Leg­is­la­tion to gov­ern African an­ces­tral lands needs na­tional con­sen­sus

-at­tor­ney tells in­quiry

Stabroek News - - REGIONAL NEWS -

Any leg­is­la­tion gov­ern­ing African an­ces­tral lands should be a re­flec­tion of a na­tional con­sen­sus, ac­cord­ing to in­ter­na­tional le­gal con­sul­tant and ex­pert on na­tive and tribal rights Melinda Janki.

“I per­son­ally would say that one should do this through leg­is­la­tion that is built on na­tional con­sen­sus. I don’t think it should be done on leg­is­la­tion that’s put through par­lia­ment, and that has not had pub­lic con­sul­ta­tion. The leg­is­la­tion should re­flect a na­tional con­sen­sus,” Janki stated yes­ter­day when she ap­peared be­fore the Com­mis­sion of In­quiry (CoI) in­ves­ti­gat­ing African an­ces­tral land mat­ters yes­ter­day at the Guyana Lands and Sur­veys Com­mis­sion.

The point em­pha­sised by Janki at the be­gin­ning of her pre­sen­ta­tion is that what­ever de­ci­sions are made should be within the pub­lic in­ter­est, and within the con­sid­er­a­tion of eq­uity and jus­tice.

“…I would also sub­mit for con­sid­er­a­tion by the com­mis­sion­ers that the pub­lic in­ter­est re­quires that de­ci­sions that re­late to land, which is the most fun­da­men­tal thing that we have—this is the ba­sis of com­mu­nity, it is the ba­sis of our iden­tity, it’s also the ba­sis of the econ­omy—de­ci­sions re­gard­ing land should be made ac­cord­ing to law and not ac­cord­ing to dis­cre­tion…,” Janki said.

Janki stated that she be­lieves that what­ever cri­te­ria are es­tab­lished to de­ter­mine how th­ese lands are to be dealt with should be ob­jec­tive. Such cri­te­ria would in­clude oc­cu­pa­tion of land; use of the land, in­clu­sive of land un­der the pro­tec­tion of the peo­ples in ques­tion, and not nec­es­sar­ily land be­ing worked by them; the size of the land be­ing oc­cu­pied; com­pet­ing in­ter­ests; and cus­toms and tra­di­tions.

In cases where com­pet­ing in­ter­ests arise, Janki rec­om­mended that con­sen­sus can be drawn through “ne­go­ti­a­tion and gen­eros­ity,” pos­si­bly through ei­ther com­pen­sa­tion, or land be­ing pro­vided else­where. She stated that the com­mis­sion should not per­pet­u­ate a tra­di­tion where they “pile in­jus­tice upon in­jus­tice,” and she re­minded the com­mis­sion­ers that lands can­not be taken away from peo­ple— un­less they were ac­quired fraud­u­lently— as they are pro­tected by the con­sti­tu­tion.

“I think if peo­ple have been there for a very long time, we need to find some ob­jec­tive cri­te­ria to de­ter­mine, as part of the set­tle­ment, how to deal with those lands and again, this has to be done, I think, through a le­gal process. This has to be done through ob­jec­tive cri­te­ria that the na­tion agrees with, and then peo­ple have to see that jus­tice is done,” she said.

Cus­toms and tra­di­tions, she opined, are rel­e­vant and should be ac­knowl­edged, but should not be a de­ter­min­ing fac­tor, as many tra­di­tions were de­stroyed. To make such a re­quire­ment, she said, would be to “per­pet­u­ate in­jus­tice.”

Ad­di­tion­ally, she ar­gued that oc­cu­pa­tion of land should not nec­es­sar­ily be a de­ter­min­ing fac­tor, as there may be in­stances where peo­ple may have been in pos­ses­sion of land, and were forced off for var­i­ous rea­sons. It is in this vein that she ad­vised that our his­tory also needs to be taken into ac­count.

“…So there must be a na­tional con­sen­sus in which we un­der­stand the value of the an­ces­tral lands and we un­der­stand the im­por­tance of ac­knowl­edg­ing the fact that th­ese lands, some­thing has hap­pened to them and we need to re­store them. And of course, if there are com­pet­ing claims, we can find ways to deal with that eq­ui­tably,” she said. “…What we don’t want is a court in which you have a win­ner takes all sit­u­a­tion be­cause all that hap­pens is you have a loser and a win­ner and we’re no bet­ter off. The pur­pose of deal­ing with African An­ces­tral lands should be heal­ing and rec­on­cil­i­a­tion, not win­ning and los­ing,” she added.

His­tory task force

“One of the is­sues that I think is def­i­nitely within the pub­lic in­ter­est is the ques­tion of the en­slaved Africans and the con­tri­bu­tion that they have made to the wealth, the cul­ture, the his­tory, of Guyana. We can­not look at land in iso­la­tion from that. We can­not look at land rights in iso­la­tion from the con­tri­bu­tion made by the en­slaved Africans. Nor can we look at land and nor can we talk about an­ces­tral lands un­less we are pre­pared to in­ves­ti­gate what hap­pened to the en­slaved Africans who es­caped and who es­caped and con­tin­ued to es­cape de­spite see­ing their fel­lows hanged, tor­tured, bro­ken,” Janki stated.

She asked that in ad­di­tion to the land pur­chased by freed slaves, that the lands also oc­cu­pied by en­slaved Africans who es­caped to the in­te­rior also be treated as an­ces­tral lands.

“Where are th­ese com­mu­ni­ties and can we re­ally talk about an­ces­tral land if we do not also talk about the lands that were oc­cu­pied, and used by en­slaved Africans who es­caped and who, by the way, demon­strated that they could gov­ern them­selves, that they could or­ga­nize them­selves, that they could feed them­selves and that they could ed­u­cate their chil­dren. What hap­pened to those lands?” she ques­tioned.

In the at­tor­ney’s opin­ion, the idea of an­ces­tral lands is one that has be­come con­fused, and so she ad­vised that a def­i­ni­tion unique to Guyana be es­tab­lished based on his­tory, while also rec­om­mend­ing that the term be con­fined to lands held by the Africans.

“An­ces­tral lands is a term that should be re­stricted to the en­slaved Africans, to the freed Africans and to their de­scen­dants. When you talk about an­ces­tral lands, I think that there are two roots of

ti­tle in re­la­tion to the lands that were pur­chased…,” Janki said.

“Un­der­ly­ing the claims for an­ces­tral lands some­times is an idea that they are pre-colo­nial. I want you to scratch that im­me­di­ately and I sug­gest that the term an­ces­tral lands is re­ally an un­for­tu­nate one, but now that we’ve got it, we should use it and re­strict the use of that to the African an­ces­tral lands. No point in try­ing to use it in re­la­tion to Amerindian com­mu­ni­ties be­cause it doesn’t work,” she added.

Janki stated that his­tory is not prop­erly taught in schools and that there are as­pects of his­tory that need to be ac­knowl­edged, re­gard­less of how painful that his­tory may be.

She ad­vised that there be an au­dit of of­fices to record and check all his­tor­i­cal records so they can be pre­served for pos­ter­ity.

Janki sug­gested to the com­mis­sion that a his­tory task force be es­tab­lished to ex­am­ine the lands that were bought by freed African slaves—when they were bought, where they were lo­cated, and what, ul­ti­mately, hap­pened to them.

She noted that af­ter freed Africans ac­quired land, the “monoc­racy tried ev­ery­thing” to take the lands back.

Janki noted too that there is more than one sys­tem gov­ern­ing land ti­tling in Guyana, and re­lated that un­less land is held by trans­port or ti­tle, it is con­sid­ered state lands.

“It might ex­ist mo­rally, it might ex­ist in some­one’s mind, it might be a pas­sion­ately strongly held view, it might be a plea for jus­tice—this is my land—but legally, it doesn’t ex­ist un­less it has a le­gal ti­tle. And that ti­tle is go­ing to be recorded some­where in the deeds reg­istry or the lands reg­istry. In or­der to en­sure that the lands legally ex­ist we would need to ac­cept that there has been in­jus­tice in the past and is­sue proper ti­tles,” she added.

(Com­mis­sion of In­quiry photo)

Melinda Janki

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