Court upholds miner’s rights to operate in Isseneru

A miner yesterday won a court battle against the Isseneru Village Council and the Guyana Geology and Mines Commission (GGMC), preventing them from stopping operations on lands in the village.

In a ruling in the High Court, Justice Diana Insanally made absolute nisi orders of certiorari and prohibition, first granted on December 7, 2011, based on the application of Joan Avahnelle Chang, a miner who holds claim licences on lands alleged by the GGMC to be owned by the Isseneru Village Council.

Chang, who was represented by attorney Abiola Wong-Inniss, had instituted legal proceedings for an order of prohibition against the Village Council to prevent it from interfering with the mining activities and an order of certiorari to quash the cease work orders (CWOs) issued by a GGMC mining officer.

Members of the Village Council had claimed that the mining company was mining on titled lands without the council’s permission under the Amerindian Act and despite subsequent CWOs issued by the GGMC mining officer.

However, Justice Insanally pointed out that by virtue of Chang being granted a licence to mine prior to the coming into operation of the Amerindian Act of 2006, the Village Council had no authority to stop the operation and the GGMC no authority to issue the CWOs.

Attorney David James, who with Stephen Lewis represented the Village Council, said that the ruling will have big implications, not only on its legal basis but politically, since Amerindians would now have to approach the government on questions about their titles.

Senior Counsel Ralph Ramkarran, who represented the GGMC, told Stabroek News that the judge’s written decision, when available, would have to be studied before its full implications can be assessed but an appeal to the Court of Appeal is likely.

The facts of the case as summed up by the judge are that mines officer Anthony Paul issued a CWO, ordering that all work by a mining dredge operated by Wayne Heber and Platinum Mining Incorporated  on Far Eye Claims be stopped. Although Chang is the owner of the claim, she granted power to Heber to manage and work the claims on her behalf.

But Heber, the judge noted, claimed he met with opposition from the Isseneru Toshao, who maintained that the claims were located in the village and therefore permission would be required from the Village Council for mining operations.

In the ruling, Justice Insanally noted that the Village Council was purporting to exercise control over lands which belong to a claim holder and which are excluded by the state’s grant to the village.

Under Section 48 (1) of the Amerindian Act, she noted, a miner who wishes to carry out mining activities on village lands must obtain permission. However, she pointed out that the section referred to “anyone who intends to carry out mining activities,” meaning persons who do not already have a licence.

The judge also noted that the state grant to Isseneru explicitly exempted “all lands legally held.” In the case of the exceptions, the Village Council can exercise no control of the lands save as permitted under Section 51 (1) of the Act, which provides for payment of tribute.

As a result, Justice Insanally said the Council “has no authority” to cause the working of the claims to be stopped.

“They have authority only to negotiate with the claimant or the claim holder,” she said, referring to Section 48 of the Act, while adding that the GGMC may only facilitate such negotiations but not participate in them.

“The GGMC has a nominal role and has not been given any authority under the Amerindian Act or the Mining Act to order a CWO in this case,” she added.

Justice Insanally further said that the GGMC has no authority to issue a CWO where the claim holder has already been issued with a claim licence and already has permission to work the claims.

Although she noted that the law allows for a mining officer to issue a CWO where it is necessary for the maintenance of peace, the protection of the state or of private persons, nowhere in the CWOs did it state that the order was made for any of those reasons.

Justice Insanally, referring to a previous ruling by acting Chief Justice Ian Chang, also noted that the applicant would have acquired an interest in immovable property from the moment the claim was located—an interest that cannot be taken away under any provision of the Amerindian Act or the Mining Act.

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