DRAFT August 11, 1996
This Chapter recapitulates the recommendations for legislative reform that are developed throughout this National Development Strategy. The legislative channel is one of the principal ways in which the Strategy is to be implemented, and for that reason it is important to have all the legislative requirements summarised in one place.
The other principal channels for implementing the Strategy are administrative actions and investment projects.
This summary of legislative reforms is organised by the Chapters in which the recommendations are developed, proceeding in numeral order of Chapters.
Chapter 13 FISCAL POLICY AND THE PUBLIC SECTOR
As mentioned in Chapter 13, section III.C.1, the legal framework for management of the Consolidated Fund and the Contingency Fund needs to be updated to make it consistent with the new operating rules announced by the Ministry of Finance. The powers of the Executive to withdraw funds from the Consolidated Fund without Parliamentary approval need to be curtailed, and the use of the Contingency Fund has to be restricted purely to emergencies.
Chapter 15 BANKING POLICY
A strong legal framework is necessary for long-term development of a sound banking system and effective banking supervision. Financial intermediation in Guyana is debilitated by the existence of an unsatisfactory legal foundation and infrastructure regarding property rights, collateral, bankruptcy, liquidation, contract enforcement, and loan recovery. While the authorities have taken some measures to aid the effective functioning of the financial system, the legal and regulatory environment is still not fully responsive to the need of the banking system requirements.
Besides the introduction of the new Financial Institutions Act and the conforming amendments to the related Acts, additional reforms and their implementation are required, for example, in the civil and commercial codes and collateral laws. In Guyana, conflicts over disputed claims to property sometimes arise due to incomplete or disorganised property registers. This contributes to the backlog of cases that often take years to adjudicate, affecting contract enforcement and bank loan recovery. It is also recommended that out-of-court approaches, such as arbitrage, be developed to accelerate dispute resolution.
The following legislation urgently needs modification or repeal:
- Insurance Act of 1970
- Rate of Interest Act
- Exchange Control Act
- Companies Act
- Alien Landholding Act
- Mining Act
The Mining Act provides an exception to the general rule of free entry for foreign investors. It provides that "small and medium mining" are reserved for Guyanese nationals. However, local mining companies are unable to raise all the capital required with local banks, either because of the inability of the latter to provide the magnitude of funds required or their reluctance to lend since the only collateral is usually movable equipment located in Guyana's interior. Considering the above, the prohibition of foreign participation in the small and medium mining sector effectively cuts off the local mining sector from the benefit of foreign technology and urgently needed capital. Therefore, it is recommended that the Mining Act be revised to permit foreign participation in those areas. Such revisions, however, should ensure that the interests of local miners are not compromised.
Legislation and/or regulations also are needed for the deposit insurance scheme proposed for small savers, to facilitate the issuance of debt instruments denominated in U.S. dollars to control a potential concentration of credit, and to require separate publication of the accounts of local operations of foreign banks, as noted earlier in this Chapter.
Chapter 17 POVERTY ALLEVIATION
The changes to the legislative framework recommended as result of the foregoing analysis can be divided into the following six general headings:
This refers to the institutionalisation of LSMS surveys and annual reporting on the state of poverty in Guyana. It also serves to fulfil the country's obligations flowing from the World Summit (e.g., the 20/20 pact) and the annual reporting for the UNDP Human Development Index.
1. Legislative review of the National Insurance System, improving its actuarial basis and its administrative effectiveness, improving its performance in the health care area.
2. Creation of the legal basis for privately-funded pension plans.
3. Guaranteeing the legal status of NGOs.
4. Creation of a Social Policy Unit or Social Partners Human Service Authority.
1. Reorganisation of TVET, including the establishment of a national standard classification system.
2. Implementation of ILO Conventions and Labour Code.
3. Establishment of a labour market information system.
4. Reorganisation of the public service, especially as regards its terms and conditions of employment.
1. A programme of wider and affordable access to land for poor rural families.
2. Legal structure for the development of more efficient land markets, covering all forms of tenure, commercial transactions, and accessing of credit. See Chapter 29.
1. Modernisation of laws governing land and other property rights of Amerindian communities, especially with regard to the allocation of partial royalty payments to an Amerindian Development Fund (Chapter 22).
2. Removal of all legal impediments against women, particularly as it affects their employment, property rights, an exposure to abuses within the household, whether mental, physical, or financial.
3. National legislation for the disabled.
1. Reform the Companies Act to simplify the requirements for start-up of small businesses.
2. Expand the financial support of GNCB to small enterprises.
Chapter 18 ENVIRONMENTAL POLICY
Guyana is a party to several multilateral treaties. However, the country has not been aggressive in bringing its domestic law into line with its international obligations, except as for UNCLOS III. This deficiency is particularly notable with regard to CITES. Guyana is also not a party to several multilateral treaties which are relevant to its circumstances. Notably these include the Ramsar Convention on Wetlands of international significance, the London Guideline for the exchange of information on chemicals in international trade, the Cartagena Convention on the marine environment in the Wider Caribbean Region, and the Kingston Protocol on Specially Protected Areas and Wildlife (SPAW).
A review of the legislation reveals that the law is relatively up to date only in the area of the management of non-renewable natural resources. Work remains to be done on legislation and regulations for the protection of wildlife, the designation and management of protected areas, the preparation of plans for control of municipal and industrial pollution and their enforcement (particularly in the coastal zone), the handling of agrochemicals, and the requirement of environmental impact assessments (EIAs) for development projects.
Steps have been taken to remedy some deficiencies in the environmental laws and the following new legislative measures are under preparation:
(i) The Guyana Biosphere Reserves Bill, authorising the establishment and management of biosphere reserves in Guyana;
(ii) The Conservation and Wildlife Bill, providing for the establishment of wildlife sanctuaries and the protection of listed wild animals and birds;
(iii) The Pesticides and Toxic Chemical Control Bill, providing regulation of the importation, sale, and use of pesticides and toxic chemicals; and
(iv) The Environmental Protection Bill, which creates an Environmental Protection Agency with powers to ensure effective management of natural resources and establish a regulatory regime for pollution control. This Agency will have the powers to require that an Environmental Impact Assessment be submitted and reviewed for new activities. (Because of its importance, this Bill is reviewed in detail below.)
Given our national economic development agenda, it is urgent to move forward rapidly with legislative reform. The following are areas in which legislative changes are necessary:
(i) Consolidation and revision of existing legislation in the various sectors, incorporating new environmental protection provisions.
(ii) Preparation of consequential amendments to related legislation.
(iii) Preparation of new legislation to repeal and replace existing but outdated Wildlife and National Parks and Protected Areas legislation.
It must be stressed, however, that the policy issues identified in this sectoral strategy must be considered in conjunction with the proposal for the Draft Environmental Protection Bill (1995) and the creation of the EPA (see below). The functions of the EPA, the mechanisms for the execution of its mandate and the provisions specified must be the guiding principles for legislative reform and will serve the purpose of reconciling deficiencies and overlaps.
Given the basic accepted policy of the need for the establishment of an EPA the functions of this soon-to-be-created agency as outlined in the Draft Environmental Protection Bill (1995) are:
(i) to take such steps as are necessary for the effective management of the natural environment to ensure conservation, protection and sustainable use of its natural resources;
(ii) to promote the participation of members of the public in the process of integrating environmental concerns in planning for development on a sustainable basis;
(iii) to coordinate the environmental management activities of all persons, organisations and agencies;
(iv) to establish, monitor and enforce environmental regulations;
(v) to prevent or control environmental pollution;
(vi) to coordinate an integrated coastal zone management programme;
(vii) to ensure that any developmental activity which may cause an adverse effect on the natural environment be assessed before such activity is commenced and that such adverse effect be taken into account in deciding whether or not such activity should be authorised;
(viii) establish and maintain a programme for the conservation of biological diversity and its sustainable use;
(ix) to coordinate the establishment and maintenance of a national parks and protected area system and a wildlife protection management programme;
(x) to promote and encourage a better understanding and appreciation of the natural environment and its role in the social and economic development;
(xi) to establish and coordinate institutional linkages locally, nationally, regionally and internationally;
(xii) to play a coordinating role in the preparation and implementation of cross-sectoral programmes with environmental content;
(xiii) to advise the Minister on matters of general policy relating to the protection, conservation and care of the environment and the impact of development;
(xiv) to perform such other functions pertaining to the protection of the environment as may be assigned to it by the Minister by or under this Act or any other law.
In the exercise of its functions the Agency may:
(i) formulate and submit to the Minister policy recommendations and plans in furtherance of its functions;
(ii) conduct surveys, investigations and monitoring of the causes, nature, extent and prevention of harm to the environment and of pollution and assist and cooperate with other persons or bodies carrying out similar surveys or investigations;
(iii) conduct, promote and coordinate research in relation to any aspect of pollution or prevention thereof;
(iv) conduct investigations and inspections to ensure compliance with this Act or the regulations and investigate complaints relating to breaches of this Act or the regulations made thereunder;
(v) provide information and education to the public regarding the need for methods of protection of the environment, improvement of the environment where altered directly or indirectly by human activity and the benefits of sustainable use of natural resources;
(vi) conduct and coordinate compilation of resource inventories, surveys and ecological analyses to monitor and obtain information on the social and biophysical environment with special reference to environmentally sensitive areas and areas where development is already taking place or likely to take place;
(vii) formulate standards and codes of practice to be observed for the improvement and maintenance of the quality of the environment and limits on the release of contaminants into the environment;
(viii) request, examine, review, evaluate and approve or reject environmental impact assessments and risk analyses and make suitable recommendations for the mitigation of adverse effects of any proposed activity on the environment;
(ix) conduct studies and make recommendations on standards relating to the improvement of the environment and the maintenance of a sound ecological system;
(x) monitor and coordinate monitoring of trends in the use of natural resources and their impact on the environment;
(xi) establish and enforce administrative penalties;
(xii) advise the Minister on the content and applicability of environmental control instruments;
(xiii) produce sectoral guidelines on what may constitute significant effects on the environment;
(xiv) obtain expert or technical advice from any suitably qualified person on such terms and conditions as the Agency shall think fit.
In the exercise of its functions the Agency also shall:
(i) compile with the assistance of internationally recognised environmental groups a list of approved persons who have the qualifications and experience to carry out environmental impact assessments;
(ii) produce physical accounts in accordance with modern accounting standards to record the natural capital of Guyana;
(iii) carry out surveys and obtain baseline information on the natural resources including ecosystems and micro-ecosystems, population counts, species identification, location and condition and make such surveys, studies and information available to members of the public at their request and upon payment of the cost of photocopies;
(iv) provide general information to the public on the state of the environment by regular reports produced at least annually;
(v) maintain and make available to members of the public during normal working hours a register of all environmental impact assessments carried out, environmental authorisations granted and other information in accordance with section 36.
In performing these functions, the Agency shall make use of current principles of environmental management, namely:
(i) the "polluter pays principle": the polluter should bear the cost of measures to reduce pollution decided upon by public authorities to ensure that the environment is in an acceptable state, and should compensate citizens for the harm they suffer from pollution;
(ii) the "precautionary principle": where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing measures to prevent environmental degradation;
(iii) the "strict liability" legal principle: any person who contravenes this Act or regulations shall be liable to the penalties prescribed thereafter;
(iv) the "avoidance" principle: it is preferable to avoid environmental damage as it can be impossible or more expensive to repair rather than prevent damage;
(v) the "state of technology" principle: measures protecting the environment are restricted by what is technologically feasible and as technology improves, the improved technology should be used to prevent and repair environmental damage.
The Draft Environmental Protection Bill (1995) also addresses the matter of deference to authority of Agency by stating "Without prejudice to the provisions of section 14, any person or authority under any other written law, vested with power in relation to the environment shall defer to the authority of the Agency and shall request an environmental authorisation from the Agency before approving or determining any matter in respect of which an environmental authorisation is required under this Act."
Chapter 19 HEALTH POLICY
In general, health legislation is either nonexistent or outdated in some critical areas and thus, ineffective. In addition, the absence of legislation affects standards and norms with respect to the monitoring of health situations and activities.
The strategy action is to review, update and develop appropriate legal instruments to support the implementation of health policy and priority health issues. This exercise will be carried out in collaboration with other stakeholders in the health sector. It will be essential to draft new legislation to reform and strengthen the institutional aspects of the sector, following the policy guidelines in section V.1 of this Chapter; lay the juridical basis for greater autonomy on the part of hospitals and for the Community Hospital Associations; make the geographical referral system more flexible so that the necessary changes in the five-tiered structure can be made, as indicated; open the way for the selective fees; legislate the obligatory tours in Regional and local facilities for private physicians; carry out the sector's management reforms; make the indicated changes in the way that pharmaceuticals and supplies are procured and distributed; and in general pave the way for the implementation of the national health policies. In addition, specific legislation that requires updating includes the Food and Drugs Act, the Public Health Act, Mental Health Act, Hospital Administration Act, and special legislation related to HIV/AIDS to be drafted.
Chapter 20 EDUCATIONAL POLICY
For almost a century, the 1876 Act governed education in Guyana. Not until 1975 and 1976 were limited changes made to the Act to facilitate specific developments such as coeducation, the take over of private schools, and free education. Outside these specific acts, the rights of children in general, and their rights to education in particular, are reflected in the national constitution.
The education amendment acts as they presently stand, clearly lack flexibility to adapt to the variety of changes occurring in the sector, and for which they were hitherto not designed to cater. The following proposed changes are only indicative and not exhaustive:
establish the general and specific rights of children to a compulsory nine-year quality education;
strengthening the autonomous status of the educational establishment at the secondary and tertiary levels, inclusive of school boards;
institutionalise the role of non-governmental and community-based organisations in policy, theory, and management of the educational system;
end the monopoly of Government in the education sector, and permit private and community-based institutions at all levels of education;
enshrine the appropriate regulatory authority to set, monitor, and enforce natural curriculum standards, recruitment, training, appointment, and promotion of teachers, code of conduct, standards of physical facilities, learning materials, conditions of services, subventions, etc.
extend the said authority to cover other "commercial and business" type schools in consultation with representative user bodies.
The Industrial Training Act is being amended and the draft bill incorporates an autonomous board that will report to the Ministry of Education, and will be responsible for all TVET, including the TVET component of the Community High Schools. It will also become the curriculum approving body. This proposed act is consistent with the CARICOM technical and vocational training policy.
Chapter 21 WOMEN, GENDER AND DEVELOPMENT
In the context of extremely progressive legislation providing for womens equality, remaining weaknesses in the law relate to the following areas(1):
- Unwaged Work: The law does not ascribe equal importance to womens waged and unwaged work. This is seen clearly in the Married Persons Property (Amendment) Act, which (after a union has lasted five years) entitles a women who worked outside the home to one-half of the property, but a women who did not, to only one-third. Though these amounts can vary, it is a clear example of the preference given to waged work. Once time use studies are completed, and economic values imputed for unwaged work, the case for greater equality in this law will be strengthened. Ideally, each family member should be entitled to a share of household income proportional to her or his (waged or unwaged) contribution.
- Employment: A number of reforms are recommended including, adoption of CARICOM model legislation on Equal Pay for Work of Equal Value; adoption of CARICOM model legislation on Equal Opportunity in Employment; adoption of ILO Convention Number 156 relating to the rights of workers with family responsibilities; and an extension of legal protection to domestic workers and other workers not presently covered by such legislation.
- Pregnancy and Maternity: There is currently no legal protection for paid or unpaid maternal leave, paid time off for antenatal care or the right of reinstatement after maternity leave. A necessary addition to the Labour Act (Chapter 98:01) could read as follows: "Clause 43: A maternity leave shall be granted to an employee who is pregnant for a maximum duration of thirteen weeks. The specifics of the arrangement are to be agreed upon by both the employer and the employee in question" and "Clause 44: It is unlawful to dismiss an employee for reasons of pregnancy, or to prevent an employee from returning to work after maternity leave." The Equal Rights Act should also be amended to provide legal protection to maternity rights. Legal provision for paternity leave (and so providing both parents with legal rights for parental care) should also be included.
- Land Tenure: In the absence of a clearly defined policy, it is important that the Tenure Law be looked at, given its extremely discriminatory nature. There needs to be equality of property rights especially for Amerindian women.
- Domestic Violence and Rape: The Domestic Violence Bill must be ratified by Parliament. In addition, a number of other issues need to be clarified. In particular, the definition of rape should be extended to not only include penetration by penis, but also by other objects, given the nature of some rapes. In addition, the age of majority must be unified across the different laws in Guyana (perhaps to 16 years). This would effect the Criminal Law (Offences) Act, Ch. 8:01, (Clauses 69) which currently defines sex (even with consent) with a female below the age of 13 as rape. Another area that needs attention is that of bail (which should not be granted, for the protection the victim and her family) and penalties (which are too low).
- Language: A number of areas in law assumes the sex of the different parties. All reference to sex should be removed (that is, "his" should be replaced with "his/her," "wife" should be replaced with "spouse," and so on). Examples of areas of the law requiring language change are: The Matrimonial Causes Act (Chapter 45:02) Clauses 4, 6, 34-42, 51-52, 63-65; and The Equal Rights Act (Chapter 8:02) Section (c);
In Guyana, several of pieces of legislation have been enacted in order to secure the rights of women. In 1990 three main pieces of legislation were passed. This legislation, though forward looking, needs amendment. These amendments will now be considered in turn.
1. The Married Persons Property (Amendment) Act 1990
This Act codified property rights which women had been granted by the courts long before that year. The Act concretised the position of women in common law, de facto relationships, or union, so that they too could be treated equally like married persons in cases involving the division of property between spouses.
In Guyana there is strictly speaking no minimum period for which the parties must have been cohabiting before they can make a claim under the Act.
The provision for common law spouses is found in the definition of husband and wife and this refers to single persons living together. This narrow definition means that when one party to the union is still married then neither spouse can apply under the Act for division of property. They would have to resort to equitable principles as espoused by the courts in Guyana and the Commonwealth. It is admitted that this definition should be widened to make it similar to the definition of common law union in the Barbados Family Law Act 1981 which provides that it is a union between a man and a woman who are not married. It is, however, suggested that unlike Barbados, Guyana should retain its provision that allows for persons of a union of any duration to apply.
There is also a distinction between working and not working spouses who have lived together for more than five years. In the former case the spouse would be entitled to one half share and in the latter to one third share in the property though in both cases these awards can be varied at the discretion of the Court. There is no definition for working. This provision reduces the discretion which is left to a judge in other territories to recognise the value of a spouse who is a homemaker. There are cases from Barbados and Australia, for example, where a homemaker has been held to be entitled to one half share on a division of property based on the contribution to the home and family. It is suggested that this provision be deleted and substituted with one of wider application which in addition would provide for matters which the Court can take into consideration in coming to its decision.
It is stated that property for the purposes of the Act must only be property which was acquired during the marriage and by extension the union as there is no definition of marriage. This is definitely too restrictive when one considers that many women go to live in homes owned by their husbands and that they often assist in the maintenance and improvement of the home. A contribution to maintenance and improvement is recognised in the equitable principles that be applied by the Court. It is suggested that these principles be codified as is the case in Barbados where property, whenever and however acquired is brought into the total assets for the determination of property rights and in the interests of the certainty of the law. The Court then makes an equitable adjudication based on the facts before it and bearing in mind the matters to be considered as outlined. The issue of computation of time needs to be more specifically addressed as cases from Barbados have revealed that there is some degree of uncertainty in determining what exactly amounts to five years. For example, in one case the judge allowed a two to three days leeway in arriving at its decision, but in another case the Court held that the applicant had failed to prove the five-year period by nine days.
The words "spouses" and "marriage" also need to be defined. Then these definitions which would include common law spouses should apply to the entire Act and not only to specific provisions.
2. The Family and Dependants Provision Act 1990
This Act is patterned after a similar piece of legislation in England. However, in Guyana, to qualify for provision out of the deceased's estate under the Act, a common law spouse has to prove that he/she has been living with the deceased for seven years at the time of his/her death. It is suggested that this period be changed to one of five years duration which would be more in line with similar legislation in other territories such as Barbados and Trinidad and Tobago. Also, it would be in line with the five-year period as contemplated in the Married Persons Property (Amendment) Act 1990.
In a related piece of legislation, the Civil Law of Guyana Act Chapter 6:01, only a legal spouse has rights to claim on intestacy. Therefore, common law spouses have absolutely no rights to a deceased's estate if he/she dies without leaving a will. Their only claim is to financial provision out of the deceased estate as a dependant under the Family and Dependants Provision Act 1990. It is suggested that an amendment be made to allow a common law spouse to apply for a grant of representation at least in the case where there is no other spouse alive. In this case it may be necessary to stipulate that the parties to the union would have to be two single persons living together, for example, for five years at the time of the deceased's death.
3. The Equal Rights Act 1990
The main amendment sought in this Act is that it be provided that men and women be paid equally not only for the same work, but also for work of equal value. This is because the work may be different in nature but may be weighted equally in terms of value for money. This amendment would bring Guyana in line with the terms of the Convention on the Elimination of all Forms of Discrimination Against Women, on this issue. It has also been suggested that the definition of discrimination be amended to include indirect discrimination and the word "gender" should be substituted for the word "sex." Also, there should be a provision for discriminatory dismissal from
employment.
4. Maintenance Proceedings
Although the Bastardy Act has been repealed by the Children Born Out of Wedlock (Removal of Discrimination) Act 1983, it appears that the old procedures used under this repealed Act are still followed in practice. This means that only a single woman can apply for maintenance for her child who is born out of wedlock. If she marries another man who is not the natural father of the child, this husband must maintain the child to the exclusion of the natural father who, therefore, shoulders no responsibility for his child. While the husband is required by law to maintain the child, it suggested that something should be done to bring these "deadbeat dads" to account by contributing and not leaving it to a stepfather.
Also, the amounts fixed for maintenance are ridiculously low. It should be left to the discretion of the court to decide on a sum bearing in mind certain matters which should be clearly outlined in the legislation. At present, some magistrates ask the putative father what he can afford and he usually agrees to pay more than the $250.00 per week that is required by law. However, if the putative father ascertains that he is not required to pay more than $250.00, then he can cease to pay the increased sum he agreed to and he cannot be penalised for doing so.
5. Status of Children Legislation
There is urgent need for this type of legislation which would clearly set out provisions for the determination of paternity. At present, contrary to a widely held view, there is nothing in the laws of Guyana which has specifically removed the distinction between children born in wedlock and those born out of wedlock. There is nothing stating that all children are to be treated equally for all purposes. The Children Born Out of Wedlock (Removal of Discrimination) Act is silent on this issue and merely amends and repeals legislation to say that children born out of wedlock are to be treated equally for the purposes of certain specified Acts mentioned.
6. Amerindian Women
Apparently Amerindian women are discriminated in relation to the preservation of the identity as Amerindian women once they marry non-Amerindians. However, this is not the case for the Amerindian men. Women, therefore, lose their rights which accrue to them at birth. This situation needs to be addressed in collaboration with Amerindian representatives.
Chapter 22 AMERINDIAN POLICIES
Guyanese law is not always consistent with developments concerning indigenous peoples in other countries and with binding international human rights conventions. There is a growing awareness of the fundamental rights and freedoms of indigenous peoples, which most countries consider to be crucial for the social contract between the State and its citizens.
A certain level of inconsistency can be found between the Amerindian Act and other Guyanese laws, such as the State Land Act, the Mining Act, the Forestry Act, etc.
There are also the important, but largely undiscussed, questions inherent to the situation of legal pluralism and common law doctrines on aboriginal people and lex loci. The recommendations of the Amerindian Lands Commission Report and the commitment of Guyana's Government during decolonisation, in combination with existing rules about succession of states and transfer of legislation, raise questions in relation to aboriginal rights.
In keeping with provisions of several international instruments (ILO Convention 169 and Agenda 21), and the important democratisation of the country, Government must publicly commit itself to an open process of legislative reform. Government must also take steps to solicit and integrate Amerindian grass-roots representation on issues of resource and environmental management, Amerindian land rights, Amerindian government, and Amerindian development policy, into Guyanese legislation. The Amerindian Act does not make any provision for participation and consultation. The principles of participation and consultation will be addressed in an amended Amerindian Act. The existing practice, created by Article 5 part 1 of the Act, from which emerged a form of de facto consultation at village council level only, will be brought under stronger local control, and will be expanded to the practice of public hearings at the village level.
Some administrative positions and references to the Minister are vague and/or archaic. For example, the positions of the Commissioner and Chief Officer no longer operate, and references to "the Minister" need to be specified as "the Minister of Amerindian Affairs." These positions need to be reviewed, clarified, or eliminated as necessary.
Also, other remarks in relation to the use of terminology could be made, for example, the use of the word tribe (art. 2). The word "tribe" will be replaced by "band." The socio-anthropological meaning of the word "band" is a body of aboriginals, mostly consisting of a limited number of people using the Commons in a specific limited area, while the word "tribe" actually identifies a large group, often many communities. Amerindian communities in Guyana rarely conform to the definition of "tribe."
Finally, the amounts of the fines mentioned in the Acts are too low to be effective instruments, both in terms of crime prevention and restitution.
1. Reforms to Land Law
Based on the series of laws enacted and agreements acknowledged through its colonial history, the Government of Guyana is obliged to provide Amerindians with the required interest in those lands on which Amerindians were normally resident or settled before 1965, according to the Annex C, Section L of the 1965 Independence Agreement, the Amerindian Lands Commission Report, and the existing administrative practice. Amerindian land rights in all regions of Guyana should be granted on this basis, and their land rights (collective or individual) should be enshrined in the law explicitly. Also, the Amerindian Act is not always precise in relation to the description of the land title of the communities recognised. Corrective measures should be taken in two regards:
a. Scrutinising and correcting the definition of areas described as Amerindian lands in the Amerindian Act.
b. Scrutinising and correcting the definition of areas described as Amerindian lands in the Amerindian Act in comparison with those same areas and recommended land titles in the Amerindian Lands Commission Report.
Other legislative recommendations pertaining to Amerindian lands:
a. Changes of Amerindian land titles can be made by the Minister only in consultation and agreement with Amerindian captains, councils, and communities.
b. Amerindian Act should be amended to vest in the Village Council the power to divide into individual lots the community's lands.
c. Village consultations should be organised before communal village lands can be divided.
d. Enshrinement of land use mapping exercises in the formal procedures of granting communal titles.
2. Mineral Rights
State reservation of mineral rights is a power flowing from the doctrine of sovereignty at public international law. Section 5 of the State Lands Act and s.6 of the Mining Act specifically provided for State control over the subsurface.
The definition of the construction "lawfully occupied" under Section 112 of the Mining Act should clearly include lands granted by the Amerindian Act, and lands held in reserve for Amerindian use and lands subjected to procedures of Amerindian titling. The lands traditionally used and occupied by Amerindian peoples should also be considered as lawfully occupied.
In keeping with the land use exercise being carried out nationwide, this practice should be enshrined in law when considering the granting of collective land titles, new usufruct rights, or territorial development plans that affect Amerindian communities.
The Amerindian Act and the Mining Act should be amended to prohibit clearly logging, mining, tourism, and other natural resource-based ventures on lands lawfully occupied by Amerindian people lacking consent by Amerindian communities. This consent should be measured by the results flowing from a locally held consultation. Furthermore, Amerindian councils should be given the powers to supervise those operations and to halt their activities in case of irregularities or illegal activities. For this purpose they should be able to mobilize regionally based police or army personnel.
In addition, the existing corpus of legislation should be amended to recognise the Amerindians' entitlement to part of the mineral and forestry royalties, and to establish the Amerindian Development Fund, as described below.
3. Sixty-six Feet Buffer [Section 20 (2) (a)]
The preservation of such a buffer zone along the banks of rivers in Amerindian community land under the Amerindian Act apparently represents an attempt to maintain a transportation corridor for non-Amerindians. However, since the land in the 66 ft. strip remains state land, small scale mining operations do take place on these small strips of state land in Amerindian villages. This piece of legislation must be reviewed and changed accordingly.
Finally, it is not entirely clear which watercourses found on Amerindian lands are rivers subject to this provision in the law. A clearer description of the terminology is necessary. One could also maintain a transport buffer by burdening Amerindian freehold title to these lands with a right of way or statutory servitude open to non-owners.
4. Surface Rights
In keeping with the ILO Convention 169, Agenda 21, and the Rio Declaration, grants or leases of lawfully occupied State Lands made under the State Lands Act, the Mining Act, the Forests Act, or the Petroleum Act, should be made in consultation with Amerindian communities and the Minister of Amerindian Affairs. This provision is in accordance with what has been discussed in relation to Amerindian representation and participation before. Formulating the consultation process in detail is necessary. The following steps should be integrated into this process:
- Information-sharing
- Principle of democratic voting
- Decision of the community is binding
- Possibility for administrative appeal to higher instances
5. Expropriation (Section 3 - Section 20A)
The powers of expropriation provided by the Amerindian Act represent an extraordinary, and possibly illegal, curtailment of Amerindian Land Rights. The expropriation by simple administrative fiat would appear to counter not only fundamental democratic rights and freedoms, and checks and balances, but also principles of freehold ownership and customary rights, to the extent that there is no compensation (article 142 of the Constitution of Guyana - prohibition of uncompensated appropriation of property).
Circumstances set in Article 20A (4), which permit the Minister to expropriate Amerindian lands without paying compensation, do not conform to the exceptions to article 142 envisaged by the Constitution. The expropriation regime might also violate Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination, a convention that Guyana ratified. Only appropriation for the reasons contemplated by the Acquisition of Lands for Public Purposes Act should be maintained.
6. Governmental and Personal Issues
International fora are increasingly in favour of non-secessionist indigenous self-government. While the current Amerindian Act embraces paternalistic provisions in relation to local government, control of Amerindian property, and membership, Guyana should recognize the intellect and the self-reliant capacities of the Amerindian communities.
The Draft Declaration on the Rights of Indigenous Peoples includes a number of provisions of relevance to the issue of Amerindian government. Paragraph 29 recognizes the indigenous right to self-government in matters relating to "internal and local" affairs, including: culture, religion, education, information, media, health, housing, employment, social welfare, economics, lands and resource management, environment, and entry by nonmembers, as well as internal taxation for financing these autonomous functions.
The Canadian Assembly of First Nations has defined self-government as "the authority to control our own lives as aboriginals and to manage our day-to-day affairs without having to ask permission to do so. It includes the authority to make and implement plans to meet the needs of the people, to allow people to have control over decisions directly affecting them. It also means having the necessary financial resources to carry out these plans. The right to self-government requires a land base for all First Nations Peoples. It requires that our land rights be respected. The right to self-government is free-standing; it does not depend on government handouts. Its implementation will come from power-sharing agreements between the First Nations and the Canadian Government" (Assembly of First Nations. First Nations Circle on the Constitution, 1991, p. 9).
In relation to membership, the powers of the Chief Officer to decide on Amerindian membership are far reaching, with no administrative appeal possibilities. Membership should become a matter to decide on by the village authorities, and administrative procedures for appeal should be put in place. Local village and central authorities should cooperate to issue Guyanese ID-cards and Amerindian Membership Cards. The same measures may be considered for residence considerations.
Village government officers (CHW, teacher, Councillors, Captain) and Regional Officers should receive training to advise Amerindians in relation to the rights mentioned above. The Government of Guyana should also provide countrywide legal aid services to Amerindians.
7. Rights of Complaint
Under Section 13 of the Amerindian Act, CBOs and NGOs should also obtain the right to make complaints to a court on behalf of an Amerindian who has been allegedly wronged.
8. Office of the Captain and Village Area or District Council
Section 14 (1) of the Amerindian Act should endorse the existing practice of electing a Captain. The same procedure may be worked out for the village and other councils.
9. The Powers of the Councils [ Article 21 (1)]
The councils' regulatory powers should be increased to implement principles of local self government in a legal and bureaucratic framework of subsidiarity. The Government of Guyana should organize hearings with Amerindians in all areas of the country to work out a plan for systematic transfer of centralised responsibilities that should, according to principles of subsidiarity, be executed at the local level.
The Minister's powers to intervene in local decisions should be limited to the role of "Primus inter Pares" in cases of administrative appeal or if the local decision or regulation is inconsistent with higher regulations and laws. Avenues of appeal should also be introduced, in case that the Minister cancels or annuls local rules or regulations. The Minister's authority to intervene in these cases should be limited through defining more precisely the cases in which he may intervene. An example is if local regulations abuse fundamental rights and freedoms, the Constitution, or any law of a higher level.
When rules made by the Council are breached by an Amerindian, the council may require the Captain to bring the accused person before the Council. The Council may fine the offender following a summary investigation in the presence of a regional government officer, who will take notes of the evidence presented to the Council. These notes must be submitted to the Minister of Amerindian Affairs, who will give satisfaction to final administrative appeal. Revenues from fines will be used for the benefit of the Amerindian community whose rules were violated and in a manner approved by the local Council.
The requirement of prior approval of the Minister for the changing of local rules, and the Minister's power to do so anytime, should be removed. The Council may make its own rules provided that they are consistent with this act and regulations made pursuant to this act. Communities are free to choose a different regime based on their traditional decision making processes, customs, jurisdiction, etc. In this case the community will negotiate with the Minister of Amerindian Affairs a pact that will stipulate in detail how the community will govern its local affairs. The Amerindian Act will no longer apply to that community, but the Constitution of Guyana and Fundamental Rights and Freedoms must be respected by the provisions of that pact.
The Council will also have the powers to regulate, levy and collect village taxes. Government, in consultation with Amerindian representatives, will decide what percentage of these taxes will be contributed to the Amerindian Development Fund.
10. The Amerindian Development Fund (Article 26 - 27)
A provision that would allow a part of the royalties from mining, lumber and other sources to be deposited into this fund for the benefit of Amerindian communities and to increase solidarity between rich and poor Amerindian areas should be added to the Act.
In respect to article 26 (b) those resources stemming from royalties will be divided over the communities according to three criteria, namely:
Population
Territory
Local income levels or taxation and royalty payments
These funds will be redistributed to Amerindian communities mainly in the form of development projects (no less than three-quarters of the disbursements of the fund). These allocations, plus any direct distributions, will use the above-mentioned criteria for selection. The Board of the fund will approve projects and all disbursements.
11. Amerindian Employment (Art. 31 - 32)
Though the objective of these articles was to prevent exploitation of the Amerindian labour force, this objective was not achieved. The relevant provisions of the Amerindian Act should be uplifted without any doubt because of its discriminatory impact.
Amerindians are often unskilled and consequently underpaid, or hired in a self-employed capacity where they actually should be employed by the companies directly. Therefore, it is important to investigate the problems related to Amerindian labour, preferably by an Amerindian Labour Standards Authority staffed by an equal number of Amerindian and Government representatives.
The Amerindian Labour Standards Authority will have the power to investigate conditions of employment concerning Amerindians and to introduce whatever labour and employment regulations the Authority deems appropriate. These regulations will include rules on payment of wages, minimum wages, maximum working hours, border employment, working conditions, monitoring, and the reporting of such information as required to the Authority.
The role of the local councillors and captains as peace-keeping officers in labour and employment disputes should be increased.
12. Intoxicating Liquor (Article 36)
Provisions relating to intoxicating liquor should be made at the grass roots level. Because of the sensitive nature of this matter, Amerindian communities should approach this issue in a way that supports consensus building. Appeal against the decision of the village council is possible and should be supported by at least 15 per cent of the village inhabitants. In such cases, the Minister may decide to organise a local consultation. The results will be binding.
13. Page 18, Article 40 (a) : This authority should be shifted to Parliament.
14. Hereditary Rights
Hereditary rights are perpetuated from one generation to the other. It is not a static process; the dynamics are reflected in gradual changes in ceremonial behaviour or customs, but the subject and object of hereditary rights usually stay unchanged.
In Guyana, the hereditary rights of the Amerindian population can be perceived in two ways:
the colonial and post-colonial era,
the pre-colonial era.
The hereditary rights of the Amerindian population during the colonial and post-colonial era are those rights recognised by colonial and post-colonial legislation and practices between the Amerindians and the Government. Under the heading "Reforms to land law" we have dealt with this issue. They are those rights in relation to the use of land, timber, game, etc., enshrined in the Amerindian Act, State Lands Act, Mining Act, Forest Act, the Wildlife Act, the Petroleum Act, and other legislation or agreements that were put in place by the British or Guyanese Government. Amerindians should decide whether they agree with the way these various pieces of legislation deal with the hereditary rights of the various tribes in the country.
Some Amerindian groups will claim certain hereditary rights based on their status as First Nations, and that a mutually agreed covenant never extinguished their traditional rights to the land and natural resources. There are several grounds on which this position could be defended, and according to recent jurisprudence in other Commonwealth Countries, judges have generally held that aboriginal title cannot be extinguished unless there is a clear agreement on behalf of the aboriginal groups involved.
Amerindian groups may indicate to the Government that they prefer to be subjected to a mutually agreeable covenant to address the customary rights, and consequently the social organisation and livelihood of their peoples.
Chapter 23 URBAN DEVELOPMENT AND THE HOUSING SECTOR
Throughout this Chapter, it has been observed that a very critical element to overcoming some of the constraints faced by the urban and housing sector is the need for more effective policies.
The urban and housing sector in Guyana is generally governed by the following statutes:
Town and Country Planning Act - #20:01 of 1946
Municipal and District Council Act - #28:01 of 1969
Local Democratic Organs Act - # 12 of 1980
Public Health Ordinance - Chapter 145
Housing Act - #36:50 of 1946
The laws governing municipal councils provide a relatively strong legal base for municipalities to function in an efficient manner and do not require much change. However, there is need to modernise, implement and enforce the existing legislation. Municipal councils need to be provided with a modern comprehensive set of bylaws to regulate most urban functions, since right now only the Georgetown Municipality has such bylaws, as well as New Amsterdam to a limited extent.
Attention should be paid to bylaws governing specific urban services such as drainage, roads, sewerage, sanitation, solid waste disposal, and markets. Also, building regulations need to be implemented in keeping with current development. The penalties for violation of bylaws need to be revised and provision made for this to be ongoing.
All of the foregoing is necessary if the municipalities are to shoulder the task of controlling their own urban development so as to provide guidelines that will allow for greater control.
The new financial mechanisms to assist with home purchase and rental need to be given a legislative framework.
Another area that requires the implementation of proper guidelines and regulations is that of public health and the environment. The current legislation does not allow for adequate control on environmental issues, since there are not sufficient guidelines and regulations governing them. The negative consequence of this is vivid as we experience increase development in the industrial sector, as well as an increase in the population of urban centres. A few examples are the atmospheric pollution caused by the dust in the bauxite industry, the water pollution caused by the seepage from Omai's cyanide ponds, and the problem of solid waste disposal in Georgetown. The environmental legislation presently being drafted needs to allow for the monitoring of industries and agencies, the protection of people within the environs of such industries and the compensation of such persons and all others affected by any failure of industries to adhere to regulations. The correction of problems that may arise must be applied.
Chapter 24 THE ROLE OF REGIONAL AND LOCAL GOVERNMENT
A review of legislation with regard to regional and local government should take place within the current constitutional review being conducted by a Parliamentary Select Committee. Based on the analysis presented earlier, the following legislative changes are recommended:
1. Legislation is needed to abolish the three tiers of government that do not perform any functions. These are:
- the Supreme Congress of the People;
- the National Congress of Local Democratic Organs;
- the People's Cooperative Units.
It is possible that during the current constitutional review the regional system may be significantly modified anyway with the scrapping of all ties of local government except the NDCs. Simultaneously, NDCs would be strengthened to become financially self-sustaining. In this case, legislation would be needed to recentralise all services. If a decision is made to consolidate some of the regions, then the necessary legislation would also be required.
2. If the Government decides to retain all or some of the RDCs, they should be legally empowered to be executive bodies toward which all lines of authority would be directed. For the system to work effectively officers must report to elected officials.
3. Whether or not the current system of regional and local government is scrapped, legislation needs to be enacted that clearly defines the lines of authority and responsibility of officials such as the Regional Education Officer and the Regional Health Officer. This legislation should be moulded to the policy guidelines in Chapter 19.
4. Legislation is needed to clarify the position of Clerk to the RDC, shifting this responsibility from the REO to a separate individual. This would remove the possibility of any conflicts of interest that my exist if the REO serves this dual role.
5. Legal provision is required for more autonomy to the NDCs in areas such as the authority to collect rates and taxes. Such authority is already being transferred to NDCs in the case of drainage and irrigation fees, but more independence is necessary in order to implement and collect other taxes.
6. Legislation should be enacted that diverts 5 percent of all Government revenue to a fund for use by NDCs in areas that they see fit, with perhaps a small portion of this fund going also to RDCs.
7. Legislation should be enacted to enable the NDCs to enter into contracts that are valued more than G$1,000, up to a reasonable value, without the approval of the Ministry of Finance. This will allow NDCs to act more expeditiously in executing public works.
8. The legal basis for budgeting, disbursement and auditing procedures needs to be changed as per the policies indicated in this Chapter.
Following these new laws will be a number of regulations for regional and local government needed to implement any changes to the system. All laws and regulations governing regional and local government should be compiled into a Manual of Operational Guidelines for Effective Local Government that was referred to earlier in this Chapter. These should be distributed free of cost to all regional and local government officials.
Chapter 29 AGRICULTURAL LAND POLICY
In order to implement some of these new policies it is necessary to review and amend existing legislation, in keeping with improved land administration and management. These include legislation addressing land tenure and land law in general including: land registration and transport, land acquisition, planning, taxation, tenancies (particularly agriculture), land rents, squatting and prescriptive rights, laws of evidence (in particular the acceptability of electronically stored data), mortgages and credit, and leasehold enfranchisement.
This Act is outdated, the fee, royalties and rent schedule provided for in it are unrealistic. It also establishes the unnecessary separation between Government lands and State lands.
The fees, royalties and rent schedule should be amended to enable the institution of new rates, those approved by the Cabinet in September 1994. Provision should be made for future increases by executive action.
The land classification on which the new rents are based needs to be included in the Act. A single and standard lease document should be developed and put into effect.
Government and State lands should be placed in the same category for all purposes, and one uniform name attached to them.
The requirement of Cabinet approval for each sale of State land must be eliminated, for it makes the process of conversion from leasehold to freehold unworkable.
Unrealistically low fees are charged for services provided. The aerial photographs for awarding titles and conveyancing as enacted in 1970 has fallen into disuse.
It is necessary to revise the fees and amend legislation accordingly, allowing for future increases in fees, to keep up with inflation, without requiring recourse to new legislation.
Provisions need to be made for the enforcement of the use of aerial photographs for awarding titles. Amendments to provide for the new Lands and Surveys Commission should be implemented.
The surveyors are paid unrealistically low fees for the surveys. The fees should be reviewed and amendments made accordingly, again allowing for future increases by executive decision.
Amendments should be made to provide for the use of international system of measurement, or metric units, and the use of Global Positioning Systems should be authorised.
The process is confined to the registration of land within the area for which there are no existing title documents, and existing transport deeds are merely recorded and endorsed with the Act.
The legal tradition of having title to land is handled by a land court, which is time consuming, in fulfillment of legal procedures.
This Act should be amended so that it deals with conveyancing only. A "Land Adjudication Law" should be enacted, stipulating that only disputes will be referred to a land court judge for adjudication and award. This law can be patterned after the Cayman Islands' Land Adjudication Law.
The landlord should be able to regain possession of his rented lands upon the termination of the rental period. Likewise, rents should be negotiated freely between landlord and tenant, hence rentals should be deregulated, leaving the contracting parties to determine the amount payable.
The present situation inhibits freeholders from renting their lands, thus hindering agriculture production. This Act should be abolished because it has not produced the intended results owing to administrative failures (non functioning of assessment boards; its exclusive focus on the rice sector and its incompatibility with existing farming practices). Any aspect of the Act that is important should be incorporated into the Landlord and Tenants Act.
In some ways it overrides the Rice Farmers Security of Tenure Act, so this Act may be used in place of the Rice Farmers Security of Tenure Act. In cases where the Landlord and Tenants Act conflicts with the recommendations made above for agricultural land, it also should be revised.
This law has fallen into disuse. It needs to be enforced, allowing the State to recover and re-adjudicate lands for which taxes and lease fees are in default. The procedures of recovery should be applied in as objectively as possible, while still providing the State with the necessary grounds for intervention in these cases.
This law has fallen into disuse and should be replaced by a new Act authorising a general agricultural land tax as described earlier in this Chapter.
This law imposes a progressive tax on all the assets, including land. Should a land tax be introduced, there should be no need to include for taxation under the property tax, land for grazing and agriculture. The property tax should then be amended to make the exclusion.
This law has fallen into disuse. The revitalisation of this Act can serve as another instrument to stimulate beneficial occupation of idle lands.
Currently there is no such act, but ultimately, there should be a Land Use Planning Act. It would give legal authority to the land use planning function of the Government. It should define structural and functional relationships, and inter-agency relationships. Also, it should create levels of planning geographically, levels of authority, and the relationships between these levels. The drafting and passage of the planning act needs to be accompanied by amendments to existing legislation to eliminate the overlaps and conflicts that now exist.
The existing regional system, its legislation and institutions, need to be reviewed and amended where necessary so that regional development and regional planning will be a part of a comprehensive land use planning structure.
See the Chapters on Amerindian Policies, on Flood Control and Water Management, and on Housing and Urban Development for related legislative recommendations.
Chapter 30 FOREST MANAGEMENT
One of the most urgent tasks to update Guyana's forestry legislation is to assemble a team qualified to draft the legal changes that would include an international legal expert on forestry issues, experienced officials from Parliament, the executive branch, and the private sector. They could use the feedback from related sectors such as banking, manufacturing, tourism, Amerindians and training.
This group of specialists should review and revise the following legislation:
a) GFC Act No: 2; 1979
b) Forest Act Chap. 67:01; 1953 and all amendments thereafter.
c) Guyana Timber Export Board Act Chap. 67:03; 1973.
d) Timber Marketing Act Chap. 67:04; 1975
e) GNRA Order of 1986 and related Acts.
The principal purposes of the revisions would be the following:
a) Simplify and increase the structure of royalty rates for timber extraction, at the same time allowing for partial drawbacks for producers who invest in downstream processing facilities.
b) Establish a basis for moving the rate structure over time to one that is based on the standing timber volume in commercial species.
c) Make legal provision for contribution of a portion of the royalties obtaining from timber exploitations on Amerindian lands to the Amerindian Development Fund.
d) Establish the legal foundations for auctions of concession blocks, under 80- to 100- year concessions, and the mechanisms for defining the blocks, ensuring always that some of them are relatively small in size. As soon as the auction procedure is in place, eliminate upon their expiry all annual permits and concessions of less than eighty years in length.
e) Clearly specify the property rights and obligations associated with concessions and provide for the transfer of concessions as described in this chapter.
f) Remove GFC from sales and marketing of forest products.
g) Establish legally the new log export policy, with a gradually declining export tax.
h) Establish the mechanisms for an improved system of timber marking and of spot inspections of timber extracted from the forests, incorporating the participation of NGOs.
i) Develop the legal framework for concessions for forest use for non-timber products and services.
j) Provide GFC with greater administrative autonomy and empower it to receive financial support from debt-for-nature swaps.
k) Extend the terms of the GFC's Directors.
l) Lay the foundations for a joint public-private institute for forest products development.
m) Clarify the overlapping responsibilities in forest management of GFC, GNRA and the Office of the President.
n) Assign oversight responsibility for protected areas and wildlife to the appropriate agencies, and not GFC.
o) Develop a legal framework for bio-prospecting, giving due recognition to the rights and roles of Amerindian communities in that regard.
Chapter 31 FISHERIES POLICY
To date, the fisheries policy and regulations of Guyana have been guided by the provisions of the Fisheries Act of 1957, the Fisheries Regulations of 1959, the Fisheries (Pin Seine) Regulations of 1962, the Fisheries (Aquatic Wild Life Control) Regulation of 1966, and the Maritime Boundaries Act of 1977. Neither the Fisheries Act nor the Fisheries Regulations have been updated since they were first passed by Parliament in the late 1950s. They contain no provision for dealing with declining fish stocks, management of aquaculture fisheries, new fishing technologies, etc.
In 1986, the Government of Guyana, through the Department of Fisheries, sought the assistance of FAO to help in drafting a new Fisheries Act and Regulations updating the existing provisions in line with the realities of fisheries in Guyana in the late twentieth century. FAO did provide some initial assistance with the first draft but this was never completed. On request from the Government of Guyana, FAO is to implement in the very near future a project to complete the drafting of the Act and Regulations for consideration and approval by the Ministry of Agriculture and Parliament. That drafting should undertake to provide the legal framework for fisheries policies as set out in this National Development Strategy.
The new legislation would influence on the entire fisheries subsector (marine, inland, and aquaculture) and would deal with such areas as:
- Licensing and limiting trawlers
- Licensing and limiting gear and regulating mesh sizes
- Closed seasons and grounds
- Quality assurance procedures and controls
- Fisheries Management and Development Plan
- Fisheries Advisory Committee
- Establishment of the Guyana National Fisheries Commission
- Regional cooperation in fisheries
- Fisheries access agreements
- Foreign as well as local fishing licences
- Fisheries research
- Ornamental fish export
- Aquaculture
- Surveillance and monitoring
- Fines for failure to comply with regulations
Guyana has played a role in the development of fisheries worldwide as it was the sixtieth signatory to the 1983 U.N. Convention of the Law of the Sea (UNCLOS III) that brought the convention into force. However, Guyana has not capitalized on its rights and privileges under the Convention as it has lacked the institutional capability to provide the monitoring, control, and surveillance necessary and the resource assessment capability to protect diligently its marine resources from overexploitation through proper conservation and management measures. Guyana does not currently have the data to determine its total allowable catch and thus should be extremely cautious about negotiating access by other States to fish the surplus (if any exists) until this is known.
Although Guyana has had joint fishery agreements in the past with foreign fishing fleets, including Cuba, Barbados, Jamaica, the USSR, the German Democratic Republic, and other countries, all are nonfunctional because they have expired or were never activated. Given the current lack of information on the resource and thus, Guyana's violation of the terms of UNCLOS, this is probably a blessing although data suggest that there is active illegal fishing at the present time by several countries, most notably Venezuela and Suriname.
The new regulation should make provision for addressing the international accords of UNCLOS III, Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas, International Cooperation in the Conservation and Management of Straddling Fish and Highly Migratory Fish Stocks, and the Code of Conduct for Responsible Fishing.
Chapter 32 MINING POLICY
Currently, the following laws govern or are relevant to the mining industry:
- Mining Act 1989.
- Mining regulations with various amendments up to 1993.
- The Guyana Geology and Mines Commission Act No. 9 of 1979.
- The Amerindian Act.
- The gold and diamond mining regulations of the Income Tax Act.
- Petroleum (Exploration and Production) Act 1986.
There are also mineral agreements, mining and prospecting licences, prospecting permits (medium and small scale).
As observed earlier in this Chapter, Government will need to enact subsidiary legislation under the Mining Act to address conflicts among purported title holders and remove as many uncertainties as possible with a view to ensuring maximum investor confidence in the ability to acquire and retain mining titles in Guyana.
The amended mineral policy and related legislation to be articulated by Government needs to address, inter alia, the following critical issues:
An investor who is expected to make a substantial up-front monetary commitment to a high risk exploration, development or mining project obviously needs to know that his efforts, if successful, will not be thwarted by the unforeseen loss of property rights or rights to mine. The possibility of conflicts between mining, forestry and agriculture, for example, would therefore have to be addressed.
The role of the various authorities involved in the mining sector (GGMC, GNRA, GGB, the various ministries, etc.) should be clarified in order to facilitate the investor's understanding of the role that each authority is expected to play and to facilitate access to the proper authority when legitimate issues arise.
The GGMC should be made the "one stop shop" for potential mining investors. GGMC should be able to supply relevant technical, financial and legal information (including environmental laws) to a potential investor.
The Gold Board should be replaced by the system of licenced gold buyers discussed in this Chapter.
Both local and foreign investors must respect and preserve our natural environment. All mining operations must be subject to an Environmental Impact Assessment (EIA), as provided for under the pending Environmental Protection Bill that will establish the Environmental Protection Agency (EPA). Such EIAs will require that mining companies observe the environmental guidelines that apply in developed countries and, now, in many developing countries. Examples are: that the use of cyanide and mercury in mining operations should be carefully regulated by law; companies would be responsible for preventing particulate matter affecting air quality at the site of the operation and during transshipment; tailings dams and settling ponds must be designed to prevent leachate; degradation of rivers and streams and pollution of surface and ground water from mining operations would be prevented and companies would be responsible for mitigating any impacts. The use of missile dredges in the Essequibo River, which destroy river banks and cause sedimentation of waterways, should be strictly controlled and their number limited, while a phase-out of these dredges is enacted.
Stabilisation agreements should be included as a cornerstone of the mineral policy. A thoughtful and well formulated standard form contract should amply serve the best interests of mining investors and relieve the Government of what would otherwise be the potentially unmanageable burden of negotiating untold numbers of such agreements.
As noted in Section V, the complete new fiscal regime for mining should be legislated. Only in this way can it attain the force and universality of application that is desired and necessary.
As discussed above, the Mining Act 1989 should be amended to permit foreign participation in small and medium scale mining enterprises, in order to allow those operations to benefit from foreign technology and financing if they so wish.
Chapter 33 THE SUGAR INDUSTRY
Some of the policies presented in this Chapter will be carried out by administrative means, through actions of the management of GUYSUCO. Others that are more structural in nature will require new legislation. A specially-convened working group will develop the specific content of such legislation. The principal topics it should cover are the following:
Revision of the Cane Farming Act, in respect of both the criteria for determining the sugar content of cane and the formula for sharing net proceeds between cane farmers and the industry.
The sale at subsidised prices of sugar cane land on three Demerara estates to the cane workers of those estates.
The responsibility of Government in modifying drainage and irrigation works on those lands if the newly-enfranchised farmers solicit it, to permit them to plant other crops.
The legal guarantees for factory and field workers in the event of estate closures.
The legal framework for the divestment of the industry along the lines described in this Chapter.
Any aspects of the environmental improvement programme that need legal codification, in anticipation of the divestment.
Chapter 34 THE MANUFACTURING SECTOR
The legislative changes required to implement this policy framework are effectively those that are described in Chapters 35 and 36, supported by the legislative programmes of Chapters 29, 30, 31 and 32. It is important to emphasise the need for full implementation of this legislative agenda, for partial measures still would leave the manufacturing sector at a handicap. It is equally important to carry out the many policy changes that do not require legal changes but rather can be put into effect by means of decisive administrative action within the present legal framework.
Chapter 35 LABOUR AND EMPLOYMENT POLICY
Voluntary relationships characterise industrial relations in Guyana. While there are "gentlemen's agreements" between employers and workers to recognise unions, employers have no legal obligation to do so. Industrial relations need to be conducted on a more orderly basis and be based on a legal foundation, thus making the recognition of unions enforceable. There have been several attempts to pass a Trade Union Recognition and Certification Bill, beginning from as far back as 1953. The latest attempts were made in 1995. Following disagreements between the political parties on the contents of the bill, a Parliamentary Select Committee was formed to make recommendations on modifying it. The main point of contention lies in the powers of the Minister of Labour to hold an election in order to decide which union should represent workers of a particular industry and the minimum percentage of votes required to certify a union. The resolution of these issues and the enactment of this bill will reduce industrial unrest caused by inter-union rivalry. The Government will continue to work through the Parliamentary Select Committee to seek a consensus on the Trade Union Recognition and Certification Bill and have it passed by Parliament as soon as possible.
The creation of a comprehensive labour code is also important to clarify the roles of Government, employers and workers. At present, there are differences between industries and firms over basic labour regulations. Some of these standards are written into different laws that relate to employment. The result has been that different groups of workers have established standards, such as hours of work, provisions for overtime work, working standards, etc., while others work in completely unregulated environments. To reduce these differences, Government will formulate a comprehensive labour code that establishes minimum working conditions across all industries. Standards that exceed these minimums should be removed from the law and be included in the collective contract between the employers and the workers. Collective bargaining relating to working standards that meet the minimum requirements set by the labour code, should be conducted at the plant level between workers' councils and employers.
Legislation will be enacted to establish the workers' councils mentioned above. These councils will be empowered to bargain on behalf of their trade union at the plant level in certain areas only, e.g., general working conditions, productivity incentives, etc.
Moving collective bargaining to the firm level also has the advantage of being able to deal with conflicts at a level closer to the source of the problem. This is a measure that will help resolve disputes at an earlier stage, rather than having them escalate into nationwide strikes that are very costly to both workers and the economy as a whole. The result would be that negotiations are more transparent and less contentious.
The Shops (Consolidation) Act, Chapter 91:04 is also under tripartite review to update it to reflect current economic realities. Among other controls, Chapter 91:04 sets the opening and closing times for commercial activity, including shops and retail stores. However, in reality, many retail stores such as supermarkets are already opening beyond the times stipulated in this act. Government in tripartite consultations would amend this act to extend opening hours, including stipulated times for opening on Sundays. Such an amendment would be accommodative to the changing characteristics of the labour force, which is attracting an increasing number of working women. This proposed amendment recognises the concerns of trade unions relating to the treatment of workers in this sector of the economy and the potential effects on them due to an extension of opening hours.
Similar consultations are taking place regarding a Termination of Services Act. The proposed act lays out the conditions under which the employees may be terminated in both the public and private sectors. This proposed legislation will present guidelines for notice of termination, severance pay, benefits, etc., to be paid at the time of terminating employment. This new Act should become part of the revised labour code.
The Pan American Health Association and the ILO are assisting the Government in preparing an Occupation Health and Safety Act that will replace the Factories Act, Chapter 95:02. This act will follow the guidelines laid out in the National Policy on Occupational Health and Safety and the Trades Unions Congress and the Consultative Association of Guyanese Industry are currently discussing a draft for their input. The draft act covers all spheres of economic activity and caters for all workers, including the field, office and factory, and public and private entities. Provisions are made for joint responsibility, the duties of employers, employees and unions and the role of the National Council on Occupational Health and Safety. Other areas include the enforcement of the act, penalties, regulations and the rights of workers, including "the right to participate, the right to know, the right to refuse to work [in conditions that are injurious to health], and the right to be free of reprisals." Specific measures in the act cover areas such as clothing, the use of toxic chemicals, records and reporting requirements, safety equipment and the medical examination of workers. The act will also establish safety committees at the plant level who will monitor compliance with the bill.
Special legislation will be required for the promotion of smaller enterprises, covering topics such as the simplification of business registration procedures, amending the Companies Act to merge personal and business income taxes for smaller firms, setting new schedules of utility rates for such firms, waiving duties and fees associated with the transfer of a small business, the creation of a new class of shares with no voting powers, and related steps mentioned in this chapter.
New legislation also will be required to establish the National Council on TVET and to mandate the associated payroll tax for technical and vocational education and training. This is an urgent matter, given the priority that necessarily is attached to increasing workers' skill levels.
Another priority is to reform the conditions of public service once the strategy for that topic is finalised, so the Government can move ahead with the upgrading of the quality of its services.
Other legislative changes are as follows:
The Pensions Act, Chapter 28:01 will be amended to remove any ambiguity regarding the right of a public servant to be paid a pension.
New legislation will confirm the enforceability of court decisions concerning the reinstatement of employees who are found unjustifiably fired in the private sector.
Government will consider outlawing sympathy strikes that have the potential for hurting the economy.
Government will consider legislation to form an industrial court to deal with labour-related cases expeditiously.
The Government recognises that the enforcement of legislation is of utmost importance and will therefore improve the enforcement capacity of the Ministry of Labour. This will entail the hiring of more labour officers to increase the current complement of two to an acceptable level capable of monitoring and enforcing all labour laws and regulations. This is a prerequisite to ensure that Guyana's labour market is governed by standards that are in keeping with current trends, and at the same time provide the economy with a framework of labour practices that are consistent with the rest of the National Development Strategy.
Chapter 36 POLICY FRAMEWORK FOR THE PRIVATE SECTOR
The policy framework for the private sector presented in this Chapter would require a number of modifications to the existing body of legislation in order to facilitate its full implementation. In summary form, those modifications would include the following:
1. Revision of the Companies Act to ease the registration requirements for new firms.
2. A code for NGOs that incorporates new, simpler requirements for their registration.
3. A new tax code to put into effect the changes described in this Chapter, including the introduction of a value-added tax.
4. Legislation to lay the foundation for an export processing zone, with close access to deep water harbour.
5. An overall revision of the legislation for GOINVEST, separating the investment promotion function from that of approval of applications. The revised approval process should incorporate deadlines with automaticity, e.g., requests of specified kinds not acted upon within two weeks are automatically approved.
6. A new investment code for both foreign and domestic investors, including all relevant tax provisions.
7. A restatement of export licensing requirements to simplify them, including the provision of automatic granting of such licences upon presentation of proof that income taxes have been paid.
8. Legislation establishing rules for patents.
Chapter 37 TOURISM POLICIES
Legislation needs to be enacted to establish a Tourism Board for the support of the tourism industry. This Board could be established through the Public Corporations Act (1988) or by completely new legislation.
Following from the laws which establish the Tourism Board, a series of regulations should be prepared to implement those laws. It is not recommended that the regulatory framework of Guyana's tourism legislation should extend, in the present situation, to imposing qualitative classification or grading by law, but eventually that should be a goal.
1. International Transportation
It is recommended that Guyana should replace its applied civil aviation codes with local legislation. More details on the legislative changes required are given in Chapter 38. However, if resource constraints dictate the continued use of British legislation for Guyana's aviation law, then it is recommended that a least Guyanese legislation should be enacted to give the Minister the choice of when to adopt and apply new British regulations. In this way, the laws can be updated periodically based on trends in the world as reflected in updated British laws.
2. International Water Transportation
Guyana still depends on the United Kingdom's Merchant Shipping Act of 1894. Since a modern Caribbean-oriented model Shipping Act exists, which has been prepared by CARICOM in conjunction with the Caribbean Law Institute, it is recommended that Guyana should enact this legislation. For Guyana, the main advantage of such legislation would be to give some control of ships in its waters and sports.
Guyana's interest in maritime legislation should not be confined to passenger movements at sea. Maritime pollution could hurt the tourism product through, for example, the depletion of the sea turtles in the northwest. While Guyana is a party to the United Nations Convention on the Law of the Sea, and the Maritime Boundaries Act can be considered to allow for the exploitation of resources through jurisdictional allocation, this Act does not provide for environmental considerations. The fact that Guyana did not sign any of the leading International Maritime Organisation Conventions except the constituent convention, does not auger well for the protection of the marine environment. Guyana should meet international obligations to have legislation in place to safeguard the marine environment under its jurisdiction, and should participate in MARPOL 1973/78(2) and SOLAS.(3)
With respect to inland water navigation, the River Navigation Act and Regulations and the Fisheries Act should be reviewed with regard to the standards they require for river navigation and to their exemptions of categories of craft from the application of those standards.
3. Accommodations, Restaurants and Places of Entertainment
a. General hotels regulation
It is recommended that a system of registration for hotels in the tourist sector be enshrined in law. This system would require that standards be met and maintained as a condition of such registration by the Tourism Board. These standards should be consistent with the best modern industry practice.
Reference to hotels in the laws of Guyana are found in the Provisions Relating to Common Lodging Houses which form a part of the City's by-laws and made under powers contained in the Municipal and District Act. This has certain problems, such as: 1) it relates only to Georgetown, 2) it does not differentiate between hotels, apartments and guest houses, and 3) the standards are outdated.
The Common Lodging House By-Laws (Laws of British Guiana, 1953 Vol. VIII, p. 1609) apply across the country, but they do not appear to govern hotels. New laws in this area also need to reexamine the minimum number of rooms per hotel that make these liable for payment of the hotel room tax. Consideration should be given to removing the stipulation that only hotels in excess of 15 rooms are liable to pay the tax. Interior resorts should continue to be excluded from the hotel room tax, regardless of the minimum number of rooms they contain so as not to discourage the construction of lodges in the interior.
b. Protection of hotels from visitors' claims
A good precedent in law to protect hotel owners from claims from visitors is the English Hotel Proprietors' Act of 1956. This law allows an escape from being liable for losses suffered by guests unless they take advantage of the hotel's security system. Reasonable limits for losses are the equivalent of US$100 for any one item and US$200 as the aggregate loss. There should also be legislation to prevent guests who do not pay their hotel bills from leaving Guyana.
c. Food licensing and food safety
The legislative provisions for hotels and restaurants in Georgetown should be applied countrywide. Although there is provision against the employment of food handlers suffering from infection diseases, it is not clear that the current system of food handlers' permits is legislated. The current system of permits which must be renewed every six months also need to be reviewed, with the intent of extending the validity of the permit. Extending its validity would reduce the logistical problems and expense of bringing food handlers from the interior to Georgetown to be tested. A strengthening of the system of distributing these permits regionally could also be pursued.
Legislation should also be enacted that requires new restaurants and hotels, or those undergoing renovation, to have adequate toilet facilities and amenities for disabled persons.
d. Places of entertainment
The preparation of special legislation to regulate places of public entertainment, with rules governing matters such as capacity limitations, provision of sanitary facilities and fire exits, safeguards against noise nuisance, and other offences to neighbouring residents, is recommended. Similarly, legislation is needed that provides in detail the required fire safety criteria, or structural reliability, means of escape, fire-fighting equipment, fire detection, and restriction or suppression of the spread of fire.
It would appear that the Town and Country Planning Act provides legal control over zoning and the quality and suitability of the construction of buildings in Georgetown, but these are not enforced. The law should be updated and areas in Georgetown such as Main Street and the Avenue of the Republic should be included. The Act should be amended to provide for its automatic application to newly developed areas.
The designation of a buffer zone of 66 feet inland from the low water mark of creeks as Government reserve should be maintained but legislative allowance should be made for restricted use of such zones by lodges that are adjacent to creeks. This should not prejudice the use of the zone for access.
Building codes for interior lodges can be expected to vary from those for structures built from established building materials. It is impractical to develop codes for interior resorts because of the new and multitudinous indigenous materials that may legitimately be used. The use of such materials is necessary if lodges are going to fit into the surrounding environment. Lodges must, however, be certified by a professional engineer.
There must also be minimum standards legislated for the disposal of sewerage and garbage. These should be included in the requirements for environmental impact statements for tourist facilities in the interior.
There should also be regulations for the distance between tourism lodges and buffer zones around lodges, etc.
It is intended that legislation covering the establishment of National Parks and Protected Areas will be written as Guyana moves to establish a Protected Areas System. The new law should replace the Kaieteur National Park Act (Cap. 20:02) and National Parks Commission Act (1977-23). The powers of the Guyana Forestry Commission "to identify, establish, maintain and manage forests including national parks, wildlife areas, and natural reserves" should be removed from the Commission and place under the authority established to regulate National Parks.
The National Trust Act (Cap. 20:03) provides for the protection of national monuments but this needs adequate enforcement.
The Fisheries Act (Cap. 78:01) and accompanying Fisheries Aquatic Wild Life Regulations and the Wild Birds Protection Act (Cap. 71:01) allow for some protection of fisheries and birds. The scope of the Fisheries Act is not confined to fauna but is wide enough to include the protection of both marine and fresh water aquatic flora, as the result of the amendment of the Act in 1977.
Between these two acts, four-footed wildlife is excluded. The Wild Life Protection Act of 1987, which should have remedied this situation, is still not enacted. This Act should be enacted.
The recent enactment of the Environmental Protection Bill should be followed expeditiously by the drafting of suitable regulations for the implementation of its various prescriptions.
Chapter 38 TRANSPORT DEVELOPMENT
The legal framework under the Road Administration Division operates under Chapter 51:01 of the Laws of Guyana. The penalties for offences pertaining to the damage or misuse of the infrastructure (roads, bridges, other structures) are ridiculously low and require updating. While putting in place routine maintenance for preserving the rehabilitated infrastructure is important, preventing wanton destruction to the structures is equally important. Prescribing appropriate penalties to offenders is therefore necessary.
New legislation will be required to facilitate the concessioning of bridges and toll roads.
The Transport and Harbours Department is established in Section 49:04 of the Laws of Guyana. The Act was patterned after the Merchant Shipping Act of 1984. There have been significant changes in international maritime legislation since then, so modifying the corresponding Guyanese legislation to conform with the new worldwide conditions is necessary. Such changes would undoubtedly determine the extent to which the ports and shipping industry could respond to the demands of the regional and international shipping communities.
The institutional changes outlined in this Strategy, including the creation of an autonomous National Port Authority, will require new legislation.
The Government should strive to implement the necessary legal framework, consistent with the general and specific objectives previously presented in this document. Air transport in Guyana is still being administered under the United Kingdom's Colonial Air Navigation Order (1961).
In the institutional real, a Civil Aviation Bill would seek to regularise the situation by the creation of two authorities within the Ministry of Public Works, Communications, and Regional Development, as follows:
1. The Civil Aviation Authority that will assume all the functions of the present Civil Aviation Department.
2. The Air Transport Licensing Authority that will assume all the functions of the present Air Transport Advisory Board.
3. An autonomous Airports Authority would be created, empowered to set landing fees and other tariffs at a level consistent with adequate maintenance of navigational aids and other airport facilities.
Provision for these three authorities should be made in the new bill. In addition, legislation will be required to facilitate the divestiture of GAC in the ways described and transfer of Ogle Aerodrome's management to the Association of Private Aircraft Owners.
Chapter 39 THE ENERGY SECTOR
In 1996 legislation will be prepared to facilitate the restructuring of GEC set out above.
A draft bill is currently being considered for the establishment of a new Guyana Energy Agency. The objective of this legislation is to rationalise the institutional structure for energy planning and policy making. Enacting this legislation is considered a critical aspect of the future strategy for national energy management and planning. The bill will be reviewed and modified as needed to make it consistent with the programme outlined for GEC.
Act No. 10 of 1991, called the Public Utilities Commission (Amendment) Act 1991, removed the authority of PUC to determine and fix rates to be charged by the GEC. It is advisable to restore this function to the PUC as soon as possible.
Chapter 40 WATER MANAGEMENT AND FLOOD CONTROL
In 1992 the Sea Defences Act was enacted, repealing the Sea Defences Act of 1988. However, this most recent legislation requires modification, as follows:
1. Short Term
a. The legal basis for the special levies on imports and property should be established, along with the structure and functions of the trust account for these funds in the Central Bank.
b. The Project Execution Unit should be merged with the Emergency Rehabilitation Programme.
c. The executing agency should be an autonomous Shorezone Management Unit.
d. The head of the proposed Shorezone Management Unit should be responsible for all sea and river defence works.
e. The terms of reference of the PEU should be revised to include maintenance, training, etc.
f. The boundaries of the sea defences should be extended from 50 to 200 feet.
2. Medium Term
a. The sea defence laws should be modified.
b. The areas of responsibility for sea and river defences should be extended to include the entire coast, rivers, and streams.
c. The development of housing areas North of the public road should be restricted in populated areas.
d. An emergency committee should be established for disaster preparedness for sea and river defences.
3. Long Term
It is foreseen that in the long term the three subsectors, namely drainage and irrigation, sea and river defence, and hydrometeorology, would merge to form the "Flood Control and Water Management Unit."
The new legislation to be proposed will embody the following:
1. A system of financing that makes the distinction between private and public elements of the services provided by D&I and ensures the financial sustainability of the D&I system.
2. New institutional arrangements, including the legislative framework for the recognition and operation of WUAs, regional entities and, at the national level, the possible merge of the Sea Defences and D&I administration.
A Cabinet decision established the Hydrometeorological Service in 1965. In its operational mandate there are no legislative directives to control and regulate data collection and dissemination activities. Areas occupied by this Department should not be disturbed. Also, no developmental activities should be allowed to disrupt the collection of data.
1. 0 A number of womens organisations (such as Guyana Association of Women Lawyers) are currently looking into necessary legislative reform. The list of reforms presented here should be updated in the light of their findings.
2. 0 International Convention for the Prevention of Pollution from Ships 1973, as amended by Protocol of 1978.
3. 0 The International Convention for the Safety of Life at Sea, 1974.