Thursday, January 24, 2013

Amerindian village loses mining case

As the country’s mining section continues to expand and more persons seek their riches in the ‘gold bush’, Amerindian villages may soon be finding themselves before the courts more often than ever trying to defend the locations they insist are ancestral territories.

In a landmark ruling yesterday, members of Isseneru, a Middle Mazaruni village, lost a case concerning their right to prevent commercial miners from “invading the grounds of our forefathers.”

Justice Diana Insanally ruled yesterday that under the Amerindian Act 2006, the Amerindians, second defendants in the land dispute matter, have no authority or jurisdiction to prevent licenced miners from doing so.

The GGMC was also told by the court that they too, under the Act, have no right to prevent or cease mining works without the proper footing.

The matter of the Isseneru community was brought to the attention of the courts in November 2011. This approach stemmed from a Cease Work Order which was passed on miner Joan Chang by the Guyana Geology and Mines Commission (GGMC).

The facts were that Chang, who is attached to Platinum Mining Incorporated and has a mining licence, commenced mining in the Amerindian territory prior to November 2011. The villagers and their council said they saw this act as a violation of their rights to maintain control over their village. As such the miners were asked to cease mining in the area.
Village and council members consult with lawyers after the ruling

That request was however ignored by the miners, leaving the villagers no resort but to approach the GGMC. With the intervention of that mining entity, a Cease Work Order was immediately granted by the organization, citing the law which purportedly gives Amerindian absolute right in determining the control of their titled lands.

Chang, however, felt that the action was wrong, unreasonable arbitrarily, and unlawful among other things. In an application, the court was asked to reverse the GGMC’s action by removal of the cease work action, making the entity the number one defendant in the matter. In another request on the same application document, Chang further asked that the village be refrained from interfering or preventing the mining works ongoing in the area.

In an almost six-page long decision, Justice Insanally decided that both requests by the complainant were within the confines of the law, and thus ruled in favour of the applicant (Chang).  In her introduction to the ruling, she defined a village council and the powers held, according to law. She similarly related the role of the GGMC and identified the powers of the entity.

The Judge then said that it was for her to determine whether the abuse of power was an issue within the move of the GGMC and the community’s village council. Together with that, the judge had to decide whether the land and its location was in dispute, but ruled it out when she mentioned that the defence had no difference in opinion in that regard.

Another point mentioned by the defence was that the village was at odds with the miners not attaining permission from the village to mine within their boundaries. They were also upset that the miner did not seek an agreement with the village, but had without announcement, started work within the territory.

The court in identifying the relevant legislation said that under the Amerindian Act Section Five, miners cannot work on the Amerindian land without permission from the village and under Section 48 of the said Act; agreement must be sought with the council, as is the community’s argument. It was however noted that none of the above were sought by the miner. Justice Insanally however responded that the above regularities were not necessary, since Chang already had a mining licence prior to the 2006 Amerindian Act coming into effect.
There are provisions, it was made known, for persons already in possession of mining licences to have access to purported Amerindian titled land.  In that light, the village does not have right to cease mining work or intervene in the matter, the judge indicated.
In relation to the GGMC, it was indicated that the agency was not within its powers to grant a Cease Work Order. To this, Anthony Paul was the defendant named in connection to the mining regulation agency, since he issued the Cease Work Order dated 24th November 2011.

Within the ruling, Justice Insanally mentioned, as she interpreted according to the legislation, that the Amerindians in the matter have the right to consult with the mining company and its agents, not to cease their work. The GGMC in its capacity has the ability, she said, to facilitate those talks and somewhat act in the interest of both parties. She added that a Cease Work Order would be granted for the reasons of protecting the state’s affairs, a private person among other things. None of those reasons applied in the passing of the order.

The village representatives were disappointed by the ruling, and express their intention to scrutinize the decision with their relevant councils before deciding whether the ruling needs to be appealed.  The miner, Joan Avahnelle Chang was represented by Attorney-at-law Abiola Wong-Innis. The GGMC was represented by Senior Counsel (SC) Ralph Ramkarran, while the Isseneru village had the services of Attorneys Stephen Lewis and David James.

The ruling has sparked much interest in the possible implications that may follow relating to Amerindians rights in terms of their titled land.

“It is a precedent and it means that the titles that were granted to Amerindian lands are flawed. These are deeply flawed as this case has borne out and it also means that miners can work claims in any village,” Attorney James asserted.  He opined that the 2006 Amerindian Act must now be taken to parliament for amendment and strengthening.

Head of the Amerindian Peoples Association (APA) Jean La Rose said that it is clear that politics is at the centre of the matter, since it would appear that the Government is granting Amerindians “shell titles to land.” In effect, it means that communities have no power and miners can do as they please, the APA head charged.

Author: Zena Henry