Source: The Dominion
On 18 October 2007, the Supreme Court of Belize ruled in Cal v. Attorney General that the national government must recognize the indigenous Mayans’ customary tenure to land and refrain from any act that might prejudice their use or enjoyment of this land. The landmark Supreme Court ruling which recognizes the rights of Indigenous Peoples to their land was a great victory for Mayan communities in Belize.
The decision is the first judgment rendered with reference to United Nations Declaration on the Rights of Indigenous Peoples (DRIP), adopted on 13 September 2007 by the UN General Assembly. As such, the Belizean Supreme Court judgement could have legal repercussions abroad.
In 2001, the Belize government began giving rights to logging, oil, and hydro-electric concerns on traditional Mayan lands, denying Mayan farmers access to their ancestral land.
The Chief Justice of Belize, Abdulai Conteh, stated that British colonial and subsequent acquisition of land in Belize did not abrogate the Mayan people’s primordial rights to their land.
In his judgement, Conteh upheld that “the Maya people live, farm, hunt and fish; collect medicinal plants, construction materials and other forest resources; and engage in ceremonies and other activities on land within and around their communities; and that these practices have evolved over centuries from patterns of land use and occupancy of the Maya people.”
Conteh found the Maya had a “complex traditional set of land tenure regulations.” Furthermore, “all attempts to divide up the customary village land into arbitrary-sized parcels are doomed to fail to establish a stable land-tenure regime” because the Mayan lifestyle “requires access to a variety of land types in order to grow and gather all the crops and resources they need to survive in any given year.”
Conteh held that Mayan rights to occupy their lands, farm, hunt and fish pre-date European colonization and remain in force today. Conteh noted, “[A] mere change in sovereignty does not extinguish native title to land. Extinguishment or rights to or interests in land is not to be lightly inferred.”
Referring to Delgamuukw v British Columbia, Conteh said, “Indigenous title is now correctly regarded as sui generis.” In other words, the very fact of Original Peoples having inhabited a land over time confers land title rights to the Original Peoples.
In his decision, Conteh cited the Belizean Constitution and several international legal precedents that affirmed the existence of Indigenous Peoples’ collective rights to their land, resources, and environment.
While agreeing the DRIP is non-binding, Conteh argued that principles of general international law contained in the declaration should be respected. Moreover, he noted, the DRIP was adopted by an “overwhelming number” of states thus reflecting “the growing consensus and the general principles of international law on indigenous peoples and their lands and resources.”
Conteh focused on Article 26-1 of DRIP, which states: “Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.”
Based on this and other legal law and precedents, he ordered the government of Belize to “determine, demarcate and provide official documentation of Santa Cruz’s and Conejo’s [two Mayan villages] title and rights in accordance with Maya customary law and practices.” He also ordered the government to desist from any logging, mining or other resource exploitation projects on Mayan land.
Although the Canadian government — along with Aotearoa (New Zealand), Australia, and the United States — rejected the DRIP, law students and faculty from the University of Toronto had a hand in Cal v. Attorney General. The UT group worked on behalf of the Mayan farmers researching, gathering evidence, and considering external comparative law. Toronto lawyer Paul Schabas also contributed his expertise pro bono to the Mayan case in 2006.
UT Faculty of Law Dean Mayo Moran gushed, “The faculty of law is proud of the extraordinary commitment that faculty, students, and our law firm partner, Blakes, have made to this case The Supreme Court of Belize will now have the opportunity to set an important precedent in the area of indigenous rights of the Maya of Belize and U of T’s Human Rights Clinic will play an important role in the court’s deliberations.”
Also involved were the faculty and law students at the University of Arizona. The UA law professors held that landmark case would probably aid the cause of indigenous peoples elsewhere.
UA College of Law Dean Toni Massaro, like her UT counterpart was proud of UA’s connection to Cal v. Attorney General. Massaro said:
“Ideas that take root in one place can — and often do — migrate. This suit was based on a concept of property rights that has possible theoretical and practical implications for people across the globe, and here in the United States, who analyze property across time, across cultures, across legal systems. I expect many to take notice of the Belize case in the years ahead.”