Guyana's Commission States Indigenous Peoples Make Some Progress
7/21/99
*******************************
RELAYED TEXT STARTS HERE:
Title: Guyana Information Update
Guyana's Constitutional Reform Commission Submits its
Report: Indigenous Peoples Make Some Progress
Source: Forest Peoples Programme
1c, Fosseway Business Centre
Stratford Road
Moreton-in-Marsh, GL56 9NQ
United Kingdom
Tel. 44. 1608. 652. 893.
Fax. 44. 1608. 652. 878
Email : info@fppwrm.gn.apc.org
Status: Copyright 1999, contact source for permission to reprint
Date: July 21, 1999
Guyana's Constitution Reform Commission (CRC) submitted its final
report to the Guyanese Parliament on Saturday, July 17th. This report
is the culmination of more than six months work that included public
hearings, written submissions, expert testimony and extensive debate
within the Commission. One of the most hotly debated items was the
rights of Indigenous peoples and the extent, if any, that these
rights should be recognised in the reformed Constitution. For their
part, Indigenous peoples showed strong interest in the work of the
Commission and far outnumbered other Guyanese in terms of attendance
at the public hearings. This interest and the attendant
organisational work led to the adoption of a number of positive
recommendations for Indigenous peoples in the CRC's report. While a
number of key demands were not met (inclusion of aboriginal rights to
lands, in particular), the recommendations are an important step
forward and may have far reaching implications for the future
recognition and protection of Indigenous rights in Guyana.
The decision to reform Guyana's 1980 Constitution followed serious
civil unrest after the main opposition political party, the PNC,
challenged the validity of the December 1997 general election in
which the PPP/Civic won a second term in office. It was formalised
in early 1998 with the signing of the Hermandston Accord by the
leaders of the PPP/Civic and the PNC under the auspices of the
Caribbean Community (CARICOM). This led to the passage of the
Constitution Reform Commission Act of 1999 that established the CRC
and set out its mandate and terms of reference. The CRC was composed
of 20 members, 10 from the political parties and 10 from civil
society (women, trades unions, youth, religious representatives, the
Bar Association and others). Successful lobbying by the Amerindian
Peoples Association of Guyana (APA) ensured that Indigenous peoples
would also have one representative on the CRC.
Ms. Jean La Rose of the APA was chosen as the Indigenous
representative by the three national Amerindian organisations and
village leaders at a meeting held in Georgetown in January 1999. Two
weeks later she was elected as the Vice-Chair of the CRC. At the
same meeting in January, the village leaders and organisations
formulated and endorsed a statement containing the Indigenous
community's proposals for reform of the Constitution. Entitled,
Statement of the Amerindian Toshaos (Captains) and Amerindian
Organisations of Guyana Concerning Reform of Guyana's Constitution
(Toshaos Statement), this statement sets out a series of far reaching
proposals that seek to redefine prevailing political, economic and
cultural relations between Indigenous peoples and the Guyanese state.
It also formed the basis for the vast majority of the submissions
made by Indigenous peoples and was individually endorsed by 70 of the
77 recognised Toshaos at the National Toshaos Conference held in
April 1999.
The Toshaos Statement highlighted aboriginal rights to lands and
resources, including sub-surface resources, and to autonomy and self-
government as inherent and fundamental. Lamenting the many
unresolved land rights issues in Guyana, it proposed establishment of
a land claims settlement procedure, whereby Amerindians and the State
would negotiate mutually acceptable and constitutionally protected
settlement agreements. As we shall see below, this primary concern
has only partially been dealt with by the CRC. The Toshaos Statement
also proposed that the Constitution recognise strong environmental
rights; that broad participation rights and consent form the basis
for a new relationship with the State, especially in connection with
development activities and the exploitation of natural resources;
that detailed cultural rights, including control over intellectual
and cultural property rights be recognised; that a right to bilingual
and bicultural education be included; that Guyana be recognised as
pluri-cultural and assimilation be rejected; and, that Amerindians
have the right to directly elect the Minister of Amerindian Affairs.
Amerindian rights were one of the most intensively debated issues in
the CRC. Initially, there was a great deal of opposition to dealing
with Indigenous issues at all. Many members of the CRC stated that
discussing Amerindian rights, as distinct from rights of general
application, would exacerbate ethnic tensions and privilege one group
over another. The efforts of Ms. La Rose, coupled with support from
the Bar Association, women's and one political party representative,
to lobby and educate the various members of the CRC created some
political space and a Subcommittee on Amerindian Rights was
established in April. This Subcommittee submitted its report in May,
which basically restated the points contained in the Toshaos
Statement. Most of this report, including all references to land
rights, consent and even bilingual education, was rejected by the
majority of the CRC. However, proposals for inclusion of Indigenous
cultural rights in the fundamental rights section of the Constitution
and the preamble were accepted and subsequent lobbying presented an
opportunity to resubmit a number of the proposals at a later date,
including the land claims settlement procedure (see below).
Concerning Indigenous rights in general, the final report of the CRC
explained that "The Commission was of the view that the Indigenous
People, the original inhabitants of Guyana, had special rights which
should be elevated and enshrined in the Constitution. Convinced of
the need to preserve and foster our cultural diversity, Commissioners
sought to ensure that the culture and way of life of Indigenous
Peoples be given Constitutional protection." (p. 190) This is
amplified in the specific recommendations of the CRC which state
"That the rights of the Indigenous Peoples should be placed under
Fundamental Rights and provision made in the Fundamental Rights
section for the protection of Indigenous culture and way of life,
which should include language." (p. 191) The inclusion of 'language'
is an attempt to ensure that bilingual education will be guaranteed.
This is complemented later in the CRC report by a recommendation
concerning the right to education, which provides that the State has
an obligation to ensure "the recognition of the cultural diversities
of the communities and the need of an appropriate curriculum." (p.
218) While found among the non-justiciable principles and not a right
to bicultural education, this does represent a meaningful step in the
right direction, especially when coupled with bilingual education
programmes.
Concerning autonomy and self-government, the CRC's report states that
it "accepted the argument that the customary institutions of the
Indigenous Peoples should be granted greater autonomy and serve as
the vehicles of empowerment, consistent with the principles of self-
determination and the devolution of power away from the centre. The
village councils and the Council of Toshaos were identified as such
institutions. It was felt that the scope and authority of these
bodies and their relation to other organs of State should be
considered and pronounced on by the Indigenous Peoples Commission
[see below]." (p.191) This was followed by the specific
recommendation that "self-determination should be recommended on the
basis of the concept of devolution of power to institutions within
the local government system." (Ibid) How, or whether, this positive
statement and recommendation will translate into Constitutional
language and where it will fit in the Constitution (Fundamental
Rights, Local Government, etc?) remains to be seen. Nonetheless, it
does for the most part accord with the intent of the Toshoas
Statement, which was to ensure that Indigenous governmental authority
be substantially increased and interference from the central
government minimised, if not ruled out altogether.
Environmental issues were treated seriously by the CRC. Its report
states: "Taking into account the special responsibility imposed by
Guyana's immensely rich bio-diversity, the Commission elevated the
protection of the environment to Constitutional status. In addition
to being inscribed in the preamble, the right of Guyanese citizens to
a pollution free, healthy environment will be elevated to a
fundamental right." (p. 215) It recommended that the following
language be incorporated into the Fundamental Rights section:
"Everyone has the right (a) to an environment that is not harmful to
their health or well-being; and (b) to have the environment that is
not protected, for the benefit of present and future generations,
through reasonable legislative and other means that (i) prevent
pollution and ecological degradation; (ii) promote conservation; and
(iii) and secure ecologically sustainable development and use of
natural resources while promoting justifiable economic and social
development." (p. 217) If included in the reformed Constitution,
this language could go a long way towards providing effective redress
for the rampant environmental degradation, in some cases destruction,
of Indigenous and other lands by the mining and logging industries in
Guyana.
The CRC recommended that Fundamental Rights section be strengthened
by amending a number of articles in the Constitution to expand
judicial review of State acts and omissions in connection with
fundamental rights. The present Constitution allows judges to avoid
hearing Constitutional motions if another form of redress may exist.
The independence of the judiciary has also been strengthened to
ensure greater checks on abuses of power by the executive and
legislature.
The issue of Indigenous land rights was especially contentious in the
CRC. Indigenous Peoples had argued that these rights are inherent and
sought language similar to article 35 of the 1982 Canadian
Constitution, which recognises and affirms aboriginal rights to lands
and resources. Instead of making tough decisions, the CRC ducked the
issue and passed it on to another (proposed) institution. In doing
so it ignored the demands of the thousands of Indigenous people who
submitted statements to the CRC as well as the collective voice of
the elected village leaders and Indigenous organisations. The CRC's
report states that "The complex issue of land rights was carefully
considered in its several dimensions, including the extent to which
acknowledgement of the land rights of one group might affect the
status of the demands of any other group. The issue of ancestral
rights of African-Guyanese was brought forward as one such instance.
It was finally decided to include the land rights question among the
matters to engage an Indigenous Peoples Commission (IPC)."
The IPC was one of the issues resubmitted for consideration in the
closing days of the CRC's discussions after it had been rejected in
the debate on land rights and Constitutional Commissions. To the
surprise of many onlookers, the resubmitted proposal for the IPC was
unanimously accepted and Ms. La Rose was asked to draft a proposal
outlining the possible mandate of the IPC for further discussion.
This proposal was accepted and the CRC's report includes the
following recommendation, "That an Indigenous Peoples' Commission be
established to look into and make recommendations for specific issues
including: land rights; improvements in legislation affecting
Amerindians; the Amerindian Act; the scope and authority of the
Council of Toshaos; empowerment with regards to local government and
the Amerindian village council system; economic and education policy;
and cultural protection and preservation." (p. 191)
Depending upon its ultimate composition and powers the IPC could play
a major role in addressing the myriad of pressing issues affecting
Indigenous peoples in Guyana and could certainly be the locus of a
land claims settlement procedure as proposed by the Toshaos
Statement. The issue of membership in the IPC, and how the members
are chosen are important considerations that will have much to do
with the future efficacy of the IPC. The only guidance on this issue
given in the report of the CRC is that "operating procedures and
mechanisms for choosing the Commission's membership should be
carefully designed to minimise undue influence by the Executive and
the consequent public perception of partisanship in their
functioning." A Human Rights Commission, which would address issues
of discrimination, among others, was also recommended and may be of
utility once operational.
To sum up, the CRC's recommendations contain a number of positive
statements that may form the basis for greater recognition and
protection of Indigenous peoples' rights in Guyana in the years to
come. Clearly Ms. La Rose's efforts must be applauded for getting
this much from a frequently hostile CRC that was initially unwilling
to even discuss Indigenous rights and rejected the vast majority of
her proposals on more than one occasion. Nonetheless, the failure to
recognise and protect Indigenous land rights as a fundamental right
is a major shortcoming and very disappointing.
The CRC's recommendations are simply that, recommendations to be
debated and approved, modified or rejected by the Parliament. After
approval, the new Constitution must be drafted and then approved
again by both Parliament and public referendum. All of this must
take place before the next general election in January 2001. The
language of the CRC's recommendations is relatively broad and may be
expanded upon or limited in the Parliament, so there is still an
opportunity for Indigenous peoples to lobby for strengthening the
various recommendations or even adding new elements not contained in
the CRC's report. At a minimum, the CRC's recommendations must be
defended and translated into acceptable Constitutional language.
For further information, please contact:
Amerindian Peoples Association of Guyana
A90 Carmichael Street, South Cummingsburg
Georgetown, Guyana
Ph. 592-2-70275
Fax: 592-2-38150
Email: apacoica@guyana.net.gy
Forest Peoples Programme (FPP)
1c Fosseway Business Centre, Stratford Road, Moreton-in-Marsh
GL56 9NQ, England
Tel: 44 1608 652893 Fax: 44 1608 652878
The FPP is an affiliate of the World Rainforest Movement