Tags

, , , , , , , , , , , , , , ,

We believe that the wish to “modernize” Haiti’s current Mining Law (1976) is most likely a wish to remove some of the protections which are found there. Today, we examine some of those aspects in relation to property owners and tenants.  Additionally, there are parts of the Haitian Constitution regarding mining and private property, which are apparently being ignored, along with the mining law itself.       

Haiti’s Constitution (1987) makes clear that proceeds from mining should accrue in equitable parts to the landowner, the state, and the mining permit holder.  In the current mining contracts and media nothing is mentioned of the 1/3rd, which should come to the landowner.  

Furthermore, the Constitution seems to suggest that any mines and quarries can only be underground.    

Importantly, under the Constitution, the landowner is required to protect the land from erosion.  Surface mining is, by definition, erosion.  

As we have previously mentioned the Constitution in Title IX, Ch. II, Article 253 says that “The Environment being the natural framework of the life of the population, practices likely to perturb the ecological equilibrium are formally prohibited”, which appears to rule out all mining and petroleum exploitation, but especially surface mining, fracking and other alternative petroleum exploitation.  This is all the more true given the prevalence of karst in Haiti, which makes the risks of widespread pollution of aquifers greater.      

Under the Constitution, local people have the right of first use of land belonging to the State.  Given the shortage of agricultural land in Haiti, it seems clear that someone would preempt any sale or lease to a mining or oil and gas company, in order to have the land for farming, fruit trees, pasture, coffee trees, etc.  

Thus, there seem to be several things in the Constitution going against the legality of the ongoing and proposed surface mining in Haiti
1) it appears that any mines and quarries can only be underground;
2)  the landowner is required to protect the land from erosion; 
3) there is a right by local people to preempt the lease or sale of government property to a third outside party (e.g. mining company).  
4) mining, and especially surface mining, appears illegal due to perturbing the ecological equilibrium.   

Although control of mineral rights belongs to the Haitian State, the 1976 Mining Law also requires consideration of both the landowner and the landholder (tenant-occupant).  But, before consideration is given to property owners, the property owner must be known.  And, Haiti is currently unable to do that.  This alone means that there should be no mining or petroleum prospecting or exploitation right now.  

The Constitution calls for equitable distribution of mining proceeds.  This is something which has apparently been ignored both by the mainstream media and in the permit process, as have tenant-occupant rights.  The few reports indicate that the mining companies have just shown up with no warning and no permissions.  This is in violation of the current 1976 mining law.  Furthermore land records (cadastre, survey, title deeds) need to be updated before any mining permits are given out because if there is no definitive record of the land owner and land holder then they can neither give their permission nor get their part of the profits.  

The lack of an updated land registry is a gaping hole, which in itself is a reason for no mining to move forward.   Related to this is the prohibitively high cost of filing a title deed, which makes it impossible for most peasants to protect their property rights.  

Much land belongs to the Haitian State and has often been given to elites who sublet it to peasants, who sometimes sublet it to others in very complex relationships.  It appears most certain that massacres of peasants have been carried out due to disputes over land.  Considering that the Mining Conventions, under which the current companies allege to be operating (even though they appear expired), were handed out and/or renewed during periods of Coup d’Etat, which were characterized by widespread massacres, one can suspect that some of these massacres were actually land grabs related to mining. [1]  Already in such a tiny mountainous country agricultural land is in short supply and a source of potential conflict.  Surface mining can only exacerbate this conflict.  And, a reading of the Constitution seems to exclude surface mining. 

The current Martelly-Lamothe administration appears the wrong administration to straighten out the cadastral/title-deed/survey property situation:  According to the Senate Inquest Commission Report, Martelly-Lamothe are alleged to have threatened Judge Joseph in a meeting. Furthermore President Martelly is alleged to have even stopped Judge Joseph on the highway and threatened him.  Additionally President Martelly is also alleged to have tried to land grab a neighbor’s property.[2]  Thus, this administration does not seem to be the one to sort out Haiti’s complicated property rights issues — on the contrary.  There appears no rule of law in Haiti, despite valiant efforts by some members of Parliament and of the Judiciary. In such a context you cannot fairly address property rights    

Haiti’s Constitution and Property Rights and Duties

According to the 1987 Haitian Constitution, Title III, Section H Property, Article 36:  Private property is recognized and guaranteed. … Article 36-4: Landowners must cultivate, and protect their land, particularly against erosion …. Article 36-5: The right to property does not extend to the coasts, springs, rivers, waterways, mines and quarries. They are part of the public domain of the State. Article 36-6: The law establishes the rules governing freedom to prospect and to exploit mines and quarries of exploration and the right to operate underground (subsoil) mines and quarries, while assuring the surface owner, the concession holders, and the Haitian government, equitable participation in the profits afforded by the development of these natural resources …. Article 39: The inhabitants of the Communal Sections have a Right of First Refusal for the use of the State’s private land situated in their locality. [Our note:  this is known as preemptive right in French or preferences right and is a legal or contractual right accorded to certain persons to acquire a property by priority before all other individuals… http://fr.wikipedia.org/wiki/Droit_de_préemption  ]

Haiti’s 1976 Mining Law and Private Property

In the context of private property, an important part of the Mining Law is Chapter VII. Article 65 is especially interesting in the context of concerns in some places about fracking under people’s homes without permission.  Under the Haitian Mining law this topic is clearly addressed:
Relationship between the Permit and Concession Holders, the State, and the Landowners

ARTICLE 65

No prospecting work, research work or exploitation can be effectuated at a distance inferior to 50 meters [54.68 yards] measured horizontally from:  

1.  Property boundaries, enclosures, walls or the equivalent, villages, groups of housing, industrial buildings, wells, religious buildings, burial sites and sites considered historic or sacred, without the consent of the concerned property owners and the approval of the concerned departments.  
2.  Both sides of transportation routes, dams, water lines [seemingly includes irrigation channels], power lines
3.  From all public utility works and all engineering works

ARTICLE 66

The beneficiary of a permit is responsible for repairing all damages that the work may cause to third parties.  

ARTICLE 68

a) The permit holder can occupy the land needed for work only after agreement with the owners and occupiers of the land on the amount of indemnification for the aforesaid temporary occupation to be given to the aforesaid landowners and occupants.  

b)  In absence of an amicable agreement, the amount of the indemnity for temporary occupation will be fixed by an arbitration  commission composed of three (3) members of which two (2) will be designated by the interested parties; the third will be chosen by the  “Institut National des Ressources Minérales” [Precursor to today’s BME, Bureau of Mines]

c) In order to not delay the work, and in absence of an amicable agreement, the occupation of the land belonging to individuals can take place after depositing in the National Bank of the Republic of Haiti a deposit equal to the amount of the indemnification proposed by the beneficiary while awaiting a decision.   

ARTICLE 69

When after the work is completed, the land becomes improper for cultivation, the permit holder should proceed to rehabilitate the soil.  

Translations from the Constitution and Mining Law are our own from the original French. The English Translation of the Constitution found online has some inaccuracies. There appears no English Translation of the Mining Law. General information on property rights being an ongoing problem is from information found online in French and English over the past 16 months. However, the core of our understanding of property rights, and of Haitian history is based on over a decade of research done in pre-Internet days.  Information regarding the timing of the Conventions and the Coup d’Etats, etc, is found here and elsewhere on this site. https://miningawareness.wordpress.com/2013/01/06/haiti-morne-bossa-gold-missing/

[1]  Regarding post-coup violence see for instance:  
After the democratically elected government was overthrown, the rebels and the newly formed police have been on a killing spree; thousands of poor peasants and slum dwellers have been massacred in ‘a pattern of repression’ against ‘those close, or perceived to have been close, to … Fanmi Lavalas (FL)’, the political party that held power prior to Feb. 29, 2004, according to Amnesty International.http://www.thirdworldtraveler.com/Haiti/Haiti_Q%26A.html (More coup info below the Jean Rabel Massacre info)

The Jean Rabel Massacre was carried out under a post-Duvalier regime and during one of the many periods of Mining Exploration, but we do not know if it was strictly a land dispute between landlord and peasants or if it was related to mining:  

Jean Rabel Massacre and the Lucas Family

Stanley Lucas who is posturing all over the internet and anyplace else he can think of and was appointed as advisor to Martelly is from Jean Rabel. http://canadahaitiaction.ca/content/stanley-lucas-new-advisor-president-martelly-accuses-and-threatens He is reportedly kin to the landowner(s) who did the massacre, http://www.haitianinternet.com/messages/7684 although allegedly not involved in the massacres himself. Nonetheless, he and they should serve as a kind of warning of the types of elites one can be dealing with inside and outside of Haiti:  

1987 (July 23): Event known in collective memory as the ‘Jean-Rabel massacre.’ In the vicinity of Jean-Rabel (in the Northwest of the country), paramilitary groups led by macoutes and acting upon orders from a local land oligarch, Rémy Lucas, killed at least 139 peasants (300 according to various human rights groups and the OAS, and 1,042 according to Nicol Poitevien, one of the self-proclaimed assassins). Even the most conservative estimate makes it one of the largest massacres on a single day in Latin America in the 20th century. This massacre occurred a few days after Lieutenant-General Namphy, one of the leaders of the ruling junta at the time, visited the area and publicly supported the Lucas family and their rights to the land they claimed. The dysfunctional Haitian judicial system, plagued with incompetence and the lack of resources, was unable to carry out and conclude its investigation of this event. Faced with considerable pressure from human rights groups, the Minister of Justice eventually issued an arrest warrant on September 13, 1995. In January and February 1999, Rémy Lucas, Léonard Lucas and Jean-Michel Richardson were detained for a short period. On July 23, 1999, the Minister of Justice created a judicial commission to supervise the investigation which, to this day (May 2005), has still not been completed.’ *** (ICHR, 1988: 81; United Nations, 2000: 9)http://www.massviolence.org/Massacres-perpetrated-in-the-20th-Century-in-Haiti?artpage=4-6
Regarding Stanley Lucas http://www.haitianinternet.com/messages/7684
Human Rights under the post Duvalier dictatorship prior to Aristide’s election: http://www.ijdh.org/wp-content/uploads/1990/05/1990-ICHR-Report-Haiti.pdf
Human Rights after the first coup against Aristide: http://www.ijdh.org/wp-content/uploads/1994/02/1994-ICHR-Report-Haiti.pdf and before and after his return http://www.ijdh.org/wp-content/uploads/1995/02/1995-ICHR-Report-Haiti.pdf :
Once President Jean-Bertrand Aristide had returned, a process of fundamental changes began in Haiti, especially in relation to the human rights situation. Nine days after the democratic government had been reinstated, the Commission carried out an observation visit to Haiti and was able to note an especially significant change, contrasting with the situation observed on the previous visit in May 1994. The departure of the dictatorial regime put an end to the climate of terror and violations that existed in Haiti. In Port-au-Prince and in some of the major urban areas, people now enjoy the freedom to express their support for the constitutional regime. The freedoms of expression, of the press, and of association have been restored. The Commission also observed a resumption of political activity in many areas of the country.”

[2] According to Senator Steven Benoit, “Among other things, President Martelly has been accused of violating article 153 of the constitution when he tried to dispose a neighbor of his private residence of his houseand surrounding properties by using the equivalent of the IRS to falsely accuse the individual of not paying property taxes.http://omegaworldnews.com/?p=5474 Elsewhere we have read that Martelly had his cousin Richard Morse ask the people to leave the house.