Even as President David Granger attempted to defuse the outrage of the Indigenous Peoples to his arbitrary decision to link their land rights in Guyana to land titling issues faced by African Guyanese, the lawyer who was hired to play leading technical role in drafting the 2006 Amerindian Act has now thrown a monkey wrench into a possible consensus by declaring that “Indigenous Peoples” is a controversial and very divisive concept, and land claims made on that basis are somehow undermined.
She claims the UN has debated the use of the term for over two decades without coming to a single accepted definition. That might very well be in terms of dealing with grey areas, but in Guyana, whether they are called “Amerindian” or “First Peoples”, there can be no doubt that they fall under the preliminary definition of “Indigenous peoples” proposed in 1972 by Mr José R. Martínez-Cobo, Special Rapporteur on Discrimination against Indigenous Populations:
“Indigenous communities, peoples, and nations are those that, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop, and transmit to future generations their ancestral territories and their ethnic identity as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.”
In Guyana, even President Granger, when he suggested the Joint Land Commission, acknowledged that Indigenous Peoples had occupied their lands from “time immemorial”, and held it as “sacred”.
Back in 1965, Amerindian MP Stephen Campbell attended the Independence Conference in London along with Burnham and the PNC, and ensured the official Agreement for the Independence of Guyana, (Annex C) required the independent government provide legal ownership or rights of occupancy for Amerindians 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 the rights of passage in respect of any other lands they now by tradition or custom de facto enjoy freedoms and permissions corresponding to rights of that nature. In this context, it is intended that legal ownership shall comprise all rights normally attaching to such ownership.”
Most Guyanese would now baulk at the ridiculous claim of Columbus “discovering” the “New World”, and so entering the ranks of humanity upon contact with Europeans. But they do not follow through with the equally ridiculous corollary of Europeans going on to assume “sovereignty” over the lands occupied by the Indigenous Peoples living there. At the time of Columbus’s unfortunate voyage, the fledgling International Law postulated, on natural-law grounds, that its concept such as “sovereignty” was based on reason, and applied to all peoples, be they European or not. This was explicitly stated, for instance, in the Treaty of Westphalia in 1648, which launched the modern state system.
But, during the period of empire-building, all sorts of “legal” reasons, doctrines and norms were conjured up to justify their violent land grab. We now have a distinction between “civilised” and “non-civilised” states in the shift to what was dubbed “positivist” International Law, wherein concepts such as “sovereignty” apply only to the “civilised family of nations”. Fine distinctions are now made in the manner in which territories are acquired, such as ‘conquest’ and ‘cession by treaty’.
But even under positivist-based International Law, the Dutch’s “full and free ownership” of land and their British successors (“possessors de facto of the soil” and of “usufructuary rights”) acknowledged the right of the Indigenous Peoples to their land. Ms Janki and others of like mind might be worried that new, rights-based modern norms of justice — led by the judiciary in Australia and South Africa, for instance — are evolving to amend the inequities imposed by the positivistic stance of European jurisprudence.
More land for Indigenous Peoples?