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Re-Imagining the Guyanas

 | 
Lawrence Aje
, 
Thomas Lacroix
, 
Judith Misrahi-Barak

Mapping and Charting the 3 Guyanas

Settling Indigenous Rights and Building a Social Contract in the circum-Caribbean territories of Belize, Guyana and Suriname

Janette Bulkan

Texte intégral

  • 1 Herrera Garibay and Edouard claim that Indigenous Peoples made up 17% or 39,000 of Belize’s popula (...)
  • 2 Coordination Office for Spatial Planning and Environment Suriname. Readiness Preparation Proposal, (...)

1Belize, Guyana and Suriname are home to the largest surviving populations of Indigenous and Tribal Peoples (ITPs) in the English- and Dutch-speaking Caribbean territories. ITPs comprise an estimated 11 per cent (40,000) of Belize’s (2016 Census)1, 9 per cent (70,000) of Guyana’s (2012 Census) and either 20 per cent (Kambel, 2006) or 12 per cent of Suriname’s population (according to Government figures–2 per cent or 11,000 Indigenous and 10 per cent or 54,000 Maroons)2. The Maroons of Suriname are the descendants of African slaves who escaped into the forested interior where they established villages, and who forced the colonial Dutch Government to negotiate a series of peace treaties during the period 1760 to 1838 (Heemskerk, 2009: 9). The Maroons gained international recognition in 1993 as ‘Tribal Peoples’ (TPs), with equivalence to Indigenous Peoples (IPs) before the law (Forest Peoples Programme, 2002). In all three countries, ITPs have neither assimilated nor become extinct; instead their populations have increased steadily over the last century.

  • 3 CARICOM is an organization founded in 1973 by former British colonies to promote trade and diploma (...)

2These three countries were formerly colonies—British Honduras (now Belize), British Guiana (now Guyana) and Dutch Guiana (now Suriname)—whose existence was contested at various moments by both the Spanish and Portuguese and by other European nations. Contemporarily they are among CARICOM’s3 poorest: the Gross Domestic Product (GDP) of under US $5,000 of Belize and Guyana were the lowest of 13 CARICOM countries in 2013. Suriname’s GDP was just over US $9,000 (Briguglio, Sabila, & Vella, 2015). See Table 2.

3All three countries share similar contexts of small national populations and low population density per square kilometre in the forested hinterlands. As Table 1 shows, 60 per cent of Belize, 84 per cent of Guyana and 95 per cent of Suriname, are forested (FAO, 2016). Furthermore, 45% of Belize’s, 71 per cent of Guyana’s and 95 per cent of Suriname’s land area are classified as Government-controlled State Forests, and administered by State agencies (FAO, 2016). In Belize 37 per cent of forests are privately owned (FAO 2010). In Suriname only 50,000 hectares (ha) of forests are legally titled as privately owned; all remaining forests are under State jurisdiction (Coordination Office for Spatial Planning and Environment Suriname, 2013).

4These State-controlled forests overlap with the claimed customary territories of the ITPs. In addition to ITPs forming sizeable minorities, they comprise the majority populations in the highly forested hinterlands of their countries. However ITPs have undefined or poorly defined rights to their customary territories.

Table 1: Land and forest areas in Belize, Guyana and Suriname.

Forest/land type Belize Guyana Suriname
Km2 % total Land area Km2 % total Land area Km2 % total Land area
Total land area* 2,281 19,685 16,066
Total forested area* 1,366 60 16,526 84 15,332 95
Govt-controlled State Forest* 1,005 45 14,029 71 15,264 95
Land claimed by IPs+ 11,137
Recommended for IPs+ 6,216
Title awarded to IPs# 3,108
Forest in ITP-titled land^ Information not available 2,582 87
% total population % total population % total population
Estimated population from last census, national total 366,954 in 2016 771,025 in 2017 563,402 in 2017
Indigenous and Tribal Peoples 40,000 17 70,000 Amerindians 9 54,000 Maroons (2013) 10
11,000 Amerindians (2013) 2

*FAO. Global Forest Resources Assessment 2015. Rome: FAO, 2016.

+ Government of Guyana. Report of the Amerindian Lands Commission. Georgetown: Government of Guyana, 1969.

#Rights and Resources Initiative. Who Owns the World’s Lands? A Global Baseline of Formally Recognized Indigenous and Community Land Rights. Washington DC, 2015.

^ Guyana Forestry Commission, & INDUFOR. Guyana REDD+ Monitoring Reporting & Verification System (MRVS), Year 4 Interim Measures Report. 01 January 2013 to 31 December 2013. Version 3. Georgetown, 2015.

5In all three countries State agencies have been issuing natural resources concessions unilaterally to third parties over an ever-increasing percentage of ITP customary lands. These ITPs, in common with Indigenous Peoples globally, have consistently asserted their Aboriginal, Indigenous or Native Title against the later claims of outsiders, including colonial and post-colonial governments. Aboriginal, Indigenous or Native Title is the inherent proprietary right of Indigenous Peoples to their customary lands, which are territories that were under continuous use and occupation by particular Indigenous groups long before European contact (McHugh, 2011). Recent demands for territorial restitution are largely made in national and regional courts since the majority settler populations and Executive arms of governments have resisted mutually negotiated settlement of ITP property rights. To date the governments of Belize and Suriname have disregarded the judgments of national courts and of the Inter-American Court of Human Rights (IACHR) in favour of Indigenous claimants while Guyana has weakened Indigenous property rights through stratagems mentioned below.

6In this article, I suggest that alongside their long-term goal for the recognition of Indigenous Title, the ITPs of these circum-Caribbean countries might press harder for the intermediate step of collaborative management of their lands, territories and resources (LTR). I describe two processes that have resulted in the recognition of some strands of ITPs’ property rights on their customary lands. Strands in the bundle of rights are ‘rights of access, the right to withdraw natural resources, management rights, the right of exclusion, the right to due process and compensation in the event of government expropriation, and the right to hold tenure rights for an unlimited span of time’ (Rights and Resources Initiative, 2015). The processes described in this article are, firstly, the Settlement Process that was developed by the British-organized Indian Forest Service (IFS) in the 1870s to investigate and ‘settle’ customary rights in India’s forests and secondly, the Public Trust doctrine as it has been referenced in the Columbia River Basin in the USA.

7I consider the consequence of the extension during the colonial period of the IFS reservation process to other British (and European) colonies, but not to Belize or Guyana. In the case of the USA, the lawyer Mary Christina Wood has documented how American Indian governments have invoked the Public Trust doctrine in advancing claims for LTR and to participate in decision-making processes with both State and Federal governments (Wood, 2007, 2009). I suggest that national Governments and ITPs’ representative organizations in the circum-Caribbean might take a closer look at those collaborative management processes that offer a negotiated, non-juridical pathway to recording and recognising some Indigenous property rights. Elements of either process would represent intermediate steps on the road to statutory recognition of communal land rights and strengthened land claims. Elements from either/both processes could also help to bridge the coastland/hinterland divides on the issues of Indigenous Rights and Title and aid in institution building in non-adversarial ways.

  • 4 ‘Thereafter, any practice that is permitted in a Central Forest Reserve is exercised as a revocabl (...)

8First, a clarification on the terminology. The term ‘settlement’ has two principal meanings: firstly a ‘community’ and secondly, an official agreement. In the British colonial context, the term ‘settlement process’ was used in the legal sense of a sovereign government representative identifying and examining customary or long-standing claims to land and then extinguishing, recording or regulating them (Troup, 1939: 130). ‘Unsettled’ claims were those claims not addressed by government. Customary claims that were admitted by colonial governments were termed ‘rights’ or ‘privileges’ that were exercised on State-claimed lands. ‘Rights’ were accorded statutory recognition whereas privileges were issued at the discretion of colonial officials.4

9Belize, Guyana and Suriname were the only places on the Central and South American continent where the English and Dutch were able to establish and hold on to colonies in the teeth of Spanish and Portuguese opposition. The Dutch had initially acknowledged pre-existing Indigenous property rights to their customary lands in Guiana (A. Bulkan, 2014). However, that recognition was conveniently set aside as the Dutch progressively consolidated their authority and laid claim to both sovereignty and territory. The British had gained control comparatively late: in 1803 by cession in the case of the Dutch colonies of Essequibo and Berbice and in 1862 in British Honduras. In the case of Guyana transfer of sovereignty from the Dutch was formalised in the Treaty of London in 1814, and with minimal disruption to the local plantation economy and society. Consequently, the successor British colonial State considered itself the rightful and legal beneficiary of both sovereignty and State property (A. Bulkan, 2016). The British applied the same [il]logic in the non-recognition of Mayan customary land rights in British Honduras (Hummel 1921).

10The colonial governments recognized the importance of establishing their legitimacy and authority to pass and enforce laws and regulations over lands and forests, especially as Indigenous Peoples did not have European-style institutions at the time of Contact. The colonial States from the time of the first trading posts gradually instituted the tangible and intangible trappings of authority, including the setting up and staffing of offices and the issuing of laws, directives and land grants, to legitimize their authority in the eyes of the original and later immigrant populations alike. Although from 1872 onward in the case of Guyana, the colonial government issued several partial acknowledgements in laws of the pre-existing land rights of its Indigenous Peoples, none of the three countries at the time of Independence explicitly recognised Indigenous Title.

11Guyana gained self-government in 1953 and Belize in 1964. Full independence was achieved in Guyana in 1966, in Suriname in 1975 and in Belize in 1981. In the case of Guyana, the political Party representatives made a commitment in the 1965 pre-Independence Agreement to provide land security to the Amerindians. However that commitment was not part of a legal contract and the settlement of Amerindian land rights remains a work-in-progress (J. Bulkan, 2016).

  • 5 Guyana in 1989 and Suriname in 1992 formally launched IMF-supported Structural Adjustment Programs (...)

12Post-Independence governments in all three countries have largely maintained the elite bias, continuing the colonial approach of centralized administration over the forested hinterland and forest-dependent peoples. The opening up of national economies to international investment from 1989 triggered an influx of Asian transnational loggers and both junior and senior mineral prospecting companies (Colchester, 1997; Sizer, 1996; Sizer & Rice, 1995).5 Both national and transnational companies have benefitted from the non-transparent awarding by government agencies of increasing percentages of natural resources concessions on the customary ITP territories in all three countries.

13At the international level, ITPs cannot call their governments to account through launching formal appeals. None of the three countries has ratified the International Labour Organization (ILO) Convention 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries. In Part 2 of ILO 169, there is a detailed reference to land, including the concept of territory that implies the habitat in its entirety as occupied or used by the peoples. The Convention clearly recognizes the right of communal ownership and possession of these lands (Art. 14), as well as the right to use, manage and conserve existing natural resources (Art. 15). As conventions are justiciable, ratification of ILO 169 would have provided the ITPs with a direct link to an influential inter-governmental organ through which to report State failures to observe the provisions of the Convention.

14Regionally, in addition to membership of CARICOM, all three countries are members of the Organization of American States (OAS): Suriname joined in 1977, Guyana and Belize in 1991. Suriname is the only one of the three to have ratified the American Convention on Human Rights in 1986. ITPs have brought cases detailing their land rights claims against their governments before national courts, the Inter American Court of Human Rights (IACHR) and in the case of Belize, the Caribbean Court of Justice (CCJ). In 2007, the IACHR ruled inter alia in favour of Suriname’s Saramaka Tribal People’s right to property. More recently, in November 2015, the IACHR again ruled in favour of the collective territorial rights of the Kaliña and Lokono Indigenous Peoples of Suriname. Although the IACHR’s rulings are binding, the court itself lacks an enforcement mechanism. In April 2015 the CCJ upheld the 2013 ruling of the Belizean Court of Appeal that had ordered the Belizean Government to recognize and protect the traditional property and rights of 38 Maya Villages in the Toledo District (Kearns, 2015). However Suriname and Belize have so far failed to implement the IACHR’s rulings.

15UN Conventions, when signed and ratified by States-Members, may be legally binding; UN Declarations are not, although they may assert rights. The recognition of a range of ITP rights in the Convention on Biological Diversity (1992) and two United Nations (UN) Declarations that were endorsed by the governments of Belize, Guyana and Suriname has now expanded the spaces for national dialogue. Although international declarations and guidelines are not justiciable, they advance the normative framework of ‘soft’ law globally. All three countries are constitutional parliamentary democracies, in which ITPs can and do reference international safeguards to support their demands for recognition of their rights. The first, the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted in 2007, asserts the right of Indigenous Peoples to maintain the territories and natural resources they have traditionally used, and calls on States to give legal recognition to those rights (Articles 25 and 26). The second UN response to the growing concern around ITPs’ security of land tenure and access was the adoption of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security, in May 2012 by member countries and organizations of the Committee on World Food Security (FAO, 2012).

16At the present time, national disjunctures between the coast and hinterland are evident in the coastal control of the levers of power and the social and wealth divisions. The gulf of separation between the majority of ITPs on the one hand and the majority of coastlander peoples on the other hand is marked by geological, geographical, legal, economic, political and cultural fault lines. The majority immigrant settler populations dominate all echelons of the governments of Belize, Guyana and Suriname. These governments hold legal and administrative control over State property that includes natural resources in the hinterland. The ITPs in all three territories, on the other hand, are the majority populations of the hinterland but with limited legally recognized power or authority over the use or disposition of their customary lands that are increasingly part of an expanding natural resources frontier. The ITPs were historically marginalized in the social, economic and political spheres of the [European-style] nation states that were superimposed on their territories. As I show below, these disjunctures help to explain the lack of a social contract and shared understandings of the place of each ethnic group in the national narrative.

17The dominant coastal populations live on the largely tree-less plains that in the cases of Guyana and Suriname occupy a small percentage of each nation’s territory; the Southern Coastal Plain is larger in Belize. Coastlanders mostly lack an intimate relationship to interior territories. For many there is no direct connection with the intensified destruction and/or degradation of the hinterland landscapes from uncontrolled logging and mining.

18There are variants of a Lockean narrative in all three territories that provided a powerful justification for European appropriation of New World territories. In the second half of the 17th century Locke argued that Indigenous Peoples ‘ranged’ over the land, like animals, whereas European settlers in the Americas mixed their labour (and their slaves’ labour) with the soil and therefore had a moral right to claim it (Macpherson, 1954). In the cases of Guyana and Suriname the post-colonial narrative is that involuntary African slaves followed by indentured labourers from Portugal and China and India, as well as Africa, had combined their labour with the soil to build plantation economies and colonial prosperity. There is little recognition of the roles of ITPs’ local knowledge and labour in creating the anthropogenic hinterland landscapes and later in the development and success of natural resources industries (J. Bulkan, 2013). Inter-ethnic tensions and the lack of a social contract are exacerbated in poor countries.

19Unsurprisingly, the ITPs are treated as undifferentiated citizens of their countries. Individual Indigenous persons are employed by government agencies but their leaders lack decision-making authority in all three territories. ITPs bear the brunt of environmental, social and economic degradation/disruption. Up to the end of 2017, ITPs in Belize and Suriname had no legal title, only use rights, in their claimed customary lands (Anaya, 2012; Anaya & Williams, 2001; Campbell & Anaya, 2008; Heemskerk, 2009; MacKay, 2014). In Guyana, two thirds (98 of 166 Villages) hold legal communal title to 14 per cent of national territory, equivalent to 3.1 million hectares of which 2.5 million hectares are forested (Guyana Forestry Commission & Indufor, 2015). However Indigenous title in Guyana is limited to aboveground resources only. Water bodies and roads that pass through Indigenous titled communal lands as well as under-ground resources, are reserved as public property over which those 98 Indigenous communities do not have any authority (State Lands Regulation 20(3)). In the gold and diamond mining areas, the rights of holders of State-issued prospecting and mining licences take precedence over Indigenous communal title when issued before the date on which communal title was granted. The same principle applies to untitled Indigenous communities located on State-claimed land: the holders of prospecting or mining licences are accorded priority rights in law (Bulkan and Palmer, 2016).

20Many of the legal decisions issued after 2007 have been made without the Free, Prior and Informed Consent (FPIC) of ITPs, a key tenet of UNDRIP, which was endorsed by all three countries in 2007. FPIC is the principle that an ITP community has the right to give or withhold consent to proposed projects that may affect the territories they own, use or depend on.

21At the present time, ITPs have no say or authority over the issuing, administration or monitoring of natural resources concessions on their customary lands. Nor do they receive an equitable share of the wealth extracted from their customary lands. Furthermore State agents have restricted ITPs extractive activities on areas held under a third party concession. At the same time ITPs bear a disproportionate burden of the environmental harms that result from un- or poorly-monitored natural resources extraction on their lands and territories. Consequently, on the matter of Access and Benefit Sharing (ABS), ITPs lag far behind in national indicators of well-being and Sustainable Human Development.

  • 6 However, a State Forest extension Order—the latest being in 1997—could perhaps be challenged under (...)

22I now describe potential strategies for achieving State recognition of some ITP rights from the 19th century settlement process in British India and the contemporary appeals to ‘Public Trust’ commitments in the USA by Native American governments. Firstly, to British India. Colonial laws (e.g. Crown Lands Ordinances and Regulations) tended to assume that the State had absolute rights, but these were based on Westphalian tradition (Scott 23) rather than negotiated treaties. Unlike most former British colonies, Belize and Guyana did not have a formal forest settlement process for creation of a permanent forest estate partly because of the anticipated decline or assimilation of ITPs and the emptying of forest communities (Gordon 1955), so there is no simple judicial process for testing the rights of the State.6

  • 7 Regulatory capture occurs when a government regulatory agency which is supposed to be acting in th (...)

23State sovereignty is explicit through conquest and cession but usually not explicit if acquired by creep (Seed, 1995). Governments are empowered explicitly through sovereignty and their control over State property to take administrative responsibility for national forest resources. There is a long tradition of Government as an enduring institution holding the ‘ring of power’ to arbitrate among competing forest users in the public interest. In practice, regulatory capture7 can and did result in State power being used to benefit powerful commercial interests. However there were sufficiently varied interests represented in the colonial Indian Government to put a settlement process in place that was intended to arbitrate for the greater good. That settlement process was in response to concerns from the early 1800s about the localized extinction of Tectona grandis (teak timber), the degraded residual forest and uncontrolled land-clearing fires (Das, 2005; Dawkins & Philip, 1998).

24Debates about rights versus privileges in India in the 1860s and 1870s were well reported and would likely have influenced official thinking among colonial administrators in other colonies (Grove, 1994). In India, ‘the colonial state argued that forest use had been based on the agreement of the raja [Indian princely ruler] and therefore was a privilege rather than a right, and since the colonial government was the successor to the rajas, it now had the prerogative to extinguish these privileges where it saw fit’ (Springate-Baginski & P. Blaikie, 2007) However colonial officials, including Hugh Cleghorn, recognised that pre-1850 there were customary /forest use rights not dependent on the rule of maharajas (Das, 2005). In the same period there was parallel confirmation in British Guiana’s laws and regulations of Amerindian rights and privileges on Crown lands (A. Bulkan, 2014).

25The Indian Forest Service (IFS) was also influenced by forest dessication theory developed in Europe but based on observations of the consequences of forest loss in oceanic and Caribbean islands (Tobago, St Vincent and Grenada) (Grove, 1994). The IFS developed a forest reservation process for the Permanent Forest Estate (PFE). This process was the setting aside of areas for permanent maintenance under forest, justified by political decision, e.g. x per cent of the country or parcels sufficient in area and location to maintain the full range of forest services, including natural ecosystem functionality. The justification for forest reservation was that nothing short of permanency of tenure would secure the necessary continuity of management over long periods of time or justify expenditure on the demarcation, protection, and management of a forest. The IFS recognised that the pre-existing customary rights in any given forest area had to be investigated and ‘settled’ prior to any decision on reservation status.

In order to ensure this, a definite procedure is generally laid down by law whereby areas may be set aside permanently as forest and may receive legal protection. The procedure should, where necessary, provide for the settlement of rights. (Troup, 1939: 117)

26The innovation of the IFS was the development of a settlement procedure to inquire into long-standing usufruct rights, that procedure to follow land capability surveys. Firstly, the IFS would identify preferred lands for forest reserves. As part of a system of checks and balances, the Civil Administration would then appoint a settlement officer to visit all communities within and near the proposed boundary. In India and elsewhere, unilateral attempts to seize forests from customary land tenures and traditional peasant use were resisted. Class 1 were forest reserves: no private use rights inside the boundary unless admitted and registered. Class 2 were protected forests: all usufruct rights were allowed inside the boundary unless explicitly prohibited. Class 2 forests were perhaps the most secure location for the practice of customary rights.

27In the constitution of a reserved forest, a Forest Settlement Officer (FSO) inquired into and either rejected or admitted all claims to rights in the forest by publishing locally a notification giving particulars of the land, explaining the consequences of reservation. The FSO fixed a period of not less than three months during which persons claiming rights presented their claims in writing or in person. If admitted, rights were to be either extinguished (with full and prompt compensation) or recorded and regulated so as to enable long-term forest management.

28The Settlement Officer’s job included the following: explain the purpose and reasons for the selection of an area and its boundaries; record and map claims from residents; assess the validity of claims and degree of dependency in what were mostly illiterate communities; buy out claims and pay compensation; offer alternative (sustainable) livelihoods including patrolling the government-determined boundary (jobs); devise re-settlement programs; agree zoning including seasonal/restricted/ licensed uses; propose/agree monitoring schemes; levy penalties for non-compliance; and explain the appeals procedures.

29Whether claims were recorded varied from state to state. Prohibitions might be seasonal (for example, no grazing or grass cutting allowed during the period of seed fall of commercial trees) or refer to timber and not to non-timber forest products. The Settlement Officer was part of a colonial system whose workings and purpose were beyond the ken of local villagers. The government negotiator or Settlement Officer had the benefit of asymmetric information and so had the upper hand: knowledge of what laws allowed, and overview of printed maps and quantitative surveys.

30Although ostensibly objective and impartial, many abuses have been documented of the forest reservation and accompanying settlement processes, for example by Ramachandra Guha for India and Raymond Bryant in Burma (Bryant, 1993, 1994, 1996, Guha, 1983, 2000; Guha & Gadgil, 1989). If villagers did not know of or did not attend or did not supply proxies for settlement hearings, they could not claim rights later on. In contemporary discourse one would say that local customary land users did not give their free, prior and informed consent (FPIC).

31Settlement procedures endured long after the end of the colonial period in Asian and African countries. Settlement inquiries became historic marker events and major social occasions. In the many cases where the settlement process worked fairly, community benefits from government reservation processes included: local community claims established which were then recorded in government systems and enabled the fending off of neighbours and rivals; arguments over rights were more defensible in court.

32Communities in several colonies resisted the reservation/settlement processes, some noted by Bryant and Guha (op. cit.). Generally, those were cases in which local people had high levels of traditional forest dependency that they deemed non-replaceable. Others had difficulty in moving to new areas; they had a high investment in their existing territories including traditional links like ancestral cemeteries and cultural markers. There were cases of overlapping claims and even of community agreement to deceive the Settlement Officer at the public hearings. Settlement Officers encountered many examples of wildly exaggerated and wholly fabricated claims to traditional usufruct (John Palmer, forester, pers. comm.). Where the settlement process worked, it provided an independently chaired convening space in which the government attempted to mediate fairly among distinct constituency groups and in the long-term interests of the nation.

33As noted above, procedures to settle forest user rights were not introduced in British Honduras or British Guiana. We can only speculate that the reasons may have been because of their late acquisition and a view that, as both countries were highly forested and with low population densities, there was no urgent need to do so.

34In the present impasse, it would be worthwhile for ITPs and governments to consider implementing a settlement process based on the tried and tested model and incorporating participatory access to remotely sensed images, up-to-date maps and land capability data. Its advantages include the checks and balances provided by having different arms of the civil service involved. In addition it would avoid lengthy and costly judicial processes. It could be required to conform to FPIC. A settlement process could take account of the growing aspirations of ITPs and national societies for recognizing both long-standing ITP rights and the rights of national majorities. It could help to develop a social contract regarding natural resources use and management and could allow all parties to plan for sustainable use.

35The second non-adversarial non-judicial option for addressing Indigenous territorial rights is the Public Trust Doctrine, referenced by the Affiliated Tribes of Northwest Indians of the Columbia River Basin in the USA in their efforts to enforce their historic treaty rights to salmon fishing and collaborative management of their traditional territory (Wood, 2007, Wood 2009). Similar to the ‘ring of power’ notion in colonial India, legal scholar Mary Christina Wood has argued that ‘government is the only enduring institution with control over human actions that affect natural resources’ (2007: 178), making it the ultimate trustee of a country’s natural resources. Wood argues that the trust concept is embedded in Federal Indian law and predates environmental protection legislation by more than 100 years (Wood, 2007, Wood 2009).

36Any government can be held accountable to this principle of public trusteeship as currently applied to federal and states governments in the United States. The Native Nations of the Columbia River Basin argue that the treaty agreements that were forced on them in the 19th century were based on a promise that the federal government would protect their lifeways, which incorporated traditional harvest for subsistence use on their customary territory. While Indian Nations had been forced to cede their territory to the Federal Government, they retained access rights through the signed treaties.

37The US Supreme Court has recognized the reliance of the Indian Nations on fishing and in a number of cases has ruled that treaty rights are easements across the ceded territory. These easements are superior to all property rights because they are the oldest in the land. Native Nations of the Columbia River Basin assert that the various aspects of fishing are constitutive of their identity as peoples. In other words, much of their culture, traditions and Indigenous Knowledge are encoded in the practices of salmon fishing and hunting, skills handed down over thousands of years from generation to generation. They have used the Public Trust doctrine to argue successfully for a higher level of protection by Federal authorities of the Columbia River from toxic run-offs. In addition, Native Nations have collaborated with State governments and conservation NGOs on other aspects of resource management on their traditional territories: from the right to cull buffalo that stray outside of Yellowstone National Park to the requirement that only biologically safe alternatives to pesticides be used on their customary lands.

38Indigenous groups in the USA have successfully argued that implicit in the Public Trust principle is a higher standard of due diligence than is implied in the ‘public property’ concept. There are higher legal and co-management requirements on the use of lands, territories and resources (LTR) held in Public Trust since treaty rights specify Federal protection of those resources necessary for Indigenous subsistence. ITPs in the Caribbean could cite this precedence in their pursuit of the settlement of rights in State-claimed forests or the Public Trust approach to gain more strands in the ‘bundle of rights’ in their LTR.

39The elements that account for the gulf of separation between the majority of hinterland peoples on the one hand and the majority of coastlander peoples on the other hand are historical, geographical, political, economic and cultural. However, the ITPs of all three countries are not well organized to deal with either the short- or long-term threats posed by increasing natural resources extraction on their customary territories. Lacking a common narrative among themselves on how to formulate a strategic approach, they are easily subjected to divide-and-rule tactics by the coastland governments and powerful constituency groups. The settlement process as developed and implemented by the British-organised Indian Forest Service (IFS) and the Public Trust doctrine include the elements of representation, equity, access and benefit sharing, even though those modern concepts may not have been explicitly used. The safeguard that all ITPs aspire to is securing legal communal rights to their territory. This article suggests that the self-organization and consultation processes involving multi-stakeholder groups in both the reserve settlement process as operationalized in the British colonies and the Public Trust doctrine in the USA offer pointers to ITPs for intermediate steps along the road to the full bundle of rights. Furthermore, IFS-type reservation or the US-type Public Trust doctrine could provide pointers for bridging the coastland/hinterland divides in CARICOM’s mainland member states.

40ITPs in all three countries experience land insecurity, which they describe as resulting from a state of internal colonialism. The end goal of all three ITPs is State recognition of their Indigenous Rights and the issuance of legal communal title over their customary lands. These goals are being pursued through judicial and political processes, nationally and internationally. This article suggests that in parallel, learning from and adopting the practical steps from the two administrative processes described here—the British colonial settlement process and application of the Public Trust concept in the USA—can begin a conversation around restitution of some ITP rights within their traditional territories and also help to bridge the coastland/hinterland divides.

41In addition, the regular multi-stakeholder engagements that would be triggered by the settlement of customary rights would bring the representatives of ITPs and their governments together and hopefully lead to building bridges and surmounting long-ingrained prejudices. The Public Trust Doctrine which holds state and national governments to a protective standard over lands, territories and resources that are held in trust for the Native Nations, could be adapted to local laws and policies, while remaining premised on the duty of care for future generations. If internalized and applied, the Public Trust doctrine could be invoked to end destructive logging and mining; the pollution of rivers by unchecked use of mercury; and other social, environmental and cultural harms that are common on ITPs territories.

42The normative quality of these two public policy approaches—the settlement process carried over from the colonial period, the Public Trust process in the contemporary era—could secure to ITP at least the first four named rights in the bundle of rights: ‘ . . . access, the right to withdraw natural resources, [co]management rights, [and] the right of exclusion [FPIC]’ (Rights and Resources Initiative, 2015: 4). Furthermore, such a policy-level convening forum between ITPs and their governments would open up a space to discuss broader public interests—those of all national citizens. This could apply the brakes to the current discretionary approach taken by government officials to awarding licences for natural resources extraction to third parties, although often contrary to parliament-approved national policies: rarely are concessions discussed at a Parliamentary level, much less at the level of affected ITPs and other interested citizens. Elements of a Settlement or Public Trust process could satisfy the common concerns of ITPs and other citizens for landscape-level protection, equity and safeguards. It could begin the process of getting the citizens together to construct a shared vision of nation building.

Fig. 1 — GDP per capita 2013 of 13 Caribbean countries.

Fig. 1 — GDP per capita 2013 of 13 Caribbean countries.

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Notes

1 Herrera Garibay and Edouard claim that Indigenous Peoples made up 17% or 39,000 of Belize’s population in the 2010 Census (2012: 9).

2 Coordination Office for Spatial Planning and Environment Suriname. Readiness Preparation Proposal, Suriname. Version 4, final draft. Submitted to Forest Carbon Partnership Facility (FCPF). Paramaribo, 2013;27.

3 CARICOM is an organization founded in 1973 by former British colonies to promote trade and diplomatic integration. Its membership has expanded to 15 Caribbean nations and dependencies.

4 ‘Thereafter, any practice that is permitted in a Central Forest Reserve is exercised as a revocable privilege and not as a right’ (Gordon 1955: 330).

5 Guyana in 1989 and Suriname in 1992 formally launched IMF-supported Structural Adjustment Programs (SAPs). Both countries had been deemed uncreditworthy and had to accept IMF conditions which included opening up their natural resources sectors to foreign investment.

6 However, a State Forest extension Order—the latest being in 1997—could perhaps be challenged under Section 142, the expropriation clause in the Guyana Constitution.

7 Regulatory capture occurs when a government regulatory agency which is supposed to be acting in the public interest becomes dominated by the vested interests of the existing incumbents in the industry that it oversees.

Table des illustrations

Titre Fig. 1 — GDP per capita 2013 of 13 Caribbean countries.
URL http://books.openedition.org/pulm/docannexe/image/5502/img-1.jpg
Fichier image/jpeg, 396k

Auteur

Janette Bulkan is an Assistant Professor in the Faculty of Forestry, University of British Columbia, Canada. She was Coordinator of the Amerindian Research Unit, University of Guyana (1985 to 2000) and Senior Social Scientist at the Iwokrama International Centre for Rainforest Conservation and Development, Guyana (2000 to 2003). She has led collaborative research projects with Indigenous Peoples in Guyana, Suriname and Perú. Her research interests are natural resource concession systems and management, community forestry, forest certification and governance. Janette serves on the Editorial Board of the Journal of Sustainable Forestry and on the Editorial Advisory Board of the journal Archaeology and Anthropology. She is a member of the Governing Council of the Commonwealth Forestry Association (CFA) and of the Policy and Standards Committee of the Forest Stewardship Council (FSC). Janette is a regular contributor on natural resources policy and Indigenous Peoples issues to the two independent newspapers of Guyana.

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