Two weeks ago a High Court in Guyana ruled that miners are not bound by the country’s 2006 Amerindian Act if they obtained mining permits before the Act was passed. The court case was brought by a miner, against the village of Isseneru.
The people living in Isseneru village received land title in 2007, since when they have been trying to deal with miners invading their lands. In a press release about the court case, villagers explain that,
“Only three months after receiving the title it became clear that the officially recognised land was not in effect ours. Miners started coming into the land claiming to have rights to carry out activities there.”
Subsequently, miners starting taking the villagers to court. In 2008, the court stated that villagers did not have the right to stop mining operations on their land. The villagers appealed and the case is still pending. Meanwhile the miners continue their operations on the villagers’ lands. Now another of the miners has taken the villagers to court. And won.
In a press release, Forest Peoples Programme describes Guyana as sinking to a “new low on double standards on human rights and development”.
The Amerindian Peoples Association (APA) points out that the Amerindian Act needs to be strengthened:
When the revised Amerindian Act was passed in 2006, the APA immediately recognised that there were shortcomings that did not account for traditional and other tenure rights that fully protect indigenous lands. Since then this has been pointed out to the government, agencies and so many others with an interest in indigenous issues on numerous occasions, and it has been ignored just as many times.
In December 2012, Rainforest Alliance released a verification report on Guyana’s progress under the country’s REDD agreement with Norway. The report found that Guyana had not met its obligation to protection the rights of Indigenous Peoples, as agreed in a Joint Concept Note between the two countries. Rainforest Alliance also found that “mining is the primary driver of forest degradation, accountable for up to 97% of all forest degradation”.
Dozens of people protested the court’s decision outside the Ministry of Amerindian Affairs. Several of the protesters carried signs calling on Norway to “open its eyes”.
Guyana is on the receiving end of large amounts of money from Norway, including for titling of indigenous lands and as Forest Peoples Programme notes, “it is imperative that the country revises its legislation to adequately address indigenous peoples’ rights to their lands and to free, prior, and informed consent.”
How long will Norway continue to keep its eyes wide shut while it hands over the cash?
Isseneru Village calls for recognition of traditional land rights
Press release: Isseneru Village Council, 22nd of January 2012
On Thursday the 17th of January a court ruling was passed in favor of Joan Chang who was previously carrying out mining activities within our titled lands. The decision says that miners who obtained mining permits prior to the Amerindian Act of 2006 are not bound by its provisions and consequently do not have to obtain permission from the village before carrying out operations on village land.
The village of Isseneru received a land title from the government in 2007. This land was, however, much smaller than what we had applied for and consider our traditional lands. Only three months after receiving the title it became clear that the officially recognised land was not in effect ours. Miners started coming into the land claiming to have rights to carry out activities there. When we tried to negotiate and stop the miner Lalta Narine we were taken to court, and in late 2008 a decision was made stating that we did not have the right to stop the mining activity. Isseneru appealed the matter, but it is still pending in court and Narine is still carrying mining in our lands.
After the issues experienced by our village with external miners the government decided to demarcate our land in 2010 and we received a Certificate of Title. Despite this, the mining problems continued. We sent letters to the Minister of Natural Resources and the Environment and the Minister of Amerindian Affairs about our concerns and arranged a meeting in Isseneru which they attended, together with the Guyana Geology and Mines Commission (GGMC), the Environmental Protection Agency and the Lands and Surveys Commission. The response was that the Ministers would look into the matter but we never received word back. As a next step we addressed the GGMC in order to have a cease work order issued towards the miner Joan Chang. This was done – twice – but as a result Chang chose to take both our Village Council and the GGMC to court.
We are deeply disappointed and worried with this ruling and what it means to our village and to Amerindian communities in general. On the ground it has serious environmental and social impacts for us. The miners have for example brought with them problems related to drugs and prostitution. At the higher level, we feel that when the High Court tells us that we have no rights to decide and control what takes place on our land, then the land is not ours. Why has the government given us this land when it has already given the same land to someone else? Just Friday, when inquiring at the office of the GGMC,we learnt that our whole land is covered with mining concessions. Yet, the government has not informed us about this. Taken together with the court’s ruling, this teaches us that we have in fact no rights over the land that is said to be ours. The judge told us that we have to negotiate with the miners. But what negotiating power do we have after such a ruling?
For the Amerindian People of Guyana our case sets a grave precedent. It also serves as an example of how we are not protected by the Amerindian Act. The government says that it is a good Act, but the court ruling shows that this is not true, and it needs to be revised. We call on the government once and for all to recognise our right to full ownership of land and to respect our right to free, prior and informed consent regarding any development that will affect our lands.
Amerindian Peoples Association Disappointed With Court Ruling
Amerindian Peoples Association Press Statement, January 22, 2012
“As the country’s mining section [sic] continues to expand and more persons seek their riches in the ‘gold bush’, Amerindian villages may soon be finding themselves before the courts more often than ever trying to defend the locations they insist are ancestral territories”. This very telling statement appears in the January 18, 2012 edition of the Kaieteur News and is even more predictive than imagined as other communities are already in the courts not through their own making yet seeking to defend their ancestral lands. The APA has said on numerous occasions that it would only be a matter of time before the court made such a declaration as was made on January 17 regarding Amerindian lands, that Isseneru Village has no authority to prevent a miner from operating on their lands. According to the ruling, the village does not have complete jurisdiction over their lands even though they hold title to such lands The implication here is that the rights of miners takes precedence over the people who were there before, simply because one was granted their legal papers before the other. What does this pronouncement mean for other Amerindian communities? What then is the relevance of the constitution that says “Indigenous peoples shall have the right to protection, preservation and promulgation of their languages, cultural heritage and way of life” (Art. 149G) and what is the relevance of the various conventions and declarations that the government has agreed to abide by when it comes to protecting the rights of the indigenous peoples of this country?
This ruling is very troubling on many fronts. In the first instant it clearly pits communities against miners who have concessions on titled Amerindian lands – it makes residents aliens on land they thought was theirs, with no authority to control the activities of these miners. Secondly, it speaks of the emptiness of the titles given to some Amerindian communities where savings clauses protect those miners who have concessions. In giving out these titles to the communities the government was aware of their true status regarding mining concessions and was therefore clearly involved in deception at the highest level. That they did not find it necessary to explain to the communities the true nature of their titles further heightens this deception. The Minister of Amerindian Affairs has been known to tell leaders who complain about mining on their lands that there are other Guyanese who also have to be considered. This begs the question, “Where does her loyalty lie and why does she feel she has to represent other interest over those of the country’s indigenous peoples whom she is touted to represent?”
Why is it that the government feels that it makes sense to give a title crisscrossed with mining concessions? What is the real purpose of these titles? Are they for publicity sake to appear to be doing something for indigenous communities when this is not really so? We are aware that at the last Toshao conference, the Toshao of Omanaik in the Upper Mazaruni had his title document taken back almost immediately ‘to be photocopied’. To date he has not gotten back his title document. It would be interesting to know how many more communities are in a similar situation as Isseneru with numerous mining concessions granted before and after the passage of the Act. We know of some.
The situation as happened last Thursday should never have happened. When the revised Amerindian Act was passed in 2006, the APA immediately recognised that there were shortcomings that did not account for traditional and other tenure rights that fully protect indigenous lands. Since then this has been pointed out to the government, agencies and so many others with an interest in indigenous issues on numerous occasions, and it has been ignored just as many times. The government has gone as far as saying that the Amerindian Act is the best piece of legislation when it comes to a country’s protection of its indigenous peoples. It is in this context that the Memorandum of Understanding (MOU) between the Government of Guyana and the Government of Norway regarding the latter’s support for Guyana’s LCDS was signed citing the Amerindian Act as the authority legislation protecting indigenous rights. It is through recognition of this Act that the Land Titling and Demarcation project being developed by the Ministry of Amerindian Affairs and the United Nations Development Programme is being developed. How can the obvious failing and ambiguity of this document continue to be the guiding principle for decisions on Amerindian land? Today we see how useless it can be when, through lack of clarity or in some cases direct provisions, it remains open to interpretation that can work against indigenous communities. Not only is it necessary for the legislation to be revised but also that clear policies are enumerated by the indigenous peoples themselves. Furthermore if the Amerindian Act is the law that governs the indigenous peoples of this country then this should be the guiding law when it comes to recognizing indigenous rights and other laws should be made compatible.
Until this is done, communities will continue to hear from the Minister of Amerindian Affairs that lands are either too big for them when they seek to have their official titles, that there are other interests that have to be taken into account and that they must negotiate with the miners as though there are no other options. What would be the fate of Kako? Would the interest of a miner take precedence over that of a people?
The ruling in the High Court begs the question “Where is the process of recognising indigenous people rights in Guyana heading?” The answer seems to be, in the opposite direction to those in other South American countries. Just recently, a constitutional court in Colombia upheld a 2009 decision halting a mining project in the country’s north western department saying the Afro Colombian and indigenous communities there have the right to determine what happens on their land. Peru’s top court has also affirmed the right of an Amazon indigenous community to prevent outsiders from entering its land setting a precedent for tribes trying to halt, logging, mining, or oil drilling on their lands. The government of Guyana must accept complete blame for what took place in the courts recently and must take steps to correct the existing situation regarding our lands.
Press Release: Guyana court ruling violates indigenous peoples’ rights
28 January, 2013
Forest Peoples Programme, PRESS INFORMATION – FOR IMMEDIATE RELEASE
Controversial Court decision favours miners over indigenous peoples as country sinks to new low on double standards on human rights and development
On 17 January 2013, the Guyanese High Court ruled in favour of a miner who has a mining concession on titled indigenous lands. The ruling states that miners who obtained mining permits prior to the Amerindian Act of 2006 are not bound by its provisions, and consequently do not have to obtain permission from indigenous villages before carrying out operations on village land.
This ruling sets a negative precedent for the indigenous peoples of Guyana, who have been seeking to have their lands recognised and respected for decades. It also exposes the lack of adequate protections for indigenous lands in Guyana, a situation which will only be exacerbated as pressures from mining, logging, and carbon projects grow.
Indigenous peoples inhabit most of Guyana’s interior, and depend on forest resources for their livelihoods. Indeed, as has been shown elsewhere, indigenous peoples have been very effective in protecting forests on their traditional lands. Meanwhile, however, pressure from mining and logging concerns is mounting – in contradiction to growing interest from the international community in paying to keep Guyana’s forests standing. Indigenous lands get stuck in the middle. The January 17 court decision illustrates this only too well.
The inhabitants of Isseneru village received title to their lands in 2007, and have sought to address the problems brought by miners invading these lands ever since. Eventually, one of the miners brought them to court – for seeking to protect their traditional lands – and with this decision, won. The highest court in Guyana has thus ruled that indigenous peoples have little to no say over the development of their own lands. As the village’s press release states:
We are deeply disappointed and worried with this ruling and what it means to our village and to Amerindian communities in general. On the ground it has serious environmental and social impacts for us. The miners have, for example, brought with them problems related to drugs and prostitution. At the higher level, we feel that when the High Court tells us that we have no rights to decide and control what takes place on our land, then the land is not ours…. Just Friday, when inquiring at the office of the GGMC [Guyana Geology and Mines Commission], we learnt that our whole land is covered with mining concessions. Yet, the government has not informed us about this.
Indigenous peoples in Guyana are now demanding that the court ruling be overturned and are planning legal action to challenge the decision. Many also believe that the Amerindian Act needs to be further strengthened to give indigenous peoples a greater say and control over their titled lands.
Jean La Rose, Programme Administrator at the Amerindian Peoples Association (APA), says:
If this ruling goes forward then it will be a huge step backwards and will threaten indigenous peoples’ rights to land and to self-determination throughout the country. The community will be appealing the decision in the high court in Guyana and will use the full force of international law to hold Guyana to its international obligations and duties under the Constitution to uphold indigenous peoples’ rights and fundamental freedoms. Justice must be seen to be done for Isseneru and all indigenous peoples in Guyana.
The Guyana court ruling seems out of step with not only international law (i.e. recent decisions by the Inter-American Court on Human Rights), but also with decisions from other countries in the region. Courts in Colombia and Peru, for example, have recently upheld the right of indigenous peoples to determine what happens on their land.
With Guyana set to receive substantial funding through its Low Carbon Development Strategy – including for the titling of indigenous lands – it is imperative that the country revises its legislation to adequately address indigenous peoples’ rights to their lands and to free, prior, and informed consent.
For more information:
- APA Press Statement Amerindian Peoples Association Disappointed With Court Ruling, 22 January 2013
- Isseneru Village Council Press Release Isseneru Village calls for recognition of traditional land rights, 22 January 2013
- Forest Peoples Programme: Guyana
- Rainforest Foundation: Guyana
 See: Forest Peoples Programme, Peer-reviewed CIFOR and World Bank studies find that community-managed forests are better for conservation than strict protected areas, 7 October 2011.
 See: Indigenous Peoples Issues and Resources, Colombian Court Sides With Local Communities On Halting A Mine In Choco, 31 May 2012.
 See: Omar Mariluz and Mitra Taj, Peru top court puts tribal sovereignty ahead of mining, logging, Reuters, 26 September 2012.
PHOTO Credit: Stabroek News.