MAYA VILLAGES BACK IN BELIZE SUPREME
COURT
On October 18, 2007, the Supreme Court of Belize issued its
landmark decision affirming the rights of the indigenous Maya
communities of Belize to their traditional lands and resources
and declaring those rights protected by the Constitution of
Belize in light of relevant international law. Following that
decision, Indigenous Peoples Law and Policy Program (IPLP
Program) Professor S. James Anaya, who is currently the
United Nations Special Rapporteur on the situation of human
rights and fundamental freedoms of indigenous people stated
that “this seminal judgment constitutes the most far reaching
application of international law by a domestic court to recognize the rights o f indigenous groups
to their traditional lands and resources.”
When the new government was elected in February 2008, Maya leaders and their legal
representatives attempted to engage it in discussions concerning implementation of the Supreme
Court judgment. At first, the actions of the government were encouraging. The new government
took a concrete, effective step to protect Maya customary rights by issuing a directive
suspending leasing, permitting for natural resource exploitation, and other land dealings in the
Toledo District until further notice, pending the process of implementing the Supreme Court
judgment.
However, in an abrupt about-face mere weeks after it was issued and without any notice to the
Maya communities, the government effectively revoked the directive, limiting its application to
the two claimant villages in the lawsuit, and leaving the lands of the 36 other Maya villages in
Toledo District unprotected and vulnerable to exploitation by the government and third parties.
The government of Belize then took the position that it has no responsibility to identify or
respect Maya village lands unless their customary title has been proven in court – and has
adopted a policy of delay with respect to the implementation of this judgment.
In the absence of any protective measures or legislative
framework to secure Maya customary title, actions by the
government and third parties since the revocation of the
directive have resulted in numerous infringements,
violations, and expropriations of Maya lands. For example,
the members of the indigenous Maya village of Golden
Stream faced immediate and irreparable harm to their lands
and livelihoods due to the unauthorized leasing and
bulldozing of village lands by a non-Maya outsider,
purportedly acting under a lease issued by the government.
Dozens of acres of forested lands were bulldozed, wiping out the crops upon which 25 Maya
farmers depend for their subsistence. The IPLP Program assisted Golden Stream to apply for,
and obtain, an immediate injunction against further bulldozing on those lands. To see a copy of
the claim form, click here.
Subsequent to the injunction, and in response to the numerous
continued infringements to Maya land rights, the IPLP Program
assisted the Maya Leaders Alliance (MLA) and the Toledo
Alcaldes Association (TAA), which is made up of all the
customarily-elected alcaldes in the Toledo District, filed a
lawsuit in the Supreme Court on June 30, 2008. To see the
claim form in that case, click here. In this case, the MLA and
the TAA are asking the Supreme Court to order the government
to abstain from carrying out any activities that might affect the value and use of those lands—
such as leasing or issuing concessions for natural resource extraction—unless the government
first obtains the informed consent of the Maya villages and until the government develops a
mechanism under which Maya villages may apply to have their traditional lands demarcated and
titled as recommended by the Inter-American Commission and required by the 2007 court order
of the Belize Supreme Court.
On February 19, 2009, hundreds of Maya farmers travelled to Belize City to attend the scheduled
first day of trial. Having missed every deadline for filing of legal documents set by the Supreme
Court, the Government of Belize requested an adjournment of the trial. To the disappointment of
the Maya villagers and their legal representatives, the Supreme Court granted that request. The
trial has been rescheduled to June 10, 2009, nearly a year after the case was filed. Maya leaders
held a press conference following that decision, urging the Maya villages to remain strong and
united in their struggle to secure their land rights.
BACKGROUND ON 2007 JUDGMENT OF BELIZE
SUPREME COURT
The Maya villages of Conejo and Santa Cruz, the two claimant villages in the lawsuit, were
represented by Belize attorney Antoinette Moore, who was assisted by Professor S. James Anaya
prior to his appointment as United Nations Special Rapporteur on the situation of human rights
and fundamental freedoms of indigenous people, students, and research attorneys of the
Indigenous Peoples Law and Policy Program. Professor Anaya and his associates developed the
theory of and documentation for the case over a period of several years, and have also
represented the Maya people of Belize in their successful petitions before the Inter-American
Commission on Human Rights and United Nations human rights bodies.
Numerous IPLP staff and students researched legal issues for the lawsuits, helped draft
pleadings, collect affidavits, and prepare educational materials about the lawsuits that were used
in village educational workshops. Moira Gracey, a 2005 graduate of the IPLP LLM program
contributed significantly to the drafting and preparation of legal documents and pleadings before
the Supreme Court. IPLP Research Fellow Maia Campbell coordinated groundwork activities
within Belize and assisted in other aspects of preparation of the lawsuit. For a description of the
preparation of the lawsuit, click here.
The lawsuits Conejo and Santa Cruz lawsuits were filed on April 3, 2007. Professor S. James
Anaya and IPLP Program students participated in a peaceful march and local press conference
announcing the filing of the lawsuits, joining over 300 Maya villagers who traveled to Belize
City to show their support. The consolidated cases were heard in the Belize Supreme Court on
June 18 - 22, 2007 before Chief Justice Abdulai Conteh. The claims were supported by
affidavits and testimony by the Maya Leaders Alliance; individual members of Conejo and Santa
Cruz villages; and expert anthropologists, historians, and legal scholars.
In the historic decision, Chief Justice Conteh found that Belize is obligated not only by the
Belize Constitution but also by international treaty and customary international law to recognize,
respect, and protect Maya customary land rights. He held that the Belize government’s failure to
acknowledge the customary land rights of the Maya villages violates their constitutionally
protected rights to property, equality, and life. The decision of the court was based on
“overwhelming” evidence regarding the existence of Maya customary land tenure presented by
the Maya claimants through expert affidavits and affidavits submitted by Maya villagers and
leaders.
In finding that Maya rights to their lands and resources in accordance with their customary land
tenure are protected by the Belize Constitution, the Chief Justice Conteh stated:
“I have no doubt that the claimants’ rights to and interests in their lands in accordance with
Maya customary land tenure, form a kind or species of property that is deserving of the
protection the Belize Constitution accords to property in general. There is no doubt this form of
property, from the evidence, nurtures and sustains the claimants and their very way of life and
existence.”
The Chief Justice further noted that Belize had violated the rights of the Maya villages of Conejo
and Santa Cruz to equality and non-discrimination by not recognizing and protecting Maya
lands, and by issuing leases, land grants, and concessions for logging and oil concessions within
Maya traditional lands, stating that:
“I find that this discriminatory treatment stems largely from the fact that the claimants are Maya
and practice the customary land tenure system of their people. The failure of the defendants to
recognize and validate this system falls short of the Constitution’s guarantee of equality and
non-discrimination.”
Demarcating the land
The Supreme Court of Belize also concluded that the
government violated the right to life, liberty, security of the
person and protection of the law of the members of Conejo and
Santa Cruz villages because, “without the legal protection of
their rights to and interests in their customary land, the
enjoyment of their right to life and their very lifestyle and wellbeing would be seriously compromised and be in jeopardy.”
Significantly, this is the first court judgment ever to apply the United Nations Declaration on the
Rights of Indigenous Peoples, adopted by the U.N. General Assembly on September 13, 2007.
The Chief Justice found that the U.N. Declaration is reflective of general principles of
international law and stated that “the defendants would be unwilling, or even loath to take any
action that would detract from the provisions of this Declaration importing as it does, in my
view, significant obligations for the State of Belize in so far as the indigenous Maya rights to
their land and resources are concerned.”
Additionally, the judgment was heavily informed throughout by the 2004 final report of the
Inter-American Commission on Human Rights in the case of the Maya Communities of Southern
Belize, which affirmed the rights of the Maya of southern Belize to their traditional lands and
resources as a matter of international law.
The government’s defense rested on denying altogether the existence of Maya property rights
based on customary land tenure, notwithstanding the recognition of Maya “rights … based on
longstanding use and occupancy” in the Ten Points of Agreement signed between the
government of Belize and the Maya Leaders of Southern Belize in 2000.
During the trial, the government of Belize, represented by legal counsel for the Ministry of
Natural Resources, maintained that the Maya do not have customary land title and disputed the
claim that the constitutional rights of the Maya are being violated. However, finding in favor of
the Maya villages, Justice Conteh affirmatively rejected the arguments presented by the
government, including the assertion that pre-existing rights of the Maya communities had been
extinguished by assertion of British sovereignty, government-issued land grants, and the creation
of Indian reservations over that area.
This judgment sets a precedent affecting over thirty eight Maya communities that live in
southern Belize. The court ordered the government of Belize to determine, demarcate, and title
the traditional lands of Conejo and Santa Cruz. This will require the government to create
legislative and administrative reforms to title Maya land based on their customary land tenure,
which will then extend to the other Maya communities of the Toledo District, Belize.
According to Gregorio Choc, spokesperson for the Maya Leaders Alliance, “the judgment is a
historic achievement for the Maya of Belize, and marks the culmination of over twelve years of
legal advocacy by Maya groups for protection of their customary lands both domestically and
internationally.”
The government of Belize did not appeal the judgment within the period required under Belize
law, and therefore the October 18, 2007 decision is final.
BACKGROUND TO THE LAWSUIT IN THE SUPREME
COURT OF BELIZE
Professor Anaya speaks at
a press conference
The current lawsuits in the Supreme Court of Belize follow an earlier, failed effort by the Maya
people of Belize to have the domestic judicial system affirm their rights in traditional lands. In
late 1996, the Toledo Maya Cultural Council (TMCC), representing 37 Maya Indigenous
Communities, filed a claim against the government in the Supreme Court of Belize.
The claim challenged the constitutionality of the government's actions and specifically sought a
declaration of the Maya communities' aboriginal title over their traditional lands and resources.
The action was brought after the Belize Ministry of Natural Resources granted two multinational
companies concessions to log over 500,000 acres of rainforest in the Toledo District. The legal
theory of the aboriginal title claim was set forth in an expert report written by Professor Anaya
and submitted to the Court along with expert reports on Maya history and ethnography. Several
years after it was filed, the case languished and was never decided on its merits, with the
government having ignored deadlines in the proceedings and requests for the production of
documents.
In June 2006, the IPLP program assisted the Sarstoon-Temash Institute for Indigenous
Management (SATIIM) with filing an injunction in the Supreme Court of Belize to stop
government-authorized seismic testing and oil exploration in Sarstoon-Temash National Park
which is situated within Maya territory in the Toledo District of Belize. An interim injunction
was granted and the Court delivered its final decision in September 2006 in favor of SATIIM on
one technical ground. The Court found that the permit issued to conduct seismic surveys in the
national park was unlawful because the oil company did not complete an Environment Impact
Assessment. SATIIM did not assert an aboriginal title argument so the court based its decision
on the assumption that the government owned the land in the national park. However, the Court
acknowledged that the Maya are the original indigenous people of Belize and used language
which appeared to invite a future Maya land claim.
Inter-American Commission on Human Rights - InterAmerican Proceeding Documents
When the initial domestic litigation attempt failed to proceed towards a resolution of Maya
grievances, the Maya communities submitted, in August of 1998, a petition to the InterAmerican Commission on Human Rights that led to a favorable, groundbreaking decision by the
principal human rights monitoring body in the western hemisphere. The petition asked that the
Commission use its powers under the Charter of the Organization of American States to
intervene in the matter and either mediate a resolution of the dispute or declare Belize in
violation of relevant human rights law. Working closely
with the Indian Law Resource Center and local Belizean
attorneys, Professor Anaya was responsible for drafting
the petition and all other major submissions to the
Commission during the course of the ensuing proceedings.
IPLP students and staff worked with Professor Anaya on
the case before the Inter-American Commission, an effort
that included developing the legal strategy, extensive
research, consultations with the Maya communities, and
hearings before the Commission.
In 2001, the Commission conducted an on-site visit to the Maya communities of Belize and,
expressing concern over the situation, reinitiated earlier efforts to mediate a negotiated solution
to the land and resource rights issues. After those mediation efforts failed, the Commission
issued a preliminary report in 2003 and a final report in 2004.
The final report in the case of the Maya Indigenous Communities of the Toledo District of Belize
is unprecedented in its far-reaching affirmation of the human rights of indigenous peoples under
international law in relation to lands and resources. Building upon the jurisprudence of the InterAmerican Court of Human Rights in the Awas Tingni case, the Inter-American Commission held
that indigenous peoples have collective property rights over their traditional lands and resources
under international human rights law, apart from whether or not those rights are recognized
under domestic law. The Commission confirmed that international law requires the government
of Belize to set the boundaries of the lands the Maya have used and lived on, and to legally
recognize and protect Maya communal property rights.
The Commission also stated that the government must consult with Maya communities and
obtain their informed consent before taking any actions that affect their traditional lands.
According to the Commission, by failing to protect Maya lands and resources and failing to
obtain Maya consent for logging concessions and other activities on their traditional lands, the
government violated the provisions of the American Declaration on the Rights and Duties of
Man. In addition, the Commission stated that the government violated Maya rights to judicial
protection, because of the failure of the domestic legal situation to adequately address Maya
grievances.
The government of Belize was slow to respond to calls by the Maya communities to comply with
the decision of the Inter-American Commission. In fact, it was precisely this inaction that forced
the Maya communities back into domestic courts in 2007. The Maya, with the help of their
supporters, including the IPLP Program, sought for several years to engage in negotiations with
the government, though these negotiations only spawned modest advances. In October of 2000,
the Maya leaders and government signed the “Ten Points of Agreement,” in which the
government recognized Maya rights over traditional lands and resources in general terms and
committed to embark on a set of initiatives – which as noted in the judgment of the Supreme
Court were unrealized - to make that recognition effective.
As noted above, the October 18, 2007 judgment of the Supreme Court of Belize was
significantly informed throughout by the 2004 final report of the Inter-American Commission on
Human Rights in the case of the Maya of Belize. In its defense, the government argued that the
Commission report is not binding on Belize and ought to be ignored, asserting that “[i]f the court
were to simply adopt the findings of the Commission without nothing more (sic) that would
result in the court enforcing an international treaty and would clearly fall within the bounds of
non-justicability (sic).” Nevertheless, the chief justice found that although the recommendations
of the Inter-American Commission were not in themselves binding, he could “hardly be
oblivious to them: and may even find these, where appropriate and cogent, to be persuasive.”
EFFORTS BEFORE THE UNITED NATIONS
Due to a lack of any affirmative action to implement the recommendations of the Inter-American
Commission and the continuing threat to Maya customary land tenure, the IPLP Program
submitted an urgent appeal to the UN Special Rapporteur on the Situation of the Human Rights
and Fundamental Freedoms of Indigenous People on behalf of the Maya Leaders Alliance. The
communication, submitted in January 2006, requests the support of the Special Rapporteur in
bringing international attention to the past and continued violations of the human rights of Maya
people by the state of Belize and the failure of the government to implement the
recommendations of the Inter-American Commission to secure Maya rights over their traditional
lands.
The Special Rapporteur responded with allegation letters to the government of Belize in April
and November of 2006 expressing concern with ongoing resource development, privatization,
lack of consultation, and the failure to delimitate and demarcate Maya territory; and calling upon
the government to fully implement the recommendations of the Inter-American Commission. A
summary of communications between the Special Rapportuer, the government of Belize and the
IPLP Program was included in the Special Rapporteur’s report to the Human Rights Council in
March 2007.
The IPLP Program also submitted a communication to the UN Committee on the Elimination of
Racial Discrimination in October 2006 addressing concerns similar to those expressed to the
Special Rapporteur. After considering the communication at its 70th session in March 2007, the
Committee sent a letter to the government of Belize stressing the urgency of the situation and the
need for immediate attention, and asking that the government respond to the Committee’s list of
concerns and questions. The Committee sent an additional letter to the government of Belize in
August 2007 urging continued compliance with the recommendations of the Inter-American
Commission on Human Rights.
In the October 18, 2007 judgment, the chief justice explicitly cited the letter from the Committee
on the Elimination of all Forms of Racial Discrimination to the government of Belize, dated
March 9, 2007 which noted the Committee “is preoccupied by reports regarding privatization
and leasing of land without the prior consultation or consent of the Maya people, as well as the
granting of concessions for oil development, logging and the production of hydro-electricity.”
The chief justice concluded that “given Belize’s commitment under CERD, the defendants
should take this communication seriously and respond accordingly.”