I return to the issue of mining on Amerindian lands because of the international dimension introduced by a letter to the Government from the United Nations Committee on the Elimination of Racial Discrimination (UNCERD). The letter expressed concern over mining on Amerindian lands of the Isseneru and Kako communities and has asked the Government to review the granting of permits and concessions without obtaining the prior and informed consent of the affected indigenous communities.
The impression created by the letter is that the Government continues to grant mining permits and concessions without obtaining the prior and informed consent of affected Amerindian communities. The information on which formed the basis of UNCERD’s letter was provided by the Amerindian Peoples’ Association (APA) and the Forest Peoples Programme (FPP).
The allegation by UNCERD is untrue.
By the Mining Act the State has vested to itself the rights to all minerals. This is not unusual. In Chapter VIII of the Indigenous and Tribal Peoples’ Rights over their Ancestral Lands and Natural Resources of the Inter American Commission on Human Rights it is stated: “In several countries of the region, constitutional or legislative provisions assign ownership of sub-surface mineral and water rights to the State. The Inter-American human rights system does not preclude this type of measure; it is legitimate, in principle, for States to formally reserve for themselves the resources of the subsoil and water.”
When the PPP/C Government first assumed office in 1992 one of its first acts was to commit to the demarcation of Amerindian lands. It went even further and agreed to extend the boundaries of the lands to which Amerindians were originally entitled upon proof of occupation. This process is slow but continuing.
This process having been well underway by 2001, the new PPP/C Government decided on the next major step to advance Amerindian rights. The product of that decision was the Amerindian Act of 2006. Its objective as stated in the Act was for: “the recognition and protection of the collective rights of Amerindian Villages and Communities, the granting of land to Amerindian Villages and Communities and the promotion of good governance within Amerindian Villages and Communities”. The objectives of the Act were achieved to such an extent that it can stand scrutiny by any standard.
The Act gives to Amerindians, for the first time, control over mining activities on their lands. Sections 48 to 53 require miners who have been granted mining concessions to satisfy Amerindian communities in relation to a wide spectrum of activities. They are too numerous to list but they are in the vicinity of thirty and range from tribute, to the environment, to mining by Amerindians. Miners must enter into a written agreement on the matters specified by the Act and the agreement must be approved by two-thirds of the Amerindian Village or Community. Unless this occurs there can be no mining and the concession granted by the Government cannot be activated. Therefore, the prior and informed consent of the Amerindian Village or Community is a pre-requisite for mining to take place.
In most cases miners and Amerindians have made written agreements. Enormous difficulties have been encountered but these have been resolved with or without court intervention. In those cases where mining concessions had already been granted before the Amerindian Act came into force, the GGMC had been insisting that written agreements be produced before the mining concessions are renewed. It is as a result of this policy that court cases were filed challenging the right of GGMC to insist on the production of these agreements. One of these relates to Isseneru. Unfortunately, conflicting decisions have emerged from these cases and the only way to resolve this situation is through the appellate process. Until this is concluded the rights of all the parties will remain undefined. In this situation the only sensible course is the await final judicial resolution.
Certain organizations claiming to represent the rights of Amerindians have seized upon this situation to attempt to whip up a frenzy against the Government and the GGMC. They have even prematurely called for a revision of the legislation. Part of this campaign has resulted in the letter by UNCERD which has made a false conclusion based on information supplied by two of these organization which appears to have advised that concessions are granted without Amerindians giving prior and informed consent. To a limited extent this is true. But it occurred prior to 2006, before the Act came into force, when Amerindians had no rights in relation to mining on their lands. This situation no longer exists and it is quite wrong to mislead important international organizations like UNCERD about the true situation in Guyana.