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IN the SUPREME COURT of BELIZE, A.D. 2007 Claim No. 171 Of

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IN the SUPREME COURT of BELIZE, A.D. 2007 Claim No. 171 Of IN THE SUPREME COURT OF BELIZE, A.D. 2007 Claim No. 171 of 2007 BETWEEN AURELIO CAL in his own behalf and on behalf of the Maya VILLAGE OF SANTA CRUZ and BASILIO TEUL, HIGINIO TEUL, MARCELINA CAL TEUL, and SUSANO CANTI Claimants and THE ATTORNEY GENERAL OF BELIZE and THE MINISTER OF NATURAL RESOURCES AND THE ENVIRONMENT Defendants Claim No. 172 of 2007 BETWEEN MANUEL COY, in his own behalf and on behalf of the Maya VILLAGE OF CONEJO and MANUEL CAAL, PERFECTO MAKIN AND MELINA MAKIN Claimants and THE ATTORNEY GENERAL OF BELIZE and THE MINISTER OF NATURAL RESOURCES AND THE ENVIRONMENT Defendants SKELETON ARGUMENT OF THE CLAIMANTS TABLE OF CONTENTS ISSUES PRESENTED AS AGREED UPON BY THE PARTIES ............................................................ 3 INTRODUCTION............................................................................................................................ 3 SUMMARY OF ARGUMENT........................................................................................................... 3 ARGUMENT .................................................................................................................................. 4 ISSUE I: Maya customary land tenure exists in southern Belize, as confirmed by the Inter-American Commission on Human Rights .................................................................... 5 ISSUE II: The Members of Conejo and Santa Cruz villages have interests in lands based on Maya customary land tenure, and the nature of those interests is in accordance with the customary patterns of use and occupancy that give rise to them. ....................... 11 Conejo Village ..................................................................................................................... 13 Santa Cruz Village .............................................................................................................. 16 ISSUE III(A): The customary land rights of Conejo and Santa Cruz villages constitute “property” that is protected by sections 3(d) and 17 of the Constitution.......................... 19 1. The Constitution protects property “of any description”.......................................... 19 2. Maya use and occupancy of land according to customary practice gives rise to property rights................................................................................................................... 20 3. The constitutional guarantee against discrimination requires protection of Maya customary property rights. ................................................................................................ 22 4. When interpreting the Constitution, the Court should take account of Belize’s international obligations to protect customary indigenous land tenure. ........................... 22 5. Constitutional and common law jurisprudence in other countries supports protection of Maya property rights based on customary land tenure................................................. 24 6. The government is unable to successfully assert that Conejo and Santa Cruz property rights based on customary tenure were extinguished prior to their constitutional affirmation......................................................................................................................... 25 a. The defendants are estopped from asserting that the claimants’ customary rights have been extinguished ................................................................................................. 26 b. The application of the extinguishment doctrine to contemporary Maya customary land tenure is inconsist with human rights norms ........................................................ 26 c. The government is unable to meet its burden of proving that the claimants’ rights have been extinguished ................................................................................................. 28 Issue III(B): The government’s acts and omissions violate the claimants’ rights to property in sections 3(d) and 17 of the Belize Constitution ................................................ 28 1. The government violates the claimant’s right to property by failing to recognize and respect Maya customary land tenure................................................................................. 29 2. The government violates the claimants’ constitutional right to property by failing to adopt affirmative measures to legally secure Maya customary land tenure. .................... 34 ISSUE III(C): The government’s failure to provide legal protection to Maya customary land tenure violates the right to equality guaranteed by sections 3 and 16 of the Constitution. ............................................................................................................................ 38 ISSUE III(D): The government is violating the Claimants’ rights to life, liberty, security of the person and the protection of the law............................................................ 40 Conclusion ................................................................................................................................ 41 Appendix A - Maya Indigenous Communities v. Belize, Inter- American Commission on Human Right Report No. 40/04 Appendix B - International Legal Obligations of Belize Appendix C - Protection of Indigenous Customary Property Rights by the Common Law Books of Authorities, Volumes I-V ISSUES PRESENTED AS AGREED UPON BY THE PARTIES I. Whether there exists, in southern Belize, Maya customary land tenure. II. Whether the members of the villages of Conejo and Santa Cruz have interests in land based on Maya customary land tenure and, if so, the nature of such rights. III. If the members of the villages of Conejo and Santa Cruz have any interests in lands based on Maya customary land tenure: A. Whether such interests constitute “property” that is protected by sections 3(d) and 17 of the Constitution; B. Whether any government acts and omissions violate the claimants’ rights to property in sections 3(d) and 17 of the Belize Constitution; C. Whether any government acts and omissions violate the claimants’ right to equality guaranteed by sections 3 and 16 of the Constitution; D. Whether any government acts and omissions violate the claimants’ rights to life, liberty, security of the person and the protection of the law guaranteed under sections 3(a) and 4 of the Constitution. INTRODUCTION 1. These consolidated cases were brought by members and representatives of Conejo and Santa Cruz villages, indigenous Maya communities in the Toledo District of southern Belize. The claimants seek redress for violations of the constitutionally-protected rights the people of these villages have to the lands they have traditionally used and occupied. This skeleton argument synthesizes the relevant facts and law to establish that each of the issues presented should be resolved in favour of the claimants. SUMMARY OF ARGUMENT 2. The members of the villages of Conejo and Santa Cruz have rights in land based on Maya customary land tenure, which undoubtedly exists in southern Belize. Conejo and Santa Cruz are Maya villages whose members live, farm, hunt, and fish; collect medicinal plants, construction, and other materials; and engage in religious ceremonies and other activities on lands and waters within defined areas surrounding each village. Their land use and occupation reflect a broader pattern of Maya customary land tenure that is present among Maya communities throughout the Toledo District of southern Belize and has its roots in the millennial inhabitation of the Maya indigenous people of the Mesoamerican region of which Belize is part. 3. This customary land tenure gives rise to property rights that are critical to the claimants’ physical and cultural survival. In addition to being grounded in Maya customary law, the proprietary nature of these rights is affirmed by international human rights law and the common law. In particular, the Inter-American Commission on Human Rights of the Organization of American States has affirmed the customary property rights of the Maya people of Belize, including the claimants. Just like other forms of property, such Maya property rights are protected, by articles 3(d) and 17 of the Belize Constitution, against discriminatory treatment or other infringement. 4. The government of Belize has a special duty of care, or fiduciary obligation, toward the Maya indigenous people with respect to their property and related rights in lands and resources, in light of the historical discrimination they have faced as indigenous people. In the Ten Points of Agreement, which it signed with Maya leaders in 2000, the government recognized “that the Maya People have rights to lands and resources in southern Belize based on their long-standing use and occupancy.” 5. Yet government officials at every level have ignored or acted to undermine Maya customary land tenure, including that of Conejo and Santa Cruz Villages. As a matter of policy, the government now refuses to recognize Maya customary land tenure as giving rise to property rights that it and others must respect. It accords Maya customary land rights no legal protection, and instead actively infringes these rights by its programs of individual leases and exploitation of natural resources. 6. The government’s failure to recognize, respect, and protect the land rights of the Maya claimants that derive from their own customs and traditions is in violation of the right to property secured by articles 3(d) and 17 of the Belize Constitution.
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