinguish all indigenous rights short of title.

The remaining interests authorised by the legislation were as follows: (i) leases and licences of occupancy for agricultural or grazing purposes, which were issued for terms of 99 years; (ii) permissions to occupy land for grazing purposes given for yearly periods; and (iii) leases and licences to extract natural resources such as timber, balata, stone and so on, generally for such duration as determined by the Governor (except for woodcutting licences, which were issued for two year terms). While there are certain features common to all of these grants, each type also possessed its own distinctive characteristics.

To begin with, it is crucial to note that all of these private grants created only limited interests in the land. They were for fixed periods, in some instances amounting

205 Crown Lands Regulations 1919, supra note 61, regulations 28&29 206 Ibid, reg. 24 207 See Ramsahoye, supra note 15 at pp. 161-2 208 Note, this does not involve the application of a 'necessary implication' or 'adverse dominion' test, which was earlier criticized. As to the reason why, see note 224 infra and accompanying text. 312 only to one or two years.209 Even in relation to the longer, 99 year grants, these too were finite and at the expiry of the term the land would have reverted to the Crown unless the grant was renewed. In other words, none of these leases, licences or permissions created permanent interests in the land.

In addition, there are several other aspects to these grants that reinforce their limited nature. For example, they were all expressly subject to powers of resumption by the Crown without the payment of compensation210 as well as to detailed conditions as to beneficial use or occupation211 and extensive rights of way in favour of government

• 919 91^ agents, third parties and Amerindians, and they contained significant restrictions on alienation. Moreover, in relation to the leases and licences to extract natural resources, these explicitly stated that no right to the land was granted over and above 91 S the right to extract the natural resource in question. Significantly also, concurrent rights could be granted over the same tract of land, though for different purposes - meaning that the grant of land for woodcutting was no bar to granting rights to quarry stone over the same area.216 It is clear, therefore, that these various grants only conferred limited interests in the grantees, which means that whether they were agricultural or grazing leases for long terms, yearly permissions to occupy, or leases or

209 As in the case of permissions for grazing purposes: see regulation 41 of Crown Land Regulations 1919, supranote 61 210 Ibid, regulations 37(c)(i), 39(g), 40(g) & 59 211 Ibid, regulations 37, 39, 40(e) & 41(d) 212 Ibid, regulations 37(d), 39(j) & 40G) 213 Ibid, regulations 39(k), 40(k), 41(a), (b) and (c) & 44 214 Ibid, regulation 42(a) 215 Ibid, regulations 58, 63(g) & 75(g) 216 Ibid, regulation 60 313 licences to extract natural resources, none of them exhibited the necessary clear and plain intention in order to effect the extinguishment of pre-existing indigenous rights over the same area. In fact, interpreted in light of even controversial Australian authorities they were legally incapable of having such an effect, for as Toohey J said in

Wik, "It is too simplistic to regard the grant by the Crown of a limited interest in land as necessarily extinguishing native title rights."217

But could grants conflicting with pre-existing indigenous interests in the subject land infringe those interests? Arguably, since the latter are of a proprietary nature, an intention to infringe would also have to be clearly demonstrated by the relevant

9 1 R legislation. An examination of the Crown Lands Regulations reveals a continuum along which the various grants could fall. At one end were various leases, licences and permissions that were expressly subject to Amerindian rights. These were the grants for grazing purposes,21 and the terms of the relevant provisions leave no doubt that they did not operate to infringe Amerindian rights. The position with regard to the remaining types of permissible interests is somewhat less clear-cut. These relate to those grants made for the purpose of resource extraction, but different rights could be granted in relation to different resources. None of these grants conferred any interest in the land 990 itself, or for that matter in any resource other than the subject matter of the grant, so it can be safely said that Amerindian rights generally were not infringed. However, some of these grants - in particular leases and licences to cut wood and to collect balata - 217 Supra note 135 at p. 188 218 See McNeil 1998, supra note 172 at pp. 436-439 219 Crown Lands Regulations 1919, supra note 61, regulations 39(k), 40(k), 41(a), (b) & (c) and (44) 220 Ibid, regulations 58, 60, 63(g), 70, 75(g) and 80 314 conferred exclusive rights in relation to that particular resource, so this would suggest that Amerindian rights to harvest that resource were necessarily suspended for the duration of the lease. However, once the lease or licence expired, the Amerindian right would revive.

At the other end of the continuum were special and ordinary leases for agricultural purposes,222 which were issued for the express purpose of agricultural development and contained specific conditions requiring "cultivation or beneficial occupation" of the land. These created interests that were clearly incompatible with any other use of the land - thereby infringing, for example, concurrent Amerindian interests in the same area. This conclusion does not follow from applying a doctrine of inconsistent grant or infringement by implication, for it would seem that the terms of the legislation itself were clearly intended to preclude any other use of the land. That the legislature must have considered the rights of Amerindians and then decided to exclude them (to adopt the interpretation of 'clear and plain' used by McLachlin J in Van der

Peet ) is suggested by the fact that Amerindian rights were expressly preserved in relation to other types of grants elsewhere in these very regulations. Thus, no possibility arises that the Legislature could have forgotten about Amerindian rights, so that the omission to preserve them in this instance must have been deliberate. However, since only a limited interest was conferred by these grants, Amerindian rights were not

221 Ibid, regulations 45 and 63(g) 222 Ibid, regulations 34-36 223 Ibid, regulation 37 224 See note 162 above and accompanying text 315 wholly extinguished but would have revived upon the expiry of these agricultural leases.

In summary, based on the general Crown lands legislation in relation to land and the types of interests that the Crown purported to grant therein, as examined in light of the applicable principles of the common law, it can concluded with some confidence that during the period of British rule indigenous title rights were not extinguished, either expressly across the board or in piecemeal fashion. Indigenous rights other than title were in a different position, and suffered some degree of infringement or even extinguishment. Extinguishment would have occurred where absolute interests in land were granted to third parties. However, the limited grants did not have such a drastic effect. These, which invariably were granted for a specific purpose, fell along a continuum - at one end no infringement occurred while at the other end all indigenous rights were suspended for the duration of the grant. In the middle of this continuum only indigenous rights to a particular resource would have been affected, but then just for the duration of the grant. In all cases where infringement occurred, the affected indigenous interests would have revived upon the expiry of the relevant lease or licence.

Having considered legislation of general application, in the next phase of our inquiry we will proceed to consider the regulations enacted under the Crown Lands

Ordinances that were specifically directed to Amerindians, in order to identify and analyse their implications for Amerindian rights in relation to the occupation and use of so-called Crown lands.

316 CHAPTER 8

CROWN LANDS LEGISLATION AND AMERINDIAN RESOURCE-USE

RIGHTS

In the preceding chapter, general Crown lands legislation was considered with a view to answering the specific question of the impacts of such legislation on

Amerindian land rights. According to the interpretation most consistent with common law authority, there was no wholesale or piecemeal extinguishment of those rights by those statutes, which were enacted mainly for conveyancing purposes. However this leaves for consideration other legislative provisions, both principal and subsidiary, which addressed specific activities of Amerindians in relation to the occupation and use of the land and its resources. In addition, as the economic base of the Colony expanded to include natural resource extraction - which meant principally timber harvesting and mining - a multitude of laws and regulations were enacted from late in the nineteenth century onwards to regulate these industries. As these activities occurred in areas comprising traditional Amerindian homelands, the statutory provisions necessarily impacted on Amerindian rights in a significant way. In this chapter, I propose to examine the impacts of the laws and regulations governing both land use and the major resource-extractive industries. Taken together with the examination of the general conveyancing statutes in the preceding chapter, this survey presents a comprehensive picture of the implications of legislation enacted during the period of British rule for

Amerindian land and resource-use rights. 317 Amerindian Rights on 'Crown Lands'

The earliest legislation specifically to address land and resource-use by

Amerindians was the aforementioned Creek Bill, which was enacted on the 18

February 1838. This statute evinced a clear recognition on the part of the government of the importance of the hinterland, and it sought to set up a structure for monitoring settlement in and development of interior areas. As described in Chapter 6, jurisdiction was firmly asserted over land and resources in that permits or licences became necessary in order to build upon, cultivate or extract resources from lands within the

Colony. However, the indigenous population was specifically exempted from this regulatory scheme. The relevant sections provided as follows:

"10. And be it, and it is further enacted, that if any person or persons (save and except any Indian or tribe or Indians) shall, without having previously obtained from His Excellency the Governor a licence of occupancy, enter upon, or reside upon, or build upon, or cultivate any land in this Colony belonging to the Crown, or upon land the property of private individuals, without the permission of the owner or his representative, such Superintendent shall be, and he is hereby required and enjoined to report all the circumstances attending the same to the officer administering the government for the time being, and upon the receipt of his orders, to warn any such person or persons to withdraw from such lands within the space of three weeks after such warning.

11. And be it further enacted, that if any person or persons (save and except any Indian) shall, without having previously obtained from His Excellency the Governor a wood-cutting license to cut upon any of the ungranted lands of the Crown in this Colony, any timber or wood of any description, each and every Postholder in British Guiana shall have full power and authority to seize any timber or wood which shall have been so unlawfully cut, and the same safely to keep until the merits of such seizure shall be tried and determined before the Superintendent of the rivers and creeks of the County in which such wood shall have been so seized in manner hereinafter mentioned."

318 Several important aspects of these provisions must be noted. In the first place, the rights of Amerindians to carry out a range of activities - namely occupation, cultivation, construction on the land and woodcutting - were implicitly acknowledged and thereby protected. Second, there was no attempt at regulating the manner in which these activities could be exercised - in other words, there was no stipulation that woodcutting had to be only for specific uses like making dwellings or canoes, or that cultivation could only be on a subsistence scale. But perhaps of greatest significance is the fact that no restrictions were placed on where these activities could be carried out - that is to say, they were not confined to defined areas but could be exercised upon both public (designated 'Crown') as well as private lands.

Consistent with the above were the Land Regulations of 1839, regulation III of which stipulated that lessees were to pay Amerindians at agreed rates for timber or other materials purchased from them. Lessees were further required to keep a record of all such transactions, which was open to inspection by the Superintendent of rivers and creeks at any time. This clearly underscores the point that at that time, Amerindians were entitled to cut timber (and presumably other non-timber forest products) without having to obtain any licence or permit in advance. Thus, as evidenced by these statutes, in the early stages of British rule the colonial government was cognizant of the uses made by the Amerindians of the land and its resources, as yet making no inroads upon these practices.

319 Both the Creek Bill and the 1839 Land Regulations were repealed in 1861

"except in so far as such Regulations relate to Plantations in cultivation".1 In other words, the new provisions were intended to govern future land grants and not existing plantations. The 1861 statute was the forerunner of current laws governing the disposition of State lands in so far as it established rules and regulations for the sale and lease of Crown lands and for the issuing of wood-cutting licences and licences to occupy Crown lands. Amerindian "rights" were explicitly saved under section 40 of the new Ordinance. Although this section was devoted to permissible activities on Crown lands, the actual saving proviso in relation to Amerindians was framed more broadly.

Section 40 provided:

"It shall not be lawful for any person, except a Licencee or Grantee within the limits of his Lands, to cut or gather any wood, troolies, palm or other leaves, or to make any shingles, or to burn any charcoal, in, from, or upon any of the Crown Lands or Forests of the Colony, or to dig, remove, or carry away any soil, minerals, rock, stone, sand, or other substance or thing whatever therefrom;.... But nothing in this Ordinance contained shall be construed to prejudice, alter or affect any right or privilege heretofore legally possessed, exercised, or enjoyed by any Aboriginal Indian of this Colony."

Separate provision was made in section 46 of this Ordinance for punishing trespasses on private lands, covering all the activities prohibited on Crown lands, namely woodcutting, gathering troolies, palms and other leaves, making shingles, burning charcoal, and digging and removing any soil, minerals, rocks, stone, sand and other substances therefrom.2 There was no corresponding proviso which saved

1 Ordinance 14 of 1861, s. 1 2 Ibid, s. 46 320 Amerindian rights in relation to these activities on private lands. Nonetheless, indigenous persons could not be prevented from using private lands for those specified purposes because of the expansive nature of the saving clause in the preceding section

40, which stated expansively that "nothing in this Ordinance" was to "prejudice, alter or affect" any pre-existing Amerindian rights. This necessarily means that, whatever the intent of section 46 as regards permissible activities on private lands, the proviso to section 40 excluded it from operating in relation to the indigenous population.

One important aspect of section 40 is that it identified specific activities that persons were prohibited from carrying out on Crown lands without lawful authorization.

These encompassed activities relating to a particular range of resources - timber, non- timber forest products, and minerals - which remained the focus of legislative scrutiny and regulation for the entire period of British rule. This raises a necessary inquiry: given that Amerindians were not bound by the restrictions because of the saving proviso, did the activities identified (cutting wood, gathering leaves, digging for minerals) constitute an exhaustive list of things that they were permitted to do on Crown lands? Again, this surely could not be the intent of the enactment given the expansive wording of the proviso, which stated that Amerindians could not be prevented from undertaking any right or privilege that they legally "possessed, exercised, or enjoyed". This proviso therefore saved all existing rights, which necessarily included activities, customs and practices carried out by them prior to the enactment of the legislation. Even without the

321 proviso, inherent Amerindian "rights"3 to carry out unspecified activities would have amounted to property rights - necessarily protected by the common law and therefore not liable to infringement or extinguishment by mere statutory silence. There is therefore little doubt that Amerindian rights generally, in relation to both public and private lands in the territory, were not affected by the amendments in 1861.

In 1871 an amending Ordinance was enacted, under which the saving proviso to section 40 was repealed.5 That there was some doubt as to the efficacy of the repeal is evidenced from the wording of the amending provision itself, which asserted that "the provision relating to Aboriginal Indians in section 40 [is repealed] notwithstanding any law, or custom, that may support or seem to support such provision". Instead, under the

1871 amending Ordinance it was enacted:

"Henceforth the Governor may from time to time, by publication in the Official Gazette, make such regulations as to him shall seem meet, defining the privileges to be enjoyed by the Aboriginal Indians, in relation to the Rivers, Creeks, Crown Lands, and Forests, of the Colony, and may in like manner cancel, alter, and amend any of such regulations."

Regulations were later made under this section and published on the 12th

September 1871 purportedly "defining the privileges7 henceforth to be enjoyed by the

3 The distinction made here adopts the classification of Aboriginal rights by Asch and Macklem into 'inherent rights' and 'contingent rights'. While the latter owe their existence to formal recognition by the State, the former exist independently of recognition, inhering in the very nature of aboriginality: Michael Asch & Patrick Macklem, "Aboriginal Rights and Canadian Sovereignty: An Essay on R. v. Sparrow" (\99l)29Alta.L.Rev.49S 4 See chapter 7, supra, at pp. 277-8 5 Ordinance 12 of 1871, s. 1 6 Ibid, s. 2 7 Although the use of this word was a shift in language, no significance seems to have been attached to its use as the legislation alternated between the terms 'privilege' and 'right', sometimes within the same provision. At any rate, as these terms are defined, there seems to be no legal difference in meaning - see 322 Aboriginal Indians of the Colony in relation to the Rivers, Creeks, Crown Lands and

Forests of the Colony" to be as follows:

(i) Amerindians were permitted to cut timber only on unlicensed and

ungranted Crown lands for personal use, and if they wished to cut

timber for disposal [presumably this meant re-sale] then there were

further restrictions on how they could do so;8

(ii) Amerindians wishing to cut timber for "disposal" could only cut trees

that would yield timber squared of a size less than 12 inches;9

(iii) They could not dispose of timber or shingles to any person engaged in

the wood-cutting business, or to any person employed by someone in

the wood-cutting business;10

(iv) They were permitted to cut or gather troolies, palm or other leaves, to

make shingles from trees of any size, to burn charcoal on, and to dig,

remove and carry away any soil, rock, stone, sand or other substance

or thing but only from unlicensed and ungranted Crown lands;1' and

(v) They were explicitly prohibited from digging for and removing

minerals.12

Black's Law Dictionary, ed. Bryan A. Garner, 8th edition (St. Paul: Thompson & West, 2004) at pp. 1234 and 1347 8 Regulations dated 12th September 1871, reg. 1 9 Ibid 10 Reg. 3 11 Reg. 2 12 Ibid 323 These "privileges" were somewhat controversial in certain quarters. In the opinion of the T.G. Wight, the Crown Surveyor at the time, the Regulations granted

"privileges to the Aborigines far more extensive than had previously existed, and beyond what is necessary."13 Wight was plainly wrong in that the so-called privileges actually introduced a number of restrictions which had not appeared in the 1838 or even the 1861 Ordinances, but in any event the Attorney General responded magnanimously to his objections, stating that the country had "originally" belonged to the Aboriginal

Indians so that they should be permitted to cut whatever they chose from Crown lands and dispose of it as they saw fit.

Crucial questions exist, however, regarding the legal effect of these provisions, both in the enabling Ordinance and the subsequent Regulations. Did they in fact succeed, either individually or collectively, in extinguishing or restricting indigenous rights to the use of the land and its resources in the manner set out? If so, could such measures be lawfully enacted, or did they constitute a violation of the common law, or applicable principles of Colonial law? Alternatively, were they invalid by virtue of their inconsistency with the Articles of Capitulation, under which existing rights of property were guaranteed? If in fact the regulations were valid, did they constitute the sum total of all rights possessed by the indigenous population of the Colony? These issues recur throughout the nineteenth and twentieth centuries as the colonial government repeatedly sought to "define" (and redefine) the rights of Amerindians, and the resolution to the dilemma they pose lies partly through the application of the common law principles

13 Report of T.G. Wight, Crown Surveyor, dated 16th February 1881, CO 111/420, National Archives, UK 324 governing extinguishment. Although this issue has been discussed at length in the preceding chapter, it may be helpful to summarize the main governing principles at this point.

The legality of extinguishment of indigenous proprietary interests depended on the fulfillment of two prior conditions: first, the colony's legislature must have had the requisite constitutional power to do so, and second, where such power existed, it must have been exercised properly. It was argued above that privately owned lands, which included lands occupied by indigenous peoples, did not pass beneficially to the Crown.

The power to grant waste lands conferred in the Letters Patent extended only to public lands, or lands in which the Crown acquired a beneficial interest. This meant that lands occupied by Indigenous peoples of the territory (or lands subject to Aboriginal title) could not be lawfully granted. However, vacant lands were in a different position. The

Crown necessarily acquired a beneficial interest in them and could therefore extinguish or infringe indigenous rights existing in relation thereto (that is, Aboriginal rights short of title) by such means as were lawfully available - irrespective of what may have been contained in Treaties of Cession.14 What this meant was that, principally, any intention to interfere with indigenous rights on Crown lands had to be clearly and plainly expressed in the governing legislation.15

One crucial aspect of the clear and plain test is how it has been interpreted in relation to the statutory regulation of resource-harvesting industries or operations on

14 Sobhuza II v Miller and others [1926] A.C. 518 and see Sir Kenneth Roberts-Wray, Commonwealth and Colonial Law (London: Stevens & Sons, 1966) at Chapter 11 15 See summary of governing principles at pp. 311-6, supra 325 Crown lands. It is now fairly well-established in various common law jurisdictions that resource regulation, without more, merely restricts the manner in which a related aboriginal right may be exercised, without actually extinguishing the right itself. Thus, in Te Weehi v Regional Fisheries Officer,16 where the appellant was convicted of being in possession of 46 undersized paua, the New Zealand Court of Appeal quashed his conviction on the ground that his customary right to take shellfish for consumption had not been expressly extinguished by statute. The Court held that the appellant's customary fishing right as a Maori continued to exist, unaffected by the provisions of the Fisheries Act 1983 and regulations thereunder.

A similar approach has been taken in Canada. In R. v. Sparrow, where the appellant's Aboriginal right to fish was in issue, the Crown had submitted that the progressive restriction and detailed regulation of the fisheries had the effect of extinguishing any aboriginal right to fish, since the sovereign authority as exercised was necessarily inconsistent with the continued enjoyment of aboriginal rights. On this submission, the Supreme Court of Canada commented "At bottom, the respondent's argument confuses regulation with extinguishment." The Justices continued: "An aboriginal right is not extinguished merely by its being controlled in great detail by the regulations under the Fisheries Act. Nothing in the Fisheries Act or its detailed regulations demonstrated a clear and plain intention to extinguish the Indian aboriginal

16 Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 17 R. v. Sparrow (1990) 70 D.L.R. (4th) 385 18 Ibid, at p. 400 326 right to fish. These fishing permits were simply a manner of controlling the fisheries, not of defining underlying rights."19

In Australia, the Sparrow test was adopted in Mabo by Brennan J, who held that native title is not extinguished by "a law which merely regulates the enjoyment of

90 91 native title". Brennan J's dictum on this point was followed in Yanner v. Eaton, which concerned the legality of the appellant's capture of two juvenile estuarine crocodiles. The appellant did not have a licence or other permit as required under the appropriate legislation, and on appeal in the High Court one of the issues under consideration was the impact of the legislation upon the appellant's native title right as an Aboriginal Australian to catch crocodiles. Upholding the Magistrate's not guilty verdict, the High Court found that the legislation had not in fact extinguished the appellant's hunting and fishing rights, only going so far as to regulate the way in which such rights could be exercised. According to the leading judgment delivered in the case: Regulating particular aspects of the usufructuary relationship with traditional land does not sever the connection of the Aboriginal peoples concerned with the land (whether or not prohibiting the exercise of that relationship altogether might, or might to some extent). That is, saying to a group of Aboriginal peoples, "You may not hunt or fish without a permit", does not sever their connection with the land concerned and does not deny the continued exercise of the rights and interests that 99

Aboriginal law and custom recognises them as possessing.

Applying these principles to the legislation in question, the first point to note is that there was no impediment in the way of the Court of Policy, as the Colony's 19 Ibid, at p. 401 20 Mabo and others v Queensland (No. 2^ (1992') 107 A.L.R. 1 at 47 21 Yanner v. Eaton (1999) 166 ALR 258 22 Ibid, at p. 270 327 legislative body, enacting laws in respect of the exercise by indigenous peoples of their rights on Crown lands. The actual effect of the legislation would have depended on its terms and how clearly its intentions were expressed. It will be recalled that section 1 of the 1871 Ordinance purported to repeal the proviso relating to Amerindians in section

40 of the earlier, 1861 Ordinance. Section 40 had stated expansively that nothing contained in the Ordinance was to be construed to "prejudice, alter or affect any right or privilege heretofore legally possessed, exercised, or enjoyed" by Amerindians. Having regard to the plain words of section 1, therefore, what it accomplished was the repeal of the saving proviso - but not the repeal of the rights or privileges themselves. Any argument that the repeal of the proviso indicated a legislative intent to abrogate all rights possessed by Amerindians is an argument constructed upon implication - and as has been repeatedly laid down at common law, aboriginal rights cannot be terminated by implication. Rather, the standard of 'clear and plain' means that for extinguishment to occur, the specific activity or activities should be identified and then terminated, or there must be some other indication that the Legislature considered the rights in question and then decided to extinguish them - a standard not met in this instance by the mere repeal of a saving proviso.

Moreover, the actual saving proviso was consistent with the common law, which recognised and protected aboriginal rights as a species of private rights deemed to continue undisturbed in accordance with the doctrine of continuity. In other words, even in the absence of the specific recognition or protection provided by section 40,

23 Note discussion above, at pp. 292-308 328 aboriginal rights in general would have existed at common law. Thus, the repeal of the savings proviso simply meant that the specific prohibitions identified (namely, timber cutting, gathering palm and other leaves, burning charcoal and removing minerals and other things from the soil) in relation to Crown lands and private lands as set out in sections 40 and 46 respectively would henceforth apply to Indigenous and non-

Indigenous peoples alike. However, other unspecified, pre-existing rights possessed by

Amerindians in relation to both Crown and private lands, would have continued to exist notwithstanding the absence of formal recognition.

This brings us to the accompanying regulations, published on the 12th September

1871, which sought to "define" the privileges to be enjoyed by Amerindians in relation to the rivers, creeks, crown lands and forests of the Colony. As described above, these regulations delineated what Amerindians could do in relation to the activities enumerated in section 40, being the usual ones relating to timber cutting, gathering leaves and digging for minerals. Henceforth, as provided by these regulations,

Amerindians could continue to carry out these activities, but only on ungranted Crown lands and in accordance with the various stipulations identified.24 In relation to private lands, section 46 (unhindered by any saving clause) would now have applied to

Amerindians along with everyone else. However, did the 1871 regulations amount to a definition of all privileges possessed by Amerindians? In other words, were they an

For the avoidance of any doubt, the expression 'ungranted Crown lands' refers specifically to public lands, or lands in which the Crown acquired a beneficial interest. This does not include lands occupied by Amerindians, that is, lands subject to a declaration of Aboriginal title which, by definition, would have been outside of these provisions. 329 exhaustive list? There are a number of reasons why this could not have resulted from the legislation.

First, and most obviously, to interpret the regulations in question as the definitive list of Amerindian privileges exercisable in relation to the Colony would have led to drastic and patently absurd results. Only a very limited number of activities were listed in these regulations, but could it be reasonably inferred that the people who lived in these regions for thousands of years only cut trees, gathered leaves, burnt charcoal, made shingles and removed soil and other substances from the ground? Omitted from this list were many activities essential to supporting and facilitating life such as, for example, residing on the land and cultivating it (both of which had even been mentioned in earlier Ordinances), as well as hunting, fishing, traveling on the land, gathering substances from the environment for medicinal purposes, conducting ceremonial, social and sporting events and so on. All these activities are mentioned for the purposes of illustration only, and underscore the point that the activities "defined" in the 1871 Regulations could not sensibly be interpreted as a closed or exhaustive list of

Amerindian privileges in relation to the "rivers, creeks, crown lands and forests"; at best they amounted to the "definition" of only those specific activities identified in the regulations. Any other activity, practice or custom of Amerindian societies traditionally exercised or enjoyed by them continued by virtue of the common law, which recognised pre-existing private rights.

A supplemental argument is that interpreting the 1871 regulations as an exhaustive list of Amerindian activities permissible on Crown lands necessarily 330 involves the corollary that their rights to carry out all other activities were thereby extinguished. This would amount to extinguishment by implication, which is expressly prohibited under the common law. If the government of the day wanted to achieve this result, then express legislation was required demonstrating the necessary 'clear and plain' intention to extinguish specific rights or activities. Since no such legislation was enacted, one is left with the conclusion that the 1871 Regulations achieved the regulation only of those activities expressly identified therein, but did not constitute an exhaustive list of all privileges possessed by Amerindians.

Just two years later, in 1873, another change was effected, this time by the passage of an Ordinance establishing a Crown Lands Department.25 This Ordinance repealed both the 1861 and 1871 Ordinances and re-enacted comprehensive provisions relating to the issuing of grants and leases of crown lands and forests,26 while leaving extant the Regulations of 12* September 1871. As usual, under this 1873 Ordinance specific prohibitions were enacted. These applied both to Crown lands by virtue of section 32 and to private lands by virtue of section 38, and prohibited the specific acts by anyone of cutting and gathering wood, troolie, palm or other leaves, making shingles, burning charcoal and digging and carrying away soil, minerals and other substances. The preservation of the 1871 regulations meant that Amerindians were permitted to undertake these activities on Crown lands and Crown forests but not on

Ordinance 9 of 1873 Set out in Chapter 7, supra, at pages 268-9 331 private lands. Once again a general saving of Amerindian rights re-appeared in the law.

Under section 53 it was provided that:

"Nothing herein contained shall be construed to prejudice, alter or affect any right or privilege heretofore legally possessed, exercised, or enjoyed by any Aboriginal Indian in this Colony; provided always that it shall be lawful for the Governor from time to time, by publication in the Official Gazette, to make such regulations as to him shall seem meet, defining the privileges and rights to be enjoyed by any such Aboriginal Indian, in relation to the Crown Lands, Forests, Rivers and Creeks of the Colony, and in like manner to cancel, alter, and amend any such Regulations; and further provided that, until cancelled, altered or amended, the Regulations made by the Governor and published as aforesaid on the 12th of September, 1871, shall be held to be the Regulations defining the privileges and rights of Aboriginal Indians."27

Some observations on the meaning and impact of this provision are worth repeating. First of all, while the concluding proviso of the section might appear to suggest that the 1871 Regulations define the sum total of privileges and rights belonging to Amerindians, for the reasons given above this could not be the intention of the legislature. Even if it were, the necessary consequence of extinguishing all other

Amerindian rights was too drastic to be achieved merely by implication. The effect of section 53, therefore, was to ensure that Amerindians would be permitted to conduct the activities identified (cutting wood, etc) on Crown lands in spite of section 32, which prohibited those activities - though only in the manner defined in the 1871 regulations.

Regarding private land, the prohibitions contained in section 38 would have taken effect in relation to Amerindians notwithstanding the saving provision in section

53, because restrictions on their rights to carry out these activities would have taken

Significantly, the 1871 Regulations only referred to "privileges", so the wording of this provision reinforces the interpretation that the terms "privilege" and "right" were meant to be interchangeable. 332 effect with the repeal of the saving proviso in 1871. As described above, when the broad saving clause in section 40 was repealed in 1871, this cleared the way for the prohibitions on certain activities in relation to private lands as contained in section 46 of the earlier 1861 Ordinance to take effect in relation to Amerindians. This meant that those rights could not be deemed as still existing in relation to lands subject to private interests in 1873, so when the new Ordinance in that year reintroduced a saving clause in section 53, it did not prevent the section 38 prohibitions from applying to

Amerindians as only their existing rights or privileges were saved. Nonetheless, as before, all other unspecified activities which Amerindians would have been accustomed to carrying out, amounting to aboriginal rights, would have continued to be legally permissible on both Crown and private lands as private rights recognised under the common law and, once more, by virtue of a statutory provision (i.e., s. 53). Thus, in

1873 the only change from the substantive position that existed in 1871 was that the protection of activities carried out by Amerindians on Crown lands was ensured not only by the common law, but also by legislation.

In 1887 the law as to Crown lands was amended yet again, this time by legislation called simply the Crown Lands Ordinance, which repealed the 1873

Ordinance in its entirety and completely revised the law in this area. This time around the new Ordinance, departing from previous practice, contained no provisions in its principal sections regarding trespassing on private lands. Hitherto, all persons had been prohibited from carrying out the usual resource-related activities on private lands by

28 Ordinance No. 18 of 1887 333 section 38 of the 1873 Ordinance, but this section was not replicated in the revised

1887 Ordinance. The effect of private grants on Amerindian rights has been considered in detail in the previous chapter, and all that need be reiterated is that grants which purported to extinguish Amerindian rights of occupation (that is, grants issued over lands subject to Aboriginal title) were unlawful, as the Legislature lacked constitutional authority to so act. However, Amerindian rights (short of title) over public lands could have been extinguished or infringed - but only by clear and plain legislation. As to the specific position regarding any particular locality, this would have to be assessed on a case-by-case basis, taking into account the enabling legislation and the terms of the actual grant, measured against the actual pre-existing right asserted.

Still, this leaves for consideration those provisions of the 1887 Ordinance that governed permissible activities on ungranted and unlicensed Crown lands, and their impact on pre-existing Amerindian rights. By section 23 of the 1887 Ordinance it was made an offence for "every person" to "trespass on or unlawfully occupy" Crown lands, except for travelers, persons with competent authorization or those claiming possession directly or through a superior. Section 24 prohibited taking anything from Crown lands without the authority of a grant, licence or permission. These provisions were explicitly excluded from applying to Amerindians by section 43, which re-enacted in identical terms the general saving of existing Amerindian rights found in section 53 of the 1873

Ordinance and for the time being preserved the 1871 regulations. Thus as regarding

Ordinance 9 of 1873 See discussion in Chapter 7, supra, at pp. 311-6 334 Crown lands, there was no change in the substantive position existing under the 1873 legislation as it related to Amerindian rights.

The 1871 Regulations were eventually cancelled in 1890 by regulations made under the revised 1887 Ordinance. Under the new 'Indian Regulations' (as they were called), which were published on the 1st November 1890, far more detailed provisions were instituted regarding the Colony's indigenous inhabitants. These regulations, which have survived to this day with only minor modifications, purported to contract significantly some of the rights that had been recognised unreservedly in previous statutes, as outlined hereunder:

(i) Amerindians were permitted to occupy ungranted and unlicensed

Crown lands freely but only for the purpose of residence. Rights to

clear the forest and to cultivate any ungranted Crown lands were

restricted in accordance with terms specifically laid down in the

regulations, described below,

(ii) Amerindian rights to clear any ungranted forested lands for the

purpose of cultivation were restricted in certain regions to lands

already worked out by a licensed wood-cutter or lands previously

cleared and cultivated. The areas to which this restriction applied

included specified points on six of the major rivers (the Essequibo,

Mazaruni, Cuyuni, Demerara, Berbice and Corentyne) at which there

31 CO 115/71, National Archives, UK 32 Indian Regulations 1890, reg. 7 335 were no waterfalls to obstruct woodcutting and the transporting of

timber, and in relation to everywhere else in the Colony from the

point where the rivers and creeks were "navigable for the

transportation of timber in ordinary weather" - except for such areas

where from the nature of the forest or because of other reasons, there

were no woodcutting operations. In other words, this provision

made it patently clear that Amerindian rights to clear the forest and

cultivate the land were subordinate to the timber industry.

(iii) Amerindian rights to "cut, dig or remove" any substance or thing

from ungranted and unlicensed Crown lands were henceforth to be

confined only to such things required for the purpose of building a

dwelling house.34

(iv) Amerindians were permitted to cut and gather from ungranted and

unlicensed Crown lands any troolie, or other palm leaves, posts, spars

or hollow trees for kokers, and any tree for the purpose of making

certain crafts, but henceforth were required to obtain permission in

writing from the Magistrate of the relevant district in order to do so.

(v) Amerindians were permitted to cut timber on ungranted and

unlicensed Crown lands for personal use, and if for disposal then only

Ibid, reg. 8 Ibid, reg. 9 Ibid, regs. 11 & 12 336 in very limited circumstances and under certain conditions as

specified therein, namely:

(a) No bullet trees were to be cut under any circumstances;

(b) In relation to all other types of wood, only trees of a specified size

could be cut - which for greenheart trees were those that would

square not less than 12 inches and for all other trees those that would

square not less than 6 inches;37

(c) Written permission was required in advance from the Magistrate of

TO

the relevant district in order to cut any timber;

(d) Permission was only to be issued for 3 month periods, though the

latter could be renewed;

(e) Timber could only be cut for resale to the government, or to private

individuals only if the latter wanted the timber for personal use and

not for resale.40

The penalties for the contravention of these regulations ranged from a reprimand in the case of a first breach to suspension of the privileges for six months in the case of a second breach and forfeiture of the privileges altogether for a third breach.

Compared to what had been made before, these 1890 regulations acknowledged far narrower rights or privileges of Amerindians in relation to crown lands and forests 36 Ibid, reg. 10 37 Ibid 38 Ibid, reg. 12(1) 39 Ibid, reg. 12(3) 40 Ibid, reg. 13 41 Ibid, reg. 18 337 insofar as certain specific activities were concerned. Rights of cultivation, for example, last mentioned in 1838 but existing nonetheless in relation to all lands since they had never been specifically abrogated, now made a formal reappearance, though henceforth the latter were specifically restricted to areas on Crown lands that were not suitable for logging operations. Rights to cut timber became subject to further restrictions, such as a prior requirement of obtaining permission, and prohibitions on resale of timber cut; while cutting, digging and removing any substance or thing from the land was now permissible only for the specific purpose of erecting a dwelling house. Moreover, rights to cut and gather troolies and other leaves from Crown lands could only be exercised for making crafts. No specific mention was made of minerals in these Regulations, which was due to the fact that separate legislation was now enacted for the mining industry.

Where Amerindians required the use of any of the listed resources for any purpose other than those specified, they now needed to obtain written permission in advance. Since these provisions were clear enough, there can be no doubt that they succeeded in regulating the exercise of the rights on Crown lands in the manner outlined.

The next major revision relating to land occurred in 1903, when the new Crown

Lands Ordinance42 entirely repealed the 1887 Ordinance. This Ordinance is still in force, though it has been subject to various amendments over the intervening century. It was essentially a consolidating Ordinance, and while minor amendments were made with regard to the legal interests that could be granted in relation to crown lands, no change was effected to the provisions regarding Amerindians. Thus, while section 20

42 Ordinance No. 32 of 1903 338 criminalized trespassing on crown lands, with the same exceptions as contained in the

1887 Ordinance, this prohibition was excluded from applying to Amerindians by virtue of section 41, which reproduced the saving provision in identical terms.

The following year, on 18l August 1904, new regulations with respect to

Amerindians were made under the authority of the 1903 Ordinance, apparently replacing the 1890 version.43 These new regulations substantially replicated the earlier ones - as before, the same rights as to residence and occupation of Crown lands were set out, along with the same rights as to cutting and gathering wood and other resources from the forest. In fact, the only significant changes were the inclusion of a prohibition on using certain trees for bleeding balata and making charcoal.

The 1904 regulations were revoked and replaced by yet another version made on the 10th August 1910.44 The latter substantially re-enacted the 1904 provisions, but with a few changes that were mainly administrative in nature. The only change of substance dispensed with the requirement of permission in order to cut or gather troolie or other palm leaves, posts, spars or wattles or to make kokers from hollow trees.45 In addition,

Amerindians were prohibited from cutting a number of other species such as Bullet, rubber and letter wood trees in order to make posts, spars, wattles or rollers.46 Aside from these matters, however, the same rights regarding residence, cultivation, cutting timber and gathering leaves as defined in 1890 and 1904 were once again reproduced.

Indian Regulations 1904, published in the Official Gazette dated 28* September 1904 Indian Regulations 1910, published in the Official Gazette dated 13 th August 1910 Ibid, reg. 8 Ibid 339 In 1948 there were two amendments to these regulations, but again they were of an administrative nature. They provided that under regulation 9(1) an application for permission to cut timber or to do any of the other activities specified therein could only be refused with the approval of the Protector of Indians; and under regulation 10(1) permission to dispose of articles could also be obtained from the nearest officer of the

Department of Lands and Mines. An amendment was also introduced to make

Amerindians liable to pay royalties on articles sold, but it was to be short lived, being deleted the following year. Aside from these amendments in 1948 and 1949, the

Indian Regulations of 1910 remained in force for the rest of the period of British rule, and in fact they still exist, incorporated in the law as the State Lands (Amerindians)

Regulations.

Thus, to summarize, the position of general Amerindian rights over lands and forests as it stood under these Regulations in 1910 and thereafter up until the end of

British rule was that on lands classified as Crown lands, Amerindian rights of residence, cultivation and pursuit certain activities generally connected to the use of specific resources were strictly regulated. While the provisions discussed above seem to assume that all ungranted lands constituted Crown lands, legally this was an incorrect assumption. The Crown gained a beneficial interest only to vacant lands, or lands not occupied by Indigenous peoples, so that these regulations applied only to those lands, and not lands subject to Aboriginal title. Regarding the former (that is, public or vacant

47 Indian (Amendment) Regulations 1948 48 Indian (Amendment No. 2) Regulations, No. 1 of 1949, reg. 1 49 Under the State Lands Act, Chapter 62:01, Revised Laws of Guyana, 2002 340 lands), Amerindian rights were not necessarily extinguished, for regulations which merely govern the usufructuary relationship of indigenous peoples with the land do not necessarily sever that relationship. The Indian Regulations enacted successively in

1871, 1890, 1904 and 1910 controlled in great detail the use on Crown lands of certain resources, particularly timber, specific non-timber forest products (notably troolies, palm and other leaves) and soil, rocks, stones, sand and minerals. At no time, however, did they purport to extinguish Amerindian rights in relation to these resources altogether

- on the contrary, they sought to preserve Amerindian privileges in relation to the use of these resources and in some cases they introduced rules controlling how the resources were to be harvested and disposed of. Most importantly, all other unspecified activities carried out by Amerindians prior to the making of these Indian Regulations, that is to say inherent Aboriginal rights, continued by virtue of section 41 of the Crown Lands

Ordinance 1903. This is because under this statutory provision the rights and privileges

"heretofore legally possessed, exercised, or enjoyed" by Amerindians received explicit protection, and could not be derogated from other than in accordance with the terms of the section, quite apart from their preservation under the common law also.

Thus, in the course of British rule, in relation to public lands which comprised ungranted and unlicensed lands classified as Crown lands - but not lands subject to

Aboriginal title - while Amerindian rights in relation to certain resources were infringed by regulations that strictly controlled certain resource-extractive industries, all other inherent Aboriginal rights possessed by them continued to exist undisturbed.

341 Amerindian Rights in Crown Forests

As discussed above, throughout the nineteenth century the power to issue grants, leases, licences and permissions in relation to both lands and forests had been dealt with under successive Crown Lands Ordinances, with the regulation of Amerindian rights, particularly in the area of woodcutting, becoming increasingly detailed throughout this period. However, in the second half of the nineteenth century there was an explosion in the forestry sector, with the trade in timber transformed into a "booming industry".50

Although from 1861 onwards the Crown Lands Ordinances and their accompanying

Regulations were repeatedly revised to cater for this boom, evidently those provisions were felt to be inadequate and in 1927 specific legislation was enacted for the forestry sector, namely the Forest Ordinance.

Under this Ordinance, the Governor-in-Council was empowered to declare a forest reserve on any part of Crown land and to vary or revoke such Proclamation.51

Notably, prior to making any declaration the Governor had to be satisfied that "such rights and privileges of private persons as may exist in respect of such land have been satisfactorily defined and recorded..." Additionally, Amerindian rights were preserved, in the same format as set out in the Crown Lands Ordinances.52 The combined effect of both sections 3 and 26 could clearly have worked to the advantage of Amerindians, but it is doubtful whether section 3 was ever observed and certainly the existence of

M. Noel Menezes, British Policy Towards the Amerindians in British Guiana, 1803-1873 (Oxford: OUP, 1977) 123 51 Ordinance 29 of 1927, s. 3 52 Ibid, s. 26 342 indigenous rights in forested lands never proved to be an obstacle to the actual issuing of leases and licences.

In 1953 the forest laws were comprehensively overhauled and the 1927

Ordinance was replaced by a newer version, which is still in force.54 As before, the

Governor was empowered to declare any area of Crown land to be a Crown forest, though as with previous legislation there was no definition of what constituted 'Crown land'. While declarations actually made under this section were fairly extensive, the empowering section itself expressly excluded privately owned land from falling within any declaration. 5 Further, only grants of a leasehold nature were permissible in relation to Crown forests.56 An offence was created of trespassing or unlawfully occupying any

Crown forest, the only exceptions being for travelers and those claiming under a bona

en fide claim of right. Further provision was made to forbid cutting or removing forest produce, widely defined to include timber, trees, charcoal, plants and other things,58 without a valid contract or lease issued under this Ordinance or other legislation.59

In none of the above provisions was any exception made for Amerindians. Did this mean that they could no longer occupy or utilize Crown forests unless they first obtained a lease or licence from the State? In the first place, since 'Crown forests' could

53 Anna Benjamin, and Laureen Pierre, Review of Legislation in Relation to Land, Forestry and Mining (unpublished; Amerindian Research Unit: University of Guyana, 1995) 54 Forest Ordinance, No. 15 of 1953; Note, a Forest Bill is presently before Parliament which, if enacted, will repeal the 1953 statute. Its provisions in relation to Amerindians are considered in the following chapter. 55 Ibid, s. 3 56 Ibid, s. 7 57 Ibid, s. 18(a) 58 Ibid, s. 2 59 Ibid, s. 19 343 only be declared on Crown lands not privately owned, by definition the former could not include forested areas subject to Aboriginal title. In relation to declared Crown forests, the question of Amerindian rights therein is complicated by the specific exclusion of the Crown Lands legislation (which necessarily included the Indian

Regulations made thereunder) from applying to Crown forests by the 1953 Forest

Ordinance.6® Section 37 of the 1953 Ordinance provided for the saving of existing

Amerindian rights,61 as follows:

"Nothing in this Ordinance shall be construed to prejudice, alter or effect [sic] any right or privilege heretofore possessed, exercised or enjoyed by any Aboriginal Indian in this colony; Provided always, that it shall be lawful for the Governor, from time to time, by publication in the Gazette, to make such regulations as to him may seem meet defining the privileges and rights to be enjoyed by any such Aboriginal Indian, in relation to Crown forests."

However, no regulations were ever made pursuant to this power, which meant that with the enactment of the separate forestry legislation, combined with its exclusion of Crown

Lands legislation, the statute law of the Colony had now become silent as to exactly what rights Amerindians possessed in relation to crown forests as opposed to crown lands.

Considering this lacuna, Anna Benjamin and Laureen Pierre, both formerly of the Amerindian Research Unit at the University of Guyana, tentatively question

"whether it could be argued that although the [Crown Lands Ordinance] does not apply to [Crown] forest, the Amerindian rights in relation to ungranted forest which are set

60 Ibid, s. 4 61 Note also s. 42r, conferring power on the Governor to make regulations "defining the rights and privileges of Amerindians and regulating the exercise of such rights in State forests" 344 forth there represent 'traditional' rights which are therefore safeguarded under the savings clause [that is, section 37].. ."?62 The answer to their question of course must be emphatically in the negative, principally because of the unambiguously broad nature of the saving clause. But even prior to considering that clause, it is crucial to correct an obvious misapprehension revealed by this query - namely, that the provisions set out in the Indian Regulations made under the Crown Lands Ordinance somehow constitute

"traditional rights". Quite the reverse, those regulations represented invasive and in some instances oppressive restrictions upon activities that Amerindians could carry out on Crown lands. Whereas in the pre-contact period Amerindians would not have been subject to any restrictions regarding the use and occupation of the land and forests

(other than restrictions arising out of their own laws or customs), with the enactment of these Regulations all sorts of conditions were imposed on how they could carry out certain activities. In some instances the prior permission of a government official was required; permission was valid for limited periods and had to be constantly renewed, in vast areas of the country they were prevented from clearing the land for cultivation, and in many instances their use of certain resources was tightly controlled. Interpreting the words 'rights' and 'privileges' literally therefore, the regulations under the Crown

Lands Ordinances could hardly be classified as such - quite the contrary, in fact, they restricted rights that were freely exercised prior to British rule.

That said Benjamin and Pierre are correct in concluding that the answer to this question is provided partly by the saving clause. Any activity carried out by

62 Supra note 53 345 Amerindians in any of the forests, which could be classified as a "right or privilege" hitherto exercised or enjoyed by them, were rights or privileges expressly protected by section 37. The exclusion of the 1910 Indian Regulations from applying to Crown forests logically meant that Amerindians were not constrained by those detailed restrictions specified therein as regards wood cutting and other activities, insofar as they wanted to exercise such rights in Crown forests as distinct from Crown lands. Instead, they could exercise those saved rights unconstrained by the detailed regulations laid down in the Indian Regulations 1910. Put another way, Benjamin and Pierre are correct in their assessment that the saving provision in section 37 of the Forest Ordinance meant that Amerindian activities in Crown forests were safeguarded, but are incorrect by saying that the safeguarded activities were constituted or defined by the Indian

Regulations. Aside from section 37, the common law would also have saved inherent rights in Crown forests, in the same way as these were saved on Crown lands.

The position as regards Crown forests over which third party rights were issued is somewhat more complicated. No doubt, the intent of the government was to prevent

Amerindians from exercising any rights, or at least rights as to woodcutting, in lands granted by leases and other terms. This much is clear from provisions in the principal

Ordinance that purport to confer "exclusive rights" on grantees to obtain forest produce within the area leased. The relevant section reads as follows:

"The Governor or forest officers authorised by the Governor may grant leases giving to holders thereof the right to obtain forest produce or any

346 specified kind of forest produce from Crown forests. Such leases may be for the grant of exclusive rights to the holder thereof."

This section is reinforced by the accompanying Regulations, which provide that a "lease granting exclusive wood-cutting or timber cruising rights over any area of

Crown forest shall be in the form set out in the Second Schedule.. ."64 The accompanying form of woodcutting lease in the Second Schedule provides in its first clause that exclusive rights are granted "to cut wood" within the area granted, and again in clause 3 that "This agreement shall convey to the lessee the right to cut and remove wood from the above area on payment of the prescribed or agreed royalties and to do such things as can reasonably be regarded as necessary for this purpose but shall convey no other rights whatsoever."65

These provisions, read together, indicate plainly that the legislature's intention was that lessees would obtain exclusive rights to cut wood, along with such other rights to facilitate this purpose (such as, for example, rights of access to the forest in question), but no other rights in relation to the forest. At common law, therefore, these provisions would have ordinarily succeeded in suspending, for the duration of the lease, corresponding Amerindian rights to cut wood within the area of the grant and possibly such other rights that would interfere with the lessee's exclusive right to cut wood. This result, however, was frustrated by section 37, which provides unequivocally that nothing in the Ordinance can "prejudice, alter or affect" any Amerindian right.

63 Ordinance 15 of 1953, s. 7(1) 64 Forest Regulations, No. 38 of 1953, reg. 7; emphasis supplied 65 Ibid, Second Schedule 347 Whatever the intention of the regulations, the saving of Amerindian rights and privileges meant that lessees obtained exclusive rights against all except Amerindians.

Accordingly, with the enactment of separate legislation for the forested areas of the Colony, which expressly saved Amerindian rights therein without any accompanying comparable definition of those rights, the result was that Amerindians could not be prevented from exercising their inherent rights or carrying out their traditional activities in forests, whether these were classified as private, or ungranted

Crown forests, or forests subject to Aboriginal title.

Amerindians and Mining

Adding to the intricate web of provisions governing land and resources were separate laws for the mining sector. The earliest mention of minerals came in 1871 in the Regulations regarding Amerindian privileges.66 Prior to 1871, Amerindians had been permitted to dig for and remove any minerals, soil, rock, stone, sand or other substance or thing from rivers, creeks, Crown lands and forests, but by the regulations made in that year (and passed to coincide with the increase in popularity of interior gold mining) they were henceforth explicitly prohibited from digging for minerals. By 1887, when the next Crown Lands Ordinance was passed, section 9 provided:

"No grant or sale of any Crown Lands shall be deemed to confer or to have conferred any right to any mineral in such Crown Lands, and all such minerals, notwithstanding any such sale or grant, shall be deemed to remain and shall remain the absolute property of Her Majesty."

66 Made under Ordinance 12 of 1871 and published on 12th September 1871 348 Thereafter, in all successive Crown Lands legislation, this provision was re-enacted, minerals being "reserved" as the absolute property of the Crown. Could this be validly done? The Articles of Capitulation had preserved both the existing law as well as private property, and under Roman-Dutch land law ownership of the land carried with it ownership of sub-surface minerals. However, having regard to dicta emerging both from the Privy Council and other parts of the Commonwealth as discussed above, the

Legislature could effectively terminate traditional ownership rights in this regard, notwithstanding the express terms upon which the three Colonies had capitulated.

In 1880 the first legislation devoted exclusively to mining was enacted, under which the Governor was empowered to issue licences to mine for gold and silver on ungranted Crown lands.67 It was replaced in 1887 by the Mining Ordinance,6* a more comprehensive statute which set out the procedures for and conditions of mining licences and concessions. Under this Ordinance it was explicitly provided that the

Governor could issue concessions and licences over private lands.69 Benjamin and

Pierre posit that mining has traditionally been given precedence over all other economic activities in the interior, asserting: "From the beginning mining districts were declared... wherever a gold strike occurred, and usually with scant reference to any other consideration. The presence of indigenous communities in a given locale, therefore, was no bar to the declaration of a mining district, once it was known to be

An Ordinance to make provision for gold and silver mining, Ordinance No. 16 of 1880, s. 2 Ordinance No. 4 of 1887 Ibid, ss. 4&5 349 auriferous or diamantiferous." There can be no disputing these historical realities, for there are numerous notorious instances where Amerindian land use rights were trumped by mining interests. For example, as will be described below, a system of Amerindian districts and reservations was created in the early twentieth century, ostensibly to protect indigenous communities from the ravages of settler expansion and resource exploitation. But belying such intentions were powers conferred on the Governor to alter or revoke entirely any Amerindian district or reservation71 - which power was exercised in 1959 when an area spanning some 1,500 square miles of Amerindian territory in the Upper Mazaruni was de-reserved in order to facilitate mining.

However, such instances amounted to a manipulation or even abuse of the law by the Executive, for mining laws consistently protected lands used by Amerindians from mining regardless of their formal status as to ownership and title. Under the Gold

Mining Regulations, made on the 25th May 1887, it was provided that mining claims could only be located on Crown lands "not previously lawfully occupied."73 This prohibition captured not only lands subject to lawfully created private interests but also lands "occupied and used" by Amerindians, by virtue of a subsequent regulation which expressly provided: "All land occupied or used by the Aboriginal Indians and all land necessary for the quiet enjoyment by the Aboriginal Indians of any Indian settlement shall be deemed to be lawfully occupied by them."74 Moreover, it was specifically

70 Supra note 53 71 Aboriginal Indian Protection Ordinance, No. 28 of 1910, s. 4(2) 72 Report of the Amerindian Lands Commission, Government of Guyana, 1969, paragraph 13 73 Gold Mining Regulations 1887, reg. 5 74 Ibid, rag. 102 350 provided that claims could not be located on private lands without the owner's

consent.75

In the following decades over the course of British rule, the mining Ordinances

and their accompanying Regulations underwent repeated revisions. Eventually, it came to be specified explicitly that claims were only to be located on Crown lands. In

addition, the prohibition against locating claims on lawfully occupied lands, which included lands occupied and used by Amerindians, was consistently reproduced in each

successive version of the law.77 It is no secret that the reality has been vastly different, and the ravages of mining on Amerindian communities have been exposed by countless studies and scholarly publications over the years. Irrespective of these realities, however, the law - up until this point at least - certainly set out a framework for the protection of Amerindian rights and the preservation of their communities. Moreover, these conclusions - while based on the legislative scheme - are reinforced by the

75 Ibid, reg. 97 76 Mining Regulations 1899, reg 5; Mining Regulations 1903, reg. 6; Mining Regulations 1905, reg. 6(1) 77 See for example Mining Regulations 1892, regs. 12 & 172 respectively; and thereafter Mining Regulations 1899, regs. 10 & 155; Mining Regulations 1903, regs. 6 & 173; Mining Regulations 1905, regs. 6(1) and 199 78 See for example P.S. Peberdy, Report of a Survey on Amerindian Affairs in the Remote Interior: With Additional Notes on Coastland Population Groups of Amerindian Origin (Government of British Guiana, 1948), where at para 26 the author found that "drunkenness, sexual promiscuity and general moral degeneracy" is particularly noticeable in Amerindian settlements adjacent to mining townships. 50 years later there would be little difference in the economic, social, environmental, cultural and other impacts on Amerindian communities, described altogether as "devastating" by anthropologist Marcus Colchester- see Guyana: Fragile Frontier (London: Latin American Bureau, 1997), Chapter 5 generally and particularly at pp. 65-69 351 common law, under which 'Crown lands' would not have included lands occupied by

7Q

Indigenous peoples, or which were subject to Aboriginal title.

The statutory provisions regarding mining rights possessed by Amerindians are less easy to decipher, mainly because there was no explicit statement of those rights in any of the Ordinances enacted during the British period. Consequently, the true position has been the source of much debate, and even confusion. The 1871 Regulations QA prohibited Amerindians from digging for and removing minerals from Crown lands, but when these Regulations were replaced in 1890 no mention was made of this prohibition in the new version. This was not accidental, but signaled a new approach to this issue as set out in the revised mining legislation. Regulation 101 of the Gold Mining

Regulations J 887 provided that Aboriginal Indians were not to be "affected" by the

Regulations, which meant they were effectively excluded from the regulatory scheme of the law and could dig for minerals without having to go through the processes specified therein. Reinforcing this conclusion, regulation 103 prohibited Amerindians from taking gold or precious stones from lands already subject to claims, implying thereby that they could lawfully dig for gold and precious stones in all other areas; also it was provided O 1 that Amerindians were required to re-sell gold and precious stones to the government.

Read together these provisions indicate that the absolute ban on digging for minerals

7 As laid down in Amodu Tijani v Southern Nigeria [1921] 2 A.C. 399 at 409-10, for instance, the Crown's radical title could be nothing more than administrative authority, that is, imperium rather than dominium. See the previous discussion of what constituted public lands in Chapter 5, supra, at pp. 197-9, and the implications of the 'Crown lands' designation, discussed in Chapter 7, supra, at pp. 277-81 80 Regulations dated 12th September 1871, reg. 2 81 Gold Mining Regulations 1887, reg. 107 352 imposed on Amerindians in 1871 had now been relaxed, accounting thereby for the omission of the prohibition on mining in the Indian Regulations of 1890.

These provisions were reproduced in all subsequent incarnations of the Mining

Ordinances, and later versions made this position far more explicit. In the 1903 Mining

Regulations, for example, it was provided that "Aboriginal Indians shall not be subject to these Regulations: Provided that where an Aboriginal Indian is the holder of a claim, his privileges as an Aboriginal Indian under these Regulations shall be suspended so long as he continues such holder." Thus Amerindians could carry out mining operations on the same scale as any other person, or alternatively they could carry out traditional activities of digging for and removing gold, but only in the latter instance were they not subject to the regulatory scheme laid down in the law. In line with this interpretation are the parallel provisions in the Indian Regulations. While in 1890 there had been no mention of mining rights held by Amerindians, the Indian Regulations of

1904 provided: "Nothing in the Regulations shall authorize any Aboriginal Indian to dig for, or remove from any part of the Crown Lands of the Colony any gold or mineral, except under the Mining Regulations then in force."83 Since those Mining Regulations did not apply to them, those "privileges" - thus described by the legislation itself- necessarily referred to their ability to carry out non-commercial mining on Crown lands not licensed to third parties.

Mining Regulations 1903, reg. 172 Indian Regulations 1904, reg. 10(3); this provision was reproduced in the 1910 version in reg. 9(5) 353 Since, however, there is no explicit statement of Amerindian rights to mine in the Mining Regulations it was perhaps inevitable that there should be some confusion regarding what was permissible. According to Professor Menezes, for example, "The

Crown Lands Ordinance, Num. 32 of 1903 ignored the land rights of the Amerindians while the lengthy Mining Regulations, 1905 were illustrative of the government's usual ambivalence."84 Elaborating thereon, Menezes refers to regulation 199 of the Mining

Regulations and compares it to regulation 200 which, according to her, "denied their right to the mineral resources of the land." With respect, however, such reasoning is misleading, for these provisions concern entirely different issues.

Regulation 199 in the 1905 Regulations provided that all land occupied or used by Amerindians was deemed to be lawfully occupied by them, and was referable to earlier provisions that prohibited locating claims on lands lawfully occupied. Contrary to Menezes' interpretation, therefore, defining lands occupied and used by Amerindians as "lawfully occupied" was in fact a clear recognition of the proprietary rights possessed by Amerindians in lands they occupied. As for regulation 200, this prevented

Amerindians from disturbing anyone lawfully occupying a claim or removing gold or precious stones from land lawfully occupied as a claim. Since Amerindians were expressly made "not subject" to the Regulations,85 regulation 200 was necessary because Amerindians could actually dig for gold and precious stones without going through the procedures laid down by the law - so some protection was required for third

84 Menezes, M.N., "The Amerindians of Guyana: Original Lords of the Soil" [1988] 58:2 America Indigent* 353 at 358 85 Mining Regulations 1905, reg. 198 354 parties who had obtained rights to mine. In other words, regulation 200 was aimed at protecting third party rights, but implicit in its insertion is not a denial but rather a recognition of traditional Amerindian rights that harked back to the pre-1871 position.

Thus, rather than reflecting the government's ambivalence, the regulations governing mining made under both the Crown Lands Ordinances as well as the Mining

Ordinances demonstrated its recognition of traditional Amerindian rights - both to occupation of the land and use of its mineral resources.

Amerindian Reservations

At the dawn of the twentieth century, a number of factors coincided to result in a new direction regarding the Colony's indigenous inhabitants. There was, for instance, the increasing penetration of indigenous homelands caused by mining, logging and other resource extractive industries. At the same time, a conservationist philosophy swept across the British Empire, leading in many instances to protectionist legislation both in relation to lands and native peoples.86 In British Guiana, the 1899 Arbitral award

87 in favour of Great Britain provided the final impetus, leading to the Aboriginal

Indians Protection Ordinance in 1902 that sought to cordon off areas for Amerindian use and, superficially at least, protect them from the ravages of resource extractive industries. Underlying this approach was a philosophy of paternalism, which was to

86 William M. Adams, "Nature and the Colonial Mind" in Decolonizing Nature: Strategies for Conservation in a Post-colonial Era, eds Adams & Mulligan (London: Earthscan Publications Ltd, 2003) 6 87 Menezes 1988, supra note 84 88 Ordinance No. 21 of 1902 355 inform all subsequent legislation relating to Amerindians for the remaining period of

British rule of the Colony.

Under the 1902 Protection Ordinance the Governor was empowered to designate areas of the Colony as "Indian districts", for each of which there would be deputy Protectors.8 In addition, areas of "unoccupied Crown land" were to be set aside as reservations, as declared by the Governor.90 Only Amerindians could acquire or occupy land within a reservation, and non-Amerindians were prohibited from entering them, except in accordance with rules made by the Protector of Indians.91 Under the authority of this Ordinance, ten such reservations were created.92 However, while areas of the country were now officially recognised as Amerindian for the first time, these were not formally transferred to Amerindians in accordance with the legal systems introduced by either the Dutch or the British. In other words, aside from whatever rights

Amerindians may have possessed in relation to land by virtue of their own systems, or under the common law, formal recognition in the form of titles for these reserves (or for any other areas of Amerindian occupation for that matter) were not issued to them.

The 1902 Ordinance was repealed and replaced by the Aboriginal Indian

Protection Ordinance in 1910.93 As before, the Governor was empowered to designate areas as Indian districts and to create Indian reservations.94 This time around it was specifically directed that reservations were to be created only within Indian districts,

89 Ibid, s. 3 90 Ibid, s. 8 91 Ibid, s. 9 92 Proclamation dated 1904 93 Ordinance No. 28 of 1910 94 Ibid, s.4(l) 356 and not as before on any unoccupied Crown lands. Also introduced in this legislation was a power in the Governor to alter the limits of any district or reservation, or even to cancel them altogether.95 Once again, however, formal proprietary rights over these districts or reservations were not granted to or recognised in favour of Amerindians by this Ordinance.

In keeping with the previous Ordinance non-Amerindians were forbidden from entering or remaining in the reservations,96 and it became an offence for them to do so without lawful excuse.97 Although Amerindians were free to live outside of reservations the Governor was empowered to move them on and off reservations, or between different reservations or even from one district to another as he pleased. 8 Certain categories of Amerindians were exempted from the operation of this power, such as any who were employed, or holding a permit to be absent, females who were married to non-Amerindians and finally any Amerindian for whom, in the Governor's opinion,

"satisfactory provision is otherwise made". All others, it would seem, were liable to be carted around at the will of the Governor.

Regulations were made the following year which reinforced the inviolability of

Amerindian reservations. Under the Aboriginal Indians Protection Regulations of 1911, residence on reservations was restricted to Amerindians, female half-castes and various non-Amerindians carrying out certain official roles (religious, educational and

95 Ibid, s. 4(2) 96 Ibid, s. 14(1) 97 Ibid, s. 14(2) 98 Ibid, s. 10 99 Ibid, s. 11; Regarding the broader implications of these Protection Ordinances for Amerindian sovereignty, see the discussion in chapter 6, supra, at 238-47 357 domestic), and a system for obtaining permission was set up for all others wishing to enter or reside in reservations.

Although the 1910 Protection Ordinance survived for close to four decades, its protectionist goals remained unfulfilled. Not only were Amerindian communities damaged by the worst aspects of European culture, but it seemed as if the benefits of the latter had entirely escaped them. Amerindians were among the poorest of the society with apparently little prospects for economic and social development. A Royal

Commission established for enquiry into the social and economic conditions of the entire including British Guiana reported in 1938 that the population of Amerindians in British Guiana was rapidly decreasing. To forestall their extinction, the Commissioners recommended that both land rights and rights of way over private lands should be granted to them.101 As a result of this Report, P.S. Peberdy, the

Amerindian Welfare Officer, was mandated in November 1943 to investigate

Amerindian affairs in the interior and make recommendations for their "economic and cultural advancement". After several years of traveling among Amerindian villages and countless interviews with Amerindians as well as various government officials,

Peberdy submitted his report in January 1948. The 1910 Ordinance, it seemed, was a dead letter. Peberdy found that its provisions were routinely flouted, with the "clash

Regulations 2-7 Recounted in the ALC Report, supra note 72 at paragraph 36 Peberdy Report, supra note 78 at paragraph 1 Ibid, at paragraph 103 358 of cultures" responsible for "drunkenness, sexual promiscuity, and general moral degeneracy" among Amerindians.1

Peberdy identified many substantial problems in hinterland communities, such as poor health conditions, high infant mortality rates, shortages in educational facilities and problems resulting from lack of land tenure. He made extensive recommendations for improving Amerindian welfare, many of which were aimed at stimulating the economies of interior communities through the establishment of various business ventures. Around this time the ethos of protection that had given rise to the early twentieth century statutes governing Amerindians was being gradually eclipsed by a movement towards assimilation. This transformation was captured succinctly by the remarks of the newly appointed Commissioner of Interior, Mr. Gregory-Smith, who stated shortly after taking up his appointment:

"The question of adapting Amerindians to Western civilization has proved to be possible and generally desirable and the long range policy of Government should be based upon this fact. There must be no question of permanent segregation of these people and reservations should be looked upon as temporary sanctuaries and tribal Amerindians should be left alone only until such time as it is considered that they have reached a standard of civilization which will enable them to take their place in the general life of the Colony."105

However, old habits died hard, and protectionist and paternalist policies were still very present in Peberdy's approach, with many of his suggestions being made within the existing legal and administrative framework relating to Amerindians.106

Ibid, at paragraphs 26-7 Quoted in the ALC Report, supra note 72 at paragraph 40 Peberdy Report, supra note 78 at paragraph 175 359 Undeniably, the infusion of capital, skills and economic activities could only inure to the benefit of indigenous peoples, but since these proposals were predicated on the existing philosophy of Amerindian backwardness their prospects were doomed from the start. For example, Peberdy recommended the retention of districts, but suggested reducing them to just three land areas and abolishing all existing reservations.

Amerindians living in (and those who chose to migrate to) one of the three districts would have the benefit of the various economic ventures and would retain the

"privileges and full protection as wards of the State", while all others would forfeit those rights and privileges.

Some of Peberdy's recommendations were clearly too drastic - for example, the wholesale relocation of communities irrespective of historical ties to the land would have presented a logistical nightmare, quite apart from the cultural insensitivity and fundamental unconstitutionality of such a policy - and ultimately they were never adopted. Still, the Peberdy Report was followed by the repeal of the Aboriginal Indian

Protection Ordinance 1910 and its replacement by the Amerindian Ordinance in

1951, the latter representing the most extensive legislation to be enacted in relation to the colony's indigenous inhabitants up to that time. Despite its repeal many of the protectionist elements of the 1910 Ordinance were retained, no doubt because of

Peberdy's influence. In the place of reservations were now Districts, Areas and villages,108 and two years later ten Districts were declared under the Act.109 However,

107 Ordinance No. 22 of 1951 108 Ibid, s. 3 360 this represented merely a change in nomenclature, for formal rights of ownership of these areas under the legal system were still withheld from its occupants.

A significant innovation in the 1951 Ordinance was the establishment of a system of District, Area and village councils, which were intended to provide a local government structure for indigenous communities.110 Though problematic because of the limited powers granted to these bodies,111 this structure was to assume greater importance later on as it was through village councils that title to communities was eventually conferred. For the time being, however, this was still a couple of decades away.

At this time, around the middle of the century, the move towards independence began to gain momentum around the British Commonwealth, and British Guiana was no exception. In over a century and a half of British rule there had been no progress on the question of legal titling of indigenous communities, but particularly as a result of the lobbying of Stephen Campbell, the first Amerindian Parliamentarian, this became a crucial issue during the independence negotiations.113 At the Independence conference held in London in December 1965 it was agreed that legislation should be enacted to confer proprietary titles on Amerindians along with rights of occupancy and rights of

""Order 59 of 1953 110 Ibid, at Part V of the Ordinance 111 For a discussion of this aspect see Chapter 6 supra, at pp. 252-3 112 Roberts-Wray, supra note 14 at 259 113 Laureen Pierre, Stephen Campbell: First Amerindian National Politician, 1957-1966 (MA thesis, University of Guyana, 1993) 129-137 & 176-183 361 passage over any other lands that they traditionally enjoyed. To facilitate the process an Amerindians Lands Commission was set up in 1966,115 tasked with determining the areas of Amerindian residency at the time of independence and mandated to make recommendations regarding rights of tenure to be given to Amerindian communities and the nature of any such rights to be conferred.

It was at this conference in 1965 that agreement was finally reached on a date for independence and the constitutional structure of the new State. Although the process had been fraught with conflict and was boycotted in the end by the main opposition party, the enabling legislation was duly enacted and on the 26th May 1966 the Colony formally obtained its independence from Great Britain, thereafter to be called

"Guyana".117

Conclusion

In chapter 7 we examined the effect of Crown lands legislation upon the rights of Indigenous peoples of the Colony to ownership of lands occupied by them, as well as the effect of grants of Crown lands to third parties on Amerindian rights to use of its resources. We concluded that while there was no constitutional authority to grant lands subject to private ownership (including lands occupied by Indigenous peoples), public lands over which Indigenous peoples enjoyed rights short of title were in a different

114 Mohamed Shahabuddeen, Constitutional Development in Guyana 1621-1978 (Georgetown: Guyana Printers Ltd, 1978)589-590 115 Ordinance No. 23 of 1966 116 ALC Report, supra note 72 paragraph 6 117 Shahabuddeen, supra note 114 at 564-565 362 category. In the latter category, Amerindian rights were subject to extinguishment by the creation of absolute interests, but were only infringed by limited grants.

In this chapter we examined the effect on the rights of Amerindians by the regulations passed in relation to Crown lands. Invariably, these regulations concerned the harvesting of specific natural resources, primarily timber, leaves, charcoal and minerals. The position of Amerindian resource-use rights on ungranted Crown lands is far less complicated since the applicable legislation has always clearly identified what was permissible. At the outset of British rule certain privileges were recognised in fairly expansive form, but in the course of the nineteenth century the regulation of certain activities became increasingly more detailed. However, it is important to note that such regulation was only in relation to certain activities and specific resources, regarding which Amerindian rights came to be controlled in an increasingly detailed manner. By

1910, when regulations were enacted for the last time on this subject, the position of

Amerindians on ungranted Crown lands could be summarized as follows:

(i) their rights of cultivation were restricted to areas where logging was

not possible;

(ii) their rights to cut, dig or remove any substance or thing was restricted

for the purpose of erecting dwellings;

(iii) permission was required for the use of certain of resources and then

only for making craft; and

(iv) their rights to cut wood were strictly regulated as to the manner,

purpose and duration of such activities (though these restrictions were 363 to be excluded from applying to crown forests when separate forest

legislation was enacted).

It must be reiterated that the concern of the law was only with certain resources, which did not exhaust the uses Amerindians made of the land or the activities they conducted thereon. Under the common law, therefore, which deemed pre-existing rights to continue undisturbed, as well as under explicit saving provisions in successive Crown

Lands Ordinances, all other unspecified activities amounting to rights enjoyed or exercised by Amerindians continued unextinguished in relation to ungranted Crown lands, and even Crown lands subject to certain types of private grants.

When separate legislation came to be enacted for the forest sector, the rights of

Amerindians as described above were modified somewhat, as the Crown lands legislation was specifically excluded from applying to Crown forests and no corresponding provisions were inserted in the forest laws. Because of the omission of any regulations restricting the manner and exercise of Amerindian rights in Crown forests, combined with an explicit provision saving pre-existing Amerindian rights, the result was that Amerindians could not be prevented from exercising their inherent rights or carrying out their traditional activities in forests, whether these were forests subject to Aboriginal title or whether they fell within the classification of Crown forests, ungranted or granted.

As regards mining, after an initial ban in 1871, traditional rights to mine held by

Amerindians were restored in 1887, and thereafter acknowledged in all Ordinances and regulations passed in relation to this sector. Consistent with the approach adopted in 364 relation to all other industries, these traditional rights could not interfere with private

(third party) rights, and they were suspended where Amerindians wished to mine on a commercial scale, but insofar as they sought to exercise their traditional rights in this regard Amerindians were exempted from the regulatory scheme of the law.

By the beginning of the twentieth century, and consistent with trends around the

Empire, a system of "reservations" was instituted for the Aboriginal population. The intent was to create areas that would be accessible only to and by Amerindians, except where others obtained specific permission to enter therein. Although Amerindians could live off reservations, the Governor was granted an overarching power to move them on and off reservations, or between reservations, in his discretion. However, formal recognition of Amerindian customary ownership of these areas (or indeed any other areas of the country) was not accorded by legislation. At the same time, while the

British never granted positive rights to Amerindians regarding land for the entire period of colonial rule, neither did they legislate their wholesale dispossession.

365 CHAPTER 9

POST INDEPENDENCE DEVELOPMENTS

During the negotiations leading up to independence in 1966 the issue of

Amerindian land rights was thrust into the spotlight, partly through the advocacy of

Parliamentarian Stephen Campbell. Responsibility for settling this matter was shunted off to the newly independent government, a situation not lacking in irony given the fact that the departing Imperial power had had more than 150 years to settle the matter themselves. At any rate, even as events moved inexorably towards independence, agreement was reached among the parties at the Independence Conference in London in

1965 that this outstanding issue would be duly resolved following independence.

As it turned out, Amerindians had to wait a little while longer for the government to act, and when it finally did so the issue of land rights remained far from settled. Some communities were granted title while others were ignored, and even among the former considerable dissatisfaction remained surrounding the nature and extent of the titles granted. This is a situation that even now has not been fully resolved.

Although many of the controversial provisions in the Colonial legislation have been scrapped, there are at least three dozen communities which remain without formal titles to the lands they occupy. Further, although the most recent legislation includes a clearly defined mechanism to govern applications for and the determination of land claims brought by indigenous peoples, until that process is concluded - and concluded

366 favourably - Amerindian communities without legal recognition remain in a vulnerable position.

In this chapter I shall examine these developments in the law as they occurred, with a view to establishing the current status of Amerindian rights in relation to the lands they occupy and the resources used by them. For purposes of convenience I shall do so in two discrete parts, the first considering changes effected immediately after independence, a period spanning from 1966 to 1991, and the second examining the more recent reforms enacted after Guyana's so-called return to , from 1992 to the present.

Land Rights in the Immediate Post-independence Period

As a preliminary step towards settling the outstanding issue of Amerindian land rights the Amerindian Lands Commission Ordinance was enacted on May 20l , 1966,1 under which an official investigative body was established. The Preamble of this

Ordinance acknowledged that this body, to be known as the Amerindian Lands

Commission, (hereinafter the ALC) grew out of the 1965 Independence Conference, and it made reference to what was stated to be the Government's recognition that

"Amerindians should be granted legal ownership or rights of occupancy over areas and reservations or parts thereof where any tribe or community of Amerindians is now ordinarily resident or settled and other legal rights, such as rights of passage, in respect of any other lands

1 Ordinance 23 of 1966, now Chapter 59:03 [Revised Laws of Guyana, 2002] where they now by tradition or custom de facto enjoy freedoms and permissions corresponding to rights of that nature..."

Consistently with these aims, the remit of the ALC covered investigating and determining the areas of Amerindian residency at the time of independence, in the course of which it was required to identify clearly the tribe or community so entitled and recommend the nature of the rights to be conferred.2 Its recommendations were to include not only rights of tenure, but also such other freedoms and permissions the communities had traditionally enjoyed up to then. To this end the ALC was granted powers to summon witnesses, take evidence on oath and compel the production of books and documents. Apparently, the implications of this wide mandate were not lost on the ALC, for in the eventual Report it was stated that at the hearings

"the Commission was at pains to emphasise that any consideration of tenure of land by Amerindians would not only include lands on which they had their houses and gardens, but lands on which they had their farms or grazed their cattle. It was also made clear to them that their right to traverse unalienated Crown Land and to hunt and fish in accustomed places would be preserved in law no less than their rights to obtain without cost from forests, hills or swamps such materials as they needed for domestic use; further that any privilege they now enjoy of passing through alienated land to get to their fishing, hunting, or forest areas would be strengthened into rights where this has not already been done."4

The ALC was actually constituted in August 1967, and its first public meeting was held on the 25th September 1967.5 In the course of its work it made 31 tours to

2 Ibid, s. 3 3 Ibid, s. 10 4 Report of the Amerindian Lands Commission, Government of Guyana, 1969, paragraph 15 5 Ibid, paragraph 5 Amerindian areas throughout the country, and in 1969 it presented its report to the government. Voluminous and thorough, in this Report the Commission outlined its recommendations for each community in painstaking detail. While the claims totaled some 43,000 square miles - an area amounting to more than half of the country - most of these were rejected as "excessive" by the ALC, being "unduly large and disadvantageous to proper management and control".7 At the same time, the ALC claimed to take into account that some requests were too moderate, recommending in those instances larger grants of land.

In making recommendations as to what lands should be titled, the ALC seemed to be guided only by utilitarian considerations. In the course of their investigations they had canvassed the views of archaeologists, anthropologists, agronomists and

Amerindians themselves, but with the express aim of identifying areas of land required by communities for subsistence agriculture8 and later commercial agriculture9 when future generations would have become integrated into the national economy. However, this approach completely overlooked the fact that the relationship existing between indigenous peoples and their land transcends mere notions of use and resource exploitation, and has even been described in more sublime terms as having spiritual or even sacred overtones.10 No such considerations seemed to be operative in the minds of

5 Ibid, paragraph 8 7 Ibid, paragraph 215 8 Ibid, paragraph 148 9 Ibid, paragraphs 149-150 10 Milirrpum v Nabalco Pty Ltd., (1970-1) 17 F.L.R. 139 at 167; and for recognition at international law see Mayagna (Sumo") Awas Tingni Community v Nicaragua. Judgment dated 31 August, 2001, Inter-Am. H.R. (Ser. C) No. 79 (2001) at para 149 369 the Commissioners, however, and in the end they recommended such areas that to them were "adequate for general needs".11

Regarding the actual recommendations, these were that 128 communities be granted title to 24,000 square miles, including mineral rights to a depth of 50 feet. This would be facilitated through the vesting of freehold titles in the respective Village

Councils, which were to be converted into corporate bodies for this purpose.

Additionally, the ALC recommended that provision be made to restrain the Councils from disposing of the land except with the approval of "the Central Authority and/or the

i ^ majority of the electorate". In an Appendix the Commission also listed some 400 claims made by individuals and households for title, but which they stated required further verification.13

It took another seven years after the publication of this Report before the government acted upon its recommendations. No doubt this delay was due to the aborted rebellion that occurred in the Rupununi in 1969, even though that uprising had been swiftly and thoroughly suppressed.14 Whether the Rupununi uprising truly reflected a danger of Amerindian secession, or whether it merely provided a dim specter of this possibility, it not only led to the protracted delay in giving effect to the recommendations of the ALC, but it also clearly impacted on the area of lands titled for certain border communities as well as the nature of the actual titles themselves.

11 ALC Report, supra note 4 at paragraph 210 12 Ibid, at paragraph 155 13 Ibid, at paragraph 297 14 Marcus Colchester, Guyana: Fragile Frontier (London: Latin American Bureau, 1997) 50 370 When titles came to be granted in 1976, this was done through the existing

Amerindian Act of 1951 under which any part of the country could be declared an

Amerindian district, area or village by the State.15 Under section 3 thereof sixty-two

Amerindian villages and two Amerindian districts were specifically named in the first instance, all described in an accompanying Schedule. By another amendment the district, area and village councils established under the Act were designated corporate bodies, entrusted with the power to hold title in the lands falling within their respective boundaries "for the benefit and use of members of the Amerindian

1 7 community". Finally, under section 20A freehold titles were actually transferred to those sixty-four villages and communities - which, according to the mechanism set up by the Act, were vested in the Councils for and on behalf of their respective communities. Altogether, the land area formally recognised as belonging to indigenous communities in 1976 amounted to 4,500 square miles. Though small, and considerably less than what had been claimed by indigenous communities at the countrywide hearings, the significance of this process (not only the eventual titles but the consultative manner out of which they were recognised) cannot be overstated. It embodied an unprecedented development of the law, unparalleled in the treatment of indigenous peoples in all of the Guianas. By way of comparison, for example, up until today - more than thirty years after these first dispositions were made in Guyana - the

Amerindian Act. Chapter 29:01, Revised Laws of Guyana 2002, s. 3 16 lb id, sections 17&18 17 Ibid, s. 19(l)(a)&(b) indigenous communities of neighbouring Suriname have yet to receive official

i o acknowledgment, recognition or protection of their land rights.

Nonetheless, acknowledgement of the historic nature of these developments ought not to obscure the fact that significant deficiencies existed in the titles that were eventually granted. In the first place, the Minister was empowered to amend the

Schedule in order to create new districts, areas or villages, vary the boundaries of existing ones or remove them altogether.19 Where a village was deleted, or its boundaries varied inwards, its land would vest forthwith in the local authority for that area.20 By this simple route, therefore, the State could de-establish a village and thereby confiscate its land - not an improbable scenario as the Act laid down no guidelines, procedures or other safeguards circumscribing the Minister's exercise of this power. In fact, the Minister was not required to have, or even to state, any reason for its application, nor was he or she burdened by any process of consultation prior to its exercise. Although invoking this power would have been tantamount to the expropriation of private property, no preliminary procedure to obtain the consent of the affected village or to pay them any compensation was required by the Act. Because of these defects it is fairly indisputable that the powers of the Minister under this provision, insofar as they extended to depriving a village of its legally titled lands,

Fergus Mackay, "Indigenous and Tribal Peoples in Suriname: A Human Rights Perspective" in Indigenous Resurgence in the Contemporary Caribbean: Amerindian Survival and Revival, ed. Max Forte (New York: Peter Lang, 2006) 155 at 156 19 Chapter 29:01, s. 3(l)(a), (c) & (b) respectively; note, no Minister was identified in the section. 20 Ibid, s. 3(2) 372 violated the then existing constitutional protection of property and were accordingly unlawful.

There were other defects with the actual titles, which were limited in certain crucial respects. Specifically excluded were rivers and all lands sixty-six feet from the mean low-water mark, minerals and mining rights, existing airstrips as well as any land which in future could be designated as airstrips, and buildings and installations owned by the State along with the land on which they were situated. In addition to these reservations, under section 20A a number of conditions were attached to the titles, namely:

(a) they could be revoked or modified in the public interest, though except in certain

circumstances as enumerated below compensation would be payable;23

(b) titles for villages situated within ten miles of any of the country's international

boundaries could be modified or revoked, without the payment of compensation,

in the interests of "defence, public safety or order";24

(c) titles would be immediately voided in the event of alienation without the prior

approval in writing of the Minister;25

21 , 1966, article 8. This Constitution was replaced in 1980, and the current version of this right in article 142(1) provides: "No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except by or under the authority of a written law, and where provision applying to that taking of possession or acquisition is made by a written law requiring the prompt payment of adequate compensation." 22 Chapter 29:01, s. 20A(2) 23 Ibid, s. 20A(4)(a) 24 Ibid, s. 20A(4)(b) 25 Ibid, s. 20A(4)(c) 373 (d) titles could be forfeited where members of the community on whose behalf the

title was held were deemed "to be disloyal or disaffected towards the State or

have done any voluntary act which is incompatible with their loyalty to the

State", provided that before making any such determination the Minister was

obliged to consider any representations made by the affected Council; and

(e) ownership rights could be suspended for such period of time as determined by

the Minister within his or her discretion.27

Just one year later after their inclusion in the law these powers were invoked. By

Order No. 67 made in 1977 two new districts - in the north-west and

Kanashen in the deep south of the country - were inserted in the Schedule to the Act.

Ordinarily, by virtue of s. 20A(1) of the Amerindian Act, lands within the boundaries of all Districts, Areas and Villages named in the Schedule were by operation of law transferred to the Councils to be held for and on behalf of their respective communities.

This meant that these two Districts upon being inserted in the Schedule would have automatically become legally titled. However, Order 67 simultaneously directed under s. 20A(6) of the Amerindian Act that the provisions of s. 20A(1) were not to apply to these two new Districts. Consequently, titles to the lands within the boundaries of these

Districts remained vested in the State and were not transferred to those communities.

Reinforcing the sweeping nature of the powers under s. 20A(6), Order 67 had no expiry

Ibid, s. 20A(4)(d) Ibid, s. 20A(6) 374 date, and these two communities remained without formal land titles for almost thirty years.

Altogether, the conditions contained in section 20 A of the Amerindian Act created a confiscatory regime peculiar to land titles held by Amerindians. Aside from the titles' susceptibility to modification in the public interest, in which case compensation was payable, these conditions facilitated the potential nonconsensual acquisition of private property without compensation. However, with only one possible exception, none of the reasons for which these powers could have been invoked was captured by any of the exceptions to the property guarantee contained in the

Constitution. That exception was the power under s. 20A(4)(c) to void communal titles upon their assignment or other disposal without the written approval of the Minister.

This restriction was clearly linked to the historic inalienability of aboriginal title, which was in turn justified for the protection of native-owned lands from unconscionable sales. It could therefore have come within an exception to the property guarantee that permits the compulsory taking of Amerindian property for its "care, protection and management". But aside from this condition the remaining powers vested in the State over Amerindian titles clearly violated the protection conferred by constitutional

Note that additional grounds have been suggested for this limitation, such as, for example, one rooted in the fact that aboriginal title is a communal right, held by indigenous societies as political entities, which can therefore only be acquired by a comparable entity like the State (or Crown) but not a mere private individual: Kent McNeil, "The Post-Delgamuukw Nature and Content of Aboriginal Title" in Emerging Justice?: Essays on Indigenous Rights in Canada and Australia, ed. Kent McNeil (Saskatoon: University of Saskatchewan Native Law Centre, 2001) 102 at 129-32 29 This exception appears in article 142(2)(b)(i) of the current 1980 Constitution. 375 protection of property, did not fall within any exception, and were for that reason unlawful.

There was another feature of these s. 20 A conditions that impacted upon their constitutionality. Since the Ministerial powers of expropriation were unique to the communal property rights of Amerindians, they possibly violated the non­ discrimination clause in the Constitution also. Article 149(1) of the current Constitution, which prohibits both discriminatory laws and discriminatory treatment on the ground of race, is expressly excluded in relation to laws that make provision

"whereby persons of any such description as is mentioned in the preceding paragraph may be subjected to any disability or restriction or may be accorded any privilege or advantage which, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is reasonably justifiable."

This exception is often conventionally interpreted as facilitating what is loosely termed 'affirmative action', but purely as a matter of construction it need not be confined to beneficial discrimination as the imposition of "disabilities and restrictions" is also contemplated. The only qualification in the provision is that any restriction or disability imposed must be "reasonably justifiable" having regard to its nature and the special circumstances of the group being discriminated against. In yet another exception, the non-discrimination guarantee also permits discriminatory laws "for the protection, well-being or advancement of the Amerindians of Guyana".31 The issue, therefore, is whether the restrictions on communal Amerindian property outlined above

30 Ibid, art. 149(3X0 31 Ibid, art. 149(6)(c) 376 were "reasonably justifiable" or whether they somehow benefited Amerindians, in either of which case they would not have constituted unconstitutional discriminatory measures.

The courts of the Commonwealth Caribbean initially adopted an unmistakably deferential approach to the limitations on the fundamental rights guarantees, and particularly in the first two decades after Independence it seemed that once a permitted restraint was asserted as a justification for challenged legislation, it was not unlikely that such legislation would escape unscathed. There is no dearth of case law supporting this contention, originating both from the wider Commonwealth Caribbean and from the notoriously repressive period in Guyana spanning the 1970s and 1980s. This trend has not escaped academic criticism,34 most notably from Human Rights Professor

Margaret DeMerieux at the University of the West Indies Faculty of Law. After reviewing the cases on the limiting sub-sections DeMerieux expostulates ".. .a mere

'connection' test gives, in the West Indian context, something rather less than one of minimum judicial scrutiny and must allow all legislation to pass constitutional muster.

A principled approach to the term considered does not then appear in the cases and this is largely accounted for in the response to the clause, which subjects the decision as to what it entails in a given case to the operation of the presumption of

32 A minuscule sampling of cases includes DPP v Nasralla [1967] 2 A.C. 238; Collymore v. A-G (1970) 15 W.I.R. 229; Francis v. C.Q.P. [1973] A.C. 761 and A-G v. Antigua Times Newspapers [1976] A.C. 16 33 Hope v. New Guyana Co. Ltd. (1979) 26 W.I.R. 233; Ramson v. Barker 28 W.I.R. 191 34 James and Lutchman, Law and the Political Environment in Guyana (Turkeyen: IDS, University of Guyana, 1984), Chapter 7 377 constitutionality... Indeed, Professor DeMerieux has consistently criticised the approach of cases such as Antigua Times, and in particular the latter's failure to assess the impact of the limitation on the fundamental right itself. In this way, she points out, there is no balancing of the constitutional guarantee against the government interest being promoted by the challenged legislation.

By the mid 1990s, the Courts of the Commonwealth Caribbean began to approach the interpretation of the various Bills of Rights in a more vigorous, even progressive manner. One indication of this change was the decision in de Freitas v

Minister of Agriculture,37 where the Privy Council had to consider certain provisions of the Civil Service Act 1984 in which enjoined civil servants from publishing information or opinion on matters of political controversy. Their Lordships held, striking down the relevant provision, that it infringed the freedom of expression and freedom of assembly guaranteed in s. 12 of the Antiguan Constitution. Moreover, the provision could not be saved by the exception which authorised restrictions upon public officers that are reasonably required for the proper performance of their duties, as the provision was stated without qualification.

This case is particularly useful because of the approach of their Lordships towards the limiting sub-section. The Privy Council adopted a threefold test in

Margaret DeMerieux, Fundamental Rights in Commonwealth Caribbean Constitutions (: UWI, 1992)78 36 Ibid, at Chapter 4 generally 37 de Freitas v Minister of Agriculture (1998) 53 W.I.R. 131 378 determining the question of reasonableness, an analysis containing striking parallels to

Canadian equality jurisprudence:

(i) Was the legislative intent sufficiently important to justify limiting the right?

(ii) Were the measures to effect the legislative intent rationally connected to it?

&

(iii) Were the means used to limit the right no more than necessary?

In other words, the legislative objective itself is subject to judicial scrutiny to determine both its inherent value and its impact upon the fundamental right. Laws and action falling within a stated exception are no longer to be automatically validated but must bear a logical relationship to the legislative aim being promoted. On the facts of this case it was found that the provision in question could not satisfy this test of reasonableness, it being disproportionate by not distinguishing between classes of civil servants and the restraints imposed.

In light of this approach, it seems that of all the conditions listed in section 20 A, the only one for which an argument of constitutionality could be advanced is once again the limitation that rendered the titles inalienable without the consent of the State. Under s. 20A(4)(c) the right to alienate was not denied altogether, but was simply made subject to prior State approval. Viewed in the context of its historic rationale, this limitation can be justified as upholding the sacred nature of the relationship between indigenous peoples and their land, though not by a complete denial of their freedom as

38 See, for example, the judgment of La Forest J in RJR-MacDonald Inc v Canada [1995] 3 S.C.R. 199 at 268, where he provides a cogent summary of the Oakes test - this being the test formulated by the Supreme Court of Canada to assess the reasonableness of limitations on Charter rights, and which contains also references to rational connection, minimal impairment and proportionality. 379 alienation was still permissible. It could certainly then be considered as "reasonably justifiable" or designed for the protection of Amerindians, and in this way constitutional.

However, it is unlikely that the remaining conditions would have survived such scrutiny. Their most striking feature was the extraordinarily wide scope of the powers conferred on the Minister. The only one requiring the payment of compensation - that granting the Minister power to revoke or modify titles in the public interest - was potentially as arbitrary as the others, given that the term "public interest" was nowhere defined in the Act. By way of comparison, the freehold titles of non-Amerindians can only be compulsorily acquired under legislation that empowers the Minister to seize the land for "a public work."39 In other words, a significantly different test was crafted for communal titles under the Amerindian Act - one that, by virtue of its amorphous nature, conferred on the State considerably greater ease in effecting compulsory acquisitions.

Regarding the other powers by which titles could be expropriated without the payment of compensation, it must be noted that these were stated without qualification, the very reason for which the Antiguan law was struck down. Under both sections 3 and

20A(6), for example, the Minister was empowered to act in such a way as to render

Amerindian property rights completely nugatory, while no corresponding guidelines, procedures or safeguards were established any place else for the exercise of this discretion. The Minister was not obliged to give any reason for his or her actions (if, indeed, he or she was required to have any), and at no time did the Minister have to

39 Acquisition of Lands for Public Purposes Act, Chapter 62:05, s. 6 [Revised Laws of Guyana, 2002] 380 consult with any affected village or even obtain its consent. Under s. 20A(4)(d) the

Minister was empowered to forfeit the titles of an entire community if only two its members were "disloyal" in word or in deed towards the State. Although there was provision for giving the affected community a hearing, the ultimate discretion lay with the Minister. It would be difficult to justify the power to expropriate Amerindian titles within the proximity of an international border under s. 20A(4)(b), when no such disability was imposed on non-Amerindian property. In other words, one would be hard put to decipher any credible national security interest promoted by such a racially selective power. Thus, save for the condition limiting the ability of Amerindian villages to dispose of their legally titled lands, s. 20A conferred broad and unfettered powers on the Executive and would be difficult to reconcile with evolving interpretations of

"reasonableness". Accordingly, it is safe to conclude that they violated Constitutional guarantees of property and non-discrimination, and were for that reason unlawful.

Aside from the questionable legality of communal titles conferred in 1976, the issue of Amerindian land rights remained generally unsettled because of other, more quotidian concerns to Indigenous peoples themselves. Principally, many communities were simply omitted from the Schedule of Villages and Districts - notably the Barama

River Caribs of the North and the Wai Wai in the South as adverted to above, along with a number of Arekuna and Akawaio communities in the Upper Mazaruni region. In the main, plans for natural resource exploitation (mining, logging and hydropower

381 operations) accounted for these omissions. In addition, the areas where ownership was actually recognised were in many instances wholly inadequate, bearing little relation to historic patterns of use or current needs. These deficiencies were accentuated by the fact that in some instances overlapping titles were awarded. Further, the limited areas titled meant that surrounding areas were opened up for resource extraction, which in the case of industries such as mining and logging spelt disaster for neighbouring Amerindian communities.41 Ultimately, some indication of the insufficiency of the awards is evident from the disparity between the amount of land claimed by indigenous peoples (some

43,000 square miles) or even that recommended by the ALC (24,000 square miles) with the amount that was actually granted in 1976 (a mere 4,500 square miles).

Some of these problems were partially addressed in the run-up to the highly anticipated democratic elections of 1992, though in all likelihood the approach adopted merely substituted uncertainty for dissatisfaction. In 1991 ten of the communities of the

Upper Mazaruni were granted titles under the State Lands Act, bringing the number of titled communities to seventy-four and the amount of lands held under communal title to 6,000 square miles.42 In addition, all of the sixty-four villages that had been previously granted title in 1976 under the Amerindian Act were reissued with

Colchester, supra note 14 at 136 41 Fergus Mackay, "Indigenous Peoples' Rights in the Commonwealth Caribbean", Paper submitted at the Indigenous Rights in the Commonwealth Caribbean and Americas Regional Expert Meeting, 23 - 25 June, 2003, 7. However, it is important to bear in mind that Indigenous communities most likely held Aboriginal title to larger areas, over and above what was formally recognised in 1976, under the common law. 42 Order 43 of 1991 382 documents of title under section 3 of the State Lands Act. These grants were made

"absolutely and forever", and they explicitly recognised that legal ownership was predicated on the historic occupation by Amerindian peoples of the territory in question, containing the following recital:

"Whereas the Amerindian community of [ ] has from time

immemorial been in occupation..."

None of the conditions listed in s. 20A of the Amerindian Act rendering titles subject to modification, revocation or suspension were reintroduced, and the State Lands titles contained only one condition, which was the reservation of minerals as the property of the State. Further, there was no exclusion of rivers, river banks, airstrips or pre-1976 government buildings and land from the descriptions, as was the case with the 1976 titles. The 1991 titles were thus clearly stronger and more secure than the ones issued in

1976, but as to whether they definitively superseded the latter is an issue that has never engaged the attention of any court much less been resolved satisfactorily. In the opinion of human rights lawyer Fergus Mackay, "It would follow that these [i.e. 1991] titles have voided the restrictions imposed by the Amerindian Act and granted title to the rivers, airstrips and government buildings excluded by the Act. Whether this was intended is unknown, however it appears to be the result."44 But in spite of Mackay's confidence, considerable uncertainty continued to prevail regarding the nature of the communal titles even among government actors, as illustrated by the fact that even after the titles were re-issued in 1991, the Guyana Geology and Mines Commission

43 Chapter 62:01 [Revised Laws of Guyana, 2002] 44 Mackay 2003, supra note 41 at 11 383 continued to grant concessions on rivers falling within Amerindian communities - legally impermissible in the case of small and medium scale mining if in fact those rivers were legally owned by Amerindians.

Ultimately, however, the most problematic aspect of the entire titling process conducted in the immediate post-independence period was a systemic failing. The recognition granted in 1976 was ostensibly for the purpose of implementing the recommendations of the ALC. But this was apparently a one-off occurrence, for no mechanism was inserted in the Amerindian Act (or, for that matter, any other legislation) outlining a procedure to govern future recognition of title. How such a mechanism was not viewed as indispensable is difficult to understand, given the known fact that at least fifty45 communities were at the time still without titles and might have been expected to bring claims in the future. Conceivably, applications could have been made to the Minister to amend the Schedule to the Amerindian Act by inserting a

Village therein or extending the boundaries of an existing village, but this entailed a wholly uncertain procedure. The Minister's powers under the relevant section were purely discretionary and there were no rules or procedures to guide any such application or hold the Minister accountable.

Indeed, when the government next conferred recognition in 1991, titles were not issued under the Amerindian Act but were made instead by Presidential grant under section 3 of the State Lands Act. While this was convenient for the recipients as it meant

45 M. Colchester, J. LaRose & K. James, "Mining and Amerindians in Guyana" Report for the North- South Institute, 2002, p. 16, available online at http://www.nsi- ins.ca/english/pdf/guyana/guvana_finaljreport.pdf [website last accessed on 9th October 2007] 384 the titles were not burdened by the s. 20 A conditions of the Amerindian Act, the actual procedure was arbitrary and unpredictable. Moreover, this was the exercise of another discretionary power - there were no guidelines in section 3 to delimit the President's powers and other communities making any application for title would have no clear standard to emulate or no certain process to follow, and by extension therefore no reasonable expectation of success. Awards under this section were purely the result of the State's munificence, a reality underscored by the timing of the land grants in 1991.

Thus, although the post-independence government had made an effort to address land claims by the country's indigenous inhabitants, a number of deficiencies persisted. The actual grants were limited and structurally what was singularly lacking was legislation governing both substantive and procedural issues. Only by addressing the latter could there be any certainty and accountability in the law, and as such a reasonable possibility of equitably settling indigenous land claims.

Post 1992 Reforms

For another decade after formal recognition in the pre-election period there were no significant developments regarding the legal status of Amerindian rights. The change of government in 1992 after what was internationally acknowledged to be the first democratic election in twenty-eight years was marred by widespread civil unrest in all

385 of the major urban centers. This was to be a recurring feature of each national election thereafter - notably in 1997 and again in 2001. Since the source of these problems lay in the animus existing between Guyanese of African and Indian descent, the two largest ethnic groups making up the population, issues affecting indigenous peoples did not form part of the realpolitik. Indeed, the inaccessible, invisible hinterland had historically been wholly outside of the consciousness of the majority of the coastal- dwelling population, and following independence neglect of the former was compounded by massive waves of migration northwards.47 Although a Ministerial portfolio relating to Amerindians was created by the newly elected government in 1992, balance of payment problems and ubiquitous ethnic tensions on the coast continually eclipsed the problems besetting indigenous communities. The fragile institutional and governance structure was compounded by the absence of clearly defined obligations or other legislation governing land claims. The implications for Amerindians was that the few petitions for land brought by a handful of communities simply languished in whichever office they were lodged, notwithstanding promises at the highest levels to address both the issue of land rights and that of the anachronistic Amerindian Act of

1951.48

Ironically, however, it was those very ethnic tensions, and the disturbances they spawned during the 2001 elections, which led to both legal and institutional changes

46 H. N. Ramkarran, "Seeking a Democratic Path: Constitutional Reform in Guyana" (2004) 32 Ga. J. Int'l & Comp. L. 585 at 589 & 595-6 47 D. Alissa Trotz, & Terrence Roopnaraine, "Saving Amerindians, Saving Ourselves: Reflections from Guyana's Coastland" forthcoming in The Guayanas, eds. Aleman, Moreno & Whitehead, University of Arizona Press (cited with permission) 48 Colchester et al, 2002, supra note 45 at 17 386 benefiting Amerindians. First to occur were certain constitutional reforms in 2003 followed three years later by a complete overhaul of the existing Amerindian Act. Legal reform was followed by a period of vigorous Executive action, whereby a programme was initiated of granting formal land titles to previously unrecognized Amerindian communities as well as extensions49 of land to existing villages. In 2006 ten communities were granted titles and extensions were granted to five existing villages, bringing the total land area held under communal titles by Guyana's indigenous peoples to 13% of the entire country. Then again in September 2007 another six communities received formal titles, while one existing village received an extension to its land.

Added to the 74 Villages that had already been formally recognised prior to 1992, the new grants brought the number of titled Amerindian Villages in the country to 90 in all.

However, the more fundamental issue to be considered is the nature of the reforms to the current 1980 Constitution and the revision of the 1951 Amerindian Act, which profoundly altered the legal framework relating to the country's indigenous population. First to occur were the constitutional reforms, mandated as part of the peace process negotiated by the Caribbean Heads of Government in the wake of the convulsive violence and civil unrest accompanying the national elections in 2001. The

Preamble to the Constitution was amended to include the following: "We, the Guyanese

People... value the special place in our nation of the Indigenous Peoples and recognise their right as citizens to land and security and the promulgation of policies for their

49 The term 'extensions' is what is used in the current Amerindian Act, understood among local actors as referring to increasing the physical dimensions of an existing village. 387 communities". While these sentiments are undeniably salutary, a conventional interpretation would be that they imposed no substantial obligations on any person or entity by reason of their banishment to a mere Preamble. However, as argued below, it is too simplistic to take such a dismissive view, and in the interpretation of substantive provisions in the Constitution that protect other rights of Indigenous peoples, a court ought to be guided by the spirit of this declaration.

Two years later, at the culmination of the constitutional reform process in 2003, the Constitution was amended further, this time by the inclusion of article 149G in the fundamental rights section, providing as follows:

"Indigenous peoples shall have the right to the protection, preservation and promulgation of their languages, cultural heritage and way of life."51

Conspicuously absent from this provision was any mention of rights to the occupation and use of land, which was surely the most crucial issue to Amerindians since the dawn of the Colonial era, and without which rights to culture, language and way of life are simply academic. The omission of any reference to land rights in a substantive section of the Constitution, placing this in the Preamble instead, reflected the politically driven nature of the entire reform process and the reality that possibly only this route was anodyne enough for the non-Amerindian majority of the population.

Still, this provision should not be dismissed as a mere dead letter. By granting constitutional protection to the "way of life" of indigenous peoples, the rights and privileges possessed by indigenous peoples surely enjoy greater protection under the

50 Act No. 6 of 2001 51 Article 149G, inserted by Act No. 10 of 2003 388 law. Moreover, since the Preamble expressly acknowledges that Indigenous peoples

have rights to land, "way of life" should arguably include such rights. In other words, it

ought to be possible to argue that article 149G has effected the constitutionalisation of

indigenous rights and privileges - including rights to land - in much the same way as

did section 35(1) of the Constitution Act 1982 of Canada.52

Around the time of these constitutional changes consultations leading up to the

revision of the Amerindian Act began, a long-overdue step that had been mooted since

the late 1980s and reiterated periodically by successive governments.53 In truth, the

majority of the Colonial Act's sweeping Ministerial powers and anachronistic provisions regarding women, the consumption of alcohol and internal governance

structures had rarely if ever been enforced, but these realities did little to cloak it from unrelenting criticism. For more than a decade both foreign aid agencies and local

activists pressed for its revision, which was finally commenced in 2002.

In the first phase of the revision process, recommendations were received from individuals and Amerindian communities, culled from public consultations held

Section 35(1) provides: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and affirmed." There is an extensive literature on this provision and its consequences, and for only a very small sample see: Brian Slattery, "The Hidden Constitution: Aboriginal Rights in Canada" (1984) 32 Am. J. Comp. L. 361; Noel Lyon, "An Essay on Constitutional Interpretation " (1988) 26 Osgoode Hall L.J. 95; Kent McNeil, "Aboriginal Title as a Constitutionally Protected Property Right" in Emerging Justice? supra note 28 at 301-6. For useful discussions on Aboriginal Rights in particular, see John Borrows and Leonard Rotman, "The Sui Generis Nature of Aboriginal Rights: Does it Make a Difference?" (1997) 36 Alta L Rev 9 and Brian Slattery, "A Taxonomy of Aboriginal Rights" in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, eds. Hamar Foster, Heather Raven & Jeremy Webber (Vancouver: UBC Press, 2007) 111. A useful perspective is that a nation's land base has both an economic and cultural dimension, so that preservation of the latter should lead to protection of the former: Dinah Shelton, "International Protection of Indigenous Peoples' Culture and Cultural Property" in The Rights of Indigenous Peoples in International Law: Selected Essays on Self-Determination, ed. Ruth Thompson (Sask.: University of Saskatchewan Native Law Centre, 1983) at 47 53 Mackay, 2003, supra note 41 at 10 389 throughout the country. These were compiled and returned to the communities to ensure their accuracy, after which they were examined by a Ministerial committee on which various stakeholders as well as local and foreign legal experts were represented. In this way the recommendations were distilled into a comprehensive body of instructions, with the final decision on each issue being taken by the Cabinet. These instructions formed the basis of a draft Bill, which was then subjected to fresh public consultations held in key hinterland communities. The draft was then revised to take into account the further recommendations made, after which it was introduced in Parliament. In

Parliament the Bill was sent to a Select Committee comprising legislators from both the government and Opposition for further examination. The Select Committee held even more public hearings at which submissions on the Bill were received from Amerindian non-governmental organizations as well as private individuals, at the conclusion of which changes to the Bill were adopted only by consensus from among the members of this Committee. This final version was then debated in Parliament and eventually passed in March 2006 by a majority vote. By the time it was eventually enacted, the

Amerindian Act of 2006 had thus been the subject of a highly participatory revision process, involving more than three years of extensive consultations and detailed public scrutiny at each stage of its evolution. As to whether it achieved its goal of dismantling the anachronistic and discriminatory legal framework relating to the country's indigenous peoples, however, and if so to what extent, is a highly contested issue, which

54 This account draws upon the author's personal knowledge as one of the Attorneys involved in the process of the revision of the Act. 390 will be examined below. In doing so I will confine the analysis to the issues of governance, land ownership and resource-use rights, still the three most critical matters of concern to both indigenous and transplanted peoples of the territory since the dawn of the Colonial period.

(i) Governance

The 1951 Act had sanctioned considerable inroads upon Amerindian autonomy, primarily because of the extensive discretion it conferred on the State to interfere in almost every aspect of the lives of Amerindians and regulate their communities.55

Although the 2006 version did not embrace a clean break from this tradition, the overwhelming majority of the discretionary powers contained in the former Act were not reproduced. Notably, in the areas of Amerindian identity, internal governance, collective decision-making and overall accountability, significant reforms were implemented. These provisions will be briefly considered below.

In the colonial Act, a highly discredited provision was the ultimate power conferred upon the State to determine who constituted an Amerindian. This was buttressed by provisions relating to the registration of Amerindians, whereby the decision to do so, including any appeal against an unfavourable determination, was entrenched in the State apparatus. Rejecting this approach, the 2006 Act defines

'Amerindian' broadly as any citizen of Guyana belonging to one of the country's native

See Chapter 6 supra, at pages 249-53 or aboriginal peoples, or one of their descendants. No requirement is laid down for any such determination to be formally or officially made, which means that any

Guyanese is free to identify as Amerindian, and no limitation is placed upon how far back a person could go in order to claim Amerindian status. The breadth of this formulation is rendered innocuous by the fact that under the Act entitlement to benefits is linked not to identity but rather to residency in an Amerindian village.

On the subject of residency, the Act stipulates that a resident is an Amerindian

"who was born in, lives in or has his principal place of residence within the Village" or

C-J a non-Amerindian so recognised by the Village under its specific rules. Here again, there is no room for the State to interfere, for the determination of residency is left within the collective control of Amerindians. Ultimately, while any person is free to identify as Amerindian based on an Amerindian ancestor from an indeterminate number of generations past, only an Amerindian born in or living in a Village, or some other person falling within the Village's rules, qualifies as a resident and is thereby entitled to exercise the collective rights protected by the Act.

Reforms have been made to the entire governance structure that previously existed, covering the procedures for choosing village leaders, the composition of elected bodies, the security of tenure of elected officials and the powers and duties of those individuals. Though the State can still exert some amount of control or influence over

Amerindian Act, No. 13 of 2006, s. 2

392 internal decision-making, this has mostly been confined to clearly defined circumstances and exists only for specific reasons as outlined below.

Villages are to be administered by village councils, which are established by operation of law.58 Reflecting current practice, village councils are to comprise a

Toshao (known as 'captain' in the colonial period) and Councillors, the exact number of which is determined by the size of the village's population.59 These officials are to be elected by secret ballot to serve fixed terms not exceeding three years.60 Village councils are tasked with a variety of important functions, including planning and development, regulation of village lands and resources, protecting and preserving their culture and representing the village generally.61 The Council is empowered to make rules governing a wide variety of matters, breach of which may be punishable by a

ft") monetary fine, and a summary procedure has been included in the Act for the enforcement of village rules.63 The village council may also levy taxes on residents.64

While rules have to be approved by two-thirds of the village in general meeting,65 for obvious reasons the imposition of taxes merely requires prior consultation with the village.66

5SIbid,s. 10(1) 59 Ibid, s. 11 60 Ibid, s. 65 61 Ibid, s. 13 62 Ibid, s. 14 63 Ibid, s. 16 MIbid,s. 18 65 Ibid, s. 15(a) 66 Ibid, s. 18(1) 393 The village council can direct the occupation and use of village lands, and in

r-i accordance with its rules (if any) it may allocate land for use by residents. The council may even issue leases for commercial purposes, though this process is subject to certain clearly specified safeguards. Entry on village lands is controlled by village councils, from whom non-residents seeking to enter the village must obtain permission.69 Finally, while village councils have considerable autonomy to direct their own affairs in all of the ways enumerated above, it is possible for three or more councils within the same district to come together and coordinate their activities at a regional and even 71 national level.

Buttressing these powers are various safeguards designed to promote good governance and accountability of elected leaders. In terms of positive obligations, village councils must formulate and submit yearly plans to the village for its approval, as well as to the Minister for his or her information. Plans must include an outline of activities proposed in the following year as well as their estimated cost. In this way, residents will be informed of and given an opportunity to participate in decisions relating to development and the use of their collective resources. General guidelines are laid down for Toshaos, including specific obligations to attend and participate at

67 Ibid, s. 45 68 Ibid, s. 46 69 Ibid, s. 5 10 Ibid, ss. 35 & 36 71 Ibid, s. 41 72 Ibid, s. 32 73 Ibid, s. 22 394 meetings. Moreover, the Act explicitly protects the collective nature of decision­ making by villages, imposing a requirement for village general meetings to exercise the collective rights and powers of a village wherever necessary.75

Additional safeguards promoting accountability include, for example, a prohibition on incompetent, negligent and convicted persons from serving as leaders, along with procedures for investigating and removing any Toshao or Councillor for

77 78 breach of the Act and for carrying out financial audits of village councils. Toshaos

• 7Q and Councillors are explicitly forbidden from accepting bribes, and from placing on themselves in conflict of interest situations. As well, detailed and comprehensive rules have been laid down to ensure fairness and integrity in the election of representatives to O 1 sit on village councils.

One shortcoming in the governance structure that ought to be mentioned concerns the summary justice procedure set out to enforce village rules, an otherwise useful mechanism insofar as it can serve as a partial solution to the crippling delays caused by infrequent sittings of Magistrates' Courts. Where an allegation is made that a person has breached a village rule, the suspect may be summoned before the village council to face a process that could ultimately result in a determination of guilt and the

74 Ibid, s. 22(e) 75 Ibid, s. 34 76 Ibid, s. 26 77 Ibid, ss. 27-29 78 Ibid, s. 33 79 Ibid, s. 24 i0 Ibid, s. 25 81 Ibid, ss. 65-77 i2Ibid,s. 16 395 requirement to pay a fine. However, the procedure outlined in the Act is clumsy and to work effectively will need refinement by individual village councils when they are formulating their respective rules. Notably, in a patently convoluted process, persons appearing before the village council for allegedly breaching a rule must be informed of the allegation, after which the village council is required to "investigate the matter and give the person a reasonable opportunity to be heard." An investigation could well reveal no wrongdoing, so purely as a matter of common sense it should be conducted before a decision is taken whether to summon a suspect before the village council.

Naturally no inconsistency exists if by "investigate the matter" the drafter really meant

"question the suspect", but such an interpretation is unlikely given that suspects ought not to be forced to answer questions and incriminate themselves. This means that there is little sense in the current process as outlined, which should be corrected so that the investigative stage precedes any hearing. Moreover, where a hearing is in fact convened, a clear dichotomy ought to be maintained between the person(s) carrying out the investigation and those sitting on the village council. Separating investigative and adjudicative functions is a basic rule of procedural fairness, and one that ought not to be departed from in this instance since the finding of a breach could be punished by monetary penalties.

Another issue to be considered regarding this process is that under section 21(2), a Toshao (functioning as a Justice of the Peace) is forbidden from acting "judicially as a justice either in any court or in any manner". This restriction is broadly drawn so it

*3Ibid,s. 16(2) 396 captures any adjudicative role, such as that which would be required where a village council sits to determine whether someone has breached a village rule. The apparently unforeseen lacuna is that the Toshao is also the chairman of the village council, which means that where the council is conducting a hearing into an alleged breach of a village rule, the Toshao is statutorily precluded from sitting thereon.

A more trenchant criticism of the Act's governance structure - indeed, of the

Act in general - has to do with the extent to which it is said to permit interference by the State in internal indigenous affairs. Leaving aside, for the moment, the Minister's responsibility to determine applications for land and his or her discretion with regard to mining on Amerindian titled lands (both of which will be addressed separately), a thorough examination of Ministerial powers under the Act reveals that this is an issue of far greater subtlety than existing criticisms have acknowledged. This is so because the character of the Minister's powers varies considerably, and to dismiss them simply as perpetuating the paternalism of the Colonial Act is an oversimplification that distorts the true position.

At one extreme, the role of the Minister is simply to provide oversight on critical issues. Thus, village councils are required to keep him or her abreast of the size of its population, their yearly plans and accounts, as well as on decisions taken with regard to important resources such as leasing of village land87 and timber.88 Councils

MIbid,s. 19(iii) 85 Ibid, s. 32 S6 Ibid, s. 22(h) 87 Ibid, s. 46(6) 88 Ibid, s. 55 397 are also required to notify the Minister of problems in administration, such as where

Toshaos are unwilling to or unable to function. In all these instances there is little room for interference by the State, and the notification required seems designed to benefit villages. There seems to be little sense in having a Ministerial portfolio for

Amerindians if this department is not kept abreast of concerns and issues affecting communities - and it is obviously to fulfill this function that these provisions have been included in the Act.

Moving along the spectrum, there are a number of situations where the Minister can actually interfere in internal governance, but the power to do so is only triggered upon request90 or where the village is unable to resolve the matter on its own. One example of the latter is the obligation of the Minister to settle disputes over the allocation of its lands where the village has been unable to do so.9

At the other end of the spectrum are three situations - relating to the making of taxes and rules and facilitating entry upon Amerindian titled lands - where local autonomy remains severely circumscribed. But as shall be seen, even in these instances executive powers are not unfettered but have been carefully rationalized and circumscribed.

Although a village council may decide to levy a tax after consultation with the village, the approval of the Minister is still required. If approved, the Minister may reduce the tax, or otherwise vary its means of collection or make any other change "he

89 Ibid, ss. 23, 26 & 29 90 Ibid, ss. 27-28; 75 91 Ibid, s. 45(7) 398 thinks appropriate for the benefit of the Community". Likewise, rules formulated by the village council must be approved both by the village and by the Minister.

Obviously, rules cannot conflict with the Constitution or other laws, but the Minister's ability to veto rules is apparently not confined to cases of inconsistency.94 Presumably, however, the Minister's powers to approve of taxes and rules exist as a form of protection for village residents, and in the latter instance it is not an unfettered discretion, for the Minister must provide reasons in writing for rejecting a rule. 5

More problematic are the Minister's powers relating to the granting of access to titled Amerindian lands under Part II of the Act. As pointed out above, Amerindians now have the right to control who may enter their legally titled villages, but this does not represent the entire picture. This control does not cover anyone entering village lands on "official business for the Government or who is acting under the authority of

07 any written law or is otherwise lawfully authorised", in which case such person is deemed to have the permission of the village council to enter. The breadth of this provision has predictably raised questions as to its legitimacy. Titled lands are private property, which means that the owners ought to be able to exclude all others, subject of course to the power of those entering by virtue of some lawful authority (such as a validly obtained warrant). At common law, lands held under Aboriginal title are in no

Ibid, s. 18 Ibid, s. 15 Ibid, s. 81(1) Ibid, s. 81(2) Ibid, s. 5(1) Ibid, s. 8(1) 399 different position, and import "exclusive use and occupation". Given that this blanket authorisation under the Act applies only to lands held communally by Amerindians, is it possible to argue that it is discriminatory and thereby contravenes the non­ discrimination guarantee of the Constitution?" One answer would be that this exception is indispensable to the smooth functioning of government institutions existing within

Amerindian villages, such as schools, health clinics, police stations and so on. In this light, the power would certainly be acceptable under article 149(3)(c) of the

Constitution as differential treatment that is reasonably justifiable having regard to the special circumstances of the targeted group.

Less defensible are related provisions under which persons wishing to conduct any research or study relating to "biological diversity, the environment or natural resources" must obtain permission from the State to do so even where the village has authorised such activity.100 In addition, permission is also required from the Minister as well as from other named Government authorities in order to use any material derived from such research or study.101 While these requirements are obviously intended to protect communities from external entities (whether local or foreign) seeking to exploit indigenous knowledge or resources, the relevant provisions are broadly drawn and could prevent Amerindians from commissioning and conducting certain types of

98 Delgamuukw v British Columbia [1997] 3 S.C.R. 1010, per Lamer C.J.C. at 1083; see also Kent McNeil, Defining Aboriginal Title in the 90's: Has the Supreme Court Finally Got It Right? (Toronto: York University, Robarts Centre for Canadian Studies, 1998) 11 and Gordon Christie, "Delgamuukw and the Protection of Aboriginal Land Interests" [2000-2001] 32 Ottawa L. Rev. 85 at 94-95 99 Constitution of Guyana, 1980, art 149 100 Amerindian Act, No. 13 of 2006, s. 5(3) 101 Ibid, s. 6(2) 400 research on their own lands. This seems both paternalistic and discriminatory.

Moreover, under the Act any person who has been granted permission to carry out research on Amerindian lands must provide the Minister with a full written report of all findings, a copy of all recordings made and a copy of any related publication utilizing such material. Since any study or research would have been conducted on

Amerindian lands, intellectual property rights would presumably be provided for in the enabling agreement, and it is difficult to see what right the State has to such material.

There are thus a number of sections in the revised Act which undeniably confer power on the State to interfere in indigenous governance structures, possibly to a greater degree than is justifiable. That said, it is important to acknowledge the fact that these apparently invasive powers are designed for the protection of peoples who have been the victims of hundreds of years of marginalization and who invariably do not possess the resources to bargain on equal terms with outsiders. It is entirely possible for local interests to be overshadowed by rapacious corporations and other business entities, facilitated by the connivance of unscrupulous local leaders. These are realities that have been recognised even by Amerindians themselves, and in a Report on Amerindians and mining by the Amerindian Peoples Association of Guyana for the North-South Institute in 2002, various examples are given of agreements negotiated with miners by

Amerindian Captains without the consent or even knowledge of the community in question.103 Although certain provisions in the 1951 Act were cited in that Report as

Ibid, s. 6(1) Colchester et al, 2002, supra note 45 at 28-29 401 sufficient to preclude unauthorized deals, arguably the scheme laid down in the revised

Act will facilitate greater accountability on the part of Amerindian leaders and will also provide clear legal recourse where violations of the established procedures occur. As paternalistic as it may be, therefore, the governance scheme established in the 2006 Act combined with the limited oversight retained by the State still serve a useful purpose, particularly against the backdrop of the increasing visibility of Guyana's hinterland and its potentially lucrative resources. Finally, it is important to acknowledge that overall the instances whereby the State can interfere in local governance structures have been drastically curtailed. In most areas including, for example, those relating to identity and residency, the election of village leaders, short and long term administration of villages, control over finances and jurisdiction over summary justice procedures, substantial powers that had been arrogated by the Colonial state to itself have now devolved from the central government to Amerindians themselves.

(ii) Land Rights

In the area of land rights, the changes instituted by the 2006 Act relate to both procedural and substantive deficiencies of the previous laws. To begin with the former area, a crucial reform has been the establishment of a formal mechanism to govern applications for land title, including extensions of existing titles, brought by Amerindian

402 villages and communities. Under the Act the distinction between the two is very important, being that only villages possess legal titles to the lands they occupy.104

In the first instance, applications are made to and decided by the Minister under a very simplified process. All that is required to initiate the process is an application in writing signed by four adult members of the community.105 Where applications are made by existing villages for extensions to their titled lands, the four signatories must be members of the village council, including the Toshao and Secretary.106 The application itself is also simple, requiring only basic information such as the name of the village or community, the size of its population, a description of the area requested and the reason for the application.107 All applications must be supported by at least two thirds of the adult members of the village or community,10 and where the application is for an extension of lands, a plan of the existing titled areas must also be included.109

The course to be followed by the Minister upon receipt of any application for land is minutely detailed in the Act, with strict time limits along almost each step of the way. Within a month of receiving the application the Minister must acknowledge receipt,1 ° and within six months he or she must cause an investigation to be conducted to obtain information related to the nature of the village or community, its size, land use, competing interests in the area claimed along with any other information

104 Amerindian Act, No. 13 of 2006, s. 2 105 Ibid, s. 60(3) 106 Ibid, s. 59(2) m Ibid, ss. 59(1) & 60(2) 108 Ibid, ss. 59(1 )(f) & 60(2)(e) 109 Ibid, s. 59(l)(c) uo Ibid, s. 61(1) 403 reasonably considered to be relevant. The advantage of this approach is that the cost of gathering evidence has been placed squarely on the State, whereas in an adversarial process both the burden and expense of proving entitlement would have been the sole responsibility of the applicant village or community.

Another advantage of the land claim mechanism set up by the Act is that the

Ministerial investigation is not confined to traditional sources of information such as sworn testimony or expert information, as would be the case in common law judicial proceedings, but it can encompass more unorthodox sources such as oral testimonies, local sketches and drawings (as distinct from official maps and surveys), and as a catch­ all, information in any other form that the Minister reasonably believes to be appropriate.112

The time within which the investigation must be completed is the only phase of the process not limited in the Act, presumably because doing so would have been unrealistic considering that there is no limit to the number of applications that may be made in any given period. However, upon the completion of the investigation the

Minister is required to make a decision within six months, and where an applicant is dissatisfied with the outcome it may apply to the High Court for judicial review.114 In determining an application, the Minister is mandated to "take into account all the information obtained in the investigation and consider the extent to which the

Amerindian Village or Community has demonstrated a physical, traditional, cultural

111 Ibid, s. 61(2) m Ibid, s. 61(3) 113 Ibid,s. 62(1) U4Ibid,s. 64 404 association with or spiritual attachment to the land requested." 15 Thus, there is no room for arbitrary or irrational decision-making by the Minister - for not only are the various steps painstakingly detailed, but also the criteria by which the Minister is to be guided are clearly identified. In other words, the Minister is precluded from burying a land claim by time-bound obligations at each stage of the process, and in arriving at a decision he or she must be guided by specific considerations.

On the whole, designing a land claims process that eschews litigation in favour of executive determination was a practical course that favours speedy and equitable results. Of the multitude of reasons why this approach ought to inure to the benefit of claimants, a principal one relates to the practice and procedure of common law courts.

Arcane and convoluted rules governing the filing of civil actions and pleadings, prohibitions against hearsay and technical evidential rules relating to expert evidence have all been obviated by the requirements of the Act which permit the Minister to consider information obtained from a wide variety of sources in no specific form.

Moreover, the judicial process in Guyana operates with Dickensian laboriousness, demonstrated most graphically by the fact that the hearing in the Upper Mazaruni land claim116 commenced only on November 26, 2007, some 9 years after the writ was filed.117 After only two days of evidence the proceedings were adjourned to another date two months away,118 an entirely commonplace delay in civil trials in Guyana. This

U5 Ibid, s. 62(2) 'l6 Van Mendason et al v Attorney General of Guyana. Action #1114-W of 1998 1 n "Traditional ownership land titles case begins" Stabroek News online, 28th November 2007 (4 December 2007) 118 lb id 405 means that trials can last for years, without even factoring in the appeals process, amounting often to a battle of attrition.119 By way of comparison, since the process of negotiations were resumed some twenty-two applications for titles brought by untitled communities and existing villages have been favourably resolved in less than two years

- reinforcing the advantages of a land claim mechanism that mandates negotiation with the executive as the first option.

From a more theoretical perspective, the judicial process is structurally unsuited for dealing with any issue with broad policy implications. Its rules and procedures are designed to address the specific two-party dispute before it, whereas in policy matters more detailed information as to context and outcomes is invariably required. Since in the process set out in the Act the Minister can consider "information in any other form" reasonably believed to be appropriate, this ensures that his or her determination of the issue is not hampered by technical, artificial or irrelevant evidential limits.

Another factor not to be ignored relates to the context in which the judiciary is situated and how this impacts upon notions of fairness. Land claims brought by indigenous peoples in a multiethnic society are fraught with historical baggage, most notably centuries of colonization that involved the physical displacement, transplantation and forced servitude of various peoples. Against this background it is difficult to ignore the reality that the judiciary is an instrument of the dominant system

For a discussion of this issue in the Canadian context, see Shin Imai, "The Adjudication of Historical Evidence: A Comment and an Elaboration on a Proposal by Justice Lebel" (2006) 55 U.N.B.L.J. 146 at 148-55 406 and therefore ought not to be held out as a neutral arbiter. Conversely, although the mechanism outlined in the 2006 Act necessitates ultimate determination by the government of the day, along the way it requires discussions and investigations into the applicant's claim. It therefore approximates more closely to a bilateral process of negotiation which is flexible and a historically sensitive way to proceed. Ultimately, even where a court is prepared to acknowledge a claim to title by indigenous peoples, its ruling will amount to naught without the support of the Executive121 - so that it is realistic to involve the latter at the outset. For these reasons the approach of the 2006

Act is both rational and efficient, and in any event where the Minister fails to deliver satisfactory results recourse to the Judiciary is still an option.

As for the qualifying conditions for a successful application, these have been radically whittled down to the barest minimum. In relation to an untitled community, the only requirements for making a land claim are that it must have been in existence for at least twenty-five years and that it must have a population of at least 150 people at

This is a reality that has been observed and critiqued in practically every common law jurisdiction. In the US it has been advanced as a reason explaining the patently erroneous decision in Tee-Hit-Ton Indians v US (1955) 348 US 272, see Neil Mickenberg, "Aboriginal Rights in Canada and the United States" (1971) 9 Osgoode Hall L.J. 119 at 137-8; As regards Australia Kent McNeil has suggested that pragmatism could account for the misapplication of the common law in relation to the principles of extinguishment crafted by the High Court: "The Vulnerability of Indigenous Rights in Australia and Canada" (2004) 42 Osgoode Hall L.J. 271 at 297-301; and in Canada Brian Donovan has argued that the obfuscation of legal principles which has dogged Canadian jurisprudence on this subject has possibly been deliberate in order to avoid the enormous economic consequences of recognizing aboriginal title, see "The Evolution and Present Status of Common Law Aboriginal Title in Canada: The Law's Crooked Path and the Hollow Promise of Delgamuukw" (2001) 35 UBC Law Rev 43; For a more theoretical perspective on this subject see J. C. Smith, "The Concept of Native Title" (1974) 24 UTLJ1; Christie, supra note 97 at 114 and Geoffrey Robert Schiveley, "Negotiation and Native Title: Why Common Law Courts are Not Proper Fora for Determining Native Land Title Issues" (2000) 33 Vand. J. Transnat 7 L. All 121 As was the experience of the Cherokees in Southern USA even after decisions of the Supreme Court sympathetic to their cause: Joseph Burke, "The Cherokee Cases: A study in Law, Politics and Morality" (1968-9) 21 Stan.L. Rev. 500 407 the time of and for the five years immediately preceding the application. At the public hearings on the draft Act, a joint submission by four Amerindian non­ governmental organizations criticized these conditions as arbitrary and unjustifiable.

Indigenous proprietary rights, they claimed, are grounded in customary laws which have "nothing to do with existence for 25 years or whether for the five years prior to the application the community has consisted of at least 150 persons." The submission then continued with the startling contention that "ten indigenous persons, for instance, can establish rights to lands provided the lands in question are traditionally owned or otherwise occupied and used by them".123 This submission was repeated in a complaint filed by one of those NGO's to the UN Committee on the Elimination of Racial

Discrimination in its 68th session in February 2006.124

The criteria established in the 2006 Act could well be more onerous than those obtaining under indigenous peoples' customary laws, but the difficulty with the NGO submission was that no evidence or further elaboration was provided for the claim that

10 persons could successfully establish their entitlement to a collective land title. This left the common law as the only prevailing benchmark, the requirements of which are incomparably more burdensome than what is actually laid down in the 2006 Act. At common law, the test for aboriginal title requires proof of occupation of the land

122 Amerindian Act, No. 13 of 2006, s. 60(1) 123 Comments and Recommendations of the APA, TAAMOG, NADF & GOIP on the Draft "Amerindian Act", document submitted at public consultations held on February 21, 2005, at p. 30 [hereafter 'NGO submission'] 124 Request for Adoption of a Decision under the Urgent Action/Early Warning Procedure in connection with the Imminent Adoption of Racially Discriminatory Legislation by the Republic of Guyana and Comments on Guyana's State Party Report (CERD/C/446/ADD.1) para 76, submitted by Amerindian Peoples Association of Guyana & Forest Peoples Programme, January 20, 2006 408 claimed at the time the British crown asserted sovereignty. In most instances, this necessitates evidence of what occurred at a time dating from anywhere between two hundred to four hundred years ago - an extremely onerous undertaking for societies with no written histories and diminishing numbers. The difficulty of this requirement is exacerbated by the fact that British assertions of sovereignty did not result in the crystallization of boundaries and the cementing of areas of aboriginal occupation. Quite the contrary, European invasion heralded tremendous upheavals in Aboriginal societies, no less so in Guyana, and thereafter there was continuous fluidity in both European and Aboriginal occupation given the ensuing conflicts for land and resources. To require any modern aboriginal society then to trace its present occupation of land to pre- sovereignty patterns presents a task of Herculean proportions. Other requirements relating to exclusivity of occupation,127 not to mention those that privilege Western practices such as sedentary lifestyles and the practice of agriculture, further complicate issues of proof. In this context therefore, the criteria of the 2006 Act for a successful land application are not only minimal but they seem particularly forward-

125 Delgamuukw. supra note 98 at 1097-1100 and Richard Bartlett, Native Title in Australia, 2nd edition (Sydney: LexisNexis Butterworths, 2004) 143-6. Moreover, a fundamental point apparently overlooked by the author of this complaint is that if indigenous rights are to be sourced in indigenous customary laws, they can only be given effect through continuity principles - which means that the laws in question (and the community relying upon them) must have existed at the time of sovereignty in order to claim the benefit of continuation. In other words, the mere fact of reliance on indigenous laws introduces a requirement of proof far greater than 25 years. 126 Anna Benjamin and Laureen Pierre, Review of Legislation in Relation to Land, Forestry and Mining (unpublished; Amerindian Research Unit: University of Guyana, 1995) 127 Delgamuukw, supra note 98 at 1104-7 128 R. v. Marshall and R. v. Bernard [2005] 2 S.C.R. 220 409 looking, and perhaps this explains why no observations were made by the Committee regarding this complaint.

Another criticism leveled by the NGO group at the public hearings was that the

Act "fails to recognise and specify any rights that could form the basis for delimitation,

IT] demarcation and titling of indigenous peoples' lands." This was a curious submission given the detailed criteria set out in the Act governing eligibility for land, as well as a general obligation imposed on the Minister by section 62(2) to consider "the extent to which the Amerindian Village or Community has demonstrated a physical, traditional, cultural association with or spiritual attachment to the land requested." One can therefore only interpret this criticism as a reference to the absence of any declaration of right to land held by indigenous peoples of the kind that is often found in international

Because of its modification of strict common law requirements for proof of a collective title, this is possibly one variant of an altered (if not 'brand new') foundation for Aboriginal rights that is forward looking - along the lines of what Mark Walters suggests is necessary in order to avoid replicating the oppression of colonialism. Although Walters proposes this as an alternative judicial approach, one whereby history is de-emphasized, arguably it is equally, if not more credible, as a political solution. See: Mark D. Walters, "The "Golden Thread" of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982" (1998-9) 44 McGill L. J. 711 at 733-4. Considering the use (and misuse) of historical materials in native title trials in Australia, Alexander Reilly makes the same point, arguing that historiographies may not only reveal, but may themselves create, extinguishment of title, and for this reason may amount to a perpetuation of colonialism: see: Alexander Reilly, "The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title" (2000) 28 Fed. L. Rev. 453. Note also the perspective of Dwight G. Newman, who in analyzing the theoretical underpinnings of Aboriginal title, argues that the 'prior occupation' test for proof of title as fashioned by the Supreme Court of Canada has less normative force because of its historical nature than for its significance as representing (or revealing) a community connection with the land, best maintained through the recognition of Aboriginal title: see "Prior Occupation and Schismatic Principles: Toward a Normative Theorization of Aboriginal Title" (2007) 44 Alta. L. Rev. 779. Brian Slattery has consistently made the point that since Aboriginal peoples have historically retained migratory patterns (though perhaps less so more recently), even after Crown sovereignty an Aboriginal group should still be able to obtain Aboriginal title to new territory to which it moves, while losing title to the old territory left behind, within a certain period (he suggests 20-50 years): Taxonomy, supra note 52 at 125 130 Concluding Observations of the Committee on the Elimination of Racial Discrimination, 68th Session, UN Doc. CERD/C/GUY/CO/14 (21 March 2006) ,31 NGO submission, supra note 123 at p. 18 and repeated in the UN complaint, supra note 123 at para 64 410 documents - such as article 26(1) of the United Nations Declaration on the Rights of

Indigenous Peoples.132 However, having regard to the entire scheme laid down in the

Act regarding applications for land title, this omission is a deficiency (assuming even

that it can be characterized as such) more of form than of substance.

Grandiose declarations such as that contained in article 26(1) of the UN

Declaration possess at best mere hortatory value when they are not buttressed by

specific legal obligations or comparable political will at the domestic level. By way of

illustration, neighbouring Suriname is a signatory to a number of international

conventions, including the International Convention on the Elimination of All Forms of

Racial Discrimination (CERD) and the International Convention on Civil and Political

Rights (ICCPR), both of which recognise and protect the rights of indigenous peoples

over lands and territories traditionally owned or occupied and used by them.133 These

Conventions are even automatically incorporated in Surinamese law by virtue of their

Constitution,134 yet still the indigenous peoples of Suriname are denied formal legal

Adopted after more than 20 years of negotiations on September 13, 2007, article 26(1) provides that "Indigenous Peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired." 133 The committee on the Elimination of Racial Discrimination has interpreted its Convention as protecting indigenous land rights, stating that "Indigenous Peoples have the right to own and control their lands, territories and resources traditionally owned or otherwise occupied and used": UN CERD, Gen Rec 23: Indigenous Peoples, UN Doc. A/52/18, Annex V (18 Aug 1997), para 5; while Article 27 of the ICCPR (which protects the rights of minorities to the enjoyment of their culture) has been interpreted by the UN Human Rights Committee as encompassing the recognition of land rights: Bernard Ominavak v Canada, HRC, 38th Sess., UN Doc. CCPR/C/38/D/167/1984 (26 March 1990), para. 33 134 One of the earliest instances of incorporating references to international law in a constitution occurred in the South African post-Apartheid Constitution. There too, and in spite of this provision, international law has been far less influential than might have been hoped for: Devika Hovell and George Williams, "A Tale of Two Systems: The use of International Law in Constitutional Interpretation in Australia and South Africa" (2005) 29 Melb. U. L. Rev. 95 411 recognition and protection of their rights to occupy and use their traditional territories.135

At any rate, the reformed Guyanese Constitution recognizes in its Preamble the right of indigenous peoples to land, and as in Suriname both the ICCPR and CERD have been automatically incorporated in domestic law. Both these means provide powerful criteria for the guidance of the Executive in settling land claims, and fit the character of what the NGO submission claimed to be lacking in the 2006 Act. In this context, given that these matters were already covered in the supreme law of the land, it was arguably unnecessary to do so once again in the revised Act.

More substantively, while the revised Amerindian Act does not contain a general declaration of the rights to land held by indigenous peoples, it potentially provides greater protection of the rights of Amerindians in this regard since it sets out clearly defined and concrete obligations on the part of the government. The procedure established is simple, flexible and meticulously outlined, while the requirements laid down are set at the barest minimum. Given the specificity of the Act, a disgruntled applicant can seek redress in court by pointing to clearly defined statutory obligations, thereby avoiding the intricacies of proof involved in proving common law rights, or worse, the uncertain extent of rights under international law.

Thus, for the reasons outlined above, the 2006 Act represents considerable progress on both procedural and substantive issues related to Amerindian land rights,

135 Ellen-Rose Kambel, Indigenous Peoples and Maroons in Suriname (IDB Final Report, 2006) 18-20 available online at < http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=:917350 > (last accessed 5 December 2007) 136 Constitution of Guyana, 1980, article 154A(1) 412 through its inclusion of a simple and flexible land claims mechanism together with criteria that substantially mitigate the harshness of common law requirements.

(Hi) Resource-use Rights

Historically, the Guyanese economy has been firmly anchored in sugar cultivation, though the natural resources sector has come to play an increasingly important role. Despite this development, there was never any rational or comprehensive land use policy or legislation in the Colony, a state of affairs inherited and perpetuated by post-independence governments. The 2006 Amerindian Act does strive for harmonization among certain sectors, but its efforts are marred by excessive deference to third party rights. Moreover, the most recent legislation proposed in relation to forests has apparently jettisoned certain fundamental principles governing the treatment of Amerindian rights. The consequences for Amerindians are further erosion of their traditional rights, both generally and with regard to the use of certain specific resources. In examining these contentions, I shall focus on the legislation governing specific resource-extractive industries, the changes implemented by the 2006

Amerindian Act, and more recently the changes proposed in draft forestry legislation.

(a) Traditional Rights

As discussed above, in the colonial period no legislation was ever enacted which either "defined" generally what was meant by traditional rights or which effected a blanket abrogation of such rights. Instead, the legislative focus was on the regulation of 413 a few industries, notably timber and minerals, along with articulating the privileges in relation thereto possessed by Amerindians. By implication, therefore, inherent aboriginal rights continued to exist, except to the extent to which certain activities were regulated by law. In some instances, legislation reinforced these rights by explicit saving provisions. This approach, of considerable benefit to indigenous peoples, was abandoned in the 2006 Amerindian Act, which for the first time set out a detailed definition of "traditional right" in the law. According to section 2 of the 2006 Act this expression means:

"any subsistence right or privilege, in existence at the date of the commencement of this Act, which is owned legally or by custom by an Amerindian Village or Amerindian Community and which is exercised sustainably in accordance with the spiritual relationship which the Amerindian Village or Amerindian Community has with the land, but it does not include a traditional mining privilege."

Even on the most generous construction, this definition has considerable potential to hinder the of communities, quite apart from its implications regarding the autonomous status of indigenous peoples in general. First of all, the definition is indefensibly narrow. Read in its entirety it seems to contemplate only rights of an economic nature, whereas traditional Amerindian rights necessarily cover a wide spectrum of customs, practices and traditions that include activities of a social, spiritual, ceremonial and sacred nature. These other uses have nothing to do with issues of "subsistence", but which are surely deserving of protection all the same.

As for the protected rights themselves, their definition as "subsistence" rights and privileges operates as a significantly limiting factor. Used generally in relation to livelihood, "subsistence" refers to an economic level at which the bare necessities of life are provided, while specifically in relation to farming it refers to production for one's own use and not for exchange.137 Thus, its inclusion in the interpretation of 'traditional right' reflects a studied attempt to limit the extent to which untitled communities (and to some extent even titled Villages) can exploit resources in and on the land.' 8 This leaves the definition open to the criticism of evincing racist stereotypes that indigenous groups functioned only at a basic level - an assumption for which there is no conclusive evidence. Given that the economic activities carried out by Amerindians on the land were not necessarily limited to activities on a mere subsistence scale, this definition therefore represents a significant restriction of Amerindian rights.

The additional limitation that to qualify as a traditional right the right or privilege in question must have been "in existence at the date of the commencement of this Act" further compounds the prejudice to Amerindians, by freezing the content of traditional rights at a particular date. This is unfair as it does not take into account that indigenous rights are not static, but instead (like the practices and customs of all groups of people) constantly evolve to meet changing circumstances. In addition, there is a

137 Oxford English Dictionary, 2nd ed. (Oxford: Clarendon Press, 1989) Vol. XVII, p. 62 138 Parallels can certainly be seen here with Canadian law on this subject, where judicial construction of Aboriginal rights requires that in order to qualify as such, the activity in question must form "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right" measured prior to contact: R. v. Van der Peet [1996] 2 S.C.R. 507. This test has been subject to severe criticism by commentators, described as "philosophically hopeless and morally unjust": Barsh and Henderson, "The Supreme Court's Van der Peet Trilogy: Naive and Ropes of Sand " (1996- 7) 42 McGill L.J. 993 at 999. 139 What evidence there is tends to demonstrate the reverse, pointing to the flourishing trade links that Indigenous peoples had both among themselves in the Guianas and extending far up the Caribbean Sea, as well as with the Europeans who started coming in the sixteenth century: see Chapter 4, supra, at p. 142. 415 further requirement that to qualify as a traditional right under the Act activities must be

"exercised sustainably in accordance with the spiritual relationship which the

Amerindian Village or Amerindian Community has with the land". This seems somewhat condescending and paternalistic, insofar as it presumes that the peoples who have lived on these lands from time immemorial are incapable of making wise use of its resources or are otherwise unwilling to preserve their own heritage. In light of all these deficiencies, both the decision to define 'traditional right' in the revised Act as well as the content of the definition actually adopted are to be regretted.

One way to avoid these retrograde consequences would be to argue that non- subsistence rights continue to exist at common law. The definition in section 2 of the

2006 Act, precisely because it is so narrowly framed as to exclude a whole range of traditional activities, arguably cannot amount to an exclusive or all-encompassing definition of inherent Aboriginal rights. If such was the legislative intention, not only was it frustrated by not being clearly and plainly expressed,140 but insofar as the section purports to extinguish traditional Amerindian rights of a non-subsistence nature it would be manifestly invalid as a violation of the constitutional protection of property.

Another retrograde provision of the revised Act is section 57, which provides that nothing in the Act (unless expressly so stated) shall

"be construed to prejudice or alter any traditional right over State lands and State forests save that where leases have been granted traditional rights shall be exercised subject to the rights of private leaseholders existing at the date of commencement of this Act".

140 See discussion of this standard in Chapter 7, supra, at pp. 292-308 416 In our discussion of the effect of private grants on indigenous rights above, it was seen that private grants - and particularly leases and licences - did not necessarily operate to the detriment of indigenous rights. In some instances even, the latter were explicitly saved and third party rights did not take precedence.141 This provision changes all that, and with its unqualified terms it now apparently gives priority to all leaseholders.

However, once more, one way around this provision for Indigenous peoples would be to argue that the provision only applies to "traditional rights" as narrowly defined in the

Act, leaving undiminished the wider category of Aboriginal rights at common law.

Finally, the revised Amerindian Act also repeals the provisions in both the State

Lands Act and the Forests Act which empower the Minister to make regulations

"defining the rights and privileges" of Amerindians. This means that henceforth, one consistent position will prevail on both state lands and state forests.

(b) Mining

In the area of mining, the two most critical issues for Amerindians remain, as in the colonial period, those related to their rights to engage in traditional mining activities and the right of the State to permit mining activity on Amerindian lands. Regarding the former, the ALC had recommended in 1969 that Amerindians be granted mineral rights up to a depth of 50 feet in areas held in freehold by them,142 as well as benefit sharing

141 Chapter 7, at pp. 311-6 and Chapter 8 at p 347-8 142 ALC Report, supra note 4 at para. 74 417 where mining was conducted by non-Amerindians.143 However, when the ALC Report was finally acted upon in 1976 this recommendation was ignored, for the titles specifically excluded minerals and mining rights. The exclusion remained when titles were re-issued in 1991 under the State Lands Act.

In 1989 comprehensive legislation was enacted for the mining sector, under which Amerindian "privileges... in relation to prospecting, mining or quarrying for any mineral" possessed up till then were saved.1 4 As in previous versions of this legislation, such privileges did not apply for the duration of any period where an Amerindian became the holder of a licence or permit under the Act. Moreover, Amerindians were now required to exercise their privileges in the manner provided by the accompanying regulations. 5 Also retained was the prohibition on Amerindians carrying out mining activities on lands subject to private third party rights under the Act,14 and as before all minerals obtained by Amerindians through the exercise of these traditional privileges were required to be disposed of by the GGMC on their behalf.147

However, according to historians Benjamin and Pierre, writing in 1995:

"As things stand special Amerindian mining privileges are very limited. If Amerindians wish to mine on State Lands they must apply for a licence in the same way as everyone else; by virtue of the 1976 amendments they have no sub-surface rights on their own titled lands - which means that those privileges only apply to taking minerals from reservations, being Kanashen and Baramita which were the only two reservations excluded from section 20A."

143 Ibid, para 75 144 Mining Act, Chapter 65:01, s. 110 [Revised Laws of Guyana, 2002] U5Ibid,s. 110(2) U6Ibid,s. 112 U1 Ibid, s. 113 148 Review of Legislation, supra note 126 418 It is difficult to see how Benjamin and Pierre arrive at this conclusion. True, where

Amerindians wish to mine commercially, as in obtain a claim, they lose all their privileges under the Act and must apply for licence like everyone else. But what were those privileges? This referred to the fact that, as all the Mining Regulations have made clear since 1887, Amerindians were not affected by or subject to the provisions of the said Regulations - in other words, they were wholly outside the law's regulatory scheme. Consistent with this interpretation are other sections in successive mining laws whereby provision is made for the sale of minerals obtained by Amerindians, as well as the Indian Regulations which stipulated that the provisions of the Mining Regulations take precedence over their own prohibition on mining by Amerindians.149 None of these provisions suggest that these traditional rights are exercisable only on reservations as opposed to State (or titled Amerindian) lands.

Sensing some inconsistency in their interpretation, perhaps, Benjamin and Pierre subsequently remark that section [112] "gratuitously" declares it unlawful for any

Amerindian to take any mineral from land which is subject to a licence or permit under the Act. But the law does not act unnecessarily, and the presence of this safeguard - for safeguard it is of third party rights - is required precisely because Amerindians are exempted from the law's regulatory scheme. As pointed out above, section 112 ensures that Amerindians did not carry out traditional mining activities on lands over which mining claims have been issued to third parties. Section 112 is therefore an implicit

149 Note discussion of this issue in Chapter 8, supra, at notes 80-5 and accompanying text 150 Supra note 126 419 recognition of the fact that Amerindians are entitled to carry out traditional mining activities on lands outside of this category without having to obtain any permit or claim under the Act.

In the revised Amerindian Act, this privilege is recognised in theory, but both its ambit and the manner of its operation have been circumscribed in a number of ways. In the first place, "traditional mining privilege" has been defined as a privilege to carry out

"artesianal mining", possessed only by Amerindians residing in an Amerindian village or community.151 Hitherto this privilege was enjoyed by the "Aboriginal Indians" of the

Colony, and later under the 1989 Mining Act more loosely by members of any

"Amerindian community" - but its restriction to residents of Amerindian villages or communities in the 2006 Act was probably precipitated by the wide definition of the term 'Amerindian' by this Act.

The distinction in all the Mining Acts between traditional mining and commercial mining has also been preserved by section 52(2) of the 2006 Amerindian

Act, but henceforth in order to exercise a traditional mining privilege an Amerindian must obtain the consent of the Village council as well as comply with any obligations imposed under other written laws.152 The first requirement of obtaining the consent of the village council to carry out traditional mining activities, though completely novel, is unlikely to pose any difficulties, but the same cannot be said of the other loosely drawn stipulation requiring compliance with obligations under other written laws. Where an

151 Amerindian Act, No. 13 of 2006, s. 2 1S2Ibid, s. 52(1) 420 Amerindian exercised a traditional mining privilege under the Mining Act he or she was bound by certain obligations such as not interfering with third party rights and relating to the disposal of all minerals and precious stones obtained. These are fairly innocuous requirements, but other statutory obligations such as those detailed in the Environmental

Protection Act are not. If the latter are captured by s. 52(1) this will pose considerable hardship and place Amerindians seeking to carry out traditional mining in an impossible situation.

The other critical issue to Amerindians with regard to mining relates to the permissibility of commercial mining activities on Amerindian lands. The 1989 Mining

Act reiterated the provisions contained in colonial versions of the law on this subject, though protection was conferred depending upon the scale of the mining operation.

Section 111 of the 1989 Mining Act provided as before that "all land occupied or used by Amerindian communities and all land necessary for the quiet enjoyment by the

Amerindians of any Amerindian settlements, shall be deemed to be lawfully occupied by them." This, however, was made relevant only to small scale mining, which by virtue of the relevant Form 5C of the Mining Regulations cannot be conducted on lands that are "lawfully occupied". In relation to medium-scale mining, the relevant form -

Form 5B - prohibits mining only on lands "held under title" but not on the wider category of lands that are "lawfully occupied". As for large-scale mining, there are

421 apparently no meaningful restrictions and it would appear that the State has a wide discretion to issue such concessions on any lands, titled or not.153

Given the devastating effects of mineral-extractive industries on the environment, and perhaps recognizing the greater vulnerability of indigenous communities, in 1997 the government adopted an administrative policy that sought to mitigate the unfettered discretion of the law. By this Policy it was acknowledged and provided that:

"There have been criticisms of the [GGMC] entering into agreements for mineral prospecting and other development over Amerindian lands without reference to the Amerindians living there. Government has decided that recognised Amerindian lands would stand exempted from any survey, prospecting or mineral agreements unless the agreement of the Captain and Council for the proposal is obtained by the GGMC in writing. While upholding the law that subsurface rights are vested in the State, Government is of the view that the search for and development of mineral deposits on Amerindian lands is desirable since it can contribute to rapid growth and development of Amerindians and Amerindian communities. Government recognises too the many potential negative impacts and the need to arrange to minimize if not avoid them altogether."154

Under the 2006 Amerindian Act, the position has apparently reverted to that existing prior to the adoption of this administrative policy, though it would be a mistake simply to condemn the revised Act as reversing the 1997 administrative policy, the gains of which were at best only questionable.155 That said, the 2006 Act contains a highly controversial feature with regard to large-scale mining, though it has also

Colchester et al 2002, supra note 45 at p. 20 Ibid, at 20-21; emphasis supplied Ibid All introduced various innovative provisions of potentially great benefit to Amerindian villages.

The principal safeguard in the 2006 Act is the implementation of a clear prohibition on small and medium scale mining activities on village lands without the consent of two-thirds of the residents present and entitled to vote at a village general meeting.156 The controversial feature is the power of the State to override the refusal of consent by an Amerindian village to large-scale mining activities on its titled lands.

Such a decision may be taken where the mining activities are declared to be "in the public interest", with the authority for so doing vested in both the Minister for

Amerindian Affairs and the Minister with responsibility for mining acting together.

Predictably, the power to override was excoriated by Amerindian NGOs at public hearings on the draft Act. In their joint submission, the NGOs referenced international covenants as well as jurisprudence and policy statements emanating from inter-governmental organisations that underscore the rights of indigenous peoples to meaningful participation in decisions affecting their land and resource rights. The

NGOs submitted forcefully that "none of the abovementioned standards allow for states to override indigenous peoples' right to give or withhold their informed consent in the public interest."159 This objection was repeated by the APA in its complaint filed with

CERD.160 Irrespective of the manifest justness of their position - a contention that will

156 Amerindian Act, No. 13 of 2006, s. 48 157 Ibid, s. 50 158 NGO Submission, supra note 123 at p. 23 159 Ibid, at p. 24 160 Supra note 124 at para 89 423 be developed below - the trouble with this submission is that it expressed in dogmatic terms what is still a developing principle at international law. Indigenous Peoples comprise only one sub-set of actors in the international arena, and other influential entities include governments, inter-governmental organizations and possibly even multinational corporations. The result is that on the extent of governments' duty towards indigenous peoples with regard to proposed development projects, there exist a

"panoply of positions, all of which are defensible under the current international regime."1 l At one end of the spectrum indeed is the requirement of free and informed consent, obviously espoused by indigenous peoples, but at the other end is simply a duty to consult.

As James Anaya points out, a logically prior issue is that of ownership of the lands or resources in question, for that founds the substantive right and informs the corresponding duty. Anaya identifies a range of positions, spanning consultation, accommodation of concerns, the provision of adequate information, meaningful participation, culturally appropriate procedures and consent.163 But even where ownership rights exist, Anaya's conclusions are very tentatively expressed:

"...where property rights are affected by natural resources extraction, the international norm is developing to also require actual consent by the indigenous people concerned. Where property rights are indirectly but still significantly affected, for example in the extraction of subsoil resources that are deemed to be under , the state's

161 Bartolome Clavero, "The Indigenous Rights of Participation and International Development Policies" (2005) 22 Arizona J. oflnt'l & Comp. L. 41 162 James Anaya, "Indigenous Peoples' Participatory Rights in Relation to Decisions About Natural Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources" (2005) 22 Arizona J. oflnt'l & Comp. L. 7 163 A Wat 16 424 consultations with indigenous peoples must at least have the objective of achieving consent. If consent is not achieved, there is a strong presumption that the project should not go forward."1 4

Overall, agreement seems to be that at international law, the requirement of consultation, or more accurately meaningful participation, holds States to a high standard, but this does not extend to a right in Indigenous peoples to veto proposed activities on their land.165 It is for this reason, perhaps, that CERD made no observation on this aspect of the complaint submitted to them.166 Given the amorphous state of international law on this subject, therefore, Indigenous NGOs in Guyana might have been on more solid ground had they framed their objections in terms of domestic law.

Large-scale mining will inevitably result in severe disruptions to surface rights, which constitute interference with the property rights of Indigenous peoples. The 2006

Act attempts to address this by providing that where consent is refused by a Village but mining activities are nonetheless permitted by the State, the miner is required to furnish a written undertaking that he will "promptly pay fair compensation for any damage caused by his mining activities to Village lands or property owned by residents". This stipulation was framed in the precise terms of article 142 of the Constitution, which protects property from compulsory acquisition, and it applies only to interference with surface rights, given that in 1887 the Crown asserted ownership rights to all

Ibid at 17 (emphasis supplied) 165 Brenda Gunn, "Protecting Indigenous Peoples' Lands: Making Room For the Application of Indigenous Peoples' Laws Within the Canadian Legal System" (2007) 6 Indigenous L.J. 31 at 67 166 CERD Concluding Observations, supra note 130 167 Amerindian Act, No. 13 of 2006, s. 50(l)(c)(iii) 168 See text set out at note 21 supra 425 minerals.169 Nonetheless, the question remains whether a higher duty may be said to

exist by reason of the Constitution which explicitly recognises the rights of Indigenous

peoples to land in its Preamble, as well as the entrenched article 149G of the Bill of

Rights therein which protects the "cultural heritage and way of life" of Indigenous

peoples.170 Constitutions, after all, are meant to be interpreted purposively, 7 so the

combined effect of these entrenched rights ought to impel a higher duty on the part of

the State. Put another way, any legislative provision with the potential to infringe

Amerindian land rights as protected by article 149G, arguably ought to pass some prior

test of justification over and above the bare requirements of "prompt payment of

reasonable compensation" laid down in article 142.

Implicated in this approach are several factors. On the one hand, the power

reserved by the State to permit large scale mining on indigenous lands over the wishes

of its owners is balanced by provisions which confer on Amerindians an unprecedented

Crown Lands Ordinance 1887, s. 9. Although no compensation was paid to Indigenous peoples when their ownership of minerals was extinguished by this provision, Amerindians were simultaneously excluded from the regulatory scheme of the law, and as discussed in chapter 8, supra, from 1887 onwards their right to dig for minerals on a subsistence scale was recognised. 170 The text of these provisions is set out on p. 388, supra 171 In the Commonwealth Caribbean this is practically trite law since Lord Wilberforce's classic exhortation in 1979 that interpreting constitutional instruments requires "a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms": Minister of Home Affairs v Fisher [1980] A.C. 319 at 328. The argument made here is not dissimilar from the role suggested by Brian Slattery in relation to the dynamic potential of s. 35 of the Constitution Act 1982, insofar that the latter may be capable of generating a new constitutional order in response to the competing interests of Aboriginal peoples and the rest of Canadian society: see "Aboriginal Rights and the Honour of the Crown" (2005) 29 S.C.L.R. 433; for other thoughtful analyses of this subject see Patrick Macklem, Indigenous Difference and the Constitution of Canada (Toronto: UT Press, 2001) 160-7, James Youngblood Henderson, "Aboriginal Jurisprudence and Rights" in Advancing Aboriginal Claims: Visions/Strategies/Directions, ed. Kerry Wilkins (Saskatoon: Purich, 2004) 67-77, and consider the suggestion of Noel Lyon that the approach to the interpretation of the Canadian Charter should be "philosophical rather than analytical" : supra note 52 at 112. Ultimately, these various perspectives are fundamentally distinct from an approach to constitutional interpretation that merely espouses a literal reading of the text. 426 opportunity to participate in decisions surrounding mining activities on their lands and to share in the benefits of those activities, in conformity with the guidelines identified by Anaya. Specifically, where mining activities are proposed on village lands, the village must be given all the relevant information such as disclosure of the identity of those involved, a non-technical summary of the mining activities, the duration of the operations, its likely impacts on the village and its lands as well as any other matter raised by the village. The village may even request consultations, which the miner must attend, and the parties are required to negotiate in good faith in order to arrive at the amount of tribute to be paid to the village.174 There is even provision for the State to facilitate those consultations, though only at the request of a village.175

Also unprecedented are provisions in the 2006 Act permitting villages to share in the benefits of mining in a variety of ways. All mining agreements are deemed to contain terms requiring employment of residents where possible and the purchasing of food and other materials from the village where available at reasonably competitive prices.176 More substantially, villages are for the first time entitled to a share in the proceeds of mining activities on their lands, separate from the obligations owed to the

State. This is in the form of a tribute to be paid to a village, fixed at a minimum of 7% of the value of minerals obtained from small or medium scale mining on its lands,177 while the amount of tribute to be paid in the case of large scale mining is left open.

172 Ibid,s. 48(1) 173 Ibid, s. 48(1 )(d) 174 Ibid, s. 48(l)(e)&(f) 175 Ibid, s. 48(2) '76 Ibid, s. 49(2) 177 Ibid, s. 51(1) 427 Where large scale mining is sanctioned by the State on village lands over the refusal of the village, the Minister of Amerindian Affairs is required to negotiate the amount of tribute to be paid by the miner to the village,178 but not before a further period of sixty days after the override is exercised within which the affected Village may resume negotiations with the miner on these issues.179 Further, a separate fund is to be established into which 20% of all royalties paid to the State from mining activities is to be paid for the benefit of all Amerindian villages. This requirement ensures that the benefits of mining activities will accrue even to villages that do not possess mineral resources in commercial quantities.

But despite these provisions that admittedly help to mitigate the consequences of large-scale mining, there are a number of factors that strongly suggest that the power to override itself is unjustifiable when analysed in terms of the Privy Council's approach in de Frietas. The first of these has to do with the rationale for its exercise, which is where the State deems the mining activities to be in the "public interest".182 As pointed out in relation to a similar power in relation to the 1976 titles, the 'public interest' test is significantly different from that required in relation to non-indigenous property rights, where the standard is the more objective one of facilitating a "public work".183 Indeed,

"public interest" is a notoriously nebulous concept, rejected in the past by other common law jurisdictions. In R. v. Sparrow, where a similar issue was under mIbid, s. 51(2) 179 Ibid, s. 50(2) 180 Ibid,s. 51(3) 181 See note 37 above and accompanying text for a discussion of this case 182 Amerindian Act 2006, s. 50(1 )(a) 183 Supra note 39 428 consideration (that is to say, the infringement of a constitutional right), the Canadian

Supreme Court held unanimously that the infringement of Aboriginal rights could only be justified by the existence of a "compelling and substantial" legislative objective.

Elaborating, the Court said:

"...the 'public interest' justification [is] so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the 1 QA

justification of a limitation on constitutional rights."

Admittedly, this position was diluted in subsequent judgments, where activities infringing Aboriginal rights were held to be permissible on broad, 'public interest' grounds bearing upon economic and regional fairness, but this has been criticized by indigenous law scholars as a retrograde step186 and should not be emulated in Guyana.

To demand otherwise would be to give the State virtual carte blanche to infringe the constitutional rights of Amerindians, for a range of undefined and indefinite reasons.

The issue of minimal impairment potentially raises greater obstacles. Mining and other commercial resource-extractive industries often result in severe ecological consequences, as has been the disastrous experience of many Indigenous peoples

184 R. v. Sparrow (1990) 70 D.L.R. (4th) 385 at 412 185 Gladstone & Gladstone v The Queen [1996] 2 S.C.R. 723 and Delgamuukw, supra note 98 at 1111 (per Lamer C.J.C.). A possibly more sensitive approach to the interpretation of the 'compelling and substantial' test was evinced by the trial judge in Tsilhqot'in Nation v British Columbia 2007 BCSC 1700 (20th Nov 2007). There Vickers J held (at para 1107) that forestry activities within the claimed area could not be justified, as their economic benefits were not sufficient to outweigh the disproportionate impacts on the plaintiffs Aboriginal title. Of course, this suggests that given a sufficient economic return, the constitutional right may be justifiably infringed on these grounds. 186 Kent McNeil, "How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified?" in Emerging Justice? supra note 28 at 281 429 throughout the Americas and elsewhere. The experience of Guyanese Amerindians has been no different, and mining activities have historically wreaked immeasurable damage upon their communities. In the early twentieth century it was responsible for convulsive disruptions to Carib communities in the North-West and Akawaios in the

Upper Mazaruni region. By the end of the century those effects were multiplied around the country as prospecting and extracting areas expanded, further exacerbated by an epidemic of illegal mining by undocumented garimpeiros from neighbouring Brazil.

Combined with technological advances that facilitate more invasive and destructive mining techniques, the consequences have been devastating for Amerindian communities and the environment in general, as exposed by a new wave of Reports and studies.190 The litany of woes caused by mining is extensive, and includes land and water pollution, habitat destruction, loss of wildlife and other natural resources, destruction of farm lands and loss of crops, siltation of rivers, increase in deaths, injuries and sicknesses caused by mining and pollution, a rise in alcoholism, prostitution, sexual abuse and STD's, the loss of traditional occupations and a breakdown in family and community structures.191 Although the 2006 Act includes safeguards to mitigate (and redress) environmental damage, statutory obligations may

An excellent account of the struggles by several indigenous peoples of Ecuador against the oil industry is given by Isabela Figueroa in "Indigenous Peoples Versus Oil Companies: Constitutional Control Within Resistance" (2006) 4 International Journal on Human Rights 51 188 Laura Westra, Environmental Justice and the Rights of Indigenous Peoples: International and Domestic Legal Perspectives (London: Earthscan, 2008) at chapter 4 especially P.S. Peberdy, Report of a Survey on Amerindian Affairs in the Remote Interior: With Additional Notes on Coastland Population Groups of Amerindian Origin (Government of British Guiana, 1948) paras. 26; 74-5 190 Janette Forte, About Guyanese Amerindians (Georgetown, 1996) 68-9; Colchester 1997, supra note 14 at pp. 69-85 191 Colchester et al 2002, supra note 45 at pp. 32-43 430 do little to counter illegal and harmful practices given the reality that mining operations invariably take place in dense, inaccessible forested areas with minimal regulatory oversight or monitoring.

Against these realities must be measured the widely acknowledged fact that indigenous peoples have a sacred and unique relationship with their lands and territories. Unlike individually-held land, indigenous land is held not only in the present, but for the benefit of unborn generations, implicating notions of spirituality, culture and way of life. Accordingly, a Constitution that recognises and seeks to protect this relationship must require more than the mere "prompt payment of adequate compensation". This standard is obviously aimed at and captures non-indigenous values, which treats land as a commodity, whereas no amount of money is probably

"adequate" to compensate Indigenous peoples for the destruction of the relationship with their lands. Bearing these considerations in mind, the refusal by Indigenous peoples to consent to mining activities on their land should be respected as final. A legislative sanctioned power to override constitutes an unjustifiable and unreasonable violation of article 149G, which protects the culture and way of life of Indigenous peoples of Guyana. This conclusion is reinforced by article 39(2) of the Constitution, which provides that in interpreting the fundamental rights provisions of the Constitution

(of which article 149G is a part), regard must be had to "international law, international conventions, covenants and charters bearing on human rights." As described above, international law on the subject of development on indigenous lands holds States to a high standard, which is definitely irreconcilable with permitting mining on those lands 431 over the objections of its owners. For these reasons, the power to override contained in section 50 is surely unconstitutional.

(c) Forestry

In the post-Independence period, the initial change of substance in relation to forestry concerned Amerindian rights on their titled lands. With formal recognition of

Amerindian collective ownership, lands within village boundaries became private and wholly outside of the regulatory scheme of the Forests Act. This meant that

Amerindians became free to cut timber on their lands and dispose of it as they pleased, without any of the restrictions regarding girths, felling limits or protected species. The revised Amerindian Act attempts to address this situation by the inclusion of safeguards aimed at providing some regulation of timber resources on titled Amerindian lands.

Residents who wish to cut trees or otherwise harvest forest produce from village lands must now obtain the consent of the village council.192 Whether or not Amerindian communities had any such requirement by virtue of their customary practices, its inclusion in the 2006 Act means that all communities will now have to formulate rules controlling the use of their forest resources.

Detailed provisions have also been laid down with respect to forest operations by non-residents. Critical reforms include a requirement of obtaining the consent of the village prior to the issue of contracts with non-residents to cut timber and otherwise use forest produce on village lands. This has been fixed at the level of at least two-thirds of

192 Amerindian Act, No. 13 of 2006, s. 54 432 those present and entitled to vote at a village general meeting.193 Other safeguards include specific obligations placed on the intending lessee to furnish details of proposed activities to the village council, to attend any requested consultations and to negotiate in good faith with the village.194 In addition, provision is included for oversight by the

Minister, the Guyana Forestry Commission and the Environmental Protection Agency - all of which must be informed of the proposed activities, but who can play no active role in the negotiations unless so requested by the village.195 Where a village does enter into a contract with third parties to cut timber on their lands, all the requirements as to the harvesting of forest produce on State lands are deemed to apply to the operations, and in order to enforce this the GFC is required to monitor all forest operations on titled

Amerindian lands.196

With regard to traditional Amerindian rights vis-a-vis third party rights in declared State forests, the position remained essentially unchanged from that obtaining under the British. As described in the previous chapter, Amerindian rights have been explicitly saved under the colonial forest legislation still in force, which means that they cannot be prevented from exercising their inherent rights in ungranted State forests, and possibly even in granted State forests.197

Although these provisions are fairly unequivocal, the increase in forestry concessions has heightened conflicts for Amerindian communities. Isolated and

193 Ibid, s. 55(l)(e) 194 Ibid, s. 55(1) 195 Ibid, s. 55(l)(b), (2) 196 Ibid, s. 55(3)&(4) 197 See Chapter 8, supra 433 marginalized in the interior, communities bordering (and sometimes enclosed within) major concessions have been severely disadvantaged.198 Invariably without the means or ability to seek legal recourse, powerful corporate entities have been able to trample on indigenous rights with impunity - often unaware that their actions contravene established rights held by peoples whose existence in the forest long pre-dated their own. One example of this obliviousness is provided by historians Benjamin and Pierre in their study of laws impacting on Amerindians. Therein they refer to the comments of the Commissioner of Forests made in an interview with them that the management plans of large concessionaires (that is, the holders of 'timber sales agreements') enable the latter to circumscribe Amerindian rights in granted forests. Based on this interpretation, two of the largest timber companies have banned or restricted hunting within their concessions. This, of course, is clearly wrong. Amerindian rights to hunt are traditional rights that continued unextinguished upon the transition to British rule.

No legislation was passed either before or after independence terminating these rights, but rather section 37 of the extant Forests Act explicitly saves traditional rights. These saved traditional rights have been further entrenched and protected by guarantees in the

Constitution which protect private property, not to mention article 149G that protects and preserves Amerindians' way of life. Accordingly, hunting rights within a granted forest area cannot be overridden by a mere management plan. Such action by

Colchester 1997, supra note 14 at pp. 119-120 & 123-4 Benjamin & Pierre, supra note 126 434 concessionaires, irrespective of the fact that it may occur with the tacit approval of the relevant regulatory agency, is unquestionably wrong and illegal.

The 2006 Amerindian Act has attempted to strengthen the protection conferred on Amerindian villages by imposing an obligation on the GFC to "consider" the impact on villages of any third party rights it issues on lands contiguous with village lands.

Since the duty is merely to "consider" impacts, it means that concessions or other agreements can ultimately be issued notwithstanding negative impacts. Given such a weak standard, it remains highly questionable whether this obligation will amount to meaningful protection in practice.

Of greater concern is a draft Forest Bill now before Parliament, which contains provisions relating to Amerindians that could roll back rights that existed even during the colonial period. In the 1953 Forest Act, section 37 explicitly provided that nothing in the legislation "shall be construed to prejudice, alter or affect any right or privilege heretofore possessed, exercised or enjoyed" by Amerindians. In the place of this guarantee, however, clause 5(2)(e) of the 2007 Bill will save, in relation to State forests, the rights and privileges "held by any Amerindian community under custom immediately before the commencement of this Act, if the right... or privilege (as the case may be) is exercised or performed sustainably in accordance with the spiritual relationship of the group with the land." This formulation is in keeping with the language and philosophy of the 2006 Amerindian Act, whose protection of 'traditional right' is similarly limited. As pointed out already, this is paternalistic and somewhat

200 Section 56 435 offensive insofar as it purports to dictate to Amerindians how to use the resources on the land where they have always lived. Moreover, since under this clause protection is extended only to those rights, powers, duties and privileges held immediately before the coming into force of the legislation, the effect is to freeze traditional rights at a particular date - an undoubtedly insensitive and discriminatory approach.

Another concern is the possibility that clause 5(2)(e) of the Forest Bill 2007 would be ineffective to prevent the grant of forest concessions on untitled Amerindian lands. Traditional rights are of a proprietary nature and are theoretically protected from expropriation without compensation. This position is further strengthened given the guarantee of property rights in the Constitution as well as the protection conferred on indigenous peoples' "way of life" in the recently amended Constitution. However, the entrenched practice whereby private grants operated to the detriment of traditional rights and the weak regulatory framework will now be compounded by the omission in the Forests Bill 2007 of a general saving clause comparable to the breadth of what is provided for in the existing section 37. This makes pre-existing Amerindian rights vulnerable to extinguishment in practice, notwithstanding the strict position at common law. Thus, if the Forests Bill is enacted in its current form, it has the potential to erode protections in the law that existed all through the reviled Colonial period.

Thus, the combined effect of recent and proposed legislation is, on balance, decidedly disadvantageous to Amerindian rights in state forests. While Amerindians own the timber resources on lands legally recognised as theirs, this is of little relevance

436 to those communities that still lack formal recognition.201 Under the 2006 Amerindian

Act, only subsistence rights are protected in relation to State forests, but even these could vanish if the draft Forest Bill now before Parliament is passed. This is so because that protection is conferred only against acts taken under the authority of the

Amerindian Act, which means it would be of no relevance or benefit where timber harvesting concessions are issued under separate forest legislation. Since the 2007

Forest Bill seeks to replace section 37's wide saving of Amerindian rights with a diluted version, the ultimate result will be to leave Amerindian rights in granted State forests in a very precarious position.

Conclusion

Legislative changes in the post-independence period have yielded mixed results for Amerindians. Unquestionably, there have been unparalleled benefits, most notably in the treatment of land rights. For the first time since the dawn of Colonialism there are now comprehensive and detailed provisions in the law governing both procedural and substantive issues related to land claims. The process outlined in the law is clear, simple and flexible, with only minimal requirements to be satisfied. The provisions relating to governance are also an improvement on previous versions, with a significant devolution

201 However, this does not inevitably have to be the result. The Canadian Supreme Court has held that the Crown must act honourably in its dealings with Aboriginal Peoples. This means that in allocating resources, the Crown is required to consult meaningfully with Aboriginal Peoples where there is knowledge of even the potential existence of Aboriginal rights or title to the area in question: Haida Nation v British Columbia (Minister of Forests) (2005) 245 D.L.R. (4th) 33 at 43 and 50-3 437 of power to local authorities. Though the State has retained some powers of oversight and in some cases even an actual ability to interfere in internal decision-making, these instances are invariably designed to promote good governance or to protect

Amerindians from larger, external forces. By no means, however, do they approximate to the paternalism of colonial enactments.

The most significant flaw of the modern legislative activity relates to the treatment of traditional rights, which have been given a very limited interpretation. This is especially ominous for Amerindian communities, which have been mostly excluded from the benefits of the Act. Benefits accrue generally to Amerindian villages, defined as communities that own the lands which they occupy. Although the clear intent seems to be that all communities will eventually apply for and obtain legal recognition, until this is done legally unrecognized communities will remain in highly vulnerable position. In some instances, their vulnerability under the legislation is relatively minor - such as the inability to make and have rules gazetted, for example. In other instances, however, the consequences of not having legal title (or the absence of recognition of

Aboriginal title) could be potentially devastating. It means, for instance, that communities have no control over acts of trespass committed on lands used and occupied by them, as the provisions regarding entry and access apply only to legally titled Villages. It means most crucially that protections against mining activities and forest operations203 do not apply to communities, for the obligations set out in the Act

Amerindian Act, No. 13 of 2006, s. 53 Ibid, ss. 55 & 56 438 apply only in relation to "village lands". Of course section 57 of the Act does protect traditional rights, but this confers at best only very limited protection. Notably, protection is granted subject to the rights of third parties, and even so it only covers the very limited concept of 'traditional right' in the Act. Thus, only rights of a subsistence nature are captured, which does not include other types of common law rights (such as merely traveling across concessions for instance) or other statutory rights (like those under the Environmental Protection Act for instance). Most troubling of all, section 57 applies only to the Amerindian Act, and will therefore not protect traditional rights threatened by separate legislation regulating resource-extractive industries.

Overall, while there have been many improvements in the law governing

Amerindian land and resource-use rights, the chief disadvantage remains that these benefits are not evenly spread. Until all communities obtain legal titles to the land they occupy, or until existing protections are extended to untitled communities, a percentage of Guyana's indigenous peoples will remain in a highly vulnerable position.

439 CHAPTER 10

THE LAND RIGHTS OF GUYANA'S INDIGENOUS PEOPLES

"When it comes to asking for lands - that is a concept that gets me annoyed. All the names of the mountains, creeks and so on are our names - Arekuna names, Akawaio names. They are asking us to apply for lands that we already own."1

In 2006 the law was amended to include for the first time a mechanism to govern applications by Guyana's Indigenous Peoples for grants of communal land, whether or not they were already in possession of titled lands. The Amerindian Act, repealed and replaced in that year, specifies a detailed procedure for land claims and establishes criteria to guide the Minister in reaching a decision. These statutory developments possibly raise doubts as to the continued relevance of the common law on this subject, but such doubts can be immediately and definitively laid to rest. In the first place, section 62(2) of the 2006 Act requires that in determining an application the

Minister must consider, inter alia, the "traditional, cultural... or spiritual attachment to the land" demonstrated by the applicant group. This is a requirement regarding which a substantial body of jurisprudence has developed at common law, and which can in turn provide a basis for negotiations in applications under this section. In any event, the 2006

Act does not exclude a claim for recognition of aboriginal title under the common law, and where judicial review of a Ministerial determination is sought by an applicant, the

1 Councillor of Warawatta, submission made at public consultations held for Region 7 on the draft Amerindian Act, Warawatta Village, Upper Mazaruni, February 15, 2005 440 community or village in question ought to be free to support its claim to traditional or cultural rights by reference to relevant common law principles. Alternatively, given the divergence between the common law and the 2006 Act on certain issues, such as the definition of 'traditional right' or the Ministerial power of override to permit large-scale mining on Amerindian lands, litigation may be preferable either to secure recognition of wider common law rights, or even to establish the (un)constitutionality of a given provision of the 2006 Act. Moreover, Guyanese judges may wish to avoid the experience of Australia, where the disappointing evolution of the concept of native title has possibly been as a result of the resistance of Australian judges to the equitable application of common law principles, in favour a narrow interpretation of their Native

Title Act2 For these reasons it remains desirable, even essential, to have an understanding of common law doctrines regarding the issue of aboriginal title, as well as an awareness of post-sovereignty dealings with the land by successive administrations, despite the recent statutory developments. Accordingly, it would be useful to conclude our discussion by summarizing the salient principles of this subject developed in the preceding chapters.

At the outset, it can be stated without equivocation that there is a wealth of authority affirming the existence of a doctrine of Aboriginal title at common law.

Although there have been decisions to the contrary in the past - most notably the Indian

2 There is a voluminous literature on this subject, but for sources that explore this angle see in particular Alexander Reilly, "From a Jurisprudence of Regret to a Regrettable Jurisprudence: Shaping Native Title from Mabo to Ward'' (2002) 9:4 Murdoch University Electronic Journal of Law, online at http://murdoch.edu.au/elaw/issues/v9n4/reilly94nf.html and Maureen Tehan, "A Hope Disillusioned, An Opportunity Lost? Reflections on Common Law Native Title and Ten Years of the Native Title Act" (2003) 27 Melb. U. L. Rev. 523 441 Act of State cases whereby the continued existence of aboriginal rights was predicated upon specific statutory recognition, as well as cases from Australia whereby a cataclysmic doctrine of common law dispossession was followed for two centuries - these are authorities that are now thoroughly discredited. While there are still occasional attempts to invoke the principles they articulated, most recently by the Belizean government in the 2007 land claim brought by several Maya communities of Southern

Belize,3 such arguments have no realistic prospect of success in an independent and informed Court.

While there can be no doubt that the common law recognises Aboriginal rights, including title to lands, the means by which it does so are less clear, principally because common law courts have articulated several distinct approaches to the existence of aboriginal title. One of these is anchored firmly in the common law of real property. Its original author was Osgoode Hall Professor Kent McNeil, who theorized in his pioneering 1989 study that factual occupation of land by indigenous peoples is sufficient proof of their legal possession which, in the absence of any other claim to or interest in the said land, entitles them to a proprietary title under basic tenets of English property law.4 However, since the English common law of real property is specifically excluded in relation to immoveable property in Guyana,5 this approach is unavailable in the local context and can be safely laid aside without further consideration.

3 Aurelio Cal et al v Attorney-General of Belize. #171&172 of 2007, paras 69-71 [Supreme Court of Belize; judgment delivered 18 Oct 2007] 4 Kent McNeil, Common Law Aboriginal Title (Oxford: Clarendon Press, 1989) Chapter 7 generally 5 Civil Law of Guyana Act, Chapter 6:01, section 3C [Revised Laws of Guyana, 2002] 442 This leaves two alternative approaches by which aboriginal title can be held to exist - through the continuity doctrine or alternatively by virtue of the common law in its wider sense, which applied to all British colonies as an incident of British sovereignty. Under the former, Aboriginal title is grounded squarely in indigenous legal systems. Its post-sovereignty existence is owed to a presumption of the common law whereby on a transition of sovereignty, pre-existing laws continue unless expressly abrogated by the incoming Sovereign. Under the latter doctrine, which has been most comprehensively articulated by Osgoode Hall Professor Brian Slattery, aboriginal title is said to exist as part of the body of law that was formed by the intersection of the common law and indigenous systems and which came to govern relations between settlers and native peoples. The title that results has been characterized as 'sui generis' since it would have been unknown to both Aboriginal systems and the common law, arising in response to the unique circumstances of colonization. Although either of these approaches could theoretically apply to Guyana as a former British colony, it is important to assess their respective qualities as each has specific consequences regarding the existence and nature of the title that is ultimately held to result.

Where the doctrine of continuity is applied, the title that results is necessarily a creature of the pre-existing indigenous legal system. As Slattery points out, there are a number of theoretical flaws attendant on this approach, notably in that it results in a customary right that is significantly deficient in its external aspects. In other words, the

6 Brian Slattery, "Understanding Aboriginal Rights" (1987) 66 Can Bar Rev. 727 7 Guerin v The Queen [1984] 2 S.C.R. 335 (SCC); Brian Slattery, "The Metamorphosis of Aboriginal Title" (2006) 85 Can. Bar Rev. 255 at 271-278 title varies with each indigenous system, and since it is governed by internal laws and customs there is an absence of "higher order principles" to regulate conflicts arising from the interaction between different indigenous groups or between an indigenous group and the general (common law) legal system.8 To this criticism can be added some observations of a more mundane nature. Since the title is grounded in pre-sovereignty laws, a successful claim requires evidential proof of enormously difficult proportions.

Applicants must establish a connection to the land claimed which existed at the time of sovereignty and continued thereafter up to the present.9 Given the early roots of colonization, this necessitates evidence of events and laws dating back hundreds of years, a practically impossible burden for most aboriginal societies which lack written records. Indeed, many cases from around the commonwealth have floundered fatally on this ground alone.

Another difficulty posed by the continuity doctrine relates to those pre-existing laws themselves. As Brennan J decreed in Mabo, "The nature and incidents of native title must be ascertained as a matter of fact by reference to [traditional] laws and

8 Slattery 2006, ibid, at 264-7 9 This at least is how these principles have been applied in Australia: Yorta Yorta v Victoria (2002) 194 A.L.R. 538. However, as Kent McNeil points out, there is no good doctrinal reason for this, because once the Aboriginal right in question gains initial common law recognition it ought to continue thereafter (like other common law customary rights) in the absence of some positive (and valid) act of extinguishment. In other words, the right's continued existence depends not on the continuation of the custom that gave rise to it, but rather its treatment by the common law - see "Continuity of Aboriginal Rights" in Advancing Aboriginal Claims: Visions/Strategies/Directions, ed. Kerry Wilkins (Saskatoon: Purich, 2004) 127 especially at 133-4 444 customs."10 This test has been followed in a number of cases11 and echoed uncritically by some academics. Jeremie Gilbert proclaims, for example,

"...the reference to a common law doctrine of indigenous peoples' land rights is gradually becoming more widespread, with national courts from Malaysia, Belize, South Africa, Botswana, or Kenya referring to it. This doctrine recognizes that those customary indigenous laws regarding land ownership which preceded common law, should be recognized as title generating."

However, what these various pronouncements overlook is the fact that the unwritten nature of indigenous legal traditions, the convulsive upheavals attendant upon colonization, and the passage of time all combine to make identification of specific

"customary indigenous laws" an elusive exercise of great indeterminacy. Indeed, what is patently absent from the majority of cases that purport to give effect to pre-existing indigenous laws through the recognition of a customary land title is any informed discussion as to the existence and nature of those laws. Where courts make an attempt to articulate controlling principles, invariably this turns into an epistemological foray of reckless and uncontained guesswork, with detrimental results for indigenous applicants.

A classic illustration of these concerns can be found in a recent decision of the

Australian High Court in a claim brought by the Yorta Yorta Peoples for recognition of their native title to land and waters in northern Victoria and southern New South Wales.

Mabo and others v Queensland (No. 2) (1992) 107 A.L.R. 1 at 42; This ruling has been reinforced by the Federal Native Title Act 1993 (Cth), s. 223(1) of which defines "native title" by reference to traditional laws and customs of Australian Aboriginal peoples. This provision has been strictly construed by the Australian High Court as requiring primary focus on those laws and customs: Western Australia v Ward (2002) 191 A.L.R. 1 at 16-17 and Yorta Yorta. ibid at 549 11 Most recently by the Supreme Court of Belize in Cal v A-G. supra note 3 12 Jdremie Gilbert, "Historical Indigenous Peoples' Land Claims: A Comparative and International Approach to the Common Law Doctrine on Indigenous Title" (2007) 56 ICLQ 583 at 585 445 The applicants lost at every level of the Australian judiciary, their ultimate failure resulting from what the High Court viewed as the absence of proof of the continuity of their traditional laws and customs. The High Court held that the applicants had to show that pre-existing native laws and customs had survived to the present, for if the

"normative system has not existed throughout that period, the rights and interests which owe their existence to that system will have ceased to exist."13 As if that were not by itself a sufficiently onerous burden, the Court also stipulated that the pre-existing normative system could not give rise to rights and interests after the assertion of British sovereignty as there could be no parallel law-making system after that event.14 Thus the applicants were placed in the impossible situation of having to prove continued adherence to traditional laws and customs and the existence of the system which gave rise to them, though that system was expected to flourish in the intervening centuries without functioning (as in giving rise to new norms), as every other normative system in

Australia became excluded by the monopolistic nature of British sovereignty.

According to Sky Mykyta, commenting on this requirement, ".. .the Court requires

Indigenous peoples to acknowledge what it denies and to keep alive what it says cannot exist."15

This approach taken by the High Court illustrates graphically the difficulties attendant upon any exercise that attempts to ascertain the nature of traditional laws and customs and the issue of their survival. In holding that the forbears of the applicants had

13 Yorta Yorta. supra note 9 at 553 14 Ibid, at 552 15 Sky Mykyta, "Losing Sight of the Big Picture: The Narrowing of Native Title in Australia" (2004-5) 36 OttawaL. Rev. 93 at 111 446 ceased to occupy their lands in accordance with traditional laws and customs, the High

Court relied on the determination of the trial judge, which was in turn based on historical accounts of Aboriginal culture written by a White pastoralist that were of doubtful credibility and reliability.16 The High Court did not accept the applicants' claim that their present observance and acknowledgement of traditional laws and customs was sufficient to meet the test of a present connection as required by the legislation. In this way, both historical and modern Aboriginal perspectives were completely ignored. As Kirsten Anker has insightfully pointed out, the Court's interpretation of tradition and culture wholly misunderstood the nature of traditional laws and customs, and by substituting its own understanding and expectations of what these laws and customs constituted, it completely ignored the fact that the customs described by the applicants were simply the contemporary expression or form of pre­ existing practices. In Anker's words, the High Court's "emphasis on normative continuity has consequently privileged overt and publicly elaborated symbols of community over what is passed on below the level of consciousness. Yet, claimants

16 Michael Stuckey, "Not by Discovery But by Conquest: The Use of History and the Meaning of 'Justice' in Australian Native Title Cases" (2005) 34 Comm. L. World. Rev. 19 at 24; For a critique of the trial judge's approach, and a more detailed discussion of the complexities of the requirement related to traditional laws and customs and how this has bedeviled Australian jurisprudence, see Kent McNeil, "The Relevance of Traditional Laws and Customs to the Existence and Content of Native Title at Common Law" in Kent McNeil, ed., Emerging Justice?: Essays on Indigenous Rights in Canada and Australia (Saskatoon: University of Saskatchewan Native Law Centre, 2001) 416; see also Richard Bartlett, "An Obsession With Traditional Laws and Customs Creates Difficulty Establishing Native Title Claims in the South: Yorta Yorta" (2003) 31 Western Australia L. Rev. 35 and Alexander Reilly, "The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title" (2000) 28 Fed. L. Rev. 453 at 462-4. In the Canadian context the Van der Peet 'integral to the distinctive culture test' has been criticised as being informed by racist considerations, see R.L. Barsh, and J.Y. Henderson, "The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand" (1996-7) 42 McGill L.J. 993 at 999, and consider that early US Indian title decisions did not have any of these restrictive prerequisites: Simon Young, The Trouble with Tradition: Native Title and Cultural Change (Sydney: Federation Press, 2008) 81-4 447 would have necessarily inherited more traditional law and custom than they are able to

1 7 articulate, passed on at a tacit level of cultural reproduction than as explicit laws."

Indeed, the court's evident inability to navigate certain procedural matters underline how ill-equipped common law courts are to assess unconventional forms of evidence such as oral testimonies as well as evidence given by historians, whose approach to their data generally involves a significant degree of interpretation.19 On the whole, the exercise carried out by the Court reveals the dangers inherent in requiring a modern court to estimate pre-sovereignty laws and customs and then expecting its conceptions to be reflected in current practices among indigenous applicants through an unbroken chain of continuity.20 It involves an exercise that can easily turn into an imaginary journey in which the perspectives of indigenous applicants stand to be marginalized in the interpretations placed either upon the past or the present. Moreover, allied to these concerns are the fundamental difficulties with any approach that places an inordinate emphasis on strict continuity, given the very nature of colonization that resulted in sometimes minor, but often significant, disruptions to indigenous modes and patterns of living.

Kirsten Anker, "Law in the Present Tense: Tradition and Cultural Continuity in Members of the Yorta Yorta Aboriginal Community v Victoria" (2004) 28 Melb. U. L. Rev 1 at 17 18 Mykyta, supra note 15 at 121-2 19 Stuckey, supra note 16 at 28. 20 Professor Shin Imai argues that the use of historical evidence to resolve issues related to the resource allocation is fundamentally misguided, and suggests that these two need to be kept separate. Instead, he suggests, the accommodation of contemporary needs could be approached from within the framework of the Sparrow justification test, which is better suited for resolving competing Aboriginal and settler interests: Shin Imai, "The Adjudication of Historical Evidence: A Comment and an Elaboration on a Proposal by Justice Lebel" (2006) 55 U.N.B.L.J. 146 21 Anker, supra note 17 at 26 448 In relation to Guyana, when Britain acquired the three colonies in 1803 the documents of capitulation and later the formal Treaty of Cession explicitly protected private property. Applying the doctrine of continuity would mean that these formal guarantees included the customary proprietary rights of the indigenous inhabitants. But there is the intervening period of Dutch rule that must be taken into account. Although the position adopted in this study is that it is unlikely that any wholesale extinguishment of pre-existing indigenous rights occurred during the Dutch period, this possibility must not be ignored. In the event that some or all indigenous rights might have been extinguished prior to British rule, this would mean that application of the continuity doctrine would be of no avail to modern applicants as there would be no pre-existing rights available for continuation. On the other hand, similar difficulties were present in relation to the Maya claim to traditional lands in Southern Belize, in the form of the intervening period of Spanish rule prior to the acquisition of British sovereignty.

Nonetheless, this did not preclude a finding of customary rights in the plaintiffs to the claimed lands based on an application of the continuity doctrine.23

Altogether, these factors indicate that there are significant obstacles attendant upon the continuity doctrine, though not all of them are insurmountable. Therefore, in the event that this doctrine is applied to Guyana, it should be approached with an awareness of these concerns, including the procedural and substantive difficulties outlined above. While there can be no foregone assumption that Guyanese courts will

Aurelio Cal. supra note 3 at para 79 Ibid, at paras. 81-93 449 make the same errors as their Australian counterparts, the terrain is unquestionably perilous and the likelihood of successful navigation is undermined by the complete absence of any applicable local jurisprudence. Even if the flawed Yorta Yorta requirement of unbroken continuity is eschewed, as it should be, this would still leave difficulties of proof of laws and customs at the time of Crown sovereignty.

Moreover, bearing in mind Slattery's criticisms of the strict application of the continuity doctrine, in particular the deficiencies of a resulting title in its external aspects, the alternative worth considering is the existence of Aboriginal title as a sui generis right, applicable in Guyana by virtue of the common law in its wider sense. As discussed above, this refers to the body of Colonial law or Imperial Constitutional law that came into being as a result of the interaction between the distinct legal systems of the British and indigenous societies in newly acquired territories. This body of law grew up to govern relations between members of these two systems, and it recognised the rights of indigenous people to the lands occupied by them in the form of aboriginal title

(however styled). Most importantly, it was applied to new possessions irrespective of the nature of the domestic legal system. The title that results does not vary from group to group in its external aspects (as it would if it were to exist by virtue of a strict application of indigenous laws alone), though internally, indigenous laws apply to govern the use of the land by members of the group concerned.24

Slattery 2006, supra note 7 at 270-8 450 Contrary to Gilbert's characterization of Aboriginal title there is nothing newly

"emerging" about it,25 for it has a long and distinguished pedigree. It is rooted in nineteenth century decisions of the United States Supreme Court, developed and applied elsewhere in the British Commonwealth from New Zealand to Canada to various parts of Africa. This is how it was described by Strong J in the Canadian Supreme Court way back in 1887:

"It thus appears [after a review of comments by Justices Kent and Story], that in the United States a traditional policy, derived from colonial times, relative to the Indians and their lands has ripened into well established rules of law, and that the result is that the lands in the possession of the Indians are, until surrendered, treated as their rightful though inalienable property, so far as the possession and enjoyment are concerned; in other words, that the dominium utile is recognised as belonging to or reserved for the Indians, though the dominium directum is considered to be in the United States."26

Although Justice Strong's comments were in relation to the jurisprudence developed in the United States, it is important to note that the principles identified by him were described as originating from Colonial times - that is to say, they grew out of practices between the British government and its colonies overseas. As such, they hold relevance not only for the United States but also for potentially every other territory - including Guyana - colonized by Britain.

Still, this doctrine of Aboriginal rights which is alleged to form part of Colonial law is not without difficulties. It may be countered, for instance, that if it arose as a result of inter-societal relations and dealings, then it could not have existed at the

Supra note 12 at 590 St. Catharine's Milling & Lumber Co. v. The Queen [1887] 13 S.C.R. 577 at 612 451 inception of British colonization of North America. Therefore, this argument runs, when it was first invoked that amounted to a retroactive application of the principles in question. An easy answer to this objection would be to say that whatever the legitimacy of the application of this doctrine at the inception of colonization when it might not have been in existence, the doctrine was certainly established by 1803 when the British acquired sovereignty over the three Guiana colonies. However, this answer does not address a fundamental aspect of the objection, which is that if the doctrine did not exist at the inception of colonialism then its very origins and legitimacy are questionable and it ought not to be applied at all. The problem with reasoning along these lines is that it seems to require the common law on any given subject to be fully formed at the time of its application, when this has never been the case. The common law is famously fluid, subject to interpretation, development, and even reinvention. While Colonial law doctrines regarding Aboriginal rights may not have been fully formed at the inception of colonization, the respect for Aboriginal rights on which it is predicated - whether out of altruism or simple expediency - was a consistent feature of crown practice. This practice was in turn analysed in great detail by Marshall C.J., and out of this the respect for Aboriginal occupation of lands was recognised as a feature of the common law.

Thus, as Chapman J helpfully clarified in 1847, the eventual doctrine was not "judicial invention", but proceeded out of the "earliest settled principles" of the common law.27

R. v. Svmonds [1840-1932] NZPCC 387 at 388; see also Garth Nettheim, "The Influence of Canadian and International Law on the Evolution of Australian Aboriginal Title" in Let Right Be Done: Aboriginal Title, the Calder Case, and the Future of Indigenous Rights, eds. Hamar Foster, Heather Raven & Jeremy Webber (Vancouver: UBC Press, 2007) 177 at 180 452 Another possible criticism of this doctrine is that Crown practice varied greatly, and as a corollary, if any such doctrine of Aboriginal rights existed then how can the failure to apply it in Australia from 1788 on be explained? But the failure to apply a doctrine can hardly be evidence of its non-existence, in the same way that ignorance of a fact or state of affairs is no reflection of the intrinsic truth or even existence of that fact or state of affairs. The refusal to recognise Aboriginal customary rights in Australia involved not only the rejection of this doctrine, but the rejection of other doctrines as well, such as the doctrine of continuity. However, and correctly so, Aboriginal dispossession in Australia is not held out as a denial of the existence of continuity principles, and in the same way it should not be invoked to deny the legitimacy of

Colonial law doctrines regarding respect for Aboriginal rights.

As discussed above, while Crown practice varied widely, invariably departures from Imperial policy were more as a result of resistance in the colonies, rather than the application of doctrine. Generally, this was also the experience in the formative years of British Guiana, where the colonial administration was bedeviled by protracted and debilitating struggles in the local legislature over financial concerns related to the abolition of slavery and the welfare of the indigenous population. Thus, the variations in Crown practice and the conspicuous failure to uphold Aboriginal rights in some parts of the Empire cannot reasonably be held up as proof of the non-existence of a doctrine

28 See chapter 5, supra, at pp. 191-2 29 See Chapter 6, supra, at pp. 222-223 for a discussion of this issue as it related to local resistance to the maintenance of the system of'patronage' of Amerindians, and for more detailed treatment see Mohamed Shahabuddeen, Constitutional Development in Guyana 1621-1978 (Georgetown: Guyana Printers Ltd, 1978) at chapter 9 generally, where the author describes the struggle for power between planters and the Colonial Office, played out in the run-up to emancipation. 453 of Aboriginal rights in Imperial constitutional law. Such a doctrine was recently reaffirmed in a modern Canadian case, where Lamer C.J.C. held that it applies as an incident of British sovereignty irrespective of what might have occurred during an intervening period of rule by another colonizing power. This makes it even more relevant and attractive in the context of Guyana, for it means that irrespective of what occurred during the period of Dutch rule, a doctrine of aboriginal title can be said to exist by virtue of the application of Colonial law to the colony as an automatic incident of British sovereignty.

Thus, Aboriginal title can be said to exist in Guyana either as a doctrine of

Colonial law, or alternatively as grounded in indigenous laws and expressly continued upon British rule. Regarding the nature of the resultant title, it is accepted that at common law Aboriginal title is a proprietary right, described long ago in the US

Supreme Court as "sacred as the fee simple of the whites".31 More importantly,

Marshall C.J. had earlier held that Indians could use the land "according to their own discretion".32 Admittedly, there has been some dilution of this principle in the intervening years - in the United States, for example, Indian title has since been characterized as a non-proprietary right of occupancy; elsewhere it has been described as "a personal and usufructuary right, dependent on the goodwill of the sovereign"34 or

30 R. v. Cote [1996] 3 S.C.R. 139 at 172-3 and see Chapter 2, supra, at pp. 23-5 31 Mitchel v U.S. (18351 34 U.S. 711 at 746 32 Johnson v M'Intosh (1823) 21 U.S. (8 Wheat) 543 at 602, applied in U.S. v Shoshone Tribe (1938) 304 US 111 so that the Indian "right of occupancy" included timber and mineral rights; and see Simon Young, supra note 16 at p. 90 33 Tee-Hit-Ton v U.S. (1954) 348 U.S. 272 34 St. Catherine's Milling & Lumber Co. v The Queen. (1889) 14 App. Cas. 46 at 55 (per Lord Watson) 454 as a 'mere qualification of or burden on the radical or final title of the sovereign'.

However, as discussed above,36 later constructions of Indian title in the US diverge significantly from Marshall's original doctrine, and are not authoritative explications of the law on this subject. Elsewhere, the descriptions of "personal" and "usufructuary"

^7 have been explained - the former is simply a reference to the title's inalienability, while the latter was never meant to limit the uses to which land subject to Aboriginal title could be put.38 More recently, the exclusive proprietary nature of Aboriginal title has been unequivocally affirmed in a variety of common law jurisdictions, encompassing minerals and other sub-surface resources.40

Having established the existence of Aboriginal title at common law, necessarily applicable in Guyana wherever the requirements for proof can be met, it must next be considered whether that title, and the larger body of Aboriginal rights to which it belongs, continue to apply in the present. That is to say, in determining the contemporary existence of Aboriginal title or Aboriginal rights in any given locality it must be ascertained whether this title was extinguished in the course of colonization, and if so, whether the actions giving rise to such an occurrence were legal or not. 35 Amodu Tijani v Southern Nigeria [1921] 2 A.C. 399 at 403 36 See chapter 2, supra, at pp. 72-4 37 A.G. of Quebec v A.G. of Canada [19211 1 AC 401 at 408 38 Joceyln Gagne, "The Content of Aboriginal Title at Common Law" (1982-3) 47 Sask L.Rev. 309 at 333-337 39 Mabo. supra note 10 at p. 36 (per Brennan J), Pelgamuukw v British Columbia [1997] 3 S.C.R. 1010 at 1083 (per Lamer CJC) and Ngati Apa v Attorney-General [2003] 3 NZLR 643; but Richard Bartlett argues that in approaching the issue of Aboriginal or Native title, both Canadian and Australian Judges have not been guided by principles of equality, which has had a detrimental effect upon the nature and content of the title itself: Richard Bartlett, "The Content of Aboriginal Title and Equality before the Law" (1998) 61 Sask L. Rev. 377 40 Pelgamuukw. ibid at 1086-8 and Richtersveld Community v Alexkor Ltd and South Africa CCT 19/03, paras. 64 and 103 (14 October 2003) 455 Our examination of this subject revealed, first of all, that there was no blanket or wholesale extinguishment of Indigenous title to lands or Indigenous rights generally by the Imperial government at any time during the century and a half of British rule. In light of the power to make laws and grant lands contained in the Letters Patent by which the colonies were united in 1831, as well as the Royal Instructions to the Governor in that year, the local Legislature had no constitutional authority to grant lands subject to private ownership. Whatever may have been the understanding of the meaning of

'Crown lands' either then or now, legally this term only includes public or vacant lands in which the Crown acquired a beneficial interest. In relation to land that was subject to private ownership, all that the Crown acquired was the radical or ultimate title, which imported, at best, limited administrative powers.41 By established principles of the common law, private rights included native or customary rights, which meant that lands occupied and owned by the Colony's indigenous inhabitants could not be lawfully granted by the local administration. Where this in fact occurred during the course of colonization, as it undeniably did, it was unquestionably unconstitutional and unlawful.

As to the remedies to which a specific indigenous group may be entitled for wrongful termination of their title rights, this is an issue that can only be determined on a case-by- case basis, bearing in mind all the facts and applicable defences. As a corollary of this contention, contemporary communities of indigenous peoples living on unrecognized lands should arguably be considered as occupying traditionally owned lands, or lands subject to unextinguished Aboriginal title.

41 Amodu Tiiani. supra note 35 at 403-4 456 The Colony's indigenous inhabitants also possessed inherent rights not amounting to Aboriginal title, encompassing "free-standing" rights to use the resources on the land, or to conduct ceremonies or other activities thereon, or to use the land in any other way that did not amount to a right of ownership of the land itself. Such rights were initially recognised in fairly expansive form, but in the course of the nineteenth century the regulation of certain activities and industries became increasingly detailed.

Indian Regulations enacted successively in 1871, 1890, 1904 and 1910 controlled in great detail the use of certain resources on Crown lands, particularly timber, specific non-timber forest products (notably troolies, palm and other leaves) and soil, rocks, stones, sand and minerals. At no time, however, did they purport to extinguish

Amerindian rights in relation to these resources altogether - on the contrary, they sought to preserve Amerindian privileges in relation to the use of these resources and in some cases they introduced rules controlling how the resources were to be harvested and disposed of. Most importantly, all other unspecified activities carried out by

Amerindians prior to the making of these Indian Regulations, that is to say inherent

Aboriginal rights, continued by virtue of a specific saving provision, whereby the rights and privileges "heretofore legally possessed, exercised, or enjoyed" by Amerindians were protected,42 quite apart from their preservation under the common law also.

But what were the effects of the creation of third party interests over these lands? Since these inherent indigenous rights existed over vacant or public lands, which could have been lawfully disposed of by the administration, they were necessarily

42 Crown Lands Ordinance 1903, s. 41 457 vulnerable to legislative infringement. For this to happen, the required standard at common law is that the enabling legislation must demonstrate a 'clear and plain intention' to extinguish or infringe indigenous interests in the same land. Our examination of this subject found that absolute grants of Crown lands operated to extinguish all indigenous rights over such lands. Limited grants of Crown lands did not extinguish indigenous rights altogether, but the range of private interests (leases, licences and permissions) had a corresponding range of effects. At one end, some of these leases made explicit provision for Amerindian rights, so these leases necessarily co-existed with such rights, while at the other some leases operated to suspend all indigenous rights over the same area for the duration of the lease. In between these two extremes, other leases of Crown lands, notably those for natural resource extraction, only restricted indigenous rights to the use of the specific resource for the duration of the lease, while all other rights (hunting, fishing, rights of passage and so on) continued unaffected at law.

Two categories of rights - namely woodcutting and mineral rights - though initially dealt with in the Crown lands legislation, came to be treated separately, no doubt on account of their enormous economic importance. In relation to woodcutting, a host of regulations had been passed in the course of the nineteenth century under successive Crown Lands Ordinances governing how such activities were to be carried out. However, when separate legislation came to be enacted for forests in 1927, the

Crown Lands Ordinances (and regulations thereunder) were explicitly excluded from applying to declared Crown forests. No corresponding regulations were enacted to 458 govern forestry activities under the Forests Ordinances, either the first one passed in

1927 or the succeeding one in 1953, and combined with a specific saving clause in both versions, the (possibly unintended) result was that the exercise of Amerindian rights was saved in all forests, whether these were ungranted Crown forests, Crown forests subject to third party leases, or obviously, forests subject to Aboriginal title.

As regards mining, after an initial ban in 1871, traditional rights to mine held by

Amerindians were restored in 1887, and thereafter acknowledged in all Ordinances and regulations passed in relation to this sector. These traditional rights could not interfere with private (third party) rights, and they were suspended where Amerindians wished to mine on a commercial scale, but insofar as they sought to exercise their traditional rights in this regard, Amerindians were exempted from the regulatory scheme of the law.

But while the British never legislated the wholesale dispossession of

Amerindians (apart from factual displacement, which was unlawful), neither did they grant formal recognition of Amerindian land rights. At the dawn of the twentieth century, by then secure in their political control over the three counties possessively styled British Guiana, the administration moved to cordon off areas where indigenous peoples lived. Non-aboriginals were prohibited from entering these 'reservations', as they were dubbed, but the administration stopped short of recognizing the proprietary rights of the occupants therein. Mirroring physical segregation was a policy towards the indigenous population informed by paternalist notions, which by definition entailed complete control by the benevolent administration. It was a policy fully in keeping with 459 the ethos of the era, with identical approaches adopted across the Empire in far-flung colonies from Canada to Australia. However, particularly as a result of the advocacy of

Parliamentarian Stephen Campbell, by the time of the independence negotiations in the

1950s there was a momentum for formal recognition of land rights, which became a condition of independence in 1966.

In the post-colonial period there have been both positive and negative developments for indigenous peoples.43 Formal recognition of communal ownership of land by indigenous peoples first came a decade after independence, and since then there have been other bursts of such activity. The most recent legislation on this subject, the

Amerindian Act 2006, now provides a clear mechanism and detailed criteria to govern applications for grants of communal land to indigenous communities. However, it must be clarified that areas formally recognised since independence through this process - whether before or since the 2006 Act - do not necessarily constitute the sum total of lands owned by Amerindians. As argued above, Amerindians may also possess ownership rights to larger areas above and beyond that granted formal recognition, by virtue of unextinguished Aboriginal title at common law.

Negative developments for indigenous peoples in the post-colonial period have been in the area of indigenous resource-use rights generally. Notably, the 2006

Amerindian Act unwisely decided to define traditional rights for the first time, and in so doing placed only a very limited construction on this term. The definition captures only rights of a subsistence nature, which does not include other types of common law rights

43 See chapter 9 supra 460 such as merely traveling across concessions or other statutory rights such as those which may be found in the Environmental Protection Act.44 Section 57 of the 2006

Amerindian Act, which is intended to protect traditional rights over State lands and State forests, applies only to the Amerindian Act and will therefore not protect traditional rights threatened by separate legislation regulating resource-extractive industries. This is particularly troubling given that proposed legislation for the forest sector has for the first time in Guyana's history discarded the usual clause saving Amerindian rights and privileges. This means that if enacted, pre-existing Amerindian rights to use resources in untitled areas (that is to say, public lands) will be vulnerable to suspension and even extinguishment by the creation of private rights in favour of third parties. Worst of all, section 57, by subjecting indigenous rights to third party rights in both State lands and

State forests, has the potential to erode inherent rights of Amerindians possessed uninterruptedly through more than 300 years of colonialism.

In the area of mining, while there have been commendable reforms as regards medium-scale mining and more generally in relation to benefit-sharing, the power of

Ministerial override of Amerindian consent to large-scale mining is an egregious one given the known consequences of mining upon Amerindian communities. However, in light of provisions in the reformed Constitution that recognise Indigenous land rights and protect their cultures and way of life, this power may well be unconstitutional.

Ultimately, this much can be stated in conclusion. Indigenous rights to occupy and use the land, which survived the assumption of British sovereignty, were never

44 Chapter 20:05, Revised Laws of Guyana [2002] 461 subject to any wholesale extinguishment for the entirety of British rule. While rights to some resources were regulated in great detail, such regulation did not equal extinguishment, and in any event, all other unspecified rights continued as before.

Although rights other than those to ownership of land seem to be in a somewhat more precarious position now than before because of recent legislation, changes to the

Amerindian Act and proposed ones to the Forest Act must be read subject to the common law protection of property and the entrenchment of indigenous rights in the reformed Constitution.

As the original occupants of this territory, there ought to be no question as to the moral or legal entitlement of Guyana's indigenous peoples to lands occupied and used by them. In this sense, the councilor at Warawata was correct, like his counterpart in

British Columbia in the preceding century as reported in the Nisga'a litigation.

However, as this study has attempted to demonstrate, indigenous people in Guyana do retain rights of ownership to lands and territories traditionally occupied and used by them - not just in their eyes, or from a moral perspective, but also under the common law.

462 7

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fy5 BIBLIOGRAPHY

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