By Mohabir Anil Nandlall, MP, Guyana
Speaking on a Motion moved by the PPP/C in the National Assembly on the establishment of the Commission of Inquiry (COI) by the President to enquire into claims of loss of “ancestral lands” and Amerindian land issues, I expressed my views on both the undesirability and unsuitability of such a mechanism to address the issues with which it was tasked to examine. I resolutely maintain that the facility of the COI is absolutely abused by the President and continues to be misused to address issues that State/Government agencies and Public Officers are paid millions of dollars to focus on.
In my presentation in the National Assembly, I made it clear that I am not opposed to a mechanism established to address the claims relating to ‘ancestral lands’, once properly defined. However, I argued that a COI is not such a mechanism. Moreover, to merge ancestral land issues with issues relating to Amerindian lands is conceptually wrong and hopelessly inconvenient. I pointed out that these issues have no commonality; that they are born out of a different historical evolution; that they are geographically, philosophically and legally poles apart. I cautioned that such a COI will be divisive and will aggravate tensions among different segments of our population. I also posited that to set up a COI to address issues concerning only two ethnic groups of this country and excluding others, is an expression of ethnic discrimination which is outlawed by the Constitution, our Supreme Law.
My colleagues in the Opposition proffered similar arguments on this matter, both in and out of the National Assembly. Our admonitions fell on deaf ears. We had requested a halt of the Commission and wider consultations on how to proceed on these very sensitive issues. We were unsuccessful. The Commission continued its work.
A Village on the West Coast of Berbice
As predicted, the controversies and divisions about which we cautioned have already begun to emerge. The testimony of one individual that his ancestors purchased a village on the West Coast of Berbice and acquired transport therefor, has precipitated quite a reaction from over a hundred families who claim to have been in occupation of lands in that village, by themselves and through their ancestors, for over a century. I met with over a hundred of these persons last Tuesday in the village. They were very agitated and genuinely concerned about the future of their properties. They informed me that persons have been going around in the village informing them that they will soon have to pay rent for the lands which they occupy.
Some of these residents showed me transports which they have acquired over the years: some through inheritance, some through title by prescription and some by sale. Having regard to the appearance of the dozens of dwelling houses adorning the village; the condition of the land upon which they stand; the sizes of the fruits and other trees that are on these lands and other aspects of the physical environment, it is clear to the naked eye conducting a most cursory survey, that these persons have been occupying these lands for several decades. In the circumstances, I am of the considered view that, in the absence of fraud, it is legally impossible to successfully challenge their legal title to these lands, whether these titles are formal paper titles, or possessory titles acquired through the nature, quality and longevity of their occupation. No fraud is apparent in these circumstances.
A transport is a formal title to land issued under the Deeds Registry Act. There are a variety of ways by which a person can lawfully lose their legal title (transport) to land. A transported owner can lose his title, voluntarily or involuntarily. He can lose his title voluntarily by selling or gifting or by bequeathing to another by Will, the land to which the transport relates or a part thereof.
Involuntarily, he can lose it by failing to pay a debt for which the land is mortgaged as collateral; by a Court obtaining judgment against him and that land can be the subject of levy proceedings in order to satisfy the judgment; it can be sold by a local authority at parate execution for non-payment of rates and taxes; or someone can squat on it for 12 successive years, unopposed and uninterrupted, after which that person lawfully acquires a possessory title to the land. That person can formalize that title by approaching a Court of competent jurisdiction for a declaration of title by prescription. In the end, such a person will be issued with a transport.
Importantly, it is not necessary for a formal title to be applied for. The acquisition of a possessory title consequent upon 12 years of adverse and exclusive possession kills the original title which resided with the transported owner. The declaration of title by a Court of competent jurisdiction simply declares the existing status quo and lays the basis for a formal title to be issued to the person in whose favor the declaration is made.
Upon death and in the absence of a Will, land owned by transport will devolve to the beneficiaries of its owner by the rules of intestacy. These persons can alienate or lose their legal interest in these lands in the same manner that an owner can.
In the circumstances, the assertion that one may have held a transport in respect of a piece of land a century and a half ago, is merely of historical and academic importance and really lacks any true practical value. Over the passage of time there are many ways through which that person could or may have lost legal title to that land. I mean no disrespect when I assert that the current COI has neither the technical competence nor the legal authority or jurisdiction to efficaciously and conclusively address these complex legal issues. What the COI will end up doing, is raise a series of hornet nests which it cannot quell, create expectations which it cannot satisfy, raise legal issues which it cannot conclusively determine and excite tensions among people that it cannot subside. The truth is, in a constitutional construct like ours, legal disputes can only be resolved in and by a court which has the competent jurisdiction to do so. A hundred COIs can never be a legal substitute.
It will be observed that this Commission is only in its early stages. It has not touched the Amerindian issues as yet. Based on what I have read in the press so far, it can resolve none of the legal issues raised before it. Its recommendations to the President will be of no different effect. As all powerful as some may feel the Executive President is, one power which he does not possess is the power to resolve legal disputes in respect of lands.
In the end, we will have another COI that would’ve devoured millions of taxpayers’ dollars to no avail. But in its wake, would leave a trail of controversies, strife, animosities and unresolved legal issues.
Mohabir Anil Nandlall, MP, Guyana and Attorney-at-Law is an independent contributor. The views expressed in this column are solely those of the writer and do not necessarily represent the views of the THE WEST INDIAN.