This ruling marks the latest erosion of Amerindian legal and customary rights over their lands
From the limited press reporting on this case, it seems that both the Judge and the gold miner, Joan Chang, the holder of the mining licence who is suing the Isseneru Amerindian Village Council (AVC), are unaware of the laws safeguarding Amerindian rights. The AVC appears to be within its rights to defend its lands, in the absence of any prior information available to the community about the existence of a mining licence prior to the granting of communal title to Isseneru. The holder of the licence should be addressing her concerns to the Guyana Lands and Surveys Commission (GLSC), the Guyana Geo-logy and Mines Commission (GGMC) and the Ministry of Amerindian Affairs (MoAA) because of their apparent error or errors. The court appears to have been at fault in admitting the civil suit, which is mis-directed.
Isseneru Village received communal title in 1997, under the Amerindian Act (AA 1951, amended to 1976). Through that Act, titles were granted by
Ministerial Order (AA 1951, Article 3 (a)): ‘All the rights, titles and interests of the State in and over the lands situate within the boundaries of any . . . Village shall . . . be deemed to be transferred to and vested in the respective Council for and on behalf of the Amerindian Community’ (AA 1976, Article 20A (1)). The Village Council was established by the Chief Officer of the Minister (AA 1951, Article 18). No existing title to minerals or mining rights in or over any land could have been transferred to the Village Council (AA 1976, Article 20A (2) (b)).
If there were areas covered by pre-existing mining licences awarded by the GGMC which were included within the Village boundaries by the Ministerial Order in 1997, this was a failure of communication between the MoAA and GGMC to implement correctly Article 20A (1) of AA 1976, not a fault of the Isseneru AVC.
It would also have been a fault of intra-government communication for the GLSC to have issued communal title under the State Lands Act 1972, following the Ministerial Order, not realizing a pre-existing mining licence issued by GGMC.
Moreover, it would have been a fault of GGMC to have issued a mining licence in the first place over Amerindian traditional/customary lands which are safeguarded by the ‘quiet enjoyment’ Article 111 of the Mining Act 1989: ‘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’. This clause has been in mining legislation in Guyana since 1905. This same Article 111 should have prevented the issue of any mining licence over Isseneru Amerindian Village Lands (AVL) in 1997 until 2006. Following the enactment of the revised AA in 2006, the AVC should have been involved directly in any negotiations for or issue of a small- or medium-scale mining licence; see Articles 48, 49, and 53.
The Judge might also have looked across to the safeguarding of Amerindian rights in our National Constitution (preamble on page 26 and Article 149G on page 89), and in international conventions signed and ratified by Guyana, including the Convention on Biological Diversity (Article 10 (c)) and the United Nations Declaration on the Rights of Indigenous Peoples 2007.
Instead, as reported in the press, the Judge appears to have confined her research to the Amerindian Act 2006, and to a novel interpretation of that Act.
In the meantime this ruling marks only the latest erosion of Amerindian legal and customary rights over their lands.