The Amerindian community of Isseneru has petitioned the Inter-American Commission on Human Rights (IACHR) asking for the application of measures to uphold its rights over both titled and traditionally-owned lands, in light of ongoing concerns about mining claims and what it calls the failure of the authorities to protect its rights.
“We decided to send this petition to the Commission after we had exhausted all domestic remedies and after we had found that the State had failed to offer us protection in relation to our basic human rights,” said Dwight Larson, the secretary for the Region Seven village council, at a press conference on Thursday. “Even before we took this petition to the Inter-American Commission, we had sought government intervention and we had made public the problems we had been encountering. These problems are documented in the petition and include, among others, the loss of our ancestral land to mining interests, pollution of our water ways, mercury contamination through mining, and health and social problems,” he added.
Larson referred to a court ruling in January “where a miner was given rights to the land over us, even though we had been living there for generations.” They felt that the judiciary and the law failed the community by not offering justice in the case, he said.
A High Court decision in January sparked protests by Isseneru villagers as well as indigenous groups and some Amerindian leaders after the ruling upheld a miner’s right to continue with operations on titled lands within Isseneru. Subsequently, the United Nations Committee on the Elimination of Racial Discrimination (UNCERD) expressed concern over mining on titled land at Isseneru and another Amerindian community, Kako, and asked government to provide information on the cases as well as to review the granting of permits and concessions without obtaining the prior and informed consent of the affected indigenous communities.
“We maintain that this ruling was based on faulty law as it does not recognise our rights as a people. We did not take anyone to court – we were taken to court in trying to protect our land and other rights and the court decided that even as a people who had first been living on the land, we did not have rights to it,” Larson said.
Isseneru, an Akawaio indigenous community located along the Mazaruni River in Region Seven and the non-governmental organization, the Amerindian Peoples Association (APA) submitted a Petition for Precautionary Measures to the IACHR on August 26. Among other things, the Petition is seeking the Commission’s assistance “to reverse and repair the acts and omissions of Guyana that violate the rights of Isseneru and to ensure that its rights are recognised, secured and respected in the future.”
The petition further asks specifically, and failing conclusion of a friendly settlement agreement in this case, that the Commission: adopts precautionary measures in favour of Isseneru at its earliest opportunity and expedites its evaluation of this petition according to the Commission’s rules; declares the case admissible and pronounces on the merits at the earliest possible opportunity; as well as prepares a report detailing the facts of this case and all applicable law.
It also asks that the IACHR hold that Guyana is in violation of its international obligations with regard to the rights of Isseneru and that the body recommends appropriate measures to remedy these violations.
The mechanism for precautionary measures is established in Article 25 of the Rules of Procedure of the IACHR, which is an organ of the Organisation of American States (OAS). The Rules of Procedure establish that, in serious and urgent situations, the Commission may, on its own initiative or at the request of a party, request that a State adopt precautionary measures to prevent irreparable harm to persons or to the subject matter of the proceedings in connection with a pending petition or case, as well as to persons under the jurisdiction of the State concerned, independently of any pending petition or case.
The Commission has requested further information from the petitioners and also from the government, Isseneru’s counsel, David James said.
When it examines a request seeking precautionary measures, the Commission looks for three essential preconditions: gravity; urgency, and the risk of irreparable harm to persons. According to information on the IACHR website, before arriving at a final decision as to whether to grant or reject the request seeking precautionary measures, the IACHR may request additional information from the person applying for precautionary measures or from the State concerned, or from both.
If the measure is not granted, this does not prevent the petitioner from filing a new request for protection if he or she believes that there are grounds to grant the request or if new circumstances develop, the body says.
However, if the measures are granted, in compliance with their international obligations, States must provide effective protection to prevent the risk from materializing. The parties are in the best position to know what type of tangible or other measures are called for to address the situation and prevent further danger.
Petition
“This is the question of the rights of indigenous people to their land,” James said. “The law…has not adequately protected the rights of the indigenous people of Guyana.”
The petitioners have said that Isseneru has long complained about the activities of miners within its traditional lands; it did so both prior to the issuance of title in 2007 and during and after the finalisation of the demarcation and titling process in mid-2010. “At that time, for instance, there were 24 dredges (mining operations) active at Haimaraka, a location within Isseneru’s titled lands. There are presently more than 100 mining permits and concessions that engulf both the community’s titled area and its traditionally owned lands that were excluded from the title when it was delimited in 2007.
Rather than return these lands to Isseneru, the State deliberately exempted ‘lands lawfully held’ from the title deed…and automatically subordinated Isseneru’s rights. This denies Isseneru security of tenure; acutely impairs the maintenance of its relationships with its traditional lands; unreasonably privileges the interests of miners; and drastically affects Isseneru’s access to and security over its means of subsistence,” the petition states.
“The cumulative effects threaten, if not already deny, Isseneru’s ‘survival as an indigenous community’ in violation of a series of interrelated and interdependent human rights guarantees,” it adds.
The petition also pointed out that almost five years after appealing a matter, no final ruling has been made because of the failure of the judge to produce a written judgment for the Court of Appeal which has suspended the case in the interim. In reference to a more recent ruling, it said that a few days after the judgment was adopted, Isseneru obtained a map of mining concessions in its area from the Guyana Geology and Mines Commission (GGMC) and was dismayed to learn that almost all of their titled lands and large parts of their traditional lands are engulfed by mining concessions, which, following the recent judgments, are excised from its title and its Village Council has no authority over or recourse to seek protection for the community’s rights.
“The concessions in question were all issued by the State without even notifying the community and render its title largely illusory as it cannot control, possess and freely use and enjoy the vast majority of the lands therein. This problem is further magnified by the extensive occupation of and destruction caused by mining operations in Isseneru’s lands (titled and traditional). These mining operations have had serious, negative impacts on their environment, means of subsistence and health. A 2002 study funded by the Canadian International Development Agency, for instance, showed that up to 96 percent of the population surveyed in Isseneru “had dangerous levels of mercury contamination.” Isseneru community members have been forced to stop consuming many kinds of fish, a major source of protein in their diet, due to this contamination,” the petition states.
The petitioners allege that Guyana has violated to the detriment of the victims, and continues to violate on an on-going basis, their rights guaranteed by the American Declaration, including: The right to property (Article XXIII); The right to equality before the law (Article II); The right to protection for mothers and children (Article VII); The right to the preservation of health and to wellbeing (Article XI); The right to the benefits of culture (Article XIII); and the right to a fair trial (Article XVIII).
“By virtue of its acts and omissions, Guyana is internationally responsible and liable for these violations of the victims’ rights. These violations are based on, inter alia, Guyana’s on-going failure to adequately recognize, regularize and respect the property rights of Isseneru over the full extent of its traditionally owned lands and in accordance with its customary tenure system, traditions and values; its specific disregard for those rights and others in connection with numerous mining permits issued by the State in Isseneru’s titled and untitled lands and which render its title and rights meaningless; its failure to secure the victims’ effective participation and consent in relation to these mining permits; and its failure to provide adequate and effective judicial remedies so that the victims can seek and obtain protection for their rights in domestic venues,” the petition states.
It said that Guyana’s acts and omissions have caused irreparable harm to Isseneru and the ongoing nature of these acts and omissions threatens imminent and additional irreparable harm to the community’s basic rights. “Mining operations continue in Isseneru lands and with each passing day the harm visited on the community intensifies and expands. In particular, the State’s ongoing acts and omissions have caused and continue to cause a substantial, immediate and grave threat to Isseneru’s means of subsistence, to the viability of its lands and resources, and to the victims’ physical, moral, mental and cultural integrity and well-being. In short, its survival as an indigenous community is threatened on a daily basis and will likely and imminently reach the point where its survival is no longer threatened but is denied altogether. Community members are also threatened and harassed by miners on a daily basis and feel that they live in a climate of fear and are not respected as human beings,” the petition states.
Mercury contamination
It says that despite numerous complaints and other opportunities, Guyana has made no attempt to effectively appraise and determine the massive impact of mining and insecure and severely restricted land tenure rights on Isseneru, nor has it made any meaningful attempt to mitigate, investigate and/or suspend the offending activities or to impose appropriate penalties for the destruction of the community’s means of subsistence and other damages. “This includes highly publicized and extremely dangerous levels of mercury contamination – more than double the limit deemed safe by the WHO – that are documented and manifest in the bodies of the majority of Isseneru community members. Instead, Isseneru’s rights are violated with impunity, a situation that has been judicially endorsed on more than one occasion, with extreme consequences for its integrity, right to life with dignity, and its survival as that term is understood in international human rights law. The victims are thus helpless, deeply distressed, and in urgent need of international assistance,” the petition states.
“Guyana’s ongoing acts and omissions also threaten to cause irreparable harm to the victims’ ability to pursue their claims before the Inter-American human rights protection organs. If allowed to continue unchecked and further expand, mining operations in Isseneru’s lands will result in additional irreparable and grave damage to Isseneru’s traditional lands and resources. The viability of their lands and resources is inextricably linked to the maintenance of the community’s culture and physical survival. By severing Isseneru’s relationship with its ancestral lands and by allowing those lands to be severely degraded, Guyana is effectively destroying the viability of securing appropriate land and resources for the continued survival of Isseneru as an indigenous community. This in turn affects the integrity of the proceedings before the Commission as it processes the claims raised in this petition,” it says.
It said that Guyana’s acts and omissions in relation to the rights of Isseneru have already caused it irreparable harm and with each passing day continue to threaten it with and realize further imminent and irreparable harm.
The petitioners requested that the Commission adopts precautionary measures requiring Guyana to immediately suspend any and all mining or other natural resources exploitation activities within Isseneru’s traditionally owned lands that have not been verifiably consented to by its Village Council, until such time as it has reached a decision on the merits of this petition. “This includes ensuring that Isseneru has unhindered and safe access to its means of subsistence and other traditionally used natural resources; that mitigation and rehabilitation operations be initiated; that urgent measures be adopted to immediately protect the health of community members, particularly in light of mercury contamination; that the State adopts effective measures to prevent any retribution or violence against the victims; and that the State investigates and, where warranted, punishes any threats or violent incidents reported by the community. These measures are urgently needed to halt immediate and further imminent, grave and irreparable harm to the victims’ physical, moral, mental and cultural integrity and the productive capacity of their lands,” the petition states.
The inter-American human rights system has used precautionary measures for over three decades, and has served as a tool for protecting the basic rights of the people of the 35 states that are subject to the Inter-American Commission’s jurisdiction. The IACHR’s authority to request urgent measures or order precautionary measures is reflective of a common practice in international human rights law, according to the body.
