April was not a good month for the government in relation to indigenous matters. First there were the recommendations from the Inter-American Commission on Human Rights regarding the mining situation at Isseneru, and then days later this was followed by a letter from the UN Committee on the Elimination of Racial Discrimination about violations at Chinese Landing and against the Wapichan. It seems that the consequences of the government’s lack of a coherent interior policy along with its proclivity for favouring miners over Indigenous communities are beginning to catch up with it.
The situation of the Indigenous residents of Chinese Landing in Barima-Waini, Region One, is lamentable. It is a Carib community which was granted title to its lands under the old Amerindian Act of 1976. The Chair of the Committee noted that the title had been reissued in 1991 under the State Lands Act as well as in 2018 pursuant to the Land Registry Act. The title notwithstanding, in 1995 the Guyana Geology and Mines Commission (GGMC) still granted Mr Wayne Vieira permission to mine on the community’s land, without first having recourse to the Village Council. As such the residents of Chinese Landing had to endure all the deleterious effects of mining common to our interior without any immediate remedy.
It was under the Amerindian Act of 2006 that small and medium-scale miners were required by law to secure a two-thirds majority from a Village Council before they could be allowed to mine on Indigenous titled land, and since Mr Vieira had not received any such concession, and there were complaints about this, the GGMC issued a Cease Work Order against him in 2010.
Mr Vieira was not about to accept this and filed suit against the GGMC in the High Court. Former Justice Diana Insanally found in his favour, and so the Geology and Mines Commission then appealed the matter and succeeded in overturning the High Court ruling. The miner then went to the CCJ which found that the GGMC had no authority to issue a Cease Work Order to Mr Vieira on the basis that he had no agreement with the Chinese Landing Tassawini Village Council.
The ruling was long and complicated, but the most important conclusion was that the Mines Officer was not authorised to issue a Cease Work Order for a breach of any law other than the Mining Act. The regulations had been made by the Minister responsible for the Mining Act and he could not make those regulations with a view to enforcing the requirements of a different law. The CCJ also determined that the law required the issuance of the Cease Work Order to be “absolutely necessary,” something which had not been established or even contemplated by the Mines Officer or the GGMC. Mr Vieira was entitled to have the opportunity to oppose the order and challenge whether it was absolutely necessary, said the regional court.
This decision caused the Chinese Landing community considerable consternation, and their Toshao at the time, Mr Orin Fernandes, raised it with then Minister of Natural Resources Raphael Trotman at the National Toshaos Council Conference in 2018. We quoted him as responding: “Even though the GGMC has been instructed by the CCJ not to interfere, at the end of the day mining cannot take place without the permission of the community … Even the CCJ cannot interfere with that right.” Inevitably the Minister was then asked what advice he would give in the circumstances, and he replied that he thought the community should get a copy of the ruling and seek further advice on it.
He also told the Toshaos that GGMC Commissioner Newell Dennison who was trying to interpret the CCJ’s order had received a letter from Mr Vieira’s attorney citing him for contempt of court and threatening him with imprisonment if he did not comply with the CCJ’s decision. “That is where we are,” he said, “and we are still looking at ways to deal with the issue on your behalf.” It hardly needs observing that nothing has happened to redeem the situation since then.
In its letter to the government the UN Committee on the Elimination of Racial Discrimination adverted to the fact that in September 2021 the High Court had dismissed a claim which had been filed by the Chinese Landing Indigenous community against the GGMC and Mr Vieira in relation to the mining concession without allowing the case to proceed to trial. According to the community, wrote the Committee, this had caused an increase in mining which represented a risk to the inhabitants’ traditional way of life as well as to the environment. In addition, there had been a rise in the number of incidents involving intimidation and assaults on the residents by miners and members of the Guyana Police Force.
In a letter to this newspaper the Chinese Landing Village Council wrote: “We have learned the hard way that the courts in Guyana do not respect our rights as indigenous peoples. In a series of court decisions, the courts have continued to protect the interests of the miners and ignore our rights … They have also dismissed our most recent case without allowing it to proceed to trial.” One presumes that the High Court threw out the case on purely legal grounds, one possibility being that it may have covered territory on which the CCJ had already made a ruling. As a lower court it cannot overrule the CCJ.
Whatever the reason, it should be mentioned, perhaps, that the problem lies less with the courts than with the law per se. The courts simply apply the law as it stands, and our legislation as it relates to Indigenous people is both defective and has gaps. As in the case of the Mining and Amerindian Acts there are areas which overlap, but which have not been harmonised. Full judicial redress will only be possible for the Indigenous peoples when there is a carefully thought-out reform of the laws. That said, one cannot help but feel that within the laws as they stand there is far more the authorities could be doing to deal with the excesses of mining, while they should certainly mount an immediate investigation into the allegations against the GPF and others in Chinese Landing.
Where the matter of the Wapichan and the resumption of mining at Marudi Mountain is concerned, we did register an opinion on that matter in December of last year, and it will not be repeated here.
The government is now in the position of having to respond not just to the recommendations of the Inter-American Commission on Human Rights arising out of the Isseneru case, but also those from the UN Committee. This body has said the government should suspend or revoke the mining concessions affecting the lands or resources of Chinese Landing and the Wapichan Indigenous inhabitants until free, prior and informed consent had been granted by them. In addition they should not entertain any projects or grant mining concessions in Indigenous land, whether or not it is titled, and they should ensure that Indigenous people have access to effective and prompt judicial and other remedies in relation to their rights.
The Committee also asked for an investigation into the threats and violence directed against the Chinese Landing community by miners and the police, and said that this should be prevented. It also wanted the incorporation of the principle of free, prior and informed consent into domestic legislation including by amending the Amerindian Act and that this should involve the participation of Indigenous peoples. Finally it requested that the government ratify the ILO Indigenous and Tribal Peoples Convention.
As in the case of the Inter-American Commission, the UN Committee has given a date by which the administration should respond, this time no later than July 15, 2022. The Prime Minister has recently said that the government would reply to the IACHR, whose recommendations were more radical than those of UN CERD, but the latter agency may not be entirely confident that it would receive an answer given the government’s failure to respond to earlier correspondence.
In a letter of April 29 this year, the Committee’s Chair said: “…the Committee profoundly regrets the State party’s lack of reply to its letters of 17 May and 14 December 2018, regarding this situation,” adding, that it regretted “the State party has yet to submit its reply to the list of issues prior to submission of the fifteenth and sixteenth periodic reports that are overdue since November 2021.” This is the kind of dereliction for which the governing party is well known. This time, however, the matter won’t go away if they just ignore it; they will have to answer.
While they are ruminating on what they will say to these international agencies and addressing those complaints which can be dealt with now, they should start thinking about mechanisms of consultation with a view to changing the law as it affects Indigenous peoples, especially the Amerindian Act.
