Amerindian land rights case: Akawaio, Arekuna peoples appeal part of CJ’s ruling

A long-awaited judgement issued by acting Chief Justice Roxane George, SC last December, in which she affirmed the Akawaio and Arekuna peoples’ rights to lands in Region Seven (Cuyuni-Mazaruni), but held that this right was not to the “exclusion of all others” and subject to State lands and titles, has been appealed to the Court of Appeal of Guyana.

The appeal was filed by Van Mendason, Czar Henry, Anderson Hastings, Lawrence Anselmo, Dutchell Isaacs, and Norma Thomas (the appellants) jointly and severally, and on behalf of the members of the Akawaio and Arekuna Amerindian communities, against the Government.
Their main contention is that Justice George erred in fact and in law when she found that even though the Indigenous tribes had proved and established their occupation of the land from time immemorial by showing a substantial connection between them and the land, the State and/or the Government still possessed radical or ultimate title to the lands.

No exclusive right
In her December 16, 2022 decision, Justice George had ruled that the Akawaio and Arekuna peoples do not have “exclusive right” to lands in Region Seven, as they were contending in a case filed against the Government since 1998 — 24 years ago.
The Akawaio and Arekuna are Amerindian tribes that occupy the Upper Mazaruni area. In the case at reference, they had sought legal recognition of their rights to traditional and ancestral lands.
Delivering her ruling, Justice George had firstly apologised for the delay in the judgement, while noting that though it was proven through testimonies and other evidence that the tribes have been occupying the lands from time immemorial, they do not have an exclusive right to the lands, because non-Amerindians have also settled on the lands. According to her, although it had been confirmed that during colonial times the tribes had the sole occupation of the lands after Guyana became a sovereign state, non-Amerindians began occupying the lands, in particular those persons providing Government services.
“The Learned Trial Judge erred in law in failing to take judicial notice of, and take into consideration, the Roman Dutch legal underpinnings in Guyanese property law, under which the State does not hold radical title to lands, although it retains sovereignty over the lands,” the appellants’ Attorney-at-Law, Nigel Hughes, argued in a Notice of Appeal filed on January 26.
Further, the lawyer contended that the Chief Justice again erred in law in concluding that the State had radical title to the lands without there being any evidence of, or her accepting evidence which inferred, the acquisition of radical title by the State.
Justice George had also referred to the lands being occupied by the Seventh-Day Adventists. She had said there also is evidence that some of the lands in question are owned by the State, especially those in the vicinity of Mount Roraima.

Not prudent
Considering this, and the fact that there may be competing claims to the lands by other groups, she found that it would not be prudent to grant a declaration giving the tribes possession of the lands “to the exclusion of all others”. As such, the tribes’ claim for damages resulting from “their unlawful deprivation of the lands” was refused.
But in their appeal, the appellants contended that Justice George “erred in law when she found that a declaration didn’t need to be granted that the tribes were entitled to a legitimate expectation that their communal ownership of the lands, occupied from time immemorial, and the rights attached thereto, would be recognised by the State, and that no step would be taken by the State or its representatives, assigns or licensees, to impair it.”

Erred in law
According to Hughes, the Chief Justice erred in law once more by refusing to recognize that the Akawaio and Arekuna peoples’ aboriginal title was to the “exclusion of all others”, despite finding that they were the exclusive occupants of the land at the time sovereignty was acquired by the Crown, in particular.
“The Learned Trial Judge erred in law by paradoxically holding that the subsequent occupation of the subject lands by State agencies, the church, and private persons rendered the appellants’ occupation nonexclusive, while simultaneously holding that adverse possession and the system of titling in Guyana was not relevant in respect of communal ownership of land.”
The lawyer further argued that Justice George erred in law and in fact by finding that the Akawaio and Arekuna peoples’ communal aboriginal title became non-exclusive as a result of the subsequent grant of titles by the State without there being any evidence of how the State acquired the authority to grant those titles.
In the end, Justice George had declared that the Indigenous tribes hold communal and aboriginal titles to the lands, but those are subject to State lands and titles. She had ordered the State to pay the applicants, now appellants, $250,000 in costs.
28 years ago, a group of Indigenous peoples of the Upper Mazaruni filed a court action against the Government, seeking legal recognition of their traditional and ancestral lands. After Guyana gained independence from the British in 1966, the following year, the Government instituted an Amerindian Lands Commission that was tasked with mapping and suggesting titles to be issued to Indigenous communities.
In 1991, titles were granted individually to each community, although they had requested to hold collective titles to their traditional territory. According to reports, 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.
Dissatisfied at their request being ignored, the Arekuna and Akawaio peoples took the landmark case to court, to fight for their rights as Indigenous peoples of Guyana.
During the trial, they had submitted archaeological evidence showing that their people have occupied the Mazaruni River Basin for over 2000 years, and that their homes, cultures and livelihoods depended on their territory.
The State had contended that it treats all of its citizens equally, and therefore the tribes’ contention that they were being discriminated against on the ground of their race in respect of being granted legal recognition of their rights to the lands was unsupported.
Final submissions in the case were made in 2017, prompting several Indigenous community leaders to protest the lengthy delay in bringing the matter to a conclusion.
They had accused the judiciary of denying them their right to access to justice, which, according to the Constitution of Guyana, requires a case to be determined within a reasonable time.
Though the tribes had welcomed the Chief Justice’s ruling, they had indicated that they would appeal portions of it, which, according to them, needed clarification.(G1)