in Guyana, Norway

How long will Norway continue to ignore violations of Indigenous Peoples’ rights in Guyana?

How long will Norway continue to ignore violatations of Indigenous Peoples' rights in Guyana?

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?

Below are press releases from the Isseneru Village Council, the Amerindian Peoples Association and the Forest Peoples Programme.

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[1]. 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[2] and Peru[3], 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:

[1] 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.

[2] See: Indigenous Peoples Issues and Resources, Colombian Court Sides With Local Communities On Halting A Mine In Choco, 31 May 2012.

[3] See: Omar Mariluz and Mitra Taj, Peru top court puts tribal sovereignty ahead of mining, logging, Reuters, 26 September 2012.


PHOTO Credit: Stabroek News.

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  1. If it’s like in Brazil, who handles the matter for the norwegian government is an attaché at the Norway Embassy; that guy is mainly who decides how they spend the money and to whom it is given. And it’s probably the person the villagers should talk to.

  2. What the world needs to know as well that several indigenous leaders who were handed “Certificates of Titles” by the President of Guyana last year in August 2012, had them taken back with differing ridiculous reasons.Subsequently, responding to a formal query by one of the leaders, the Minister of Amerindian Affairs stated that “During the NTC meeting, it was learnt that the GGDMA advertised the titling of lands to Amerindians, a similar GGMC correspondence listed the Kambaru community”. The Minister further states that “This resulted in a decision to put on hold the completion of the Title documents and signature for further investigations of the GGDMA investigations….” (GGDMA – Guyana Gold and Diamond Miners Association) (GGMC – Guyana Geology and Mines Commission)

    Here is a clear indication of which group is given legitimacy and rights to ownership. It is all about supporting the greed for more materials whilst trampling on the rights of a people.

  3. Janette Bulkan has written an article in the Starbroek News: “The protection for Amerindian rights in the Laws of Guyana”. I think this is an important commentary and the article is posted here in full:

    The protection for Amerindian rights in the Laws of Guyana — the case of Isseneru Amerindian Village

    By Janette Bulkan, In the Diaspora, Stabroek News, 4 February 2013

    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.

    Environmental issues

    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.

    Communication

    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 current laws

    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.

  4. It is unbelievable, that in this time and age, we as indigenous peoples have to be fighting for our human rights and that of the environment in an environment of alien laws away from our home territories.

    Any respectable government should provide all indigenous peoples the needed information necessary for both indigenous and non-indigenous population to understand and live with each other; especially in cases where the health of the land is needed for us all.

    This ruling should make the government of Norway think long and hard.