While they welcomed Friday’s “long-overdue” ruling by Chief Justice (ag) Roxane George, which confirmed their rights to their ancestral lands, the Indigenous peoples of the Upper Mazaruni District said they will be appealing portions of the decision in a bid to seek clarity.
“We plan to appeal to the Court of Appeal on the portions of the ruling that leave room for the government to continue infringing on our communal land title. To that end, we look forward to reading the judge’s written ruling when it is released,” Chairman of Upper Mazaruni District Council (UMDC), Mario Hastings announced during a press conference held yesterday morning.
According to Hastings, while the indigenous people are “victors” in the case, they remain concern that the Chief Justice did not elaborate “precisely” on what she meant by the exclusions to the titles.
“This ruling vindicates what we have already known, that the Akawaio and Arekuna peoples of the Upper Mazaruni have lived in and customarily owned and managed our traditional lands for generations. These are our lands and our homes,” he told members of the media yesterday.
He said the ruling also has “huge” implications for other indigenous communities in the country.
Hastings explained that while the communal title affirms their right to carbon credits generated on their land, the government is required to seek their consent for any project it intends to undertake that involves these credits. “Because it is our land, the government must seek and obtain our consent prior to any projects that it intends to undertake involving these credits. We expect the government to live up to its strategic commitment in this regard as well as international law obligations,” he said.
In addition, Hastings pointed out that the Chief Justice did highlight that several sections of the Amerindian Act 1976 were unconstitutional.
He said although the Act has been replaced with the Amerindian Act 2006, they intend to “carefully” review the Amerindian Act 2006 to determine whether the ruling has any implications for the current Amerindian Act.
“It is our understanding that in light of the court’s ruling, Government agencies such as GGMC (Guyana Geology and Mines Commission) and the GFC (Guyana Forestry Commission) do not have the authority to issue any concessions in their communal lands without permission from their communities,” Hastings noted.
As such, Hastings said the indigenous people intends to write to various Government agencies to formally notify them of this position.
In a historic ruling on Friday, Chief Justice said that the Akawaio and Arekuna—the two Amerindian tribes at the centre of the litigation—do have rights to the land in question, though she stopped short of saying that those rights are “to the exclusion of all others.”
She said that the two tribes have been able to prove that they have-from time immemorial-continuously occupied and held communal/aboriginal title and rights to the lands.
However, the Chief Justice made it clear, that those rights are subject to State lands/title and, therefore, could not be regarded as being to the exclusion of all others.
In fact, the Judge pointed out that while historically the lands may have only been occupied by the tribes, it is not so today. On this point she was keen in noting that at the time witnesses testified during the trial, there were other people occupying those lands.
She said, too, that while the Plaintiffs do have inalienable right to their ancestral lands, aboriginal title/property could be alienated to the State, though for the payment of compensation. In the circumstances, Justice George said that she could not grant the relief sought by the Plaintiffs—to order that their right is to the exclusion of all others.
She also did not grant the declaration that the Indigenous peoples were seeking that they were being made subject to differential treatment on the basis of race, or were otherwise being discriminated.
Also not granted to the plaintiffs was an order for compensation. In assessing this issue, Chief Justice George said that though it was their argument, the Plaintiffs led no evidence to support their contention of having been displaced, or otherwise dispossessed of their occupation.
She said that in fact, there were witnesses for the Plaintiffs who confirmed in their testimonies that they continued to live and use the lands as they did for fishing, farming and all other traditional purposes.
“From time immemorial”
Attorney Nigel Hughes, who represented the plaintiffs, told the press conference that there are several legal aspects and consequences to the Chief Justice finding which states that the indigenous people have been occupying the land “from time immemorial” that has to be addressed.
“The decision is currently being reviewed and the leaders of the Akawaio and Arekuna peoples have indicated that they are going to go back to their communities to discuss the full implications of the decision once they have the written decision available to them,” Hughes said.
Hughes explained that they believe that through a review, they will be able to seek clarify that “from time immemorial” means that they are entitled to all the rights. “Not just service rights, not just forestry rights but including the subsurface and contemporary atmospheric rights,” he said.
According to Hughes, the statement “from time immemorial” has several legal implications.
“If it is acknowledged that the Akawaio and Arekuna people had been in occupation of this land since time immemorial…..exactly what did they have the rights to during that period? They would have had exclusive rights to the forest, they would have had exclusive rights to the sub soil elements and in the modern context, they would have had exclusive rights to what we refer to in modern times as the carbon credit and the atmospheric rights… as a result of their occupation of this area,” he explained.
Also, he said the Chief Justice did find that the indigenous people had not been in exclusive occupation of this land. “…That finding by the Chief Justice, we believe, may not necessarily be accurate and may be an error of judgement,” Hughes noted.
Hughes said “if it is accepted that the Akawaio and Arekuna peoples had been in occupation of this land from time immemorial and there was no interruption into their occupation, there was no conquest by any foreign government, there was no conquest by any colonial government, the basis upon which the Chief Justice found that they were not in exclusive protection was of course the fact that they had schools, that they had medical centers and she also referred to as an example the presence of the Seven Days Adventist church.”
“The Chief Justice did not in her decision indicate whether she found that the presence of these persons was as a result of the indication of the Akawaio and Arekuna peoples,” he said.
For 24 years, communities that fall under the UMDC have been engaged in a legal battle to recognize their land rights.
The matter had been brought against the State with the Attorney General listed as defendant.
Indigenous People’s activist and native of Phillipai Village, Laura George had stressed that their fight for recognition was based on the fact that they wanted it to be determined that they are the real owners of lands, for which mining permits are being given.
Deputy Chairman of the UMDC and Toshao of Kamarang Lemuel Thomas had said that the land rights was one of the burning issues they were tasked with resolving and that their villagers were pressing for results.
The UMDC leaders had said that more harm was being inflicted on their communities through both renewals and issuance of new mining concession permits.
Meanwhile, Hasting had said in the Upper Mazaruni they received separate land titles in 1991 but the lands that were given have little to no cultural meaning and large swathes of their traditional land were kept as state property.
According to Hastings, this was what led people living in the area to take the case to court seeking a judicial declaration confirming their rights to the land.
Chairman of Upper Mazaruni District Council (UMDC), Mario Hastings (second from right in center row), Attorney Nigel Hughes (first from right in center row) and Executive Director of the Amerindian Peoples Association (APA) Jean La Rose (at left in centre row) following yesterday’s press conference. They were accompanied by leaders from villages in the Upper Mazaruni district. (APA photo)