THE LAND RIGHTS OF GUYANA'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 May 2008 Library and Bibliotheque et 1*1 Archives Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition 395 Wellington Street 395, rue Wellington Ottawa ON K1A0N4 Ottawa ON K1A0N4 Canada Canada Your file Votre reference ISBN: 978-0-494-38989-8 Our file Notre reference ISBN: 978-0-494-38989-8 NOTICE: AVIS: The author has granted a non­ L'auteur a accorde une licence non exclusive exclusive license allowing Library permettant a la Bibliotheque et Archives and Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par Plntemet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans loan, distribute and sell theses le monde, a des fins commerciales ou autres, worldwide, for commercial or non­ sur support microforme, papier, electronique commercial purposes, in microform, et/ou autres formats. paper, electronic and/or any other formats. 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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 territory as an incident of British sovereignty. It considers various doctrines on the subject of indigenous rights articulated and developed in other common law territories 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 London 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 Dutch West India Company 95 Essequebo and Demerara: (i) Incorporation and Infiltration 98 (ii) Consolidation 115 (iii) Expansion 119 Berbice 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 British Guiana 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