In the Court of Appeal of Belize Ad 2011 Civil Appeal No 27 of 2010

IN THE COURT OF APPEAL OF BELIZE AD 2011 CIVIL APPEAL NO 27 OF 2010 (1) THE ATTORNEY GENERAL OF BELIZE (2) THE MINISTER OF NATURAL RESOURCES AND THE ENVIRONMENT Appellants v (1) THE MAYA LEADERS ALLIANCE and (2) THE TOLEDO ALCALDES ASSOCIATION both on behalf of the Maya villages of the Toledo District (3) JUAN POP on behalf of the Maya village of Golden Stream (4) DOMINGO CAL on his own behalf and on behalf of the Maya village of Aguacate (5) LUCIANO CAL on his own behalf and on behalf of the Maya village of Bladen (6) ALBERTO HUN on his own behalf and on behalf of the Maya village of Blue Creek (7) CANDIDO CHO on his own behalf and on behalf of the Maya village of Crique Jute (8) LUIS CHO on his own behalf and on behalf of the Maya village of Crique Sarco (9) PEDRO CUCUL on his own behalf and on behalf of the Maya village of Dolores (10) MANUEL CHOC on his own behalf and on behalf of the Maya village of Indian Creek (11) ALFONSO OH on his own behalf and on behalf of the Maya village of Jalacte (12) MARIANO CHOC on his own behalf and on behalf of the Maya village of Jordan (13) EDWARDO COY on his own behalf and on behalf of the Maya village of Laguna (14) PABLO SALAM on his own behalf and on behalf of the Maya village of Medina Bank (15) ROLANDO AGUSTINE PAU on his own behalf and on behalf of the Maya village of Midway (16) LORENZO COC on his own behalf and on behalf of the Maya village of Otoxha (17) SANTIAGO COC on his own behalf and on behalf of the Maya village of Pueblo Viejo 1 (18) SILVINO SHO on his own behalf and on behalf of the Maya village of San Antonio (19) IGNACIO TEC on his own behalf and on behalf of the Maya village of San Benito Poite (20) GALO MENJANGRE (sic) on his own behalf and on behalf of the Maya village of San Felipe (21) FRANCISCO CUS on his own behalf and on behalf of the Maya village of San Marcos (22) MARCOS ACK on his own behalf and on behalf of the Maya village of San Miguel (23) JUAN QUIB on his own behalf and on behalf of the Maya village of San Vicente (24) LIGORIO COY on his own behalf and on behalf of the Maya village of Santa Anna (sic) (25) ELIGORIO CUS on his own behalf and on behalf of the Maya village of Santa Theresa (sic) Respondents ______ BEFORE The Hon Mr Justice Manuel Sosa President The Hon Mr Justice Dennis Morrison Justice of Appeal The Hon Mr Justice Brian Alleyne Justice of Appeal L M Young SC and I Swift, Crown Counsel, for the appellants. A Moore SC for the respondents. ______ 17, 18, 21, 24 and 25 March and 8 June 2011, and 25 July 2013. SOSA P Table of Contents I - Introduction: the term ‘indigenous’ II - Background 2 A Previous Litigation: the 2007 claims B First known inhabitants C A basic misconception to avoid III - The 2008 claim A The nature of the claim as set out in the claim form B The reliefs sought as set out in the claim form C The appellants’ defence D The issues in the court below and their resolution IV - The appeal and the respondents’ notice A What is sought B The appellants’ crucial and dispositive grounds of appeal C The scope of the judgment V - Remarks on the hearing below preliminary to consideration of grounds 1 and 2 A By way of preface B Conteh CJ’s treatment of the evidence (i) Prefatory note (ii) Dr Grandia’s evidence (iii) Dr Jones’ evidence (iv) Dr Wilk’s evidence (v) The appellants’ witnesses’ evidence VI - Consideration of grounds 1 and 2: analysis of the evidence for purposes of the instant appeal 3 A Dr Awe’s evidence B Dr Grandia’s evidence C Dr Wilk’s evidence (i) Some key features as relevant in this appeal (ii) Comment on credibility of ethnohistorian’s source: History versus Archaeology (iii) Interwoven state of the evidence of Dr Wilk and the respondents’ other expert witnesses (iv) Impact of the witness’s article in Science and Engineering Ethics (v) Closing comments on accuracy D Dr Jones’ evidence (i) Introductory (ii) General outline and review (iii) Parts of affidavit reproduced by Conteh CJ (iv) Other parts of the affidavit (a) Prefatory remarks (b) The memoranda of Father Joseph Delgado and the invocation of the authority of J Eric Thompson and Karl Sapper (c) The alleged rounding up of the Mopan Maya (circa 1706) (d) The eighteenth century materials uncovered by Dr Jones - The legend to the map produced by Nicolás Lizarraga - ‘The five Spanish documents’ 4 - The map (circa 1770) showing ‘Tierras Yncvltas Havitadas de Yndios Gentiles Ytzaes’ - The memorial from Nicolás de Lizarraga to the King of Spain - The statement of ‘Sun-Kal’ - The ‘Mapa del Pescador’ - The Spanish document cited at para 58 of Dr Jones’ first affidavit (e) Part VI (as it relates to the question of the presence of Mopan Maya in the Toledo District in the seventeenth and eighteenth centuries) VII - Conclusion VIII - Disposition and Apology ANNEXE I - Introduction: the term ‘indigenous’ [1] The ordinary meaning of the adjective ‘indigenous’, as it relates to people, is said by The Concise Oxford Dictionary of Current English, 8th ed, to be ‘born in a region’. According to the Internet website known as Alanmacfarlane.com, however, ‘indigenous peoples’, as a technical term used in the discipline of Anthropology, means ‘culturally distinct peoples who have occupied a region longer than peoples who have colonized or immigrated to the region’. By section 6(q) of the Evidence Act, every judge is required to take judicial notice of the meaning of English words. [2] In Chapter 1 (headed ‘Habitat of the Southern Mayas’) of his famous publication, Ethnology of the Mayas of Southern and Central British Honduras [Belize’s former name] (Chicago, Field Museum of Natural History, 1930), J (afterwards Sir) Eric 5 Thompson, the pre-eminent British archaeologist, anthropologist, ethnohistorian and epigraphist, wrote, at p 35: ‘Despite the richness of the soil, the abundant rainfall, the large number of edible species of fauna, and the good communications supplied by the rivers, there is no indigenous population, although at one time there must have been a considerable population as the large number of ruins demonstrates. Besides the two large sites of Lubaantun and Pusilha numerous small ruins are found scattered through the western half of the [Toledo] district, stretching up to the Maya Mountains. The aboriginal population, that today exists in this area, is entirely immigrant, having crossed over from Guatemala in the course of the last forty odd years. These immigrant Mayas are of three stocks, Kekchi, Kekchi-Chol, and Mopan Maya.’ [Emphasis added.] The conclusions of this distinguished Maya scholar (as stated in the above quotation) as to the absence of an indigenous population in southern Belize and as to the Maya of southern Belize in question being immigrants lie, as I see it, at the heart of the present appeal. II - Background A Previous litigation: the 2007 claims [3] The appeal is from the decision of Conteh CJ in Claim No 366 of 2008 (‘the 2008 claim’), in which those who are now appellants and respondents were, respectively, defendants and claimants. (I shall refer to them, respectively, as ‘the appellants’ and ‘the respondents’ in the remainder of this judgment.) Before, however, proceeding any further into discussion of such appeal, it is convenient to refer to, and make certain observations upon, two previous claims and the decision in them, which latter, to my 6 mind, profoundly influenced the judgment which is the subject of the present appeal (‘the 2010 judgment’). The claims in question are those of, first, Cal and others v The Attorney General and another and, secondly, Coy and others v The Attorney General and another, Claims Nos 171 of 2007 and 172 of 2007, respectively, which were consolidated and heard together (‘the 2007 claims’). The first of the 2007 claims was brought by the alcalde of the Maya village of Santa Cruz, Toledo District and four residents of that village, called ‘members’ of the village by Conteh CJ in the judgment delivered in such claims on 18 October 2007 (‘the 2007 judgment’). The second of the 2007 claims was brought by the alcalde and three residents of the Maya village of Conejo, Toledo District. The claimants in the 2007 claims, represented in court by experienced counsel Mrs Moore (since elevated to the status of Senior Counsel), claimed reliefs similar in nature, or otherwise related to, those later claimed by the respondents in the 2008 claim, which has given rise to the present appeal. (Mrs Moore has also represented the respondents in the 2008 claim and the instant appeal.) The reliefs claimed in the 2007 claims are set out, as reproduced by Conteh CJ at para 9 of the 2007 judgment, in the Annexe to the instant judgment. [4] Appreciation of Conteh CJ’s opening sentence in the 2010 judgment, viz: ‘In a material sense the instant claim which is the subject of this judgment [ie the 2010 judgment] is a direct sequel of the judgment of this court in Claims Nos 171 and 172 of 2007 delivered on 18th October 1007 [ie the 2007 judgment].’ is effortlessly achieved on a review of the orders made by him at the end of the day (for which, see para 126 of the 2010 judgment).

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