-refuses other reliefs sought
The residents of Arau are entitled to an environment which is not harmful to their health and Chief Justice Ian Chang has declared that the regulatory body must take reasonable steps to ensure that mining does not diminish the value of the land to the indigenous people there.
In ruling on April 30 on a constitutional motion brought by the Community’s chief on behalf of himself and his people and the Arau Village Council against the Attorney-General and the Guyana Geology and Mines Commission (GGMC), the Chief Justice said that the respondents have a duty under Articles 149G of the Constitution to ensure that mining activities carried out on the said lands do not diminish “the usufructuary value (of the) land to the way of life of the applicants as an indigenous people”. Usufructuary is a technical term in law for a person who has the right to enjoy the products of property he does not own.
The Chief Justice, however, refused all the other constitutional reliefs sought by the applicants. His ruling came in response to a constitutional case brought by the Arau Village Council and Arau Chief, Devroy Thomas on behalf of his people. The villagers said that they have occupied a tract of land from “time immemorial” and mineral properties had been given out to various private individuals and mining activities have destroyed the Arau forests, their fishing and their ability to ability to survive off the land. They said that mercury pollution in the rivers and creeks has poisoned the Arau people and their source of food and by virtue of article 149C of the constitution, they are entitled to participate in the management and decision processes of the state insofar as they relate to them and their indigenous lands. The residents sought several declarations.
Among these were that the amendments made to the constitution by Act Number 10 of 2003 and the rights thereby granted are not restricted by the provisions of Article 152 of the Constitution and that the applicants are entitled to the aforesaid rights in priority to any existing legislation; that the GGMC is not entitled to issue or grant any licence, concession or other permit whatsoever on, in or over the Arau titled land and the area west of that land to the Venezuelan border; that the grant of State land G7802 of the 8th November 1991 in favour of Arau being an absolute grant of state lands confers on the Arau community full and absolute right in property such as is protected under Article 142 of the Constitution; that the applicants are entitled to participate in all decisions made or to be made by the State or any executive arm or agency thereof in respect of the said land; that the applicants are entitled to an environment that is not harmful to their health and well-being; that the mining operations on the applicants’ land which are permitted by the respondents are harmful to the applicants’ health and well-being and are destructive of the applicants’ social and economic development and are in breach of the applicant’s social and economic development and are destructive of the applicants’ right under Article 149J of the Constitution; that the State-sponsored mining operations carried out on the applicants land are in breach of the rights guaranteed to indigenous peoples, among others. The applicants had sought a total of 15 declarations, damages, costs and any other reliefs as the court seems just.
Two orders
Justice Chang only made two orders and ruled that the applicants are entitled to an environment which is not harmful to their health and well-being and mining activities being carried out west of the village pose a danger of harm to their health and well-being and that the respondents have a duty under Articles 149G of the Constitution to ensure that mining activities carried out on the said lands do not diminish “the usufructuary value (of the) land to the way of life of the applicants as an indigenous people”. He refused all other constitutional reliefs sought by the applicants.
In his ruling Justice Chang said that the applicants have contended that the mining activities are destructive of the Arau forests, their fishing and natural resources necessary for their survival off the land which has been the case for generations and further claimed that mercury pollution of the rivers and creeks poisons not only the fish therein but the Arau people themselves and while the respondents have not admitted such claims the applicants have provided no evidence to support them. In relation to the applicants’ request for a declaration that the amendments made to the constitution by Act Number 10 of 2003 and the rights thereby granted are not restricted by the provisions of Article 152 of the Constitution and that the applicants are entitled to the aforesaid rights in priority to any existing legislation, Justice Chang said that although it is the court’s view that Article 152 was intended to save existing law and acts done thereunder and not to diminish the fundamentality of rights conferred by Act 10 of 2003, the court declines to make any determination of the issues involved in such a declaration on the ground that the declaration sought does not relate to any breach or threatened breach of Article 149 (as amended) by the respondents.
He also said that the court does not need to consider the question of whether GGMC is entitled to grant any licences, concessions or other permits on, in or over the land in question since there is no evidence that the GGMC has granted or was about to grant any licence, concession or other permit in or over that area of land.
“Indeed, insofar as the declarations sought involve issues relating to the area of land granted to the Arau Village under Grant
No. G 7208 of the 8th November, 1991, it is not the function of this court in a constitutional motion to resolve or seek to resolve abstract or hypothetical constitutional issues unless such resolution is relevant to determining ultimately whether, in a determined state of factual affairs, there has been a breach or there is a threatened breach of a constitutional right. This court will therefore eschew constitutional issues which are purely abstract or hypothetical.
The resolution of such issues is best left to legal academicians”, he wrote in his judgment.
Native land rights
Further, he said, there can be no doubt that Article 149G confers on the Arau community as an indigenous people the constitutional right to protection and preservation of their way of life and, on the assumption that the occupation of land has always been essential to their way of life, it does not follow that the Arau community as an indigenous people has a general occupational right to any area of land which is essential to their way of life. Nor does it necessarily follow that the Arau community as an indigenous people has an occupational right to an area of land which is actually under their occupation unless such area of land derives from their customary land tenure, he said. “The truth is there is no evidence of the customary laws and practices of the Arau peoples in relation to land tenure. As such, this court is not prepared on the evidence to make a positive finding in favour of native land rights or interest in favour of the Arau people in or over the lands”.
Meantime, Justice Chang said, while the court has no difficulty in making the finding that the Arau way of life involves usufructuary uses of forests, rivers and creeks a distinction must be drawn between the extinguishment of such usufructuary rights and the mere impairment of such rights. He said that even though the GGMC has granted mining concessions to the said area of land to a number of miners and there are at least six mining operations being carried out in that area “it is significant to note the Arau villagers and the other Arau settlers have not removed from their respective locations”. It is also significant, he said, that it was always open to them to shift their locations to and within the 23.8 square miles of land granted to them. “It is the finding of this court that any communal usufructuary rights of the Arau people to that area of land have not been extinguished”, he stated. As such, he said Article 142 of the Constitution has not been breached and has no application.
Justice Chang, however said that it is the view of the court that the effect of Article 149G on the statutory discretionary power of the GGMC is that, in considering applications for such grants on such lands, the GGMC must take into consideration the potential effect of such grants or concessions on the way of life of the occupying indigenous peoples. He said that while the absence of native land rights or the non-extinguishment of such rights necessarily renders Articles 142 of the Constitution inapplicable, either of these two negatives does not necessarily render Article 149G inapplicable. “Article 149G is not premised on the existence or extinguishment of native land rights. Rather, it is premised on the existence of an indigenous way of life. Article 149G becomes applicable once an indigenous way of life becomes endangered even where the indigenous people have no native right to the land under their occupation. Therefore, to the extent the Arau people as an indigenous people depend essentially on the lands they occupy for their way of life, to that extent is the State under a duty under Article 149G to protect and preserve such lands as part and parcel of its constitutional duty to protect and preserve their way of life of the Arau people as an indigenous people. In effect, Article 149G affords constitutional protection against the impairment of lands occupied by an indigenous people to the extent that such lands are essential to the way of life of the indigenous people even when no native rights in or over such lands can be established”, he said.
The Chief Justice pointed out that since the mining concessions have been made between 1998-2007 in respect to land which have long before been subject to usufructuary uses by the Arau people as an essential aspect of their way of life and mining activities on such lands do pose a danger to their way of life, the State and its agent (GGMC) in the discharge of their constitutional obligations under Article 149G must take all reasonable efforts to ensure that such lands are not dealt with in a manner which is detrimental or adverse to the Arau way of life.
