The laws of Guyana in so far as they are intended to protect the rights of the Indigenous people are clearly defective, but even allowing for this the courts too have played an unnecessarily unhelpful role. In the meantime the Amerindian world has been invaded by various coastland operations the lead among which is mining. For its part the government has done its best to facilitate mining, and when this has come into conflict with Amerindian interests, the miners have taken priority. The full nature of the problem is exemplified by the egregious case of Chinese Landing, where according to the Toshao there, just over 450 miners operate in a community with a population of around 310 people.
Chinese Landing was first granted title to its lands in 1976, something which has been confirmed on more than one occasion since, and mining initially started on Tassawini, right in the centre of village titled lands in 1995. Miner Wayne Vieira received four separate permits to mine in Tassawini between 1998 and 2001, and in the case of the first he also signed a contract with the Village Council which was to last ten years. It has to be explained that Indigenous residents do not have sub-soil rights on their own land; all minerals belong to the State, and as a consequence mining permits are issued by the GGMC. Exactly how long the permits after the 1998 one were to last has never been stated in public, but in any event as will be seen below Mr Vieira did apply for and then obtain renewal through the courts.
The problem is that it is not just Mr Vieira and those to whom he might have rented a portion of his mining area who are still there, but what seems to be a host of illegal miners as well. The level of forest destruction and environmental degradation is alarming, with the waters turbid and unusable by villagers, some of whom complain of rashes and diarrhœa, while there is a distinct possibility of mercury contamination as well. If that were not enough, the miners, some of them with high-powered rifles are terrorizing and threatening the villagers. Not surprisingly the residents want the outside miners gone.
Which brings us to the legal confusion which to date has impeded all attempts to evict them. The problem lies with the two primary pieces of legislation involved: the Mining Act of 1989 and the Amerindian Act of 2006. Mr Vieira obtained his permits before the passage of the Amerindian Act, which states (Section 48) that in the case of small and medium-scale mining (Mr Vieira falls in the latter category) permission to mine on titled land must secure the agreement of two-thirds of the village council, among other things. Since that hadn’t happened in this instance, in 2010 the GGMC issued a Cease Work Order against Mr Vieira’s operations. The miner then took the matter to the courts.
It went all the way to the CCJ, which found that the GGMC could not apply a regulation under the Mining Act (i.e. a Cease Work Order) to a different act entirely, in this instance the Amerindian Act. This was, however, nothing but a technical victory for Mr Vieira, since it did not address the question of the GGMC’s fundamental right to evict the miners. The next sequence of events in the legal arena was clarified in what was in other respects a rather baffling piece by Mr Ralph Ramkarran in our Sunday edition.
The columnist said that in 2015 the GGMC declined to renew Mr Vieira’s mining permits, again because they breached the Amerindian Act. Mr Vieira went to court once more. To place in context what happened then, Mr Ramkarran explained that in the meantime acting Chief Justice Ian Chang had heard a similar case involving Mr Daniel Dazzell. In that instance he had ruled that the holder of a prospecting permit dating from before the time the Amerindian Act came into force had to observe Section 48 of the Mining Act when he applied for its renewal. When Mr Vieira’s case came before him, however, he ruled quite differently and in favour of the plaintiff. This, as Mr Ramkarran said, contradicted his earlier decision in Mr Dazzell’s case. The matter went to the Court of Appeal which upheld Chief Justice Chang’s ruling in the Vieira case but gave no written decision, so no one has any basis for understanding how the Court reconciled two contrary decisions, or alternatively, why they had decided to find against the earlier one.
It is hardly surprising, therefore, that getting no satisfaction from the local court system the Caribs of Chinese Landing appealed to both the UN Committee on the Elimination of Racial Discrimination and the Inter-American Commission on Human Rights of the OAS. It was the IACHR which issued its ruling on July 21st this year requesting that Guyana take the necessary measures to protect the rights to life and personal integrity of the community of Chinese Landing; consult and agree on the measures to be adopted with the beneficiaries and their representatives; and report on the actions taken to investigate the events which led to the adoption of the precautionary measure so as to prevent a recurrence.
This sent the government into an unaccustomed flurry of activity, although not all of it well received by the community. It did temporarily suspend mining in Chinese Landing, although this produced the response from the Village Council that for years they had been asking for outside mining to cease on their lands, not all mining. Some villagers did small mining for their livelihoods, they said, and they did not want this cut off. This produced the quite bizarre comment from Mr Ramkarran in his column that the ‘illegal’ mining by the villagers had attracted an invasion of illegal miners from outside, which now threatened the ‘illegal’ mining of the Chinese Landing residents.
In the first place, what a limited number of residents do is what might be called artisanal mining. It is very small scale and involves no dredges or industrial equipment and would have attracted no outside attention, in contrast to Mr Vieira’s operation. Furthermore, to argue as the columnist does that the villagers are operating ‘illegally’ on Mr Vieira’s claim can only have a pretension to accuracy in the context of the present legal muddle, but it hardly reflects who has the real right on their side.
It should be noted that this is not the 19th century, and Indigenous people cannot nowadays survive on subsistence activities; they have to earn money in the cash economy to purchase all kinds of basic necessities. In Chinese Landing the only avenue for doing this is mining. So for Mr Ramkarran to posit that the community may be sacrificing royalty from Mr Vieira which would benefit the whole community in favour of a few village miners who might not be doing so, is totally to misunderstand how Indigenous communities work. Apart from anything else it suggests that it is acceptable to have your land invaded, your environment destroyed, and to be threatened with firearms as long as you are paid for this.
The Village Council said that the GGMC team sent in to halt the mining told them they had not issued any new Cease Work Orders on Mr Vieira’s blocks. The miners apparently stopped working the minute they heard the Commission was coming, as they had done previously. The officer in charge was quoted as telling them: “We can’t issue a [cease work] order to someone who is not operating. You have to see them physically operating before you issue that order.” There is clearly corruption in the system which needs to be investigated if the GGMC cannot arrive at Chinese Landing without the miners having plenty of advance notice with time to stop working as well as hide unregistered equipment and evidence of mercury use.
The Village Council expressed themselves disappointed by the outcome of the Government’s fact-finding mission, because they had believed it would begin the process of consultative discussions towards agreeing on the measures requested by the IACHR. It turned out the team was there to compile a report which would be given to a high-level policy group, and the Council would then discuss with this group. The villagers were reported as regarding this as a delaying tactic when they needed protection now. Significantly the Village Council asked the fact-finding team if they had the authority to revoke Mr Vieira’s permits, but they could not answer. “We know these are our lands,” said the villagers,” and the community expects the government to take the necessary measures to protect our rights on and over them.”
Furthermore it would appear that the team was only directed to investigate the IACHR’s recommendation “C”, and not the other two, one of them involving the protection of the right to life of residents. “We hope that the Government does not consider that these essential parts of the decision can wait until they have finished their investigation,” said the Village Council.
Indeed.
The Council also had a suggestion for applying a Mining Act regulation to the situation which authorises mines officers to order all work to cease on a claim for the maintenance of public peace among other things. It does not need this, however, for the government to disarm the miners – that does not depend on the Mining Act – and send in new police and monitor them so they do not become corrupted by the miners. All that could have been done before.
Finally, a number of informed individuals have pointed to sections in the Mining Act or its regulations, which would allow the government to act in this instance, irrespective of the current court status. One would have thought that an imaginative lawyer would have found their way around the legal impasse. But for some reason the government does not want to confront the miners. Are some political considerations inhibiting them?
