Eight years after the submission of a petition by the villagers of Isseneru and the Amerindian Peoples Association with regard to the violation of that community’s human rights, the Inter-American Commission on Human Rights has found in their favour. The IACHR is an autonomous organ of the OAS and its report on the Isseneru issue is a long and complicated one, although its conclusions and recommendations are clear enough. The recommendations in particular will face the Government of Guyana with a dilemma, more particularly because they have implications for state actions in respect of all indigenous communities in this country.
In brief, the commissioners concluded that the state was in violation of the Isseneru community’s right to property; right to equality before the law; right to justice and a fair trial; right to protection for mothers and children; right to the preservation of health and well-being; and the right to enjoy the benefits of their culture.
All this had come about, they said, because of the state’s failure to adequately recognise, respect and protect the community’s territorial rights in addition to the alleged granting of mining permits in ancestral lands without prior consultation and consent. There was too a lack of protection from the negative impacts of mining and the failure to provide Isseneru with effective judicial remedies to counter the violation of their rights.
In order to remedy the situation, the Commission had three recommendations to make: firstly that the Isseneru community should receive full reparations for the material and immaterial damage they had suffered on account of the violation of their human rights; secondly, that Guyanese legislation as it applied to indigenous territorial property be amended to harmonise with the American Declaration on Human Rights in accordance with international law; and thirdly, that the state adopt measures to support the community so it could fulfil its duty to preserve and protect the environment.
One doesn’t suppose that the last of these will present the Government of Guyana with any particular difficulty in terms of compliance, although the approach to the matter of reparations arguably may prove more problematic. Isseneru is an Akawaio community in the Middle Mazaruni, Region Seven, which is a major mining area, but there are many other villages affected by mining, if not on their own lands, on territory contiguous to them that has similar deleterious effects on their environment and health. Depending on how the government responds a precedent could be set.
The biggest headache facing the administration, however, will be item two in the recommendations. Underlying the whole petition is the question of land ownership. The report commented on the fact that in this country all land which is not in private hands is classified as state land. This is something which the commissioners acknowledged went well back into colonial times, but it meant that the acquisition of title by an indigenous community took the form of a grant by the state and there was no recognition of the pre-existence of indigenous territorial rights. This situation is reflected in the Amerindian Act of 2006, the current legislation governing indigenous matters.
Similarly there was no state obligation to grant a property title to “ancestral land” and the Minister of Amerindian Affairs was not required to recognise the full extent of ancestral territories. As it was the Minister had “excessive discretionary power” to grant property title to indigenous communities. It might be remarked that there have been complaints from a number of communities since titles first started to be issued in 1976 on the basis of the 1969 Amerindian Lands Commission recommendations, that the areas granted were too small and did not reflect the true extent of ancestral land. The arguments given on the part of the state in response were often similar to those put forward in the case of Isseneru, namely, that what was claimed “was too large.”
It might only be observed that while the IACHR accepted Isseneru’s case for what constituted their ancestral lands, it will not be so straightforward in every instance. In addition to this the indigenous population has grown considerably over the decades. Exactly what the commissioners had in mind when they said the state did not admit the possibility of granting territorial property to indigenous peoples as a whole is perhaps in need of clarification. If is meant a blanket grant irrespective of nation, that would hardly be practicable since indigenous groups are not located in a single definable area.
That aside, it should be said the arguments advanced by the state that the Isseneru villagers had abandoned their traditional ways and customs by engaging in a cash economy as opposed to subsistence, and as a consequence of their conversion to Christianity they no longer had an ancestral spiritual connection to territory, were rather disreputable. Indigenous communities in general no longer have the luxury of not engaging at some level with the cash economy if they are to survive, but in no sense does that mean they have lost their traditional culture.
As we reported yesterday, what had partly triggered the resort to the IACHR was the matter of two miners, Ms Joan Chang and Mr Lalta Narine operating in Isseneru’s titled lands. The community took both cases to court, and in 2013 Justice Diana Insanally ruled that since Ms Chang had been granted a licence to mine before the coming into operation of the 2006 Amerindian Act the Village Council had no authority to stop the operation or the GGMC to issue cease-work orders against it. Mr Narine secured a similar order, although in that instance the decision was appealed. It has not been heard, because no judgment was ever written, and the judge concerned is no longer on the bench.
The Commission laid stress on the fact that Mr Narine and Ms Chang’s operations had not been subject to prior consultations. Unfortunately, that has been the standard practice of the administration, and there are undoubtedly quite a few other communities with a similar complaint. One of the more recent involves the village of Aishalton and the South Rupununi District Council in relation to the resumption of mining in Marudi Mountain.
It might be noted that even in 2006 there were complaints that titled communities were not granted sub-soil rights, although small and medium-scale miners could operate with a 2/3 majority from the village council. Large operators, however, could mine over the objections of the council if the government considered it in the public interest – which has never been defined.
At a press conference held yesterday on the IAHCR findings, Isseneru Toshao Dwight Larson said that 25% of the community’s titled lands were being mined by Mr Narine, in addition to which there were over 100 mining concessions within Isseneru’s titled and ancestral lands. Reading from a prepared statement he went on to say: “The village again calls on the government to stop this highly destructive mining that is now proven to violate the rights of our people.”
Anyone who has even a fleeting acquaintance with the interior knows what is involved here, and the depredations to the environment and hazard to human health mining represents, particularly in circumstances where mercury is used. If the state was arrogant enough to argue that the villagers of Isseneru were no longer following their traditional lifestyle, they should blame it on the consequences of mining, which make a lot of that lifestyle impossible.
Over the years governments in this country have always reconciled competing interests in the interior in favour of miners, and to a much lesser degree, loggers. In the days when sugar was in decline and gold became our leading export mining became of paramount economic importance, and was the dominant consideration when hinterland disputes arose.
On the subject of development the Commission reminded the state that economic growth was not an end in itself. “The right to develop must be sustainable and place focus on the well-being and rights of persons and communities, not on economic statistics and commodities.” Now that the economic focus is on oil, the government cannot avoid its responsibilities in the interior by claiming a need for ‘development’.
The IACHR has given the government two months to “comply with the Commission’s recommendations and resolve the situation.” It is not a very realistic time-frame in a country like this. The matter of reparations and assisting the community in preserving the environment will be decided by government, but a change in the law is a much more complex matter, and will involve a parliamentary process at a minimum, in addition to consultations with various sectors, including indigenous communities.
There have been demands for a revision to the 2006 Act for years, and the administration appears to be disposed to look at it again. Whatever they come up with, and whether or not it includes the recommendation of the Commission specifically with regard to pre-existing territorial rights and ancestral land, it will, as said earlier, take time. Whether they can rush through a special amendment with regard to mining in indigenous territory first, remains to be seen, but it is unlikely that even that would be accomplished inside two months. In the meantime one wonders if anything can be done within the framework of existing law at least to control the excesses of the miners.
