Some in our society are constantly finding new ways to erode the gains we have painfully made over the years to create a nation in the “Land of Six Peoples” we were left with by the British after their centuries of “divide and conquer” rule. One of these ways is to attempt to deny the rights to land accruing to the Indigenous Peoples who were here long before the Europeans, led by Christopher Columbus in 1498, sailed past our Atlantic Coast. Their attitude is reminiscent of Americans – without any sense of irony – who speak of deporting “immigrants” as if they are not all immigrants excepting for the indigenous “Native Americans” who they have banished to reservations.
One ploy has been to question the definition of “Indigenous peoples” and to seek to expand it to include later arrivals brought by the Europeans. It escapes them that they are, therefore, giving Europeans priority over even themselves. We accept the 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 then President Granger acknowledged, when he proposed a Joint Land Commission, 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 to 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 balk 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’ unfortunate voyage, the fledgling developing International Law postulated, on natural-law grounds, that its concepts 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 had a distinction between “civilised” and “non-civilised” States in the shift to what was dubbed “positivist” International law where concepts such as “sovereignty” only applied to the “civilised family of nations”. Fine distinctions were now made in the manner in which territories were 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. Those who seek to encroach on Indigenous land rights should know that new, rights-based modern norms of justice are evolving to remove some of the inequities imposed by the positivistic stance of European jurisprudence.
