Chief Justice Dr. Abdulai Conteh has wrapped up a week of hearings on a novel case in which the indigenous Maya of the Conejo and Santa Cruz villages in the Toledo District are asking the Supreme Court to recognize customary land rights in the areas they farm and occupy, and to enforce the traditional title and rights they claim they have on the lands by virtue of their links to the Ancient Maya of Belize.
Similar cases have been argued elsewhere, such as in Australia and Canada, but this is the first time such a case has come to full hearing in Belize. A similar claim filed by Toledo Maya in 1996 never went to hearing in the Supreme Court.
The Toledo Maya have maintained that they have inherited land rights from their ancestors, who had occupied the territory even before colonial times, and now they are praying to the court to recognize and enforce what they argue are proprietary rights—exclusive legal rights—in a part of Toledo, because, they say, the Government of Belize has failed to do so.
In court, the Government of Belize is being represented by Nicola Cho, legal counsel in the Ministry of Natural Resources, while the Maya are being represented by Antoinette Moore, a prominent human rights attorney.
While Cho declined comment to the press after the hearings, Moore remarked that she would be very anxiously awaiting the Chief Justice’s ruling. She is very confident that she has argued a good case on behalf of her clients.
At the end of the hearing, Dr. Conteh congratulated both sides for the effort they put forth in presenting their case. This week he heard submissions and arguments from counsel for both sides, and today he listened to their concluding remarks. When he dismissed the court at about 3:15 this afternoon, he said that he would reserve his judgment in the matter. A date will be set later for the delivery of the court’s judgment.
The case of the Maya of Santa Cruz and Toledo is a fascinating lesson in both history and law. Their case has roots as far back as pre-colonial times, and two of the central questions argued before the court are whether the Maya people in question can show that they have exclusively and continually occupied the lands before the Spanish and British invaded the territory, and if those rights are deemed to exist, whether they had been extinguished by virtue of the government exercising sovereignty over the lands.
The case of the Maya
On April 3, 2007, a group of Maya from Conejo and a group from Santa Cruz—both villages in the southernmost district of Toledo—filed two separate claims in the Supreme Court. On April 26, those claims were consolidated into a single action, and they were argued jointly before CJ Conteh from Monday to Thursday of this week.
What do the Maya want from the court?
The Maya of Conejo and Santa Cruz are seeking two declarations and two orders from the court, as well as for their court costs to be paid by the Government.
The first declaration sought is that the Santa Cruz and Conejo villagers hold collective and individual rights in the lands and resources that they have used and occupied according to Maya customary practices, and that these rights constitute “property” within the meaning of sections 3(d) and 17 of the Belize Constitution.
The second declaration sought is that the villagers of Santa Cruz and Conejo hold collective title to lands that they have traditionally used and occupied within the boundaries established through customary practices, and that this collective title includes the derivative individual rights and interests of the villagers, which are in accordance with and subject to their customary law.
The Maya are also seeking an order from the court, that the Government of Belize determines, demarcates and provides official documentation of their collective land title and rights in accordance with Maya customary law and practices, without prejudice to the rights of neighboring communities.
Finally, they are seeking an order from the court that the Government of Belize cease and abstain from any acts that might lead Government agents, and any third party acting with its acquiescence or its tolerance, to affect the existence, value, use or enjoyment of the property located in the geographic area occupied and used by the Maya people in the said villages, unless such acts are with the informed consent of the villagers and in compliance with the safeguards enshrined in the Belize Constitution.
The second order they are seeking applies to the issuing of leases and grants under the National Lands Act or any other Act, the registering of any interest in lands, the issuing of regulations concerning land or resource use in the area, and the issuing of concessions for resource exploitation/harvesting, including concessions, permits or contracts authorizing logging, oil prospecting and exploration, mining and other such activities.
Evidence for the Maya
Much of the evidence presented to the court in support of the Mayan claim came from the Maya themselves, as well as from experts in anthropology and international law on indigenous rights.
Between Monday and Wednesday, 9 witnesses appeared on behalf of the claimants. Among these witnesses were Higinio Teul, a traditional healer of Santa Cruz, and his son, Basilio Teul, a prior chairman of Santa Cruz; Manuel Coy, the alcalde of Conejo, and Manuel Caal, a second term chairman of Conejo.
These Maya testified before the court about the traditional land use practices of the Maya, and demonstrated how they have managed and used their lands in a communal way to live, farm, fish, hunt, gather medicines, and so on. Their claim is that the Maya people are completely dependent on the land for their survival, but moreover that they are culturally linked in a way that no other ethnic group in Belize is linked to their land through religious ceremonies that are incorporated into their land use practices, such as planting rituals.
Mayan leaders, Cristina Coc, director of the Julian Cho Society, and Greg Choc, a longstanding Maya activist of Toledo and spokesperson for the Maya Leaders Alliance, also took the stand.
They told the court that the Maya have a tradition dating back to pre-contact Maya – that is, Maya who lived in the area before the European settlers came. They also argued that the leasing system that the Government is trying to impose on the area is a threat to the existence of the Maya culture, and their system of communal rotational farming.
Elizabeth Gage, a filmmaker of Colorado, US, testified on a 5-minute video showed to the court, that strategically demonstrated the manner in which the Maya people use the land for fishing, hunting, gathering of herbs and other traditional practices.
Dr. Richard Wilk, an expert anthropologist, discussed the Mayan presence in Belize. He told the court that the Maya who occupy the territory now are clearly descendants of the Maya that were there before the Spanish invaded.
The final witness, who wrapped up things for the claimants on Wednesday morning, was expert witness, Dr. Stephen James Anaya. Anaya is a Harvard graduate and a law professor at the University of Arizona with over two decades of experience in indigenous law.
Anaya had helped the Mayans achieve victory before the International Human Rights Commission in 2004 in their land rights case. That case was lodged after a similar case, filed in 1996 by the Toledo Alcalde Association and the Toledo Maya Cultural Council, was left in limbo without even being called for trial.
Dr. Anaya pointed to international law, and specifically to treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination, to which Belize is a party, to demonstrate that the Government of Belize has acceded to international treaties that recognize the rights of indigenous peoples.
The professor said the Maya have proprietary land rights, and that even though some authorities may claim the extinguishment of those rights—saying that sovereign governments have done away with those traditional rights—this is a colonial-era doctrine that is highly challenged by contemporary human rights doctrine.
Anaya said that not only do the Maya have a right to the lands they have traditionally occupied, but that the state also has an obligation to respect those rights, and to adopt affirmative measures to recognize and secure those rights on their behalf.
The rights for which the Maya are fighting, said Anaya, are within the broader human rights context addressed by the American Declaration on the Rights and Duties of Man, which becomes relevant to Belize by virtue of its membership to the Organization of American States and its acceptance of the OAS Charter.
In addition to presenting these witnesses before the court, attorney Moore submitted over 20 affidavits, including statements from the Maya and experts in the area of indigenous rights.
Government’s rebuttal
In presenting her case, Cho relied mostly on affidavit evidence from eight public officers, including Lands Commissioner – Armin Cansino, Director of Petroleum and Geology – Andre Cho, Lindsey Belisle, executive director of the Lands Management Program, and S. Muñoz – videographer of the Government Press Office.
Cho called only one witness to the stand. On Wednesday morning she called Muñoz to verify that the footage she was about to show to the court was footage he had gathered. Then, she proceeded to show a silent one-hour video of shots of Maya villages from all six districts in Belize. However, by the time she had showed footage from San Miguel, San Marcos, San Pedro Columbia and San Antonio—all Toledo villages—the Chief Justice decided that the court had seen enough of the un-narrated footage, which showed mostly concrete structures, roads, lighting, water and public phone systems, as well as the general terrain of the area. He commented that there could have been some running commentary to explain the video.
Cho argued that the purpose of the video was to dispute a claim that had been made by the other side – that the Government of Belize has discriminated against the Maya. She told the court that the footage shows that that the Government has provided all the amenities to these villages that they had provided to other villages.
However, Cho’s argument did not fly with the judge, who pointed out that the said villages had not even been included in the footage provided to the court.
In introducing her rebuttal the court on Wednesday, Cho said that the Maya really have no customary land title as they are claiming. However, even if the court determines that they do have that title, the Government of Belize has not breached the constitutional rights of the Maya, as they are claiming. She said that in the event that the court has found constitutional breaches, they can only be limited to proven, historical and traditional rights, of which, she claims, none truly exists.
The Chief Justice pointed out to Cho that her submission was not adequate, as a bare denial of the claimants’ position is not enough. He told her that she had failed to summarize the reasons for the denial she was making before the court. She later saw the wisdom in the Chief Justice’s admonition and the court gave her permission to amend the Government’s submission in the case.
Cho made that submission early Thursday, when she presented a more detailed summation of her case.
She argued before the court that for the Maya to prove title, they also have to prove that they are direct descendants of those who occupied the territory when sovereignty over it was established, and a demonstration of exclusive and continuous occupation is required.
The Chief Justice then pointed to the affidavits presented by the claimants, numbering 29, which he said claim that the Maya who have brought the claim before the court are direct descendants of pre-contact Maya.
Link to the Guatemalan claim?
Cho cited the 1859 Treaty between Guatemala and Britain, and told the court that 1859 is a crucial date when the British exercised sovereignty over Southern Belize, and particularly what are now the Stann Creek and Toledo Districts. She said that historical experts have documented that a majority of the Maya people who had occupied the area had been forcibly removed from the territory by the Spaniards and a few may have remained and hid in the forests, but, she said, there is the question of whether those few that possibly remained were sufficient to continue the occupation of the area. It was only later that the Maya resettled, she added.
The Maya who now live in Toledo come from Guatemala, and the oldest Maya village recorded is Pueblo Viejo (Old Town), which she said was established in the 1880’s, Cho told the court. Conejo was established in 1907 by Jose Makin, born in Guatemala in 1867, and the Maya villages are “recent villages,” she furthermore argued.
Cho went on to tell the court that in light of the history of the settlement of the South, and because Guatemala has an unresolved claim over Southern Belize, a granting of land rights to these Maya could undermine Belize’s exercise of sovereignty over the area, because the Maya villages have a connection to Guatemala, since their founders had been living there.
The Chief Justice pointed to the Maya belief that they know no borders. But to recognize title on this basis, said Cho, could be inconsistent with Belize’s exercise of sovereignty, and put that very sovereignty at risk.
“Don’t you think it might serve to the government’s credit?” C.J. Conteh questioned.
Cho reasserted her argument, that to recognize the Maya claim in light of recent relations with Guatemala might affect the Guatemalan claim to Belize.
GOB says Maya rights have been extinguished
One of the central points of Cho’s argument is that by virtue of the Crown’s Lands Ordinances dating as far back as 1872, the government had extinguished the land rights of the Maya. She said that this has been evidenced by the fact that the Government gave leases and grants of lands in Toledo, including a land grant in 1898 for 18,000 acres to one Kramer near the Sarstoon/Temash area in Southern Toledo.
The Chief Justice said, however, that to prove that those rights have been extinguished, Cho had to point to a clear proclamation saying that all the lands in the territory now known as Belize had been vested in the Crown, which, he said, she had yet to demonstrate.
Cho’s argument was that certain acts of the government had proven extinguishment, as the issuing of land grants, etc. for the area, meant that they were exercising sovereignty over the area.
She furthermore told the court, pointing to affidavit evidence from public officers, that the Maya of Conejo and Santa Cruz, like Maya of other villages, had willingly participated in Village Council elections, which meant that they had accepted that the new way of governing now is through the Village Council system. The Village Council Act is the authority for land distribution, she added.
In addition to arguing that the Maya have no customary land rights and that even if they did, they have been extinguished, Cho told the court that the Government has not violated the constitutional rights of the Maya, as the claimants have argued. She also disputed the claim that the Government has discriminated against the Maya by not recognizing and protecting their land rights.
Concluding arguments from the claimants
Attorney Moore responded to Cho’s summations on Thursday afternoon, saying that while Cho attempted to prove that the Maya have not occupied the territory in a continuous fashion by physically being in that territory since pre-colonial times, there is ample evidence to show that the Maya there today are the descendents of the Maya of those pre-contact times, and that alone is sufficient to prove their rights.
She told the court that the continuity in cultural practices applies in this case, and it is not only physical continuity that can be used to argue the point.
Cultural, ancestral and kinship connections have been clearly established, Moore reasoned, citing expert sources to indicate there is ample evidence to indicate that the systems of the Maya that were in place prior to 1859—the date Cho has submitted as significant—have continued.
With respect to the claim of extinguishment, Moore said that there is no evidence in the ordinances that Cho presented that the land rights now claimed by the Maya had been extinguished. In the case of the 1872 ordinance, she noted that there is a provision that people who had been occupying lands illegally would have faced prosecution, and there is no evidence that the government of the time had prosecuted the Maya for unlawful occupation, demonstrating their acquiescence to Maya occupation of the territory.
Moore told the court that the Government’s position on Maya land rights is “absolutely wrong, and in fact discriminatory.”
She contended that the failure to recognize the rights of the Maya perpetuates the injustices meted out by the colonizers who had invaded the area centuries ago, and forced the Maya out of their homeland.