Legislation to govern African ancestral lands needs national consensus

-attorney tells inquiry

Melinda Janki (Commission of Inquiry photo)

Any legislation governing African ancestral lands should be a reflection of a national consensus, according to international legal consultant and expert on native and tribal rights Melinda Janki.

“I personally would say that one should do this through legislation that is built on national consensus. I don’t think it should be done on legislation that’s put through parliament, and that has not had public consultation. The legislation should reflect a national consensus,” Janki stated yesterday when she appeared before the Commission of Inquiry (CoI) investigating African ancestral land matters yesterday at the Guyana Lands and Surveys Commission.

The point emphasised by Janki at the beginning of her presentation is that whatever decisions are made should be within the public interest, and within the consideration of equity and justice.

“…I would also submit for consideration by the commissioners that the public interest requires that decisions that relate to land, which is the most fundamental thing that we have—this is the basis of community, it is the basis of our identity, it’s also the basis of the economy—decisions regarding land should be made according to law and not according to discretion…,” Janki said.

Janki stated that she believes that whatever criteria are established to determine how these lands are to be dealt with should be objective. Such criteria would include occupation of land; use of the land, inclusive of land under the protection of the peoples in question, and not necessarily land being worked by them; the size of the land being occupied; competing interests; and customs and traditions.

In cases where competing interests arise, Janki recommended that consensus can be drawn through “negotiation and generosity,” possibly through either compensation, or land being provided elsewhere. She stated that the commission should not perpetuate a tradition where they “pile injustice upon injustice,” and she reminded the commissioners that lands cannot be taken away from people—unless they were acquired fraudulently—as they are protected by the constitution.

“I think if people have been there for a very long time, we need to find some objective criteria to determine, as part of the settlement, how to deal with those lands and again, this has to be done, I think, through a legal process. This has to be done through objective criteria that the nation agrees with, and then people have to see that justice is done,” she said.

Customs and traditions, she opined, are relevant and should be acknowledged, but should not be a determining factor, as many traditions were destroyed. To make such a requirement, she said, would be to “perpetuate injustice.”

Additionally, she argued that occupation of land should not necessarily be a determining factor, as there may be instances where people may have been in possession of land, and were forced off for various reasons. It is in this vein that she advised that our history also needs to be taken into account.

“…So there must be a national consensus in which we understand the value of the ancestral lands and we understand the importance of acknowledging the fact that these lands, something has happened to them and we need to restore them. And of course, if there are competing claims, we can find ways to deal with that equitably,” she said. “…What we don’t want is a court in which you have a winner takes all situation because all that happens is you have a loser and a winner and we’re no better off. The purpose of dealing with African Ancestral lands should be healing and reconciliation, not winning and losing,” she added.

 

History task force

“One of the issues that I think is definitely within the public interest is the question of the enslaved Africans and the contribution that they have made to the wealth, the culture, the history, of Guyana. We cannot look at land in isolation from that. We cannot look at land rights in isolation from the contribution made by the enslaved Africans. Nor can we look at land and nor can we talk about ancestral lands unless we are prepared to investigate what happened to the enslaved Africans who escaped and who escaped and continued to escape despite seeing their fellows hanged, tortured, broken,” Janki stated.

She asked that in addition to the land purchased by freed slaves, that the lands also occupied by enslaved Africans who escaped to the interior also be treated as ancestral lands.

“Where are these communities and can we really talk about ancestral land if we do not also talk about the lands that were occupied, and used by enslaved Africans who escaped and who, by the way, demonstrated that they could govern themselves, that they could organize themselves, that they could feed themselves and that they could educate their children. What happened to those lands?” she questioned.

In the attorney’s opinion, the idea of ancestral lands is one that has become confused, and so she advised that a definition unique to Guyana be established based on history, while also recommending that the term be confined to lands held by the Africans.

“Ancestral lands is a term that should be restricted to the enslaved Africans, to the freed Africans and to their descendants. When you talk about ancestral lands, I think that there are two roots of title in relation to the lands that were purchased…,” Janki said.

“Underlying the claims for ancestral lands sometimes is an idea that they are pre-colonial. I want you to scratch that immediately and I suggest that the term ancestral lands is really an unfortunate one, but now that we’ve got it, we should use it and restrict the use of that to the African ancestral lands. No point in trying to use it in relation to Amerindian communities because it doesn’t work,” she added.

Janki stated that history is not properly taught in schools and that there are aspects of history that need to be acknowledged, regardless of how painful that history may be.

She advised that there be an audit of offices to record and check all historical records so they can be preserved for posterity.

Janki suggested to the commission that a history task force be established to examine the lands that were bought by freed African slaves—when they were bought, where they were located, and what, ultimately, happened to them.

She noted that after freed Africans acquired land, the “monocracy tried everything” to take the lands back.

Janki noted too that there is more than one system governing land titling in Guyana, and related that unless land is held by transport or title, it is considered state lands.

“It might exist morally, it might exist in someone’s mind, it might be a passionately strongly held view, it might be a plea for justice—this is my land—but legally, it doesn’t exist unless it has a legal title. And that title is going to be recorded somewhere in the deeds registry or the lands registry. In order to ensure that the lands legally exist we would need to accept that there has been injustice in the past and issue proper titles,” she added.

 

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