The grant of land to Amerindian communities is made under the State Lands Act not the Amerindian Act

March 10, 2013

Dear Editor

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.

Yours faithfully,
Melinda Janki
Attorney at Law
Justice Institute Guyana

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    OBSERVER 15 hours ago
    Only recently I read remarrks attributed to the Wapishana Nation at Aishalton in the Deep South Rupununi, Mr Phillip Duncan who spoke of being the first Minister of Amerindian Affairs during the PNC time and how there were Land Titles given out to many Amerindian communities.
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    C I Lewis
    Spot on and brilliant. Thank you Ms. Janki for clearing up a lot of misconceptions. The Amerindian is now more informed.
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  • I have always been of the belief that the freed slaves contributed to lands that have now become ancestral lands. A certain attorney who is also a member of parliament advised me that I can benefit from the lands of my forefathers at the back of Victoria. She said that she was working on a case to give us descendants title to our ancestral lands. Ms. Janki is now saying that Guyana does have the concept of ancestral or traditional lands. We need to clear up whether we the descenfants of slaves are entitled to ancestral lands.

    Hooray for the new colonials. Ms Janlki, that you can stand there and swallow whole the swill that we existed in space prior to the white man and the legacy of their intrusion into tierra null magically imparted on them rights to property that they now pass down to the new colonials, sons of indentured and former slaves and we are to remain their footstools

  • And people wonder why the Fijians are so adamant that no constitution can be forged with out them having control of their state. This thing call the state is 200 years old. We were here 20000. This thing call democracy which because of numbers marginalizes us is also not more than 200 years old ( Periclean Athens notwithstanding). They idea that we had no ancestral rights takes the cake.

  • What do we do to say we were here and are here? Do we go on bended knees to this corrupt regime and say please massa suh, gimmie some land? On what ground did you determine the state which is less than 60 years old has precedence over us who are here and were here for eons?
    I suggest that you who are inculcated as part of the universal colonial project and has abstracted their jurisprudence to the max examine the avenues that established those as the norm. You will find that prior to the separation from the crown we had a different view of them ie they were artificial and handed down by an alien regime. Think of how we ought to feel when the inheritors of the colonial project treats us as not having a legacy here because they say so. Lady, we did not fall from the sky.
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    mac mahase
    In 1966 the govt had raised the symbolic arrowhead flag to tell the world that colonialism had ended. And a new country was born bearing the Amerindian name ‘Guyana’ and which meant ‘the land of many waters’. However, independence did not reach
    the Amerindian people and to free them of the old British paternalistic rule in

  • exploiting their ancestral lands as embodied by the Amerindian Act 1951.
  • The independent state continues to further erode the rights of the Amerindians under the guise of the British legal system and to keep them suppressed. They introduced restrictive laws, which were revises in 1976 and a new Act adopted in 2006. These laws now require them to apply and prove that, they have the rights and title to their own lands and on terms which, they least understood and to threaten their ancient way of life.

  • Guyana is mostly tropical rainforests, with tens of thousands of rivers and creeks. To place restrictions upon our indigenous people and force them to apply and get govt approval for land titles is contrary to indigenous customary tenure rights.

  • The govt has used statute provision as grounds for issuing numerous river mining permits within titled areas. Often it is close to houses and village schools and with severe negative and environmental consequences for indigenous peoples’ subsistence rights and health.
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