The protection for Amerindian rights in the Laws of Guyana

The protection for Amerindian rights in the Laws of Guyana

Stabroek News – February 4, 2013 Features,In The Diaspora | 

— the case of Isseneru Amerindian Village

By Janette Bulkan

Janette Bulkan was Coordinator of the Amerindian Research Unit, University of Guyana from 1985 to 1999 and Senior Social Scientist at the Iwokrama International Centre from 2000 to 2003

The High Court has recently found in favour of a rentier gold miner against obstruction of work by the Akawaio Amerindian community of Isseneru, situated in the middle Mazaruni River. (A rentier is a person who has a licence, does not himself or herself operate that licence but rents it out to a third party or parties). The immediate argument is whether there is an overlap between the boundaries of the mining licence issued to Ivor Chang in 1989 and of the communal title of Isseneru Village Council (IVC), the latter issued in 2007.   

According to a Stabroek News report of August 9. 2009, there are allegations by the IVC that the titled Amerindian Village Lands are overlaid by other mining licences, but those are not the subject of the recent court case.  The judge in this case referred to the Amerindian Act 2006.  If the Press reports on this case are accurate, the defective Amerindian Act 2006 is not the cause of the problem.  This article summarises the legal protections available to Amerindian communities that appear to be more relevant to the recent court case.

Legislation in Guyana expands on the general protection of Amerindian ways of life, which is expressed in the Preamble and Article 149G of the National Constitution 1980/2003: ‘Indigenous peoples shall have the right to protection, preservation and promulgation of their languages, cultural heritage and way of life’. At least since 1905, the Mining Acts have included the ‘quiet enjoyment’ clause to protect areas under customary use and traditional occupation by Amerindians: ‘All land occupied or used by the Aboriginal Indians, and all land necessary for the quiet enjoyment by the Aboriginal Indians of any Indian settlement, shall be deemed to be lawfully occupied by them’.  This provision has been passed down through revisions of mining law.  Article 111 in the current Mining Act (cap. 65:01, 1989)has very similar language: ‘All land occupied or used by the Amerindian communities and all land necessary for the quiet enjoyment by the Amerindians of any Amerindian settlement, shall be deemed to be lawfully occupied by them’. The ‘quiet enjoyment’ clause is repeated in Section 208 of the main Mining Regulations of 1972.

The same principle of protection was in Article 37 of the Forests Act 1953, and in Article 63(2) of the draft Forests Act 2004. That ‘quiet enjoyment’ clause was removed from the Forests Act by the amendment in the second schedule of the Amerindian Act 2006 but the Mining Act protection remains. However, the procedural guidelines of the Guyana Forestry Commission (GFC) for State Forest Exploratory Permits (SFEPs) (April 1999) prevent the issue of SFEPs over Amerindian traditional lands. The re-drawing of the boundaries of the Barama Timber Sales Agreement  in the 1990s to exclude the Amerindian areas that were initially and accidentally inside also demonstrate that there has generally been respect and protection for areas traditionally used and occupied by Amerindians.

As regards resource quality, Article 36 of the National Constitution provides for all citizens the right to a clean environment. This provision is given effect by Article 11 of the EPA Act 1996, which requires an Environmental Impact Assessment (EIA) and Environmental Permit (EP) for any project which may significantly affect the environment. Item 9 of the fourth schedule to the EPA Act lists the “extraction and conversion of mineral resources” as such a project.  In other words, ALL mining licences should be associated with Environmental Impact Assessments  and Environmental Permits  because ALL mining has a significant effect on the environment.

Given these legal protections, what are the current questions that might be asked by Amerindian communities?

Question 1. Did the Guyana Geology and Mines Commission (GGMC) conduct due diligence in 1989  to establish whether there was evidence of Amerindian traditional occupation or use in the area applied for, such areas being safeguarded under the ‘quiet enjoyment’ clause, Article 111, before issuing a licence to Ivor Chang?

If the answer is yes, there was no evidence of Amerindian traditional occupation or use in the area applied for in 1989, then there is no case against the miner Joan Chang, and her case is upheld under the Mining Act.

If the answer is no, then the Isseneru Village Council can petition for a cancellation by the GGMC of that mining licence, on grounds of improper issue in 1989 under the Mining Act.

Question 2. Is there a buffer area of 100 metres between residences within the boundaries of State Land Title No. 7865, which is registered in the name of Isseneru Amerindian Village, and the Far Eye claim of Ivor Chang? Such a buffer area is required by Section 251 of the Environmental Mining Regulations 2005.

If yes, there is a buffer zone, then there is no case against the miner Joan Chang, and her case is upheld under Section 251 of the environmental Mining Regulations 2005.

If no,  move the Isseneru Village Council’s boundary because the mining licence was there first and the Amerindian Act 2006 requires respect for “interest” (Article 61(2)(h)) existing at the time of the application for Amerindian Village Lands title.

Question 3. Is the licence holder or rentee of the Far Eye claim required to pay tribute to the Isseneru Village Council?

Answer: The requirement only applies if the Far Eye claim is situated within the boundaries of the titled Isseneru Amerindian Village (Article 51 (1) of the Amerindian Act 2006).

Question 4. Is the mining licence associated with an approved Environmental Impact Assessment and Environmental Permit?

If yes, continue with Question 5.

If no, the Environmental Protection Agency and the GGMC should be taking action against the miner for violation of Article 11 of the Environmental Protection Act.

Question 5. Is the miner complying with the environmental mining regulations 2005?

If yes, there is no case against the miner Joan Chang.

If no (for example, if there is spillover environmental damage from the Joan Chang mining operation into or onto the Isseneru Village Land), then the EPA and GGMC should be taking action against the miner.

It should be clear that the Isseneru Village Council would strengthen its case if it referred to the specific laws or regulations that the miner is alleged to have contravened.  There should be a memory that Chief Justice Ian Chang denied 13 of the 15 declarations requested by Arau Village Council against another miner because relevant evidence was not provided by the Village Council four years ago, as noted in Stabroek News on May 16, 2009.

Several other Amerindian communities have cases related to mining or miners before the Court. The following observations are general in nature and can be considered by similarly affected communities.

Environmental issues

The cumulative negative effects of the increasing scale and intensity of the largely unregulated, and technically crude and polluting gold mining on the interior rivers and lands,  are disproportionately borne by Amerindian communities who are the majority settled populations of the interior Regions of Guyana. Gold is a non-renewable resource: after a vein is exhausted, the miner dismantles his or her operation, and moves on. However, the hapless Amerindian community in or downriver of that operation has to continue to subsist in the midst of polluted rivers and torn-up river banks, any fish remaining being mercury-contaminated, local extinction of game species, and a host of social ills.

Lack of enforcement of the 
requirements of the EPA Act

On November 3, 2012, the Stabroek News reported that in September of that year, another miner was granted an ex parte injunction against the Toshao and Kako Akawaio Amerindian Village Council, also in the Upper Mazaruni, ordering them to desist from preventing her from moving gold mining equipment upriver of the village.

More broadly, the issues of polluted turbid rivers and mercury methylisation leading to contaminated fish in waters flowing through Amerindian Village Lands should be addressed by reference to Article 11 of the EPA. In this sense the barrier of boats laid across the Kako river by the villagers of Kako to prevent the likelihood of upriver degradation was justified, and the legal action should have been about the lack of the Environmental Impact Assessment (EIA) and Environmental Permit (EP).

National land use policies

There is clearly a need to revise national land use policies, including the relevant chapters of the National Development Strategy 1995-7, to adjust to the pressures caused by the rising gold price.  Mining is no longer as isolated from coastal society as formerly. The world price of gold more than quadrupled between 2005 and 2011, leading to a substantial increase in mining in the forested regions of Guyana. According to a 2010 Guyana Forestry Commission Report, there were 9,970 small-scale mining claim licences areas in 2010. The number of persons employed in the gold mining industry has allegedly increased from around 20,000 to 130,000.

Communication

The Toshaos should demand the publication and wide distribution of culturally appropriate guides to their rights as set out in all the legislation noted above.

Revision of the Amerindian Act

Amerindian land title does not include either a right to subsurface minerals or to the water bodies that flow through the titled area. Only about half of the Amerindian proposals in 2003-5 for revision of the Amerindian Act 1951/1976 were actually included in the Amerindian Act 2006.  Deficiencies in this revision, including incompatibilities with the National Constitution 1980/2003 and with Guyana’s obligations under ratified international human rights conventions (for example, UN-CERD), have been published since early 2006. Even though the current Isseneru court case appears to have been mis-directed through inadequate reading of Guyana’s laws by the legal profession, the public outcry for a revision of the Amerindian Act is well timed. Amerindians should press for the general restoration of the “quiet enjoyment” clause in all land use legislation.

Make use of safeguards in the 
current laws

Finally, the Environmental Protection Agency  appears to be in gross dereliction of its duty for not requiring the holders of small-scale mining licences to apply to the Agency  for environmental permits prior to mining, and to submit an Environmental Impact Assessment in support of their application. If ‘small-scale’ is meant to signify ‘low impact’, labour intensive, non-mechanized mining, then ‘small-scale’ mining does not exist in Guyana. Instead, high impact hydraulic mining is carried out across all concession sizes in Guyana. The cumulative effects of destructive mining on small-scale concessions in Guyana are known to the Environmental Protection Agency and the Guyana Geology and Mines Commission, the regulatory agencies, and have been published internationally. Enforcement of the laws and regulations would signal that the State was serious about low carbon development and about carrying out the constitutional requirement to protect Guyana’s environment, including Amerindian homelands.

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Comments

  • de castro  On February 7, 2013 at 7:25 am

    A very informative and well researched article….

    Not wishing to be judge or jury it is quite clear mistakes in LAW and its interpretation / implementations remains arbitory….

    New laws overriding/incorporating old laws needs to be drafted to protect
    not only the habitat of aborignals but also their “rights to exist” ! Human rights
    laws ….failing this .. later this can end up in the HAGUE courts of human rights
    for international settlements/protection….even United Nations courts on human rights.

    Aboriginals whose habitats are governed by “state” must be legally protected
    by the laws of that “state”…especially if it is in “disputed” territory…

    ..borders with VENEZUELA-BRAZIL-SURINAME……

    However as I am an advocate of “FREEDOM” …free movement of goods services and peoples in border areas (as per european dream) enacted laws must allow for this in principle….judges will decide if principles should be upheld or not….The LAW of the land and its enforcers must be respected regardless.

    my spin entirely
    kamptan ps “use land or loose it”…returned to state.

  • Deen  On February 7, 2013 at 1:41 pm

    Janette Bulkan has done a great service to all by giving the reader a good perspective of the prevailing laws and the conflicting issue of gold mining in Guyana in proximity to the aborigines community. Also, more importantly, the potential detriment to the livelihood of the people and the protection of the environment. This is a very sensitive issue and all Guyanese, especially the Amerindians and their elected representatives and community leaders should ensure that justice prevails. The people and their land are their priorities. The pursuit of wealth and profit should never be given precedence over the detriment on the people, the land and the environment. I suggest the environmental protection agencies and all foreign donor countries that provide funds to Guyana to protect the environment and its people, should monitor gold mining and all industries to ensure that they operate in compliance with the laws that protect the environment and the safety and peaceful livelihood of the people. As we know, in Guyana, with all the bribery and corruption that take place, money speaks to those in authority and power.

  • de castro  On February 7, 2013 at 4:22 pm

    dean
    I personally witnessed the corruption of which you you refer.
    A truckload of logs of timber was ahead of me at checkpoint in Lethem
    I was seated in my transporter behind the loaded vehicle while a
    uniformed inspector followed the driver of the loaded vehicle to its rear out of sight of others. A white envoloppe was handed to the inspector by the
    driver of the vehicle…it was very suspicious how secretly it was conducted.
    The enveloppe was immediately put by the inspector into his pockets.

    If I was a forrest ranger (not uniformed but disguised as traveller) am sure this was an incident for questuioning ! Bribery and corruption which becomes endemic in a society needs some drastic action if it is to be contained/eradicated.
    Questions need to be asked/answered on these issues…
    1. what is the wages of a customers officer in GUYANA.
    2. what is the limit of the powers of such an individual
    3. Are there more parties involved in the corruption.

    The international agencies that monitor drug trafficing can easily be incorporated/designated as overall inspectors of illegal activities in
    the hinterland of Guyana…reporting to the GUYANA authorities any
    such infringements or corrupt practices.

    to conclude
    what is the GUYANA government doing to eradicate/monitor corruption in its society…the 65 elected representatives of the national assembly must answer
    these questions….openess and accountability go hand in hand.
    I point my finger in their direction.

    do something or be de-selected
    power to the people
    kamptan

  • Deen  On February 8, 2013 at 11:15 pm

    Hi! Kamptan,
    Thanks for sharing your personal experience of an apparent bribary incident. As we all know, Guyana has a deep-rooted problem with bribery and corruption. The media continues to make us aware by reporting these greedy and criminal activities that take place among member of the police force, the government, government agencies like Customs and Immigration, and many other service sectors of Guyana. Bribery and corruption appear to have become increasingly acceptable in the Guyanese society. The people are afraid to take issue with those in authority and power.Bribery is the method utilized to get things done quickly and cause those in authority to turn the other way when laws are broken.
    With the drugs, other criminal elements and moral decay, it will not be easy to remove the habit of bribery and corruption.

  • de castro  On February 9, 2013 at 12:14 am

    dean
    I thank you for your honest and sincere response.
    When bribery and corruption is endemic in society you either increase the doseage or change the prescription !
    Laws must not only be instituted it must also be enforceable…and enforced.

    If the guyanese people want change it will happen …..
    GUYANA will change
    GUYANA is changing
    GUYANA must change or die peacefully in her ignorance.

    forever the optimist
    kamptan

  • Deen  On February 9, 2013 at 8:54 pm

    Kamptan, the eternal optimist,
    I can safely assume that the majority of Guyanese are desirous of change. Positive change that will put the country on the road to recovery and in the right direction.
    Guyana’s history has shown that as a result of political conflicts and poor leadership, the country and its people suffered irreparably. Those of us who grew up in the 40s, 50s and 60s witnessed the disintegration of a once peaceful and progressive country.Subsequently, Guyana was once relegated as the poorest country in the western hemisphere, and even relieved Haiti from the ignominous title. Since then Guyana has had some recovery, but the stigma of poverty still remains.
    Demographics show that Guyana with its large landscape, its wealth of narural resources and its small but literate population has all the basic requirements of becoming a much progressive country. However, the residing political divide, the poor leadership, the drugs, the prevailing culture of bribery and corruption are the negative elements that paint an ugly picture of risks in the minds of potential investors. A house divided will never stand.
    The winds of change will never take place in Guyana unless there is a climate for GOOD bipartisan political leadership that is committed to ardously work for the welfare of the people and the economic restructuring for recovery of the country.
    Peace,
    Deen

  • de castro  On February 10, 2013 at 7:10 am

    dean
    I thank you for the enlightened response above….

    “negative elements that paint an ugly picture of risks in the minds of potential investors”…

    I question this statement but agree that a House divided will never stand !

    Do you refer to investment “externally or internally or both ?

    Our neighbours VENEZUELA have an hydro dam built some time ago
    that was supposed to supply the whole country with “power”…electricity.
    Today it can only supply GUAYANA its township …poor managerial
    appointments “unqualified untrained” supporters and friends of the
    “political elite” ……
    When bribery and corruption is endemic in societies drastic political
    change is a neccessary evil.
    If the change is “democratic” it is “revolutionary” and bloodless…
    If however it is change by “fear and intimidation” the stigmata remains.

    After CHAVEZ s passing hopefully his appointed successir will go to the polls
    “democraticly” to be given the mandate by its peoples to rule.

    POLITICS is everything in ECONOMICS

    although they are both “interwined”….

    The change in GUYANA must come endorsed by its peoples in order for
    GUYANA and its peoples to prosper….CHANGE from within influenced by
    people like you and me….we can see the ‘forrest” ..not just leaves and trees…

    If we are part of the problem we can seldom see the solutions.
    However if we were just to “stand back:” to contemplate the situation
    the solutions become obvious.

    forever the optimist

    kamptan hopefully the answer to my question above is “both”

  • Deen  On February 11, 2013 at 9:30 pm

    Hi! Kamptan,

    When I said “the residing political divide, the poor leadership, the drugs, the prevailing culture of bribery and corruption are the negative elements that paint an ugly picture of risks in the minds of potential investors.” I was referring more to external investors. Investors are usually reluctant to risk large amount of capital in any country where political, economic and social instabilities are prevail.
    I agree with you about the interrelationship between politics and economics
    .
    I feel other negative elements that are resistant to change in Guyana is the presence of a lot of old school thinking among the majority of Guyanese and an immutable allegiance to their individual political party.

    Since both you and I are abroad, we are able, and fortunate to have resourcess available to us, to make oblective and impartial evaluation of Guyana’s woes predicament. We are outside looking in…..seeing the forest and able to zoom in on the trees. Also, we must be realistic and realize there are a lot subterfuge and political undertow in motion that the majority of Guyanese are generally unaware of.

    Thanks for the dialogue and sharing your opinions.

    Peace,
    Deen

  • compton de castro  On February 12, 2013 at 7:02 am

    my dear brother

    sum serious XM or EL DORADO under a mango or coconut tree somewhere in the hinterland of GUYANA will be appropriate for any further discussions…
    The informality adds to the ambiance in the discussions.

    SALUD !
    kamptan

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