Nettheim, Garth --- "The Maya Land Rights Case: Recognition of Native Title in Belize" [2008] IndigLawB 7; (2008) 7(2) Indigenous Law Bulletin 25
The Maya Land Rights Case: Recognition of Native Title in Belize
by Professor Garth Nettheim
On 18 October 2007, the Chief Justice of the Supreme Court of Belize, Dr Abdulai Conteh, held that native title is possessed by Mayan people in two villages (Santa Cruz and Conejo) within the country’s Toledo District.[1] Conteh went on to hold that such title has legal protection under the Belize Constitution.[2] The case was preceded by a successful petition, launched in 1998, to the Inter-American Commission on Human Rights.[3]
Chief Justice Conteh reviewed the detailed evidence put before him by Mayans from the two villages and from other expert witnesses and concluded that:
on the evidence, the claimants have established that there is in existence in Southern Belize in the Toledo District, particularly in the villages of Santa Cruz and Conejo, Maya customary land tenure.[4]
His Honour’s finding was bolstered by the 2004 conclusion of the Inter-American Commission on Human Rights, that the Maya
have demonstrated a communal property right … [arising] from the longstanding use and occupancy of the territory by the Maya people which … pre-dated European colonization, and have extended to the use of the land and its resources for purposes relating to the physical and cultural survival of the Maya communities.[5]
Chief Justice Conteh also referred to a ‘Ten-Point Agreement’ signed in 2000 between the Government of Belize and Mayan organisations, which provided ‘a clear affirmation of the existence of Maya customary land tenure in southern Belize’.[6]
The Chief Justice then examined whether the claimants had interests in land based on Maya customary land tenure and, if so, the nature of such interests. Interestingly, he did not require proof that the particular interests asserted before him were those that operated before the arrival of the Spanish, and, later, the British. The fact, for example, that the Santa Cruz village was established as late as 1950 did not detract from the fact that the evidence established continuity of customary land tenure from pre-colonial times.[7]
His Honour went on to examine evidence as to the nature of the claimants’ interests. In doing so he cited a number of cases from other jurisdictions, such as Nigeria;[8] Malaysia;[9] and South Africa.[10] In considering whether a ‘change in or acquisition of territorial sovereignty’ acted to ‘extinguish pre-existing rights and interests in the land’,[11] he endorsed ‘with respect, the statement of principle on this point by Brennan J in the High Court of Australia’[12] in Mabo:[13]
The preferable rule, supported by the authorities cited, is that a mere change in sovereignty does not extinguish native title to land. (The term “native title” conveniently describes the interests and rights of indigenous inhabitants in land, whether communal, group or individual, possessed under the traditional laws acknowledged by and the traditional customs observed by the indigenous inhabitants).[14]
The Belize Constitution (unlike that of Australia) contains provisions for fundamental human rights. It even contains a preambular provision, inserted by amendment in 2001, requiring ‘policies of state which protect … the identity, dignity and social and cultural values of Belizeans, including Belize’s indigenous peoples…’[15] The Chief Justice found specific constitutional provisions to be relevant:
I am of the considered view that the interests of the claimants in land based on Maya customary land tenure are clearly deserving of the protection afforded by the Belize Constitution to property. That is to say, these rights and interests of the claimants according to Maya customary land tenure constitute under the Constitution “property” and should be so readily cognizable.[16]
Chief Justice Conteh drew support from the Report of the Inter-American Commission on Human Rights, Amodu Tijani,[17] Mabo,[18] Delgamuukw,[19] and other cases.[20] He found violations of some (but not all) provisions of the Constitution relating to property, and also provisions relating to equality and to the right to life, liberty, security of the person and the protection of the law.[21] In conclusion he found further sources of support in international law, particularly the International Covenant on Civil and Political Rights,[22] the International Convention on the Elimination of All Forms of Racial Discrimination,[23] the Charter of the Organization of American States,[24] and also in the Declaration on the Rights of Indigenous Peoples[25] which was adopted by the United Nations General Assembly as recently as 13 September 2007.
His Honour concluded by making appropriate orders and declarations.
Emeritus Professor Garth Nettheim was Dean and Head of School of the Law Faculty and founding Director of the Indigenous Law Centre, UNSW. He is currently an Honorary Visiting Fellow teaching Indigenous legal issues and human rights law at the Law Faculty, UNSW.
[1] Aurelio Cal in his own behalf and on behalf of the Maya Village of Santa Cruz and others v The Attorney General of Belize and the Minister of Natural Resources and Environment; Manuel Coy in his own behalf and on behalf of the Maya Village of Conejo and others v The Attorney General of Belize and the Minister for Natural Resources and Environment (unreported, Conteh CJ, Supreme Court of Belize, 18 October 2007) (‘Maya Land Rights Case’). The claimants were supported by the Indigenous Peoples Law and Policy Program at the University of Arizona, and the decision is summarised in a press release: <http://www.law.arizona.edu/depts/iplp/news/index.cfm?page=news & link=archive> at 14 January 2008. The judgment can be also downloaded from this press release.
[2] See <http://www.belizelaw.org/belize_constitution01.pdf> .
[3] Inter-American Commission on Human Rights, Report of the Commission in the case of Maya Indigenous Communities of the Toledo District v Belize (Report No 40/04 in case 12.053, 12 October 2004).
[4] Maya Land Rights Case [41].
[5] Inter-American Commission on Human Rights, Report of the Commission in the case of Maya Indigenous Communities of the Toledo District v Belize (Report No 40/04 in case 12.053, 12 October 2004) [127] cited in Maya Land Rights Case [42].
[6] Maya Land Rights Case [46].
[7] Ibid [61].
[8] Amodu Tijani v Secretary, Southern Nigeria (1921) 2 AC 399 (‘Amodu Tijani’).
[9] Kerajaan Negeri Selangor v Sagong Bin Tasi and others (2005) MLJ 289.
[10] Alexcor Ltd v Richtersveld Community (2003) 12 BCLR 130.
[11] Maya Land Rights Case [76].
[12] Ibid [81].
[13] Mabo and others v State of Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (‘Mabo’).
[14] Ibid [61].
[15] Belize Constitution, Ch 4 (e).
[16] Maya Land Rights Case [99].
[17] Amodu Tijani, above n 8.
[18] Mabo, above n 13.
[19] Delgamuukw v British Columbia (1997) 3 SCR 1010.
[20] See Maya Land Rights Case [100]-[101].
[21] Ibid [103]-[117].
[22] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, (entered into force 23 March 1976), cited by Conteh CJ [120].
[23] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, (entered into force 4 January 1969), cited by Conteh CJ [120].
[24] See <http://www.oas.org/juridico/english/charter.html> , cited by Conteh CJ [120].
[25] Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/47/1 (2007).