Replying to criticism from the Guyana Human Rights Associa-tion (GHRA), the Ministry of Natural Resources says that it is working to ensure that there is an amicable solution for all stakeholders involved in the ongoing mining dispute in Chinese Landing.
On Tuesday, Stabroek News reported the GHRA as saying that the Guyana Geology and Mines Commission (GGMC) must be held accountable for the mining devastation in Amerindian communities and not its junior officers. The statement came following claims by Vice President Bharrat Jagdeo that junior officers of the GGMC seem to be colluding with miners to violate the relevant permits.
In its response to the GHRA, the government yesterday launched a scathing attack on the organisation and its head – Mike McCormack. The Ministry of Natural Resources accused the GHRA of “deliberately misleading” Guyanese.
“…it is not surprising that the one-man Executive Committee, self-appointed Head of the GHRA, Mike McCormack is once again temporarily awakened to continue his misinformation agenda to justify collecting funding from his political blind-sided handlers,” the ministry said.
As it relates to the Chinese Landing issue, the Ministry said that its hands are tied in what could be done owing to the ruling of the Caribbean Court of Justice.
“…the mining permit received favourable judgment from Guyana’s final court for redress, the Caribbean Court of Justice (CCJ). However, in the minds of those at the GHRA like their political handlers, they believe that the decisions of the CCJ can be ignored for their convenience, much like the APNU/AFC portrayed during the March 02, 2020 elections fiasco.
“Further, it was the Guyana Geology and Mines Commission that supported and joined the legal challenge with the Chinese Landing community against the miner. The PPP/C Government firmly respects the court of laws and most importantly the rights of all its people and as such during the recent National Toshaos Conference discussions were held with the Chinese Landing leaders and other stakeholders. This is ongoing and efforts will be continued for an amicable solution for all stakeholders within the confines of the law,” the statement read.
Chinese Landing, a Carib indigenous community, is a remote village along the Barama River in the Barima-Waini region and it received its land title in 1976 under then Prime Minister Forbes Burnham. The village received its Certificate of Title on August 10, 2018, for 30.06 square miles or 19,241 acres of land. Located within the village, is a gold-rich area called Tassawini which is currently occupied by about 500 miners.
Between September 25, 1998, and September 26, 2001, four mining permits were issued to Wayne Vieira, a businessman from Houston, East Bank Demerara, to mine in the Tassawini area. However, since its allocation to Vieira, the community has been engaged in battle with him to regain control.
The CCJ ruling stems from an appeal, by Vieira, following an order by GGMC for him to cease operations.
Yesterday, the government said that it was the PPP/C administration that implemented the policy to recognize indigenous titled lands and this still obtains to date. It added that it is committed to working towards the interest of all Guyanese irrespective of political affiliations, race, gender, or disability to safeguard and secure a prosperous, progressive, and peaceful One Guyana.
“As such, the Government through the Ministry of Natural Resources and its regulatory agencies remains committed to implementing policies in keeping with the laws of Guyana to ensure the country’s resources are sustainably managed for the economic and social benefits of all Guyanese. This will be guaranteed under the new Low Carbon Development Strategy 2030 for an environmentally rich and economically prosperous Guyana,” the Ministry of Natural Resources said.
On Tuesday, Stabroek News reported that the GHRA called for the reforming of the GGMC to address the “scandalous squandering of Guyana’s natural mining assets and systematic undermining of community life of Guyana’s indigenous peoples.”
The GHRA said that the government’s contention of their hands being tied owing to the CCJ ruling is far from the truth. The organisation identified various pieces of legislation that the government can put to use to combat the destructive mining in indigenous communities. It pointed out that the Mining Ordinance No. 1 of 1903, State Lands Act, cap. 62:01, Water and Sewerage Act Cap. 30-01 2002, Amerindian Act 2006, and the Environmental Protection Act all contain provisions that can bring relief to the communities and do not conflict with the CCJ’s ruling.
CCJ appeal
Vieira approached the CCJ after the Court of Appeal ruled that a November 26, 2010, cease work order (CWO) was valid. He filed the appeal to the CCJ in 2017 and the judgment was delivered on December 7 of the same year.
It is important to note that the Village Council of Chinese Landing was never a part of the proceedings rather it was GGMC and Vieira – which is contrary to what the Ministry of Natural Resources claimed in its statement yesterday.
He was represented by attorneys Jamela Ali and Sanjeev Datadin while Nikhil Ramkarran appeared on behalf of the GGMC. The case was presided over by then CCJ President Sir Dennis Byron and Justices Jacob Wit, David Hayton, Maureen Rajnauth-Lee and Denys Barrow.
Vieira, in 1995, purchase the rights to land in Tassawini – an area that falls within the centre of Chinese Landing titled lands – to explore for gold and precious stones. Between 1995 and 2001, he received four medium-scale mining permits which gave him exclusive rights to occupy and mine gold and precious stones for profit.
During the argument in court, it was never contended by the attorney for the GGMC that Vieira violated the terms of his permit. Vieira had argued that he expended large sums of money and secured foreign investment to upgrade its operations from medium to large scale.
By an agreement dated 29 August 1999, the Chinese Landing Village Council gave Vieira exclusive permission to work in the Tassawini in return that he provide them with employment, training, medical services and a 1% royalty. . The agreement was the result of the recommendation and approval of the then Prime Minister, dated 17 July 1998.
Chinese Landing residents have reported that Vieira continually violated the agreement and as such, they terminated it. However, this was not stated during the court proceedings by the GGMC. The agreement was terminated sometime in 2009.
However, he was granted a one-month permission to mine in April of the same year in exchange for a 7% royalty payment. By letter dated 9 June 2009 and copied to the Minister of Amerindian Affairs and to Vieira’s foreign investor, the Village Council told Vieira that it had decided not to grant him permission to work in Tassawini and that he should cease working and remove his equipment.
In the period following the letter, Vieira sought then Prime Minister Samuel Hinds’ intervention and that of the Minister of Amerindian Affairs, informing them of the Village Council’s refusal to sign the agreement. The Chinese Landing Village Council did not budge and the CWO was later issued in November 2010 after Vieira continued to mine without the permission of the Council.
The CWO was issued under regulation 98 of the Mining Regulations which states “…The Commissioner, officer appointed by him or the mines officer may, where it appears to him absolutely necessary to do so for the maintenance of the public peace or the protection of the interests of the state or of private persons, order that all work shall cease on a claim, either generally or by any particular person or persons and thereupon work shall be discontinued accordingly.”
The order stated that cessation of all activities was “…absolutely necessary for the maintenance of the public peace and for the protection of the interest of the STATE or of the private persons that all work cease on the …[material] tracts of STATE LAND …”
Following the CWO, Vieira approached the High Court and Justice Diana Insanally ruled in his favour noting that it was “unreasonable, without authority, arbitrary, capricious, unlawful, unconstitutional, made without or in excess of jurisdiction, in breach of natural justice, biased, made without due process of law, ultra vires, null, void and of no legal effect.”
That decision was reversed by the local Court of Appeal.
The CCJ was then asked to determine whether the power given in regulation 98 could lawfully have been used to enforce the provisions of the Amerindian Act. Additionally, CCJ was asked to determine the validity of the CWO given that the Amerindian Act was validated on December 1, 2010, and whether the Tassawini area falls within the titled lands of Chinese Landing.
In its determination, the CCJ said that the CWO was issued in excess of the power conferred on the mines officer and, thus, invalidly. It pointed out that nothing in regulation 98 authorized the exercise of power to enforce the provisions of the Amerindian Act and, in fact, there could not have been any such provision as that would have been outside of the Minister’s power to make regulations for the purpose of carrying out the Mining Act.
However, the CCJ said that the limitation did not prevent a dispute under the Amerindian Act from also being presented to the Commission as a dispute falling under regulation 81 of the Mining Regulations. The Court also said that there must be an absolute necessity for a CWO and the party must be given a hearing. In the case of Vieira, the court said that he was not given a hearing and even if he was then the Commission still did not prove the “absolute necessity” factor.
The CCJ declined to consider the other issues raised on the appeal namely whether Tassawini is within the boundaries of Chinese Landing.
Just last year, the High Court also dismissed a challenge brought by the community against Vieira. That judgment is currently being appealed.
After the dismissal of the case, the Chinese Landing Village Council approached the United Nations Committee on the Elimination of Racial Discrimination (UN CERD) and complained about a number of violations under the Amerindian Act. The Council had submitted that these violations are being perpetuated by both the government and miners, who were granted permission to operate on titled, customary and sacred lands within their communities.
Contending that the government granted a medium-scale mining concession to Vieira in its titled lands without consulting or seeking the consent of the community, Chinese Landing had informed UNCERD that there has been an increase in unwanted mining which poses a risk to its traditional way of life and its environment. It further alleged that a High Court dismissal, without a hearing, of a claim filed by the community against the Guyana Geology and Mines Commission (GGMC) and Vieira concerning the mining concession has also resulted in an upsurge of incidents of intimidation and assaults on residents of the community, by miners and members of the Guyanese Police Force.
UNCERD, in identifying areas for the government to take measures on, has since proposed consideration be given to suspending or revoking the mining concessions that affect the lands, territories or resources of the Chinese Landing indigenous peoples until free, prior and informed consent (FPIC) is granted by the indigenous peoples; refraining from approving projects and granting mining permits or concessions within the lands of indigenous peoples, whether titled or not; ensuring that Indigenous Peoples have access to effective and prompt judicial and other remedies to seek protection for their rights; prevent and investigate incidents of threats and violence against residents of the Chinese Landing indigenous community by miners and by members of the Guyanese Police Force; incorporating the principle of FPIC in domestic legislation, including by amending the Amerindian Act of 2006, with indigenous peoples’ participation, and to fully and adequately guarantee the right to consultation of indigenous peoples; and considering ratifying ILO Indigenous and Tribal Peoples Convention (No. 169).
Present situation
The situation in Chinese Landing is currently one of economic deprivation. The residents there receive no benefits from Vieira’s operations since it does not employ locals and support community businesses. The residents are also threatened and intimidated by the workers there.
Vieira continues to operate without an agreement and the miners working his concessions are continually breaching the requirements of the Amerindian Act. The Amerindian Act expressly states that entry into indigenous communities must be approved by the Village Council, yet the miners operating there refuse to adhere to the law and would intimidate the Council members when they object.
Stabroek News visited the community and the destruction was quite evident. The main mining pit is at unsafe depths and mercury is being released into the waterways.
Recently a team from GGMC and the Environmental Protection Agency (EPA) went into the community. They gave an “all’s good” report despite the evident destruction. The EPA officers told the Village Council that they were unprepared to conduct mercury tests on the creeks and that samples would have degraded before getting to a laboratory.
The EPA has been silent on this failure and several calls to contact its Executive Director Kemraj Parsram were unsuccessful.
However, Alfred Bhulai – a chemist – challenged the EPA Officer’s rationale for not taking samples. In a letter published on August 23 in the Stabroek News, Bhulai said that “Mercury does not degrade. It can only exchange carriers, biological or inorganic. And once the water samples are sealed, there is no way the mercury can evaporate. Only during the analysis, after processing has begun in the lab, can there be any question of delay; not before.”
The very officers tasked with investigating the operations at Tassawini were transported by the very miners they were investigating.
