High Court rules in historic Amerindian land rights claim

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In a historic ruling, Chief Justice (ag) Roxane George ruled in favour of a land claim by the Indigenous peoples of the Upper Mazaruni, who are seeking legal recognition of their traditional and ancestral lands.

While handing down her ruling at the Demerara High Court, the Chief Justice, found that while the Akawaio and Arekuna Amerindians have rights to the land, they do not have exclusive rights, since there are also non-Amerindian peoples living on the said land.

The plaintiff in the 20-year-old case was Van Mendason on behalf of all the members of the Akawaio and Arekuna Amerindian communities in the Upper Mazaruni District. The named defendant is the Attorney General of Guyana.

The genesis of the case stems from a 1967 decision of the Government of Guyana to institute an Amerindian Lands Commission, tasked with mapping and suggesting titles to be issued to Indigenous communities.

In 1991, the title was granted individually to each community, though they had requested to hold collective title to their traditional territories.

The villages of Paruima, Waramadong, Kamarang (Warawatta), Kako, Jawalla and Phillipai in the Upper Mazaruni have long sought legal title over the area defined by the 1959 Amerindian District as one Akawaio/Arekuna district.

Toshaos, other representatives of the Upper Mazaruni District Council and staff of the APA attending the virtual hearing of the High Court where Madam Chief Justice Roxanne George will deliver her decision in the case of W Van Mendason, et al -V- The Attorney General of Guyana. (Photo: APA/December 16, 2022)

The plaintiffs’ claim, inter alia, sought declarations that “the Akawaio and Arekuna peoples from time immemorial have continuously occupied and used to the exclusion of all others certain tracts of land described by virtue of which they have had and still have an unextinguished aboriginal title at common law and in equity [or] alternatively a declaration that prior to the cession of Guyana to Great Britain in 1803, the Akawaio and Arekuna peoples enjoyed under Roman-Dutch common law an aboriginal title to the same area which remains vested and is still vested in the membership of their indigenous communities.”

Attorneys-at-law Nigel Hughes and Jed Vasconcellos represented the applicant, while Attorney-at-Law Kamal Ramkarran and Solicitor General Nigel Hawke represented the state.

The State had contended that the Government of Guyana treats all its citizens including Amerindians in an equally reasonable and lawful manner, and therefore put the plaintiff’s claims of discrimination at a loss.

In her ruling, the Chief Justice said that the plaintiff failed to lead evidence to support the claim for compensation for impairment of the rights and the plaintiffs and subject land.

In this regard, she said, there is no sufficient evidence of the privation of property to permit such an award.

However, she said that the Arekuna and Akawaio have satisfied the criteria in both views expressed by the court that the state of communal, aboriginal, or native title has been established, based on the plaintiff’s evidence proving the occupation of subject matter and time immemorial.

Nevertheless, the Chief Justice added that the evidence disclosed that the communities do not have exclusive possession of the subject land. Evidence during the trial found that there would have been and most likely still are non-Amerindians including those providing health, education and other government services.

She also highlighted several sections of the old Amerindian Act which she deemed to be unconstitutional since it had committed an arbitration of depreciation of property, the freedom of conscience, expression and assembly and association.

Cost was awarded to the plaintiff in the sum of $250,000.

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