Dear Editor,
In his SN letter of 24th August, Dwight Larson, secretary of Isseneru Village
Council says that the Amerindian Act 2006 does not protect “traditional lands.” This is not correct. If any Amerindian community believes that they have “traditional lands” they can claim ownership of those “traditional lands” under the Amerindian Act 2006. If their claim is successful they get absolute ownership. The title, which is granted under the State Lands Act, recognises the community’s occupation of the land “from time immemorial.”
If the claim fails over any part of the “traditional lands,” that part is excluded from the absolute title. However any property rights that the community has over those “traditional lands” will continue to exist (e.g. rights to hunt, fish, gather). These rights are protected by the Amerindian Act 2006 and the Constitution.
If Amerindian communities believe they have “traditional lands” they should claim them. If they use the Amerindian Act 2006 the process is simple. They say what land they are claiming and why. Some communities say they are claiming their traditional or ancestral land. The claim is investigated. The decision on title is made based on the community’s physical relationship (occupation and use) with the land, traditional and cultural association with the land, and spiritual attachment to the land.
In other countries e.g. Canada, Australia, Belize, Nicaragua, Surinam, aboriginal or native peoples have had to go to court to get recognition of their rights over their “traditional lands”. The courts require the community claiming “traditional lands” to prove certain things, for example: – that they occupied and used that particular area of land before the colonisers arrived; that they have their own customary law; that they own the “traditional lands” under their customary law; and that their rights have not been extinguished by the State.
Once the “traditional lands” are identified, the court must work out what rights the community has over the “traditional lands.” This is not easy. In neighbouring Suriname, the Inter-American Court decided that the Saramaka people had a right to use and enjoy the natural resources which were found within their traditional territory and which were necessary for their survival. But the court also said that Surinam could restrict Saramaka rights by granting concessions for resources e.g. mining concessions.
Suriname has to carry out an environmental and social impact assessment, develop a plan with the Saramaka people’s participation, give them reasonable benefits and put in adequate safeguards. The State is in control. In Brazil, Indians have a right to permanent possession of the land and usufructuary rights, but the land is owned and controlled by the Brazilian State.
There are now about 98 Amerindian communities with absolute title to their land. The Amerindian Act 2006 gives them control of resources, a veto over mining and a right to seven percent of the value of the minerals. Forty of these titled Amerindian communities want extensions. Another 11 do not have title as yet, but they have legally protected, traditional rights over the land.
Mr Larson says that Isseneru would not be in its current position (conflicts with miners) if the government had issued the title with no mining concessions, or if the government had compensated the miners. That is true. However, mining concessions have been issued for decades over the Isseneru land – long before the Amerindian Act 2006 came into force. So it is not clear why Isseneru did not take effective action all those years, to stop those concessions being issued or renewed over their “traditional lands.” It is not clear why Isseneru did not insist on a negotiated settlement with each miner or cancellation of the concession (with whatever compensation might be due), before accepting the title.
The Amerindian Act 2006 allows an Amerindian community, which is dissatisfied with the proposed title, to reject the title and bring a challenge in court. Isseneru did not. It is not clear from Mr Larson’s letter why Isseneru took this title if it left out any of their “traditional lands” or if they were unhappy about the mining. Did they get a legal opinion before making a decision? Did they take proper legal advice during the negotiations with the Minister?
Unless the Amerindian community claims the “traditional lands” and obtains title, the land will remain State land. When Amerindian communities delay in claiming their “traditional lands” other people can (and do) acquire rights over that land. The Amerindian Act 2006 cannot force Amerindian communities to claim their “traditional lands.” It can only force the Minister to respond to the claim, when it is made.
Amerindian village councils and communities can also use national law (not just the
Amerindian Act 2006) to protect themselves, their culture, their lands, the environment.
But no-one can force them to use these laws, to obtain sound legal advice, to act in good time or to make sensible decisions. It is entirely up to them.
Yours faithfully,
Melinda Janki
Director
Justice Institute Guyana
