Mining on Amerindian lands

Now that the dust has settled and emotions have subsided, it might be a good time to dispassionately consider the meaning of the court’s decision in the Isseneru case which attracted some attention recently. To grasp its full significance and implications, we need to go back in time.

In 1976 the Amerindian Act of 1953 was amended to give titles to lands occupied by Amerindians to village councils, the use and occupation of which they could regulate for the benefit of the Amerindian community. The areas of the villages were defined and described but not surveyed.

20130210ralphThe Act of 1953 also prohibited any person from entering or remaining on Amerindian lands without lawful excuse or permission in writing of the Chief Officer.

With the change in Government in 1992, the process began of demarcating boundaries by survey which is still ongoing. Additional lands claimed and proved to be occupied by Amerindians are also surveyed and added to the defined lands.

In 2006 another Amerindian Act was passed which further enhanced the rights of Amerindians in relation to their lands.  It provides that (a) anyone wishing to enter Amerindian Village lands must obtain the permission of the Village Council (essentially repeating what is in the earlier Act as set out above) and (b) any miner who wishes to carry out mining activities on village lands must obtain the necessary permissions, comply with written laws, make available any information which the Village Council reasonably requests, give the Village Council a written summary of the proposed mining activities and agree to the payment of tribute.

The above is therefore a major advance in Amerindian rights and control over mining activities on their lands and for the first time gave them the opportunity to directly benefit therefrom. Previously Amerindians could not have interfered with such activities.

However, the state under the Mining Act continued to reserve for itself the ownership of minerals on all lands. The state also reserves the right to grant, through the Guyana Geology and Mines Commission, a licence or permit to enter private lands, which would include Amerindian lands, and search, mine for and take any minerals.

Unlike the past it is now expected that miners would comply with the requirements that Village Council permission to enter the lands be obtained and to enter into a written agreement with the Village Council addressing the many issues set out in the Act, most importantly the payment of tribute.

For most miners operating both before and after the 2006 Act, these conditions are being complied with. A few who obtained their permits or licences before the 2006 Act may be having difficulties of one sort or another in arriving at agreements with village councils.

The GGMC makes efforts to ensure that the Amerindian Act is complied with by all miners on Amerindian lands. However, a few who for one reason or another are unable or unwilling to comply have resorted to the court in resistance to the actions of GGMC to issue cease work orders or to refuse to renew licences or permits. Several have brought legal proceedings.

In the Isseneru case the GGMC acting on the interpretation of the 2006 Act to mean that its provisions applied to miners who obtained their permits or licences before the Act issued a cease work order. The legal issues revolved around the interpretation of the phrase “any miner who wishes to carry out mining activities…” being required to comply with the 2006 Act.

An additional issue to be determined was the meaning of the phrase “save and except all lands legally held or occupied” which is contained in the grant of land to the Isseneru Village Council. Joan Chang who holds a claim licence and anyone who holds a mining permit do legally hold or occupy land.

The Judge interpreted the phrase, “any miner who wishes to carry out mining activities…” to refer to a miner who obtained a mining permit or claim licence after the 2006 Act and not to a miner who had been issued the permit or licence before 2006 when the Act came in force.

As a result of this finding the cease work order issued to the representatives of Joan Chang by the GGMC was discharged and they are now permitted to continue their mining activities without seeking the permission of the Isseneru Village Council to enter its lands or to obtain permission to carry out mining activities.

The Judge relied on an earlier decision of Chief Justice Chang, Application by Daniel Dazzell, to rule that the licence held by Joan Chang is property within the meaning of the Constitution and that the phrase in the grant, “save and except all lands legally held or occupied,” gives constitutional protection to Joan Chang to lawfully utilize her property without hindrance or interference by the Isseneru Village Council.

This finding by the Judge is consistent with an earlier decision the effect of which is the same as in the Isseneru case. It is a well considered position, so much so that the Judge clearly felt sure enough about her interpretation of the language that, while not acknowledging it, she in effect disagreed with Chief Justice Chang in the case of Application by Daniel Dazzell.

The Chief Justice had held that notwithstanding that the permit or licence is property for which constitutional protection is available, the GGMC can refuse to renew either, even if it was issued before the 2006 Act to mine on Amerindian lands, if the holders are unable to produce a written agreement to the GGMC.

Because of the ruling in the Isseneru case miners who were issued licences and permissions before 2006 can now enter Amerindian Village lands without permission, extract minerals without paying tribute to Amerindians or accounting to them for the numerous other matters referred to in section 48. This is why the Amerindians of Isseneru were so angry. Miners would be very shortsighted if they believe, as some appear to do, that a permanent situation which may result in ongoing conflict between Amerindian communities and themselves is in their interest.

The issues from this case will be engaging our higher courts. In the meantime the GGMC might wish to consider administrative measures, some of which might be available, to protect the Isseneru and other Amerindian communities while awaiting the outcome of an appeal.

Also, it would be advisable for miners on Amerindian lands who have written agreements to continue to observe the agreements and not to follow the precedent established by Isseneru in view of its conflicting position with the decision in the Dazzell Case. Hopefully an appeal can be heard as early as possible.

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