The IACHR report

The government habit of ratifying international covenants and then ignoring the commitments they have made is coming back to haunt them. This country is a member of the OAS, whose charter enshrines full respect for human rights, and whose principal instrument for protecting those rights is the autonomous Inter-American Commission on Human Rights – the IACHR. It is more than likely that the government never looked very closely at the Convention under which the IACHR falls, but whatever the case it seems they had no intention either of bringing national legislation into line with its provisions, or modifying their own operations in response to its requirements. They just ratified it and then forgot about it. But now they have to pay it rather more attention. In April the regional body issued a report containing its conclusions and recommendations in relation to a petition from the Indigenous community of Isseneru acting in conjunction with the Amerindian Peoples Association. The petition claimed various violations arising from the State’s failure to adequately protect the community’s territorial rights and its granting of mining permits in their ancestral land without prior consultation or consent. Cited too were the lack of protection from the negative impacts of mining, and the failure to provide the community with effective judicial remedies to counter the violation of their rights. They also asked for reparations. Isseneru is located in the Middle Mazaruni in a mining area and its members derive from the Akawaio nation. Their village holds title, although they were not granted all the ancestral lands they had requested, and miners – two in particular – from outside mine on both their titled lands and the untitled areas they claim, without their consent. In the case of the two miners mentioned, the community has been unable to get them removed through the courts on account of the fact that they were awarded their concessions before Isseneru was granted title to the same land. In such circumstances under the law private property takes precedence over Indigenous title. Mining has had deleterious consequences on the environment, on the health of community members and on their water and food supply, although in 2022 the government did provide an alternative potable water supply. The rivers and the fish on which the villagers depend for their protein are contaminated by mercury. However, it is also the case that a number of local inhabitants mine on a small scale, and in some instances without the use of a retort which would reduce mercury contamination. The petition from Isseneru had been sent to the IACHR in 2013, and in 2017 the Commission placed itself at the disposal of the parties to reach a friendly settlement. They were also given time to present additional observations on the merits of the petition. The State, as it is called in the report, did not take advantage of this opportunity although on two occasions it did submit observations on the request for precautionary measures, some of which had direct bearing on the merits of the petition. What it said first was that “the allegations set out in the Petition are ill-founded, grossly misleading, prejudicial to the rights of Amerindian peoples and disrespectful in denying the progress that Amerindian peoples have made.” After stating that the Government of Guyana had made significant efforts to provide Amerindian communities in the interior with access to goods and services, and particularly health care and education, it moved on to comment on Isseneru itself. It maintained that the inhabitants had largely abandoned their traditional ways, and that “Isseneru residents engage in a cash economy rather than subsistence and as a result there is considerable movement of people and goods in and out of Isseneru.” They no longer are almost entirely dependent on hunting, fishing and farming, it was said, and so it was not true that their livelihood was threatened by mining; they were a wealthy community. They carried out mining on their own initiative and in association with non-indigenous miners, and they had lost their traditional culture in various aspects. Furthermore most members of the community had converted to Christianity and therefore did not preserve an ancestral spiritual connection to their territory. If this is what the government really believes about one Indigenous community, then all of them in this country should feel uneasy, since none of them is in a position to maintain themselves on subsistence alone; they all need some link to the cash economy in order to survive in the modern world. Furthermore while the inhabitants of Isseneru have retained their language, not all Indigenous communities have managed to do so, although they all preserve much of their traditional culture. What the observations potentially mean, therefore, is that the government believes the Amerindian people for the most part have lost their traditions in terms of their economy, their culture and their religion. This in turn would bring into question its sincerity about guaranteeing their rights. The IACHR was not so naïve as to take the State’s observation seriously, stating that “anthropological studies have confirmed that the Akawaio people of the Mazaruni basin have persisted in preserving their ancestral way of life, within the margins of adaptation and evolution which are normal in any human society.” They had preserved their language, worldview, mythology, social structures, traditions, economic activities and identity over the centuries, and these “ancestral components” of their culture were still recognizable. And they also had retained their cultural and spiritual connections to their ancestral territory which had been revitalized by the practices of the Alleluia Church, a syncretic religion. The one consolatory thing the Commission had to say to the government was that Guyana’s legislation which had enabled Indigenous communities to acquire title over their lands was no “minor achievement; it is in fact commendable and places the country at the legal forefront of the nations of the Americas. All the more so when it is borne in mind that a very significant portion of the Guyanese territory has now been formally granted in full property, and in perpetuity, to different Amerindian groups across the country.” However, this notwithstanding, said the IACHR, there were aspects of the 2006 Amerindian Act which were inconsistent with international human rights law, and this applied to Isseneru. Among these was the fact that subsoil rights were legally reserved to the State, and were therefore excluded from Amerindian village titles. Then there was the matter of Free and Informed Prior Consent to which Indigenous people were entitled in relation to any mining on their land, something which was recognized in international law. Where protection of the environment was concerned, the report said that Indigenous peoples had a right to environmental integrity and full ownership and control of their natural resources. However, there was a caveat insofar as they had a duty to manage such resources in a way which was sustainable and did not cause them damage. A right to property, said the Commission, did not confer a right to destroy or cause unjustified environmental harm. Then there was the issue that the granting of lands was made at the discretion of the Minister of Amerindian Affairs on the basis of his or her subjective assessment of the information acquired during the course of the investigation. Furthermore, it was said, the Minister was not bound to adopt the decision, and might not issue title. The report did recognize the legal issue that in Guyana all land not privately owned was state land, and so ancestral lands given title were ‘granted’. It might just be commented that this is an issue which goes back into colonial times. IACHR’s conclusions and final recommendations were long and complicated, as was the analysis which preceded them, but we summarised its essence on Tuesday by saying the Commission had found that the State of Guyana was responsible for violating the rights of the Akawaios of Isseneru as it pertained to their collective territorial property, their right to equality under the law, and their rights to health, food and water, among other things. It has asked for reparations. How exactly the government will respond to the report remains to be seen, although it may be disposed to address some of the legislative issues, particularly as these apply to what the IACHR called the inconsistencies between the Amerindian Act and the Mining Act. The administration is currently engaged in looking at a revision of the Amerindian Act, although how far it has got with that project is by no means clear. The critical issue from the communities’ point of view will be sub-soil rights, although whether the government will in the end be prepared to make a concession on that front may be open to question. Tradi-tionally they have favoured mining interests over Indigenous ones. Certainly there needs to be some legal amendment to make it possible to evict miners from titled land even though they obtained their mining grant before the community obtained title. In addition, there is also the horrendous case of Chinese Landing, where the government has sheltered behind what is essentially a legal technicality so the community cannot obtain justice against the miners there. The government will be awaiting a final report from the IACHR on that village too. It really should not have any problem monitoring the environmental situation in Isseneru and taking the necessary measures; it already has the power to do that, although one suspects it doesn’t have the capacity to undertake the required level of monitoring in all the mining areas. Gold production takes precedence over everything – over the environment, over the ecological system, and possibly over the Indigenous people as well. Theoretically it may be prepared to further entrench the principle of Free Informed and Prior Consent in relation to mining in Amerindian areas, although again, that cannot be taken for granted. One thing it is unlikely to entertain is reparations in any form because of the precedent it might set. Generally speaking the government will be very unhappy with this report, because it does not paint it in a good light where the Indigenous people are concerned, and for Free-dom House this is an important voting bloc. It certainly explains its hostility to the APA, which it sees in a purely political light, not representing the interests of the Indigenous people at all but as being in opposition to the PPP. The government is going to find, however, that times are changing and it may no longer be able to exert the kind of control in hinterland communities that it did in the past. It is now being exposed not just to the criticism of those inside the country, but of international agencies to which it is supposedly committed as well. And that trend is not going to change. It needs to rethink its ap-proach to Indigenous communities.