The Amerindian Act
September 6, 2002
After almost a decade since the issue was first raised in Parliament, some moves are now being made towards amending the Amerindian Act of 1976. There have been numerous complaints about it over the years, and recently the Minister of Amerindian Affairs, Ms Carolyn Rodrigues, referred to its origins as being in an ordinance of 1902. While that statement contains an element of truth, it is, nevertheless, something of an oversimplification, which ignores the progressive portions of the statute which one would imagine that most Amerindians would vote to retain.
The original 1902 ordinance was the first attempt by the colonial authorities to afford some protection to the interior nations from the exploitation of miners.
This statute underwent major amendments in 1910, and it is elements of this incarnation that have been incorporated into the 1976 act. The idea was to seal the indigenous peoples off from the coastlanders by creating reservations from which the latter were excluded.
The administration of these reservations, however, and decisions about who should and should not be admitted, were not under the control of the members of those nations who elected to live in them, but under the government. It is the paternalistic clauses of the 1902/1910 ordinances which are reflected in the 1976 legislation, to which Amerindians have taken justifiable exception. There seems little argument that these would have to be radically amended.
It might be noted that it was not compulsory under the early Amerindian ordinances for any given people to stay in the reservation set up for them, and many in fact preferred not to do so. Those who were not domiciled on the reservations, however, still enjoyed rights contained in other pieces of legislation, such as the Crown Lands and Mining Ordinances, and they still retained the customary rights of hunting and fishing anywhere on what was then called Crown Land (now State Land) which dated back to Dutch times.
Along with residents of reservations, they enjoyed exemptions under various laws, such as not being required to purchase a dog or a gun licence, and not having to carry a light on their vessels after dark. Some of these rights (not the gun licence exemption) are still on the statute books in the form of unspecified savings of traditional rights, although exactly what these amount to nowadays considering the number of possibly contradictory laws which have since been passed and which impinge on them, is not at all clear. The point is, however, that the 1976 act never attempted to address this welter of rights contained in primary and subsidiary legislation and spell out what was still extant. It is an issue which perhaps could be looked at now.
The local government provisions in the 1976 act do not date from the 1902/1910 ordinances, but have their origins in the 1950s, when they were by no means regarded as retrogressive. The current arrangements involve a system of captain and councillors, which it is likely (although not certain) that many Amerindians may regard as appropriate for their purposes. It could be, however, that they will request a more careful delineation of responsibilties of both captain and councils, and perhaps even an enhancement of their powers in certain specific regards. What they will certainly want abolished are the clauses allowing direct appointment by the relevant ministry official, which, it might be noted, have not actually been invoked. This notwithstanding, democratic norms must be written in to the legislation for the election of the captain and members of the council - or whatever amended local government system Amerindians decide upon.
The really progressive portions of the 1976 act are those which relate to land, representing as they do the culmination of the work of Mr Stephen Campbell, who campaigned for the rights of Amerindians - particularly land rights - more than forty years ago. (It might be observed that he never lived to see the land provisions which he had advocated so vigorously written into law, and while he perhaps would have derived a certain satisfaction from the Amerindian Act in this regard, he would have taken serious exception to some of its other sections.)
The important point about the 1976 land provisions is that for the first time communal rights to land were given legislative expression, and it is less than accurate to regard these clauses as deriving from the reservation system of 1902 which was entirely paternalistic in concept and did not embody any notion of ‘right.’ In fact, the word ‘reservation’ with all its negative connotations is not used in the Amerindian Act; rather there are Amerindian ‘villages’ and ‘districts.’ It is true that there have been complaints about the 1976 land provisions over the years, most notably that Amerindians are denied sub-soil rights. Clearly this is something which would have to be negotiated again. The other main complaint has been that the lands specified in the various schedules to the act are inadequate.
This is a criticism of a different order, however, since boundary adjustment does not involve a matter of principle and would not require an amendment to the primary legislation. However, since the act is to be looked at in its entirety anyway, it would make sense to address the question of land quotas set forth in the schedules at the same time. Up to this point, however, the Government has refused to address this question, but until it is addressed, it will impede all other programmes the administration has for the interior. It is in its own interest, therefore, to move on this matter with some dispatch.