The Maya won, and lost at the Court of Appeal, but “This is not the end:” Greg Ch’oc
The long-awaited decision by the Court of Appeal in the Maya land rights case was finally handed down today, and while it reaffirmed the October 18, 2007 decision by former Chief Justice Abdulai Conteh that the Maya of Toledo do have customary land rights in Southern Belize, it overturned orders that Conteh had made, binding the Government of Belize to give effect to those rights.
Alfonso Cal, chairman of the Toledo Alcalde Association (TAA), one of the main claimants in the land rights case, told Amandala after the decision was read that they have waited three years for it, and he didn’t sleep at all last night, after they received notification around 6 o’clock yesterday that the decision would be read today at 2:00 p.m.
“The Maya people were very poor people with money – cash, but with the land we are rich with land and that’s where we live. We make our living. We get everything that is necessary for our family,” Cal told our newspaper.
“When the other third parties come to try to tell us that this land is not for us, we are just squatting, we just laughed. They were sent by somebody. We tell them now that this land is ours and they don’t believe it!” Cal added.
He said, however, that there have been many violations against their property rights: prominent examples that have riled up the Maya of Toledo are petroleum exploration and rosewood logging.
Land disputes in Maya villages such as Golden Stream, in fact, triggered the court case; and the Maya won two landmark rulings before former Chief Justice Conteh.
The Government, at the time of the People’s United Party administration, didn’t appeal the first decision which applied to only two Maya villages – Conejo and Santa Cruz; but the Barrow administration appealed the second decision, which extended the declarations to roughly 40 villages in Southern Belize.
That appeal was heard in March and June 2011, and although the Court of Appeal is out of session, that decision was handed down today – only days before the court is scheduled to hear an application by the claimants, alleging that the Government is in violation of the injunctions that had been granted by Conteh. With today’s decision, though, that injunction no longer exists.
“Obviously, there are some interesting issues around the timing [of today’s Court of Appeal decision], because I have filed an application for contempt which is to be heard on Monday with respect to this very judgment – contempt with respect to the Government not obeying the court orders. So we shall see what will happen on Monday,” Antoinette Moore, SC, attorney for the Maya, told the press, after today’s session.
In the Court of Appeal today, President Manuel Sosa had the disconcerting task of having to deliver a majority decision to which he dissented. While he did not say how his own views differed from his colleagues on the bench, Justice Sosa—who attributed the late decision to a plethora of complex cases coming to the bench—said that Justices Dennis Morrison and Brian Alleyne had concurred; making a majority of two out of three.
Justices Morrison and Alleyne dismissed the first two grounds of the Government’s appeal, while they allowed the final three grounds of the appeal.
The first ground on which the Government appealed is that Conteh had erred in law in failing to identify the legal requirements for indigenous title, and that he erroneously found that the Maya are entitled to indigenous land rights. The Court of Appeal did not agree with this stance taken by the Government.
The second ground of appeal is that Conteh had failed to evaluate the facts against the criteria for indigenous title and he failed to evaluate the Government’s evidence in relation to current land use in Toledo. The Court of Appeal, likewise, did not agree on this point.
They took a contrary stance on the remaining three grounds.
The third ground on which Government appealed is that Conteh erred in law when he ordered the Government to take affirmative measures to identify and protect the rights of the Maya based on customary land tenure. The Court of Appeal agreed with the Government on this point – that they have no such obligation.
The Court of Appeal also agreed with the fourth ground of the Government’s appeal: that Conteh “misdirected himself” in ordering the Government to set up legislative, administrative and other means to identify Maya customary property rights in land and to protect them.
Lastly, the Court of Appeal agreed with the Government’s fifth ground of appeal, which has to do with petroleum rights; and the vesting of those petroleum assets in the Crown.
Sosa said that the court had dismissed the cross-appeal from the Maya, which Senior Counsel Moore said had to do with their claim for damages.
She gave a synopsis of what today’s decision means:
“The essence of the case is the affirmation of customary land rights, that Maya people have a right to the land that they have traditionally used and occupied that they have inherited from their forefathers – that they have a right to use the land in the way that they use it, because, of course, at the Supreme Court we said it was discriminatory to require them to chop up the land and put [them] into individual leases if that is not their customary [way], and that is the essence of the case.
“But the practical part is very important as well, and that really, unfortunately, it seems that the court – the majority decision – was not convinced of the merit of that part of the case and it is very important to my clients that they be protected by this Government in their land rights.”
Spokesperson for the Maya Leaders Alliance (MLA), Cristina Coc, shared with Amandala her reaction to the decision:
“We are not at all one-hundred percent happy with the dismissal of those orders, because if we do have those rights, if those rights do exist, then who is there to protect it? Isn’t it the Government that’s supposed to be protecting our rights? Or are they telling us that the Maya people will have to protect their rights come what may?”
Today’s ruling also has implications for another legal battle between the Sarstoon Temash Institute of Indigenous Management (SATIIM) and four Maya villages: Conejo, Midway, Crique Sarco and Graham Creek, which are taking the government to court over oil drilling in Toledo, including inside a national park they insist is on their ancestral and communal lands.
Greg Ch’oc, Executive Director of SATIIM, described today’s Court of Appeal decision as “bitter-sweet…”
“At least the court has affirmed that we have rights to the land, that we are the owners of the land and that we have rights to the land as property defined under the Constitution. In terms of rights, I believe that we can proceed to protect those rights, even if the Government doesn’t see it fit,” said Ch’oc.
He avowed, though, that “This is not the end here! We are going to take this definitely to the CCJ [the Caribbean Court of Justice].”
Moore also anticipates that the MLA and TAA will not end the legal challenge here – but neither does she expect that the Government will settle for today’s ruling.
Moore also told the press that this case may end up at the CCJ – Belize’s court of last resort.
“I think that this is going to be ongoing, unfolding process that we all are going to have to closely observe,” said Moore.
Amandala tried reaching Prime Minister Dean Barrow today to get his reaction to the Court of Appeal decision; however, at press time tonight, we had not heard back from him.