During 2013 the country learnt that the Minister of Natural Resources and the Environment Mr. Robert Persaud under powers granted to him under the Mining Act had in December 2012 granted to MURI BRASIL VENTURES INC., permission to carry out over a three year period Geological and Geophysical Surveys over 2,200,000 acres of land and the automatic right to eighteen Prospecting Licences for Rare Earth Elements, Bauxite, Limestone, Nephelene Syenite, Gold, Diamonds and Granite Stones.” For this generous concession and even more generous guarantee, the company over the three year period would have paid to the Government the grand sum of eighty-five thousand United States Dollars.
Faced with intense media scrutiny, the company’s two principals, both with strong ties to members of the ruling party, quickly gave up the Permission. Thanks to the media, Guyana got lucky on this occasion. But the law that allowed a Minister the power to grant exclusive licences to strategic parts of the country – the Mining Act 1989 – remains fully intact, open to abuse and ministerial excesses with practically no oversight. Despite the clear usurpation of the powers vested in the Guyana Geology and Mines Commission (GGMC) and the Minister’s unlawful guarantee of any, much less eighteen Prospecting Licences to MURI, the relevant parliamentary oversight body saw no wrong done.
This Mining Act in its present form is open to the most serious of abuses by the Minister who is also the subject Minister for the GGMC. Under the GGMC Act, the Minister appoints all thirteen members of the Commission, approves their remuneration and allowances and they are bound to carry out any directions given by him of “a general character as to the policy to be followed by the Commission in the performance of its functions.”
Operating under such a framework, directors who owe their office and earn influence with the Minister may be clouded in their judgment and consider themselves unable to question the judgment or decisions of their Minister. Indeed, there is nothing in the Act that gives them any right to challenge a decision by the Minister, however mistaken they may think it is.
That Act screams out for amendments. As it is, the Act can allow for the carving up of Guyana without even a notification in the Gazette or a newspaper. In fact, there is an increasing awareness that a country’s natural resources are held by one generation in trust for those coming after. Lakota Sioux: “We didn’t inherit the earth from our ancestors; we borrow it from our children.” The public trust doctrine is the legal embodiment of this principle.
One California case has suggested how the public trust doctrine will expand: “The preservation of … lands in their natural state, so that they may serve as ecological units for scientific study, as open space, and as environments which provide food and habitat for birds and marine life, and which favorably affect the scenery and climate of the area.”
Our legal system – based on English common law – includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of the sea-shore, running waters, airs, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.
Article 149J of the Constitution not only guarantees to everyone the right to an environment that is not harmful to health or well-being. It also imposes on the State the duty to protect the environment for the benefit of present and future generations by legislative and other measures to prevent pollution and ecological degradation; promote conservation and secure sustainable development and use of natural resources while promoting justifiable economic and social development.
There is too an economic dimension to the use of non-renewable resources. Let us take an example: Omai came, extracted 3,300,000 ounces of gold and paid royalties thereon. None of that money was set aside to create a fund, undertake any research or promote the country’s store of knowledge. As we consider whether an area is open or closed and how we use the income from non-renewable resources, let us remember Article 149J of the Constitution and the interests of those who come after us.
Ram & McRae also advocates that the annual surplus made by the Guyana Geology and Mines Commission be transferred to the Consolidated Fund, subject to control of the National Assembly rather than being under the formal or indirect control of a Minister and his appointees.
