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.
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.
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
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.