Justices Morrison and Alleyne affirm Conteh decision

Last week, our newspaper reported on the decision by the Court of Appeal affirming that the Maya of Southern Belize do have customary rights to the lands they have traditionally occupied. When he read the decision in court last Thursday afternoon, Court of Appeal President Justice Manuel Sosa had indicated that his view was the minority one – differing from the other two justices on the bench.

While Justice Sosa shared a snippet from his decision, that snippet was merely to indicate his apology for the length of time the court took to render the decision – not to state his view on the substantive matter raised before the court.

Amandala was able to peruse the 198-page document, which contained Sosa’s further comments on the case. In it he says that, “the respondents have not shown, and cannot show, to the required standard, links to and with the original inhabitants of the lands presently occupied by them in the Toledo District for the purpose of establishing continuity to…”

Justice Sosa said that he was unable to agree with Dr. Conteh, in his 2010 decision, that “on the evidence, there exist the essential historical and ancestral links between the original inhabitants of what is today the Toledo District and the respondents…”

Sosa said that he was also unable to agree with Dr. Conteh that the Maya claimants have entitlements to the land in question.

Sosa took the view that the Maya land rights claim should have been properly dismissed by the court below – the Supreme Court.

His colleagues, Justice Dennis Morrison and Justice Brian Alleyne, disagreed. In their majority decision, the Justices dismissed the Government’s appeal and affirmed Conteh’s 2010 declaration, reaffirming his judgment given on 18 October 2007, “…that Maya customary land tenure exist [sic] in all the Maya villages in the Toledo Districts [sic] and where it exists, gives rise to collective and individual property rights within the meaning of sections 3(d) and 17 of the Belize Constitution…”

Morrison noted that, “The unchallenged evidence in this case has shown that, from the earliest years of the colony of British Honduras, British policy was to accommodate Maya land use and to encourage Maya settlement.”

He added that, “The earliest Crown Lands Ordinance, which was passed in 1872, specifically provided for the creation and survey of reserves at the Crown’s expense wherever Maya villages existed. The general pattern of accommodation of Maya land use continued well into the 20th century…”

Morrison finally expressed the hope that “…this tendency will continue beyond this litigation.”

Justice Alleyne concurred that, “…the Maya people have rights to land and resources in Southern Belize based on their long-standing use and occupancy, and that the respondents have succeeded in establishing their claim to customary land tenure in Belize.”

He said that Conteh had correctly found, based on the evidence, “that the Maya communities of the Toledo district of Belize have a historical and cultural relationship with the lands on which they currently live and work, and with the populations which have historically inhabited them, and that the patterns they describe in their villages are consistent with the traditional patterns of customary land tenure.”

Alleyne agreed with Conteh’s decision not to award damages, since the court declined to endorse the claim that there had been any deprivation of traditional property rights of the respondents and their ancestors.

The controversial part of the decision is the decision by the Court of Appeal to dismiss a series of orders which Conteh had made in favor of the Maya villages, as well as an injunction restraining the Government taking certain actions with respect of the lands without the informed consent of the Maya.

Conteh had stated that the Government of Belize has an obligation to adopt affirmative measures to identify and protect the rights of the Maya, and went on to order the Government to work along with the Maya to develop legislative, administrative or other measures necessary to identify and protect Maya customary lands, in conformity with traditional practices.

Government had argued that by restraining the Government of Belize from issuing leases, licenses, grants to land or resources, concessions for resource exploitation, and the like, under the Forest Act, the Mines and Minerals Act, the Petroleum Act, “or any other Act,” Conteh effectively restrained the Government from “the lawful exercise of rights over petroleum and or minerals, the ownership to and proprietary rights in which are, by the ordinary law and by the Constitution, vested in [GOB]”.

Morrison stated that “the order for an injunction cannot in these circumstances be supported.”