The Justice Institute Guyana welcomes the publication of the judgement in the case of Chang v Guyana Geology & Mines Commission and the Isseneru Village Council. Since the matter is on appeal I will not comment on the merits of the decision.
When the oral judgment was delivered in court some weeks ago, the reaction was to attack the Amerindian Act 2006. It is clear from the court papers that the problems do not lie with the Amerindian Act 2006. Ill-informed criticism of the Amerindian Act 2006 achieves only one result – it leads Amerindians to believe that national law does not protect their rights. This is wrong.
The Amerindian Act 2006 fully protects the rights of Amerindian peoples in Guyana.
Conflict between mining and Amerindians is easily avoidable. But Amerindian communities need to make better decisions, use all available legal remedies, and act before other citizens obtain legal rights over state lands.
The issue in the Isseneru case is that a claims licence was granted in 1989 under the Mining Act, twenty years before the grant of state lands to Isseneru and seventeen years before the Amerindian Act 2006 was passed. It is unfortunate that the Isseneru community did not take effective action in 1989 (or subsequently) to safeguard their rights as occupiers or users of the area, or use the Amerindian Act to protect their interests when the act was passed in 2006.
Case law going back seventy years establishes that a claims licence is a property right.
If miners acquire property rights over state land, then those miners are entitled to have their property rights protected. The Amerindian Act 2006 must not, and does not, take away property rights that other people hold. The constitution protects the Guyanese people against deprivation of their property and the Amerindian Act 2006 complies fully with the constitution. Respect for the rule of law is fundamental to a civilised society.
If the grant of land to Isseneru had extinguished the claims licence the miner would be able to claim compensation from the state for deprivation of property. It would mean that the President had acted unconstitutionally when he signed the grant of title transferring state lands to Isseneru Village council. But that is not the situation here. No-one has yet claimed that the mining right has been extinguished.
Many critics of the Amerindian Act seem unaware that state lands are owned by the state, not by any Amerindian community. There is not, and never has been, any such thing as ancestral or traditional lands in Guyana. The Amerindian Act 2006 establishes a legal process to settle Amerindian land claims. The Minister and the Amerindian community use the Amerindian Act process to identify which state lands should be granted to the Amerindian community. The grant of land is made under the State Lands Act, not under the Amerindian Act.
The Amerindian Act 2006 gives a Village Council control of mining on the land which they own through the grant. This land grant to Isseneru Village Council excludes lands which are lawfully held by somebody else. The judge has accepted that the mining areas are “lands lawfully held” by the miner. Therefore these mining areas are not included in Isseneru’s title. This is nothing to do with the Amerindian Act 2006. It is land law.
The Amerindian Act 2006 assumes that the government, the mining sector and Amerindian communities will obey established law, including the laws governing land.
The Amerindian Act clearly states that before title is granted the Minister of Amerindian Affairs must identify all the existing rights that exist over the state lands. It is obviously the responsibility of the Minister of Amerindian Affairs to ensure that there is no conflict between the grant of title to an Amerindian community and the rights of other people in this country. In the case of the Isseneru Village, the Minister of Amerindian Affairs failed to do her duty.
The Guyana Geology and Mines Commission regulates mining. The cease work order was issued under the Mining Regulations not under the Amerindian Act 2006. The Amerindian Act 2006 does not limit the powers of the GGMC to regulate mining.
Some critics have claimed that the Amerindian Act gives Amerindian communities too many rights which other Guyanese do not have. The Amerindian Act has established a balance among competing claims and rights through an intensely democratic process.
The Amerindian Act is the result of years of consultations with Amerindian communities, members of the public and regulatory agencies including the Guyana Geology and Mines Commission. Ms Carolyn Rodrigues-Birkett, Minster of Amerindian Affairs at the time, ensured that every section of the Amerindian Act responded to a request from an Amerindian community. Every section was passed unanimously by a select committee of government and opposition MPs, including three Amerindian MPs. As the lead drafter of this act I know that in every case the recommendations of the Amerindian communities were adopted in preference to the demands of NGOs who claimed to represent Amerindian peoples.
Guyana should receive credit internationally for its achievements in the Amerindian Act 2006. But the government has failed over and over to tell international bodies and other states about the Amerindian Act 2006 in a convincing manner. Time and again, the Minister of Amerindian Affairs does nothing effective to counter misinformation about Amerindian rights and ill-founded criticism of the Amerindian Act 2006. As a result Guyana’s international reputation is deteriorating daily.
Attorney at Law
Justice Institute Guyana