Indigenous Rights in National and International Law

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On the front and back cover: Amerindian motif of tortoise by Jean La Rose.I N T R O D U C T I O N

Over the past few years the topic of climate change has dominated a lot of the news and national discussions in Guyana. Communities have heard a lot about REDD+ (Reducing Emissions from Deforestation and Forest Degradation) and the LCDS (Low Carbon Development Strategy), but may not know what they mean and more importantly how they affect your life. Moreover, community leaders have told us that they need more information about REDD+ and LCDS, but fewer technical explanations. This series of booklets seeks to address these issues.

As the owners of forest lands, how could REDD+ and other similar initiatives impact you? What are the risks, and the potential benefits? The Rainforest Foundation—US and the Amerindian Peoples Association believe it’s important for indigenous leaders to be informed about these issues, and more importantly, to understand how they relate to your livelihoods and your control of land and resources.

These materials are arranged as a series of booklets that can be used by you, as trainers, to prepare for your community-based workshops. Each booklet will address a different topic and will contain basic information about that topic and also some ideas about questions to be addressed during your workshops. Together, the booklets will form a binder, so you can easily use them when they are most suited to your workshop.

Booklet 1 provides guidance and support for trainers who will be carrying out workshops in their communities and regions. Booklets 2–6 deal specifically with climate change and forest issues.

Booklet 2 lays out the general concepts behind climate change and REDD+. In the third booklet, we talk about the international negotiations on climate change that have been taking place over the past few years, and that have set the stage for what is currently taking place in Guyana and elsewhere. We talk in greater details about the REDD+ schemes in Guyana in booklet 4. It’s important for you and your communities to know your rights to your lands, and to consultation and participation. Therefore, booklet 5 discusses indigenous rights in Guyana and internationally. Social safeguards are explained in booklet 6 ; they are critical and will need to be upheld in order for any REDD+ or other climate change initiative to work.

You, as trainers, are the people for whom these materials were designed. We plan to update these materials every year, so your opinions and suggestions are essential to making this tool more appropriate to your needs.

Let’s get started!

2012 © INDIGENOUS RIGHTS AND CLIMATE CHANGE

Rainforest Foundation–US and Amerindian Peoples Association (APA)

Organizer: Marina Campos

Authors: Marina Campos and Christine Halvorson

Contributors: Jean La Rose, Laura George, Carlos Calvo, and Tessa Lee

Design: Scott W. Santoro / Worksight

Created by:

Supported by:

Licensed by:

This means that the texts in this publication are under a Creative Commons license (www.creativecommons.org), which opens intellectual property rights. In practice, this license allows the texts of these booklets to be reproduced and used in derivative publications without previous authorization from the editors (Amerindian Peoples Association and Rainforest Foundation US), but with some criteria: they can only be used for non-commercial purposes; they must cite the original source; and in the case of derivative publications, they must also be licensed in the Creative Commons.

You can:

Share—copy, distribute and transmit the Indigenous Rights and Climate Change Booklets

Remix—adapt the Indigenous Rights and Climate Change Booklets for your community’s use

Under the following conditions:

Attribution—You must attribute credit as follows: Indigenous Rights and Climate Change, Amerindian Peoples Association and Rainforest Foundation US (with link).

Noncommercial—You may not use this work for commercial purposes.

Share Alike—If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one.

If you do adapt the booklets, please send us a copy! We hope to make these available in different languages and adapted to the different realities of different countries.

AMERINDIAN PEOPLES ASSOCIATION

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INTRODUCTIONIndigenous peoples have long struggled to have their rights recognized. Fortunately, dur-ing the last few decades the international community has started to formally recognize some of these rights, and countries are slowly following suit. This booklet summarizes some of the different documents that speak to indigenous rights, both at the national and international level. This booklet describes the current situation in the international arena and then moves on to issues specific to Guyana. The documents we’ll look at include the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the Interna-tional Labour Organization Convention No. 169 on Indigenous and Tribal Peoples in Inde-pendent Countries (ILO 169), and the Amerindian Act of Guyana. We’ll also learn about the important principle of Free, Prior and Informed Consent (FPIC), which is particularly relevant in discussing development and climate change initiatives, such as REDD+.

AN INTRODUCTION TO INTERNATIONAL LAWFirst of all, it’s important to know what we mean by international law. Basically, interna-tional law is a system of norms, customs and binding agreements designed to regulate the behavior of states. “Customary international law” is formed over time, and is gener-ally based on state practices and/or international consensus. Other laws, however, are more explicit and are set forth in specific treaties, declarations, and conventions. These are briefly described below:

Treaties: These include multilateral (several countries), bilateral (only two countries), and United Nations sponsored agreements between countries. Treaties are inter-national agreements or contracts, whether general or particular, establishing rules expressly recognized by the contracting States. Contracting states are those that agree to abide by the treaties. Treaties are binding, which means that contracting states must abide by the rules set forth in them. They can be called conventions, protocols or covenants. Some relevant examples are the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), International Cov-enant on Civil and Political Rights (ICCR), International Covenant on Social and Eco-nomic Rights (ICSER) and the Convention on Biological Diversity (CBD).

Declarations: These are statements of principles that set forth recommendations to be followed. They are not binding (not mandatory), meaning that states don’t have to follow them. The main example discussed here is the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).

When a state accedes to a treaty, that state may “make reservations” to one or more ar-ticles of the treaty, unless the treaty prohibits reservations. When a country “makes a reservation” that basically means that the country is saying that they do not agree with some articles of the treaty and therefore do not want to comply with them. Reservations may be withdrawn at any time. In some countries, international treaties take precedence over national law; in others, a specific law at the national level may be required in order to give an international treaty the force of a national law (that is the case of Guyana).

5Indigenous Rights in National and International Law

Map of Campbelltown Village, Region 8, Guyana/APA Archive.

4 Indigenous Rights in National and International Law 5

Practically all states that have accepted an international treaty must amend their exist-ing laws or introduce new legislation in order for the treaty to be fully effective in their national territory.

Not all international instruments are legally binding (or enforceable) treaties. For exam-ple, some of the most important human rights instruments are declarations. A declara-tion does not have any legal power to enforce compliance; it relies purely on the moral weight it carries. Countries might not sign many Declarations if they knew they would be forced to comply with them. But when a country does signs a Declaration, it’s showing the world that it intends to fulfill the requirements of the Declaration.

RIGHTS OF INDIGENOUS PEOPLES IN INTERNATIONAL LAWIndigenous peoples’ rights overlap with many other human rights. Many important in-digenous peoples’ rights are not framed in specific treaties on indigenous peoples’ rights, but are part of more general treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples (ILO 169). To make this document simpler, we decided to discuss only the most important international legal instruments that deal specifically with indigenous peoples. We are also focusing on rights that are most relevant to issues around climate change.

THE UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (UNDRIP)

Currently, the most important international tool regarding indigenous rights is the Unit-ed Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). It’s the most comprehensive statement on the rights of indigenous peoples, affirming and upholding collective rights more strongly than any other document in international human rights law. Even though countries often argue that they are not legally bound by the Decla-ration, it’s in fact mainly a restatement of existing law, and as such reinforces existing standards, along with providing a critical framework from which to advance rights at the national level.

In September 2007, after over 25 years of negotiation by governments and indigenous peoples from around the world, the United Nations General Assembly (the highest body of the United Nations) adopted the UNDRIP. Indigenous peoples were involved in the drafting of this document.

The Declaration has a number of articles. The most relevant for the discussion of REDD+ are summarized below.

Fundamental or Foundational Rights (Articles 1–6)

Foundational rights are those which underlie all of the rest of the rights found in a decla-ration. The Declaration’s foundational rights confirm that all indigenous peoples around the world have collective rights and the right to be treated equally and without discrimi-nation including:

• The right to enjoy all human rights that all other individuals and groups can enjoy.

• The right to self-determination and to determine their political status and develop-ment paths.

• The right to have their own institutions and to self- government.

• The right to participate in public life and to be a full citizen of their countries, with the same rights as others.

Self-determination is a central right of the Declaration. All other rights listed in the Decla-ration help to achieve self-determination. Self-determination means that as a collective, indigenous peoples:

• Should have a choice in determining how their lives are governed.

• Should be able to participate in decisions that affect them.

• Should have control over the development of their communities.

Participation, development and economic and social rights (Articles 18–24)

Participation, development and economic and social rights ensure that indigenous peo-ples can control their own futures, including:

• The right to participate in decisions that affect them. This should be guided by and include the principle of free, prior and informed consent (explained in another section).

• The right to decide how an indigenous community develops politically, economi-cally and socially.

• The right to improved economic and social conditions, with additional assistance for vulnerable people such as elders, women and children.

• The right to the same standard of health as others, along with the right to use tradi-tional health practices.

Rights to land, resources and knowledge (Articles 25–32)

Rights to land, resources and knowledge are important to indigenous peoples because they form major parts of their identities and cultures and are central to their systems of governance. Indigenous communities have:

• Rights to maintain and strengthen their spiritual connections to land.

• Rights to own, control and develop their land.

• The right to ensure that governments develop systems for the legal recognition and protection of their land.

• Where they no longer possess their land, they have the right to have this addressed through some form of compensation.

• Rights to the protection of the environment on their land.

• Rights to the protection of their cultural heritage and traditional knowledge.

• Rights to determine how and if their land is developed.

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Self-governance (Articles 33–37)

Self-governance rights expand on how the rights to self- determination and self-govern-ment can operate in practice for indigenous communities. These include:

• The right to determine group identities, group membership and group responsibilities.

• The right to develop and maintain their own institutions, laws and customs.

• The right to maintain relationships with people outside Guyana.

• The right to have treaties and agreements respected and recognized.

UNDRIP and Guyana

Guyana’s approval of the UNDRIP Declaration in 2007 means that Guyana should take action to make sure that its indigenous peoples can realize the rights enumerated in the Declaration. Therefore, indigenous peoples should use the Declaration to lobby for re-forms to laws, policies and programs in order to ensure that those laws, policies and pro-grams are consistent with the standards set forth by the Declaration and to remind the government that it has committed to upholding the Declaration. Indeed, as the Declara-tion itself asserts, governments must work with indigenous peoples to achieve the goals of the Declaration and to ensure that the rights listed in the Declaration are exercised in practice. Indigenous peoples have the right to a fair process for resolving disputes about their rights and to provide remedies for violations to their rights. The Declaration can therefore be an important tool in pushing the Guyanese government and international agencies involved in REDD+ to uphold rights.

Four factors give the Declaration weight in influencing law and policy reform:

1) It’s sourced from existing international human rights law.

2) It’s widely supported by both governments and indigenous peoples globally.

3) It’s the result of a democratic and open process.

4) The language used is similar to that in a treaty.

One way you can use the Declaration is simply by using the language of rights when talk-ing about issues in your communities. When looking at proposed policies or programs, check to see that they uphold the Declaration. Compare the safeguards and other mea-sures created by agencies or governments to the rights contained in the Declaration. This will help in understanding the strengths and weaknesses of a given document, policy or program, and give you guidance on how to respond to it.

INTERNATIONAL LABOUR ORGANIzATION CONvENTION (ILO) 169

Before the creation of UNDRIP, ILO 169 was the main convention referring to indigenous peoples. It was passed in 1989. The rights included are similar to those incorporated in UNDRIP, but it’s not as strong. It recognizes indigenous peoples’ land ownership rights, and sets out a series of minimum standards regarding consultation and consent. The main difference between ILO 169 and UNDRIP is that ILO 169 is a convention, which makes it legally binding, as compared to a declaration. Countries that accept the conven-tion have to incorporate it into their national legislation. Unfortunately the government

of Guyana has not adopted this convention. If it did, Guyana would be brought more into line with international standards, and allow indigenous peoples in Guyana to access an important oversight mechanism to defend their rights.

INTERNATIONAL CONvENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (ICERD)

This Convention entered into force in 1969, and among other things, addresses indig-enous peoples’ rights to land, resources, and cultural integrity. The Committee on the Elimination of Racial Discrimination (CERD) is composed of experts that meet twice a year in Geneva to monitor compliance with the Convention. The Committee has two main mechanisms: a reporting mechanism, and early warning/emergency procedures. States must report to CERD every few years on the measure they are taking to uphold the Convention (though many put it off); NGOs can also submit their own reports, which are considered by CERD in evaluating the states’ reports. CERD then issues “Concluding Observations” for a given country, several of which have dealt with indigenous peoples. In 2006, for example, CERD included recommendations about the Amerindian Act in its Concluding Observations on Guyana. Among other things, it recommended that Guy-ana “seek the informed consent of concerned indigenous communities prior to authorizing any mining or similar operations which may threaten the environment in areas inhabited by these communities.” 1 The early warning/emergency procedures can be used in more urgent situations.

1 CERD/C/304/GUY/CO/14, April 4, 2006.

Arawak girls, Akawuni Village, Region 2, Guyana/APA Archive.

8 Indigenous Rights in National and International Law 9

Understory of Amazon Rainforest/Summer Moore and Marissa Macias—RFUS Archive.

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THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

The Inter-American Human Rights system is based on the American Declaration on the Rights and Duties of Man (1949) and the American Convention on Human Rights (1969). Unfortunately, Guyana has not acceded to either. The Inter-American Human Rights sys-tem is composed of the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (the Court). The IACHR can issue recommenda-tions that are not binding, but have moral force; while the Court’s decisions are binding. Over the past several years, the Court has issued a number of decisions that uphold and/or build upon indigenous rights in international law. These include the cases of the Ma-yangna community of Awas Tingni in Nicaragua and the Maya of Southern Belize, which addressed rights to land; and the case of the Saramaka in Suriname, which expanded on these, and also addressed the right to free, prior and informed consent.

SET TING A BENCHMARk: THE RIGHT TO FREE, PRIOR AND INFORMED CONSENT (FPIC)

The right to free, prior and informed consent (FPIC) is a critical one, especially as indig-enous peoples across the globe face increasing pressures on their lands and resources. FPIC relates directly to the right of indigenous peoples to control their own future and the future of their people. International standards for consultation with indigenous peoples are slowly becoming the norm for both governments and businesses. When proposed legislative, administrative, or development projects may have a major or sig-nificant impact on indigenous territories, countries are required to obtain their free, prior and informed consent. This should be done through a process that guarantees consulta-tion and effective participation in the decisions that are made, at all phases of a project, from the beginning to the end.

Standards for FPIC are outlined in both Article 42 of UNDRIP (which states that indig-enous peoples have the right “to give or withhold their free, prior and informed consent to actions that affect their lands, territories and natural resources”) and the Inter-Amer-ican Court’s decisions on Saramaka People vs. Suriname and Xákmok Kásek Indigenous Community (“the State must ensure the effective participation of the members of the Community, in keeping with their customs and traditions, regarding any plans or de-cisions that might affect their traditional lands that can bring restrictions of use and enjoyment of said lands in order to prevent those plans or decisions from denying an indigenous people from their subsistence”2). While these decisions provide useful guide-lines, defining and implementing FPIC processes that are consistent with international standards and also respect traditional decision-making processes has been a challenge on the ground. Continuing to demand respect for indigenous peoples’ rights not only to consultation but also to effective participation is important, especially considering the developments around REDD+ in Guyana.

2 Xákmok Kásek Indigenous Community v. Paraguay, Judgment of 24 August 2010, Ser C No. 214, at para.157. Cited in Amicus Curiae Brief in the Case of the Pueblo Indígena Kichwa de Sarayacu v. Ecuador, Fergus MacKay, Forest Peoples Programme, 22 July 2011.

EACH OF THE TERMS IN FPIC IS ExPLAINED BELOW: 3

Free from force, intimidation, manipulation, coercion or pressure by any government or company.

Prior to governments allocating land for particular land uses and prior to approval of specific projects. You must be given enough time to consider all of the information and make a decision.

Informed: you must be given all the relevant information to make your decision about whether to agree to the project or not. Also, this information must be in a language that you can easily understand; you must have access to independent information, not just information from the project developers or the government and you must also have access to experts on law and technical issues, if requested, to help make your decision.

Consent means that where a project will significantly impact the territory or resources of an indigenous people, they should be able to say “Yes” or “No” to it. Consent is the most controversial part of FPIC, with some agencies (such as the World Bank) and governments calling for “consultation” rather than consent.

It’s important to understand that FPIC is a process and should not be seen only as a way to get permission for the initiation of a project. The principles of FPIC should be followed during all the phases of a project, including design, implementation and monitoring.

When deciding whether or not to participate in a project, communities can use the standards of FPIC in guiding both how they will come to a decision and what they should push the government to ensure or guarantee. A few steps are quickly outlined below:

1) Find out who is developing the planned project.

2) Request balanced information (pros and cons) from project developers, government and others of your choice.

3) Hold discussions within your community and analyze the pros and cons of the project.

4) Seek independent advice.

5) Hold community negotiations with the project developers and/or government.

6) Make decisions as a community, according to the community’s decision-making process.

7) Keep ongoing communications with the project developers and/or government.

3 Extracted from the Oxfam guide mentioned in the section called “more information”:

3

3

3

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RIGHTS OF INDIGENOUS PEOPLES IN GUYANESE NATIONAL LAWThere are different instruments in Guyana that deal with indigenous rights. Unfortu-nately, they fall short of the standards discussed above, and they are not compliant with UNDRIP or ILO 169. It’s important to bring Guyana’s policies more in line with the inter-national standards outlined above, and also to ensure that the international agencies, which are in fact bound by them, actually follow them (UNDP, for example, should be following UNDRIP). It’s also critical to know what standards national laws establish where their strengths and weaknesses lie, and how to use them. In this section, we’ll go over the relevant national laws in Guyana.

THE CONSTITUTION OF GUYANA

The Constitution is the highest law of Guyana. Listed below are the most important ar-ticles of the constitution referring to indigenous peoples’ rights:

• The preamble to the Constitution states “We the Guyanese People, value the special place in our nation of the Indigenous Peoples and recognize their right as citizens to land and security and to the promulgation of policies for their communities.”

• Article 8: “This Constitution is the supreme law of Guyana and, if any other law is in-consistent with it, that other law shall, to the extent of the inconsistency be void.” This basically means that all laws of Guyana need to comply with the requirements of the Constitution.

• Article 149G: “Indigenous Peoples shall have the right to the protection and promulga-tion of their languages, cultural heritage and way of life.”

• Article 154A (1) “Subject to paragraphs (3) and (6), every person, as contemplated by the respective international treaties set out in the Fourth Schedule to which Guyana has acceded is entitled to the human rights enshrined in the said international treaties, and such rights shall be respected and upheld by the executive, legislature, judiciary and all other organs and agencies of Government …”. This means that Guyana has to comply with whatever treaty the country signs.

• Article 212S (1) Indigenous Peoples Commission (IPC) “The IPC shall establish mecha-nisms to enhance the status of indigenous peoples and to respond to their legitimate demands and needs”

Article 212T “In addition to the functions specified in article 212J (2) the functions of the IPC are [among others] to:

1) Promote and protect the rights of the indigenous peoples.

2) Raise awareness of the contribution of, and problems faced by, indigenous peoples.

3) Other functions such as promote empowerment, consultation, training or culture.

THE AMERINDIAN ACT

The Amerindian Act of 2006 is the primary legislation that regulates indigenous peoples and their affairs in Guyana and replaced the outdated 1951 Amerindian Act. While the Amerindian Act of 2006 removed the most offensive examples of discrimination found

Picking coconut, Kariako Village, Region 1, Guyana/APA Archive.

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Fishing on the Barima River, Reg 1.

in the 1951 Act, it still falls far short of full compliance with the protections of the rights of indigenous peoples found in international law. The key provisions found in the Act will be addressed below.

Some provisions of the Amerindian Act of 2006 that communities are already using to protect their land rights include those on; (1) Entry and Access, (2) Governance and (3) Village Lands.

1) Entry and Access

Sections 5 through 9 regulate entry and access to Village lands (i.e. titled lands) and re-quire a person (with exceptions listed in Section 8) who wishes to enter Village lands to apply for and obtain the permission of the Village Council. Village Councils and villages have used this provision to exercise greater control over who enters their titled lands.

2) Governance

Sections 10 through 37 regulate the governance of Village lands through a Village Coun-cil comprising of a Toshao and Councillors. Section 14 gives the Village Council the power to make rules for the village. If such rules are approved by the Minister of Amerindian Affairs they become subsidiary or secondary national legislation. More and more villages are considering drafting rules for their villages to strengthen their customary systems of non-written rules.

3) village Lands

Sections 44 through 58 regulate, among other things, the permitted uses of Village lands by residents and non-residents and the consents required for those uses.. The most im-portant protection is contained in section 48 which requires “a miner who wishes to carry out [small or medium] mining activities on Village lands or in any river, creek or stream or other source of water within the boundaries of Village lands” is required to comply with a number of requirements, including obtaining “the consent of at least two-thirds of those present and entitled to vote at a Village General Meeting.” Villages in mining areas are using this provision to prevent mining activities on their titled lands or to negotiate fair benefits for mining on their lands. However, this provision fails to protect the right of indigenous peoples to give or withhold their consent to large scale mining, a failure that is in violation of Guyana’s treaty obligations under international law.

The Amerindian Act of 2006 provides limited protection for the rights of indigenous peo-ples in Guyana, but it does not adequately protect some important rights guaranteed to them by international law and by Guyana’s treaty obligations under international law.

CONCERNS WITH THE AMERINDIAN ACT

In 2006, after examining reports on Guyana submitted by both the government and by NGOs, CERD issued its Concluding Observations, in which it critiqued the Amerindian Act for falling short of international standards. It expressed concerns about the general lack of information about Amerindians in Guyana and their “equal enjoyment of the rights guaranteed in the Convention.”4 The Committee was also concerned about the absence of a national strategy or plan of action for systematically addressing any inequalities that

members of indigenous communities face in the enjoyment of their rights. (Art. 2). The Committee stated that the Act gives too much discretionary power to the Minister of Amerindian Affairs in terms of limiting indigenous land rights. The Committee urged Guyana “to recognize and protect the rights of all indigenous communities to own, de-velop and control the lands which they traditionally occupy, including water and subsoil resources, and to safeguard their right to use lands not exclusively occupied by them, to which they have traditionally had access for their subsistence, in accordance with the Committee’s General Recommendation No. 235 and taking into account ILO Convention No. 169 on Indigenous and Tribal Peoples.” CERD concluded that there is an urgent need for adequate procedures and clear and just criteria for resolving land claims.

LAND TITLING IN THE AMERINDIAN ACT

The 2006 Amerindian Act sets out a procedure for applying for title and extension of title. Unfortunately, that process depends on decisions made solely and arbitrarily by the Minister of Amerindian Affairs. This procedure follows a set of steps, or a “phased” approach for granting titles to villages; these areas are then demarcated and only after

4 CERD/C/304/GUY/CO/14, April 4, 2006 5 CERD, General Recommendation No. 23: Indigenous peoples, at para. 5.

16 Indigenous Rights in National and International Law

this is done can the village request an “extension.” The Ministry of Amerindian Affairs has, on a number of occasions, reduced the area requested in the titling application, telling communities, without any justification, that the area they have applied for is too large and that they should request an extension later. In other cases, the Ministry has rejected extension requests, again stating without justification that the area applied for extension is too big. The Amerindian Act gives deadlines for responses by the Minister to requests for extensions: 1 month for an initial response, 6 months for an investigation to begin (though the law doesn’t say how much time the investigation may take), and 6 more months for deliberation and a final decision. These are regularly not met, however.

The government has issued a number of titles and has demarcated some of them since the 2006 revision of the Amerindian Act. Presently, they say that about 14,000 square miles (about 3.6 million hectares) have been titled and demarcated. However, official ti-tling efforts have often been riddled with defective titling and demarcation procedures, and have thereby created more problems for some communities than they have helped to resolve. Some of the “new” titles issued recently by the government are not really new ones since those communities were already in possession of title documents from a pre-vious titling exercise (i.e. in 1976 or 1991). In fact, some of those “new” titles issued af-ter demarcation actually reduced the amount of land compared to what had previously been “granted”.

As highlighted in the 2006 Concluding Observations of CERD on Guyana, the procedures and regulations put forth by the Amerindian Act for the demarcation and titling of indig-enous peoples’ lands (Sections 59–64) are not consistent with international standards and obligations, nor do they respect indigenous systems of customary tenure. Among other deficiencies, the Act allows for the titling of village lands, but does not adequately provide for the recognition and protection of lands, territories and resources used by indigenous communities that are beyond the boundary of the village proper, which is a violation of international law. It does not set out procedures that are transparent, fair, or objective, it depends too heavily on the Minister’s decision of what is “reasonable” or not, and it gives the Minister arbitrary decision making powers. Lastly, it places dis-criminatory requirements on indigenous communities wishing to apply for land title, e.g., excluding settlements of fewer than 150 people and/or less than 25 years’ duration.

Under the existing Amerindian Act, Guyana does not recognize indigenous peoples’ ter-ritorial rights. Land rights are granted to individual villages, rather than to a people or to a group of main villages that have, over time, jointly shared extended areas for hunt-ing, fishing, and gathering. This method of granting land rights ignores customary law and tenure systems. Legal rights to FPIC and control over land and resources under the Amerindian Act only extend to titled village areas, and thus often exclude large tracts of traditional territories of indigenous peoples. Untitled communities have limited legal rights to their traditional lands, and rules for consultation or FPIC do not apply to them under the Act.

Other issues such as mining and logging have had a profound impact on land titling for Amerindian communities in Guyana. Competing interests such as mining and logging continue to operate almost unchecked in many parts of the interior of Guyana, creating social and environmental problems for communities. Given the procedures set forth by the Act, it’s common for title descriptions to allow existing mining concessions previ-

ously granted to non-indigenous miners to continue within the area being claimed by and titled to an indigenous community. In some cases, these concessions and permits al-most completely take over the lands designated by the titles. In other areas (e.g. Region 7, Region 8 and Region 9), mining and logging concessions are encroaching on ancestral (but untitled) lands without the free, prior and informed consent of the customary in-digenous landowners who have claimed their lands since the 1969 Amerindian Lands Commission, or even prior to that.

Besides the Amerindian Act, other pieces of legislation in Guyana include provi-sions related to Amerindians. These include the:

• The Forest Act

• The Mining Act

• The Environmental Protection Act

• The Protected Areas Act

• The Iwokrama Act

• The Kaieteur Act

Most times, when a new piece of legislation is enacted, the APA publishes a brief analysis of the legislation, with a focus on its implications for Amerindians. Ask the APA office for more details.

MORE INFORMATION

For more information, refer to the following documents:

• The Community Guide to the UN Declaration on the Rights of Indigenous Peoples, published in 2010 by the Australian Human Rights Commission http://www.hreoc.gov.au/declaration_indigenous/downloads/declaration_guide_shorter.pdf

• Guide to Free, Prior and Informed Consent, published in June 2010 by Oxfam Australia. http://www.oxfam.org.au/resources/filestore/originals/OAUs-GuideTo-FreePriorInformedConsent-0610.pdf

• Indigenous & Tribal People’s Rights in Practice - A Guide to ILO Convention No. 169, published in 2009 by the ILO. http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_106474.pdf

• The Amerindian Act of 2006.

• UN Committee on the Elimination of Racial Discrimination: Concluding Observations, Guyana, published in 2006. http://www.unhcr.org/refworld/publisher,CERD,,GUY,4537797711,0.html

• Guides on FPIC, ILO 169, CERD, etc, on the Forest Peoples Programme’s website: http://www.forestpeoples.org/publications/results/taxonomy%3A2

• Some Examples of Differences between the Amerindian Act 2006 and the United Nations Declaration on the Rights of Indigenous Peoples and International Law Generally, by the APA.

• Briefing of the Protected Areas Act of 2011, by the APA.

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AMERINDIAN PEOPLES ASSOCIATION