A Legal Analysis of the Mayan land Victory

Posted on March 26, 2009
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By Philip Palacio, B.Sc., LLB

 

Introduction

 

     When Edie Mabo challenged the Australian government in 1982 in relation to native land rights in that country, the world did not realize the impact of such a confrontation. Mabo died before the case concluded 10 years later[i], but when Brennan J delivered the leading judgment, it made a direct hit to the heart of the English common law in regards to land law as it relates to indigenous land rights. Mabo’s test case shattered the fictional and discriminatory doctrine of terra nullius, which was used by the British to wrest land title away from territories that they acquired. Little did Mabo know that the tsunami like effect of that case would be felt oceans away in a land called Belize on October 18, 2007 when Chief Justice Abdulai Conteh delivered a judgment which expanded on the Mabo principle and firmly placed the Mayans of Southern Belize in a legitimate spot in the Belizean society[ii].

 

   Conteh CJ, in his judgment which have been revered by clichés akin to greatness in the Belizean media, ruled that the Mayas of Toledo resident in the villages of Conejo and Santa Cruz had customary land tenure in the lands they occupied; the nature of the interest in those lands are usufructuary and customary; the Mayan rights and interest constituted property as defined by the Belize Constitution and those rights were violated by the Government of Belize; and that the Government of Belize’s treatment of the Mayan in regards to there land rights violated international law. The judgment addressed a broad spectrum of topics including history, land law, human rights law, constitutional law and public international law. This paper attempts to take a critical look at the legal implications of the judgment on Belize.

 

Doctrine of Terra Nullius

  A proper analysis of the Chief Justice’s judgment cannot be undertaken without first looking at the doctrine of terra nullius, which is at the heart of the English common law as it refers to indigenous land rights in British territories. Wikepedia has defined the expression as “a Latin expression deriving from Roman Law meaning “nobody’s land” i.e. “empty land”.

    International law recognized conquest, cession, and occupation of territory that was terra nullius as three of the effective ways of acquiring sovereignty. No other way is presently relevant. The voyages of European discovery opened to European nations the prospect of occupying new and valuable territories that were already inhabited. As among themselves, the European nations parcelled out the territories newly discovered to the sovereigns of the respective discoverers provided the discovery was confirmed by occupation and provided the indigenous inhabitants were not organized in a society that was united permanently for political action. To these territories the European colonial nations applied the doctrines relating to acquisition of territory that was terra nullius. They recognized the sovereignty of the respective European nations over the territory of “backward peoples” and, by State practice, permitted the acquisition of sovereignty of such territory by occupation rather than by conquest. Various justifications for the acquisition of sovereignty over the territory of “backward peoples” were advanced. The benefits of Christianity and European civilization had been seen as a sufficient justification from mediaeval times. Another justification for the application of the theory of terra nullius to inhabited territory - a justification first advanced by Vattel at the end of the 18th century - was that new territories could be claimed by occupation if the land were uncultivated, for Europeans had a right to bring lands into production if they were left uncultivated by the indigenous inhabitants.

   The enlarging of the concept of terra nullius by international law to justify the acquisition of inhabited territory by occupation on behalf of the acquiring sovereign raised some difficulties in the expounding of the common law doctrines as to the law to be applied when inhabited territories were acquired by occupation (or “settlement”, to use the term of the common law).

   As the indigenous inhabitants of a settled colony were regarded as “low in the scale of social organization”, they and their occupancy of colonial land were ignored in considering the title to land in a settled colony. Ignoring those rights and interests, the Crown’s sovereignty over a territory which had been acquired under the enlarged notion of terra nullius was equated with Crown ownership of the lands. The theory that the indigenous inhabitants of a “settled” colony had no proprietary interest in the land thus depended on a discriminatory denigration of indigenous inhabitants, their social organization and customs.

   The decision in the Mabo case dealt a blow to this doctrine when it recognised that the indigenous population had a pre-existing system of law, which, along with all rights subsisting thereunder, would remain in force under the new sovereign except where specifically modified or extinguished by legislative or executive action. The Court purported to achieve all this without altering the traditional assumption that the Australian land mass was “settled”. Instead, the rules for a “settled” colony were said to be assimilated to the rules for a “conquered” colony.

   The majority in Mabo also rejected the proposition that immediately upon the acquisition of sovereignty, absolute beneficial ownership of all the lands of the Colony vested in the Crown. The majority rejected the traditional feudal development of the doctrine of tenure as inappropriate for Australia, and rather saw that upon acquisition of sovereignty the Crown acquired not an absolute but a radical title, and that title would be subject to native title rights where those rights had not been validly extinguished. Thus the court accepted that a modified doctrine of tenure operated in Australia, and that the law of tenure (as a product of the common law) could co-exist with the law of native title (as a product of customary laws and traditions), though where there had been a valid grant of fee simple by the Crown the latter title would be extinguished.

  Conteh CJ when faced with this same issue adopted the stance of the majority in the Mabo case. He said that “the acquisition of sovereignty over Belize, first by the Crown and later, by independent governments did not displace, discharge or extinguish pre-existing interests in and rights to land. The mere acquisition or change of sovereignty did not in and of itself extinguish pre-existing title to or interests in the land.[iii]”

   He continued at paragraph 78 by stating; “…I do not think it is logical, reasonable or fair to hold that the 1859 treaty with Guatemala, by extending the southern borders of British Honduras (today’s Belize) to the Sarstoon River, necessarily extinguished the pre-existing rights of or interests of the Maya inhabitants of the area in their lands. The Crown by a combination of the various treaties with Spain and later with Guatemala, first acquired interests in British Honduras and by effective occupation and administration together with the passage of time, gained sovereignty over the territory which it legally passed on to independent Belize on 21st September 1981. This sovereignty did not without more however, affect or alter or extinguish the pre-existing rights of the Maya people to their lands.”

   The acquisition of territorial sovereignty over a particular area is achieved through three methods, namely settlement, conquered or cession. The doctrine of terra nullius refers to the first mode. However the principle that a mere change of sovereignty over the territory will not affect pre-existing land rights, remains true for the other modes of acquisition.

  “It is…logical, rational and fair to conclude that if the inhabitants of a conquered colony did not ipso facto lose their pre-conquest interests and rights in land, a fortiori therefore, the indigenous inhabitants of a settled territory could not have lost theirs without more, by the mere act of settlement or even by cession of their land to another or new sovereign,” said Conteh CJ at paragraph 82 of his judgment.

   Conteh, C.J. adopted the dicta in the Mabo case in saying that native title could only be extinguish by a clear and direct intention expressed by the legislature or executive via a Bill in the house of representative. In Belize’s case, this has never been done.

  Although the Mabo case would be of only persuasive value to our jurisdiction, the Chief Justice adopted the principles in this case to dismiss the applicability of the doctrine of terra nullius to Belize. It is submitted that the burial of this doctrine is significant since the heart of the English land law as it relates to native land rights in British territories and former British territories has been dispelled with no possibility of ever rearing its infamous head again.

 

Customary land rights

 

   As to the first issue in the case, whether there was in existence Maya customary land tenure in Southern Belize, the Chief Justice found favor in the Claimants arguments based on affidavit evidence and expert witnesses; the Ten-Point Agreement between Government of Belize and Maya Leaders signed on October 12, 2000; and the Report of the Inter American Commission on Human Rights in the Maya Indigenous Communities of the Toledo District v Belize- Report No. 40/04 of October 12, 2004.

   The affidavit evidence and expert witnesses tended to show that the Maya people have inhabited a vast area, which includes the Toledo District of southern Belize, since time immemorial. The establishment of the customary land tenure in this case is encapsulated in paragraph 22 of the joint affidavit of Gregorio Choc, Christina Coc and Martin Chen. The affidavit read: “Our land use patterns are governed by a system of mostly written customary rules and values that form part of the social, cultural, and political organization of our communities. Our patterns of use and occupancy of lands and natural resources are shaped by this system of customary rules. Within this traditional land tenure sytem, maya villages hold land collectively, while individuals and families enjoy derivative, subsidiary rights of use and occupancy.” This was bolstered by affidavit and reports from experts in Maya history, ethnography, culture and land tenure and land use patterns.

    Conteh CJ also gave credence to his conclusion of Maya customary land tenure by reference to the Ten-Point Agreement signed by the Government of Belize on the one hand and the Toledo Maya Cultural Council, the Toledo Alcaldes’ Association, the K’ekchi Council of Belize, the Toledo Maya Women’s Council and the Association Village Council Chairpersons on October 12, 2000. According to Conteh CJ, this document was “a clear and unequivocal governmental endorsement of the existence of the Maya people’s rights to land and resources in southern Belize based on their longstanding use and occupancy.”

   The Chief Justice supported his decision by importing the persuasive authority of the Inter American Commission on Human Rights Report issued in October of 2004 into our municipal legal system. He cited paragraph 127 of the Commission’s Report as sustenance for the proposition of Maya customary land tenure in southern Belize.

   “…the Commission is satisfied that the Mopan and Ke’kchi Maya people have demonstrated a communal property right to the lands that they currently inhabit in the Toledo District. These rights have arisen from the longstanding use and occupancy of the territory by the Maya people, which the parties have agreed 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.”

  Based on the findings of Maya customary land tenure, Conteh, CJ went on that to find that members of the villages of Conejo and Santa Cruz have an interest in these lands. This interest exists despite the fact that the village of Conejo was founded in 1907 and the village of Santa Cruz was established in 1950.

 

 

Expansion on the Definition of Property

   The Claimants had also sought Constitutional redress via a declaration that the interests in lands based on Maya customary Land tenure constituted property protected by sections 3(d) and 17 of the Belize Constitution. Section 3(d) of the Constitution provides for the protection from arbitrary deprivation of property. Section 17 deals with compulsory acquisition of property without adequate compensation.

  Launching on the platform of the definition of property as laid out in section 2 of the Law of Property Act-Chapter 190, Conteh CJ went on to find that the rights and interests of the claimant according to Maya customary land tenure constitute property under the Belize Constitution. He justified this expanded definition of property by reference to the Privy Council decision of The Queen v Reyes[iv]. “A generous and purposive interpretation is to be given to constitutional provisions protecting humans and that a court is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a mature society…”[v]

    It is submitted that while the tangible land itself may be viewed as property, it is interesting to note that the ethereal aspects have also been viewed likewise. The CJ referred to these intangibles as a “kind or species of property”. The further submission then is that while land itself as property is quantifiable, and a dollar value can be placed on it, it is unimaginable how this “kind or species of property” will be quantified in the event that the Government of Belize tries to exercise its right of compulsory acquisition. The judgment does not seem to envision this eventuality.

    The order that the Government “cease and abstain from any acts that might lead…to affect the existence, value, use or enjoyment” of these lands does not take away the power of the Government of Belize to the compulsory acquisition of these lands in the event that they are needed for a public purpose. It is submitted that the Chief Justice’s judgment does not deny this, but instead recognizes that this “kind or species of property” is entitled to protection. That protection, it is further submitted, will be compensation by a dollar value should the need for compulsory acquisition arises.

 

Legal Implications

 

   It is submitted that while the judgment delivered for Action 171 of 2007 and Action No. 172 of 2007 applies strictly to the villages of Conejo and Santa Cruz, it paves the way for the extension of these rights of the Mayan in southern Belize to that entire area. The court cannot give more than it was asked to give. The Maya Atlas recorded thirty-six Maya villages in the Toledo District and five in the Stann Creek District. It is submitted that the way has been paved by the present judgment to have this principle applied and extended to all these other areas of the Maya Atlas in Belize.

   It is also submitted that the legal implication of the judgment is to have the Ten Points of Agreement signed by GOB and the Maya Leaders enforced. The declarations granted in order (a) and (b) appear to be in the spirit of Point Six of the Ten Point Agreement which says “That GOB recognizes that the Maya people have rights to lands and resources in southern Belize based on their long standing use and occupancy. Order (c) of the judgment Government states “An order that the government determine, demarcate and provide official documentation of Santa Cruz’s and Conejo’s title and rights in accordance with Maya customary law and practices, without prejudice to the rights of neighboring villages.

  This order, it is submitted, appears to be in tandem with Point Seven of the October 12th, 2000 agreement.  Point seven states “That the first consideration of the partnership between GOB and the Maya Leaders will be the establishment of a program to address the urgent land needs of the Maya communities of the south, including the surveying and distribution of lands or establishing and protecting communal lands, depending on the various needs of the Maya Communities.” The only difference between the order (c) and Point seven is that order (c) confines the Government’s obligation to the villages of Conejo and Santa Cruz. Point Seven contemplated the Maya Atlas in Belize.

   Although the Chief Justice did not speak to the need for additional legislation to be created to facilitate his judgment, it is submitted that the creation of new legislation may to be imminent in order aid in the implementation of these court orders. After the Mabo decision in Australia, the Australian government moved quickly to pass the Natives Title Act, which recognized indigenous title to land. This Act also made provision for permitted future development of land affected by native title; provided a regime for the speedy and efficient determination of issues of native title; enacted a statutory definition of native title based on that made by Brennan, J; and provided a means for validating acts, providing compensation and determining native title. The Act also provided for a Native Title Tribunal. It is further submitted that the steps taken by the Australians provide a laudable precedent to follow.

 

International Law Influence

   It is submitted that the influence that international law has had in arriving at the decision in these consolidated cases cannot be divorced from its analysis. Rose- Marie Bell Antoine in her Commonwealth Law and Legal Systems at page 149 speaks to the influence of international law in our local courts. “It is becoming increasingly clear that, in modern times, the body of rules and principles which constitute international law exerts a great influence on municipal legal systems.”

   In delivering his judgment, Conteh, CJ was aided by several references to international law which seem to resonate through out. The judgment of the Inter American Commission on Human Rights in the case of Maya Indigenous Communities of the Toledo district v Belize[vi] was used to solidify the argument as it relates to customary land tenure. That case dealt with Articles I, II, III, VI, XI, XVIII, XX and XXIII of the American Declaration of the Rights and Duties of Man. The 1859 Convention between Her Majesty and the Republic of Guatemala relative to the Boundary of British Honduras was also used to show when the southern boundaries of what is present day Belize were formally agreed. Several treaties requiring states to respect the rights of indigenous peoples over land were also used as resources. They include the International Covenant on Civil and Political Rights (ICCPR) 999U.N.T.S. 171; the Convention on the Elimination of All Forms of Racial Discrimination (CERD), 660 UNTS 195; and the Charter of the Organization of American States (OAS) 119 UNTS3. Others include the General Recommendation XXIII: Rights of Indigenous Peoples, UN Doc A/52/18 Annex V. (Aug. 18, 1997); Indigenous and Tribal Peoples in Independent Countries (ILO No. 169) and the Declaration on the Rights of indigenous Peoples (UN General Assembly, September 13, 2007).

 

Conclusion

    It is submitted that the judgment is in keeping with the present trends as it relates to indigenous rights throughout the world. It is further submitted that judgment underscores the ideal role of the Courts in today’s society, which is to protect the “weak and feeble” from the powerful and those in better bargaining power. The response to the judgment, however, will be the gauge of the success achieved through this judgment. It is submitted that the judgment clearly places the Mayans of Belize in an envious stratosphere in Belizean society. No matter what one’s sentiments on the judgment is, there is no denying that the resilience of a people that have survived European invasion, genocide, disease and modern day discrimination has surfaced to lead us in more ways than one.


 

[i] Mabo v Queensland [No 2] (1992) 175 CLR 1

 

 

 

[ii] Aurelio Cal(in his own behalf and on behalf of the Maya Village of Santa Cruz) and Basil Teul, Higinio Teul, Marcelina Cal Teul and Susana Canti 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 Manuel Caal, Perfecto Makin and Melina Makin v The Attorney General of Belize and The Minister of Natural Resources and Environment (Unrep) claims no. 171 and 172 of 2007 (del. Oct. 18, 2007)

 

[iii] Cal et al v The A.G. et al supra para 77

 

[iv] [2002] UKPC 11; [2002] 2 AC 235; [ 2002] 2 WLR 1034

 

[v] Cal et al v The A.G. supra para 102

 

[vi]Supra http://www.cidh.org/annualrep/2004eng/Belize.12053eng.htm

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