Hemispheric Human Rights Commission rules Guyana govt must compensate Amerindian village for land, health, other violations

Last Updated on Tuesday, 4 June 2024, 17:29 by Writer

The Inter-American Commission on Human Rights (IACHR) has ordered the Guyana government to compensate the Akawaio community at Isseneru (Region 7: Cuyuni-Mazaruni) for violating their rights to land, mining by themselves and health services.

“Such reparations should include compensation, satisfaction and any other measures that may be appropriate in accordance with Inter-American standards, including the provision of the required health services to the members of the community affected by the environmental contamination,” said the IACHR, an autonomous body of the Organisation of American States (OAS).

The commission approved the report on April 24, 2024, but the Guyana government has not said anything since.

Toshao, Ivor Courtman on Tuesday declined to discuss expected compensation, instead saying that a team would be travelling to Georgetown later this week when that question would be addressed. The Village C0uncil said it has since formally asked for a meeting with Minister of Parliamentary Affairs and Governance, Gail Teixeira, as part of efforts to engage government to implement the recommendations.

“We call upon the government to heed the IACHR’s recommendations and work collaboratively with us to implement measures that will safeguard our rights and promote sustainable development in our territory,” the Isseneru Village Council said in a statement.

The IACHR said in its report that the Guyana government must adopt the “necessary measures” so that the Isseneru community and its members receive comprehensive reparations for the material and non-material damages “they suffered due to the violation of their human rights.”

The IACHR also recommended that the Guyana government amend the relevant legislation in order to ensure that the provisions of laws and regulations related to indigenous territorial property are in harmony with the American declaration, in accordance with international law in keeping with the merits of the report.

Further, the Guyana government is being asked to adopt the necessary measures to support Isseneru and its members in the due fulfillment of their own duty to preserve and protect the environment, particularly in relation to the mining operations that they themselves carry out in their ancestral territory.

The IACHR said that “based on fact and law”, that body has concluded that the State of Guyana is responsible for the violation of the rights of the Isseneru community and its members.

CONCLUSIONS AND FINAL RECOMMENDATIONS:
299. Based on the above determinations of fact and law, the Inter-American Commission concludes that the State of Guyana is responsible for the violations of the following rights of the Isseneru community and its members – set forth in the same order in which they have been identified and declared in the preceding Sections: 269 Ministry of Housing and Water, $59M Water Supply System Commissioned at Isseneru, Reg. 7, November 22, 2022.

1. The right to collective territorial property under Article XXIII of the American Declaration, insofar as the provisions of the Amerindian Act related to titling of ancestral indigenous territories (i) fail to recognize the preexistence of indigenous territorial rights, and visualize them as grants of State lands; (ii) do not establish a State obligation to grant indigenous communities or villages a property title to their ancestral territory; (iii) confer on the Minister of Amerindian Affairs an overbroad and excessive degree of discretionary powers in the decision on whether to grant property title to indigenous communities, with no objective parameters or guidelines set forth in the legislation; (iv) fail to require the Minister to recognize indigenous communities the full extent of their ancestral territories; and (v) do not admit the possibility of granting territorial property to indigenous peoples as a whole, which also affects these peoples’ rights to participation and to the recognition of their legal personality

2. The right to collective territorial property under Article XXIII of the American Declaration, because it has failed to grant Isseneru a property title over its entire ancestral territory, even though the community demonstrated that (i) it is a primarily Akawaio indigenous community, (ii) it is geographically set within Akawaio ancestral lands, (iii) the territory it claims corresponds to that of the ancestors and grandparents of its current members, (iv) it preserves a vital and spiritual link with that territory in its entirety, and (v) it needs the full extent of that territory to continue living in accordance with its economic, cultural and spiritual systems, and to pursue its livelihood and survival as an indigenous community. As the titling process over the entire territory is still unconcluded, Guyana has also failed to
properly delimit and demarcate those ancestral lands, thus incurring in an additional violation of Article XXIII of the American Declaration.

3. The rights to justice and due process under Articles XVIII and XXVI of the American Declaration, and the right to participation under Article XX thereof, because (i) the titling process took twenty years to complete and thereby incurred in an unjustified delay in its resolution; (ii) the community authorities and members experienced legal uncertainty and insecurity on account of the overbroad discretionary decision-making margin exercised by the Minister of Amerindian Affairs; (iii) the community was forced to admit a reduction in its legitimate claim to territory because of the Ministry’s unfounded assertions on the size of the requested lands; and (iv) the decision-making process was not participatory in nature.

4. The right to equality before the law under Article II of the American Declaration, because the State of Guyana has abstained from adopting the special positive measures required by Isseneru to gain prompt and secure access to legal property over its entire ancestral territory.

5. The right to indigenous collective territorial property under Article XXIII of the American Declaration, because its legal system, as reflected in its legislation, in the title deeds granted to Isseneru and in the decisions of its highest courts, has granted an ab initio priority and prevalence to the private property rights and economic interests of third parties over the protection of indigenous territorial property

6. The right to collective territorial property of Isseneru and other Amerindian communities under Article XXIII of the American Declaration, because its legislation lacks any provisions on restitution of the lands of which indigenous communities have been dispossessed and which they must reasonably recover in accordance with interAmerican standards. In this connection, Guyana has violated the right to equality before the law under Article II of the American Declaration, because the differential degree of protection granted to indigenous property when compared to the legal protection received by private non-indigenous property entails a situation of racial discrimination.

7. The right to indigenous collective territorial property under Article XXIII of the American Declaration, and the right to participation under Article XX thereof, insofar as the provisions of its Mining Act fail to properly incorporate the human rights guarantee of prior consultation in cases of small- and medium-scale mining projects, in harmony with the applicable Inter-American standards; and also because they have incorporated insufficient guarantees for the Amerindian communities’ right to participate in the benefits of extractive operations in indigenous territories.

8. The right to indigenous collective territorial property, and the interconnected rights to health, food, water,
a healthy environment and cultural integrity, insofar as the provisions of its Mining Code deny indigenous
communities and peoples the right to free and informed consent in cases of large-scale mining projects that threaten
their survival

9. The right to indigenous collective territorial property, and the interconnected rights to health, water, food, cultural integrity and a healthy environment, insofar as in relation to the Isseneru community it has failed to properly implement its legislation requiring the conduction of prior environmental social and impact assessments before the initiation of any mining operation in indigenous territories.

10. The right to equality before the law, because its legislation establishes an unjustified differential treatment between indigenous communities, who are the holders of custom-based ancestral rights over their territories, and private owners whose title to property was issued before 1903, given that the latter are recognized property over the subsoil resources, which Amerindian communities are denied.

11. The right to indigenous collective territorial property of the Isseneru community and its members, because the mining operations developed by Messrs. Lalta Narine and Joan Chang were not the subject of prior consultations, socio-environmental impact assessments, or reasonable benefit-sharing mechanisms before they began implementation.

12. The right to collective territorial property, and its interconnected rights to health, food, water, a healthy environment and cultural integrity, because in relation to the untitled lands within Isseneru’s ancestral territory the State has granted mining permits which have not been consulted, assessed in their environmental and social impacts, nor been the matter of reasonable benefit sharing. Moreover, the Isseneru community’s right to territorial property has been disregarded because it is legally powerless in relation to its untitled lands under Guyanese law. The IACHR highlights that, if any permits, concessions or licenses are issued for mining, forestry or any other extractive activity within the untitled parts of Isseneru’s ancestral territory, before said territory is duly titled, demarcated and delimited in its full extent, the State of Guyana would incur in a violation of international law, in particular of the right to collective property under Article XXIII of the American Declaration.

13. The right to indigenous collective territorial property, and the interconnected rights to health, water, food, a healthy environment and cultural integrity, because Guyana failed to act promptly in relation to the severe instances of environmental degradation and destruction caused by mining operations within Isseneru’s ancestral territory, including but not restricted to the operations of Messrs. Narine and Chang, inasmuch as it refrained from halting the projects, restoring the damaged environment to the highest attainable degree, and sanctioning the private parties responsible for the harm. In particular, regarding the pollution of rivers and creeks with mercury, the IACHR considers
that the rights of especially vulnerable populations such as children, pregnant women and elderly persons were violated, thus also disregarding Article VII of the American Declaration

14. The right to health, insofar as the State has not adequately guaranteed access to adequate and culturally acceptable healthcare by those persons who have been negatively affected by mercury contamination and other forms of pollution and environmental degradation in their ancestral territory, contrary to Articles I, VII and XI of the American Declaration.
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15. The rights to collective territorial property and to equality before the law of the Isseneru community and its members, because the Guyanese High Court granted full, absolute and a priori protection to the private economic interests of Messrs. Narine and Chang, equating those private interests to private property rights and granting them priority and prevalence over the territorial rights of a vulnerable Amerindian group.

16. The rights to justice and due process of law, because the Isseneru community and its members had no access to effective remedies in order to seek the protection of their territorial rights from the destructive impacts of the mining activities developed in their ancestral lands.