Dear Editor,
In his letter of March 23 in SN captioned ‘Amerindians should press for revision of the Amerindian Act,’ Mr Patrick Fitzpatrick commented on problems involving governance in Amerindian communities. I share his concerns and would like to add some legal analysis.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) affirms that indigenous peoples have the right to self-determination, the right to autonomy in their internal affairs, and means to finance their autonomy. These principles (in the draft UNDRIP) influenced the Amerindian Act 2006.
Consequently the Minister has very little legal power over Amerindian communities. The Minister’s main role is to settle land claims. The current Minister has failed to act within the time limits set by the Amerindian Act 2006, has violated the rights of Amerindian communities and breached her statutory duties. Amerindian communities should stop hoping that the Minister will do her job and should apply for a court order instructing her to fulfil her duties under the Amerindian Act 2006. Breach of a court order is contempt of court for which there are sanctions, even for ministers.
The Minister has no legal power to tell Amerindian communities how to use their land and resources. The Minister can advise. But it would be a foolish Amerindian community which takes advice from a Minister. A Minister’s loyalty is to the party not to the people. The Village Council has a duty under the Amerindian Act to act in the best interests of the Amerindian community. They should get independent professional advice.
If the Minister of Amerindian Affairs tries to interfere in the internal affairs of an Amerindian community, the community should ask the Minister what section of the Amerindian Act 2006 (or other law) the Minister is using as authority. It will then be clear how little legal power the Minister has. For example in 2011 when the Minister told Sawariwau to sign a deed giving away their land Sawariwau refused point blank. When the Minister refused to demarcate Sawariwau’s land, they went to the President and got their land demarcated. More Amerindian communities should learn their rights under the Amerindian Act 2006 and assert those rights.
The Amerindian Act requires Amerindian village councils to prepare a plan and a budget for approval by the community. The Minister has no power to approve, reject or alter the village budget or the village plan. But, if the Minister, offers “development projects” or funding outside of the village plan or village budget, then it is a rare community which will turn down the supposed benefits. That is not the fault of the Amerindian Act 2006.
It undermines the governance system in Amerindian communities when agencies provide funding to the Minister and do not ensure that the Minister complies with the Amerindian Act 2006. Agencies which give NGOs money to do projects in Amerindian villages are also violating the principles of the Amerindian Act 2006 and undermining the authority of the democratically elected Amerindian village councils. NGOs are not elected by Amerindian communities or accountable to them. NGOs can only represent their small membership, not the Amerindian communities. Amerindian communities should insist that funding goes directly to their Amerindian village councils. These village councils have statutory obligations to account to their communities for every dollar, and they should be given proper training so they can do their job well.
Mr Fitzpatrick said that Amerindians cannot mortgage their land. An individual Amerindian who is a private landowner can mortgage his/her land and risk losing the land if s/he cannot repay the loan. Amerindian village land however belongs to everybody – present and future generations. The Amerindian Act 2006 prohibits mortgages so that an Amerindian community can never lose their land.
In the collision between the market economy and the historic, collective rights of the Amerindians, the Amerindian Act 2006 comes down on the side of Amerindians and their right to survive as peoples, not just individuals.
It is no longer right to regard Amerindians as the neediest section of the population. This paper reported in 2013 that Isseneru was building a multi-purpose centre at an estimated cost of G$25,000,000, paid from Isseneru’s mining revenue. The WaiWai own outright 2300 square miles of land. Amerindian communities are the biggest landowners after the state and they have mineral, timber and other resources. If Amerindians do not use their wealth to meet their present needs and conserve for future generations, the problem does not lie in the Amerindian Act 2006 but elsewhere.
Self-determination brings freedom, including the freedom to make poor decisions. Unless one is prepared to argue that Amerindians are not ready for internal self-determination, the problem is not the Amerindian Act 2006.
Yours faithfully,
Melinda Janki
