Judge in Amerindian communities landmark case rules…


Anthropologist Dr. Colson cannot be deemed an expert
PRESIDING at the Akawaio and Arekuna Amerindian Communities in the Upper Mazaruni District Land-mark case, High Court Judge Ms. Roxanne George has ruled that anthropologist Dr. Audrey Butt Colson could not be deemed an expert witness in this case, because of the role she played in the investigations.
It was observed that the book, ‘Land: The case of the Akawaio and Arekuna of the Upper Mazaruni District, Guyana’, was written by Dr. Colson in contemplation of the litigation by the plaintiffs to establish their claim in this case (the current case at the Demerara High Court.)
The plaintiffs are Van Mendason, Czar Henry,   Anderson Hastings, Lawrence Anselmo, Dutchell Isaacs and Norma Thomas, by themselves, jointly and severally, and on behalf of all the members   of the Akawaio and Arekuna Amerindian communities in the Upper Mazaruni District.
The named defendant is the Attorney General of Guyana.
Lawyer Nigel Hughes is representing the plaintiffs, while Deputy Solicitor General Mr. Nareshwar Harnanan is appearing for the defendant.
The plaintiffs’ claim, inter alia,  declarations that “the  Akawaio  and Arekuna peoples  from time immemorial have continuously  occupied and used  to the exclusion of all others  certain  tracts  of land described  by virtue of which they have had and still have  unextinguished  aborginal title  at common law  and in equity  [or]  alternatively a declaration that prior to the cession of Guyana to Great Britain  in 1803,  the Akawaio  and Arekuna peoples  enjoyed under Roman Dutch common law an aboriginal title to the same area  which remains vested  and is still vested  in the membership of their  indigenous communities.”
A number of witnesses who are Akawaio and Arekuna testified about their lifestyles and land-use in their communities and about their ancestral heritage.
However, the Judge said that unlike Dr Griffiths, the other expert witness called by the plaintiffs, Dr.  Butt Colson,  has clearly stated in cross-examination on the issue of whether she should  be deemed an expert  that her book “Land”  was written  in contemplation of this litigation  by the plaintiffs to establish their claim.
She also said that the principal objective of this book is to support the claim now  before the court and that she is interested in seeing that this action is resolved in favour of the plaintiffs.
She acknowledged that she has developed close ties with the Akawaio and Arekuna peoples. She also acknowledged that she is involved  with an organisation , Survival International ,  which has as its major  objective  the defence  from abuse of the  rights  of indigenous peoples  across the world, including  the defence of their rights to their lands.
In conjunction with others  associated with this organisation  she published  a paper entitled  “The  Plight  of the  Akawaio  Indians  in Guyana”.   The objective of the paper was to persuade the then government of Guyana not to inundate the people of the Upper Mazaruni and make them refugees. She also said that she has co-authored another paper, “The Amaila Falls Upper Mazaruni Dams Guyana, Free, Prior and Informed Consent?’ which has not yet been published.
The purpose of this  paper is the same as  the one written under  the auspices of  Survival International,  i.e. to stop the  Upper Mazaruni being inundated  by the construction of a dam and to draw  attention to the phase of this project  which she claims  was to cut off the the head waters of the  Kuribong River  to augment  the flow of water  to the Amaila  project. She said that she considers herself an activist for indigenous peoples, including the Akawaio and Arekuna peoples.
Continuing her ruling, Justice George added that as a result of Dr. Butt Colson’s testimony, more specifically that she has written the book ‘Land’, for the purposes  of the current litigation, Mr. Harnanan submitted that despite  her vast experience  and obvious  expertise , she should not be deemed  an expert for the purpose of this case as this raises the issue of the obligation of an expert to impartially assist the Court.
The Judge noted that Mr. Harnanan had lain over authorities in support of his contention.
The Judge pointed out that Mr. Hughes for the plaintiffs relied on his submissions in relation to whether Dr. Griffiths should be deemed   an expert and contended that the issue of Dr. Butt Colson having written her book in contemplation of litigation goes to the weight to be attached to her evidence and not to whether she should be deemed an expert. He submitted that Dr. Butt Colson was eminently qualified and should be deemed an expert.
In her concluding remarks the judge added, “There is no  doubt in my mind that  Dr. Butt Colson  is an expert  in the field of anthropology and that she has done extensive study  of the Akawaio and Arekuna peoples of Guyana.
“However , unlike  the  case of Dr Griffiths, where a  review of the evidence led me  to conclude that the issue whether  the plaintiffs had commissioned  his study went to weight  and not to admissibility  because  the evidence did not disclose that the study was done in contemplation of litigation.  I find that based on Dr.Butt Colson’s evidence  the issue is whether having met the criteria  for the first stage her evidence meets the criteria of the second stage as outlined  by Evans-Combe J in Liverpool Roman Catholic Archdiocese and Trustees Inc. v. Goldberg (No. 2) (supra).
“I considered whether I could have permitted Dr.  Butt Colson to testify without reference to her book, ‘Land’  but came to the conclusion  that it would be difficult  to separate  or  compartmentalise her experiences and evidence given that she said  that much of her  research over the  years has been captured in this book.
“My decision in relation to Dr.Butt Colson’s evidence leads to a logical review of my ruling that her book ‘Land’ is admissible.  I hold that I can no longer deem this book to be admissible evidence for the reasons outlined above as regards not permitting Dr Butt Colson to be deemed an expert for the purposes of this case.
Further hearing was adjourned to May 18 for report on the other witnesses.