Maya Leaders Alliance et Al v Attorney General

• Jurisdiction: Caribbean States
• Judge: Bryon, P.,Nelson, J.,Saunders, J.,Wit, J.,Hayton, J.,Anderson, J.,Rajnauth-Lee, J.
• Judgment Date: 30 October 2015
• Court: Caribbean Court of Justice
• Docket Number: CCJ Appeal No. BZCV 2014/002; BZ Civil Appeal No. 27 of 2010
• Date: 30 October 2015

Caribbean Court of Justice

Court of Appeal

Bryon, P. CCJ; Nelson, J. CCJ; Saunders, J. CCJ; Wit, J. CCJ; Hayton, J. CCJ; Anderson, J. CCJ; Rajnauth-Lee, J. CCJ

CCJ Appeal No. BZCV 2014/002; BZ Civil Appeal No. 27 of 2010

Maya Leaders Alliance et al

and

Attorney General

Appearances

Ms Monica Coc Magnusson for the appellants

Mr Denys Barrow S C, Mr Nigel Hawke and Ms Naima Barrow for the respondent

Constitutional Law - Customary land tenure rights protected by sections 3(a), 3(d), 16 and 17 of the Constitution — Whether the appellants were entitled to damages for breach of their constitutional rights to protection of law; right to non — discriminatory treatment and right not to have property arbitrary deprived and the ancillary determination of costs — Whether the appellants satisfied the three requirements the existence of a constitutional right for his or her benefit; a contravention of that right; and that a monetary award is the appropriate remedy or redress for the contravention pursuant to section 20 of the Constitution — Whether the constitutional right to protection of Maya customary land tenure was contravened where the Government treated the Maya land as unburdened state land — Arbitrary deprivation of property — Whether the right not to have one's property arbitrarily was violated where the nature of the property rights have not been precisely defined and the Court could not satisfy itself as to the nature and extent of the entitlement of the appellants — Rights to equality and non-discrimination — Whether the rights to equality and non-discrimination were infringed where the Mayans claimed that the current legal framework of Belizean property law, as contained in the General Registry Act, Cap 327 and the Registered Land Act, Cap 194, was discriminatory owing to its failure to provide any mechanism for documenting Maya customary title — Right to protection of the law — Whether the right to protection of law was breached where the right encompassed the access to and the enjoyment of the fundamental rules of natural justice and the State was under an obligation to protect the Maya property rights and had failed to protect it by granting leases, licences, permits and concessions that deprived the Maya people of the enjoyment of their property rights — Responsibility for recognising and protecting indigenous property rights — Consideration of the Universal Declaration of Human Rights, UN Declaration on the Rights of Indigenous Peoples and the findings and recommendations of the IACHR — Whether the monetary compensation was an appropriate remedy for the contravention of the right to protection of law — Pecuniary damages — Whether the application of pecuniary damages could be granted where there was a lack of forensic evidence as to the precise losses sustained and identification of the specific individuals — Non-pecuniary damages — Whether the application of non-pecuniary damages should be granted — Finding that the right not to be arbitrarily deprived was not infringed — Finding that the rights to equality and non-discrimination were not infringed — Finding that the right to protection of law was infringed and it was founded on the concept of the rule of law, which itself imports an obligation to adhere to international law commitments, had been breached — Finding that the pecuniary damages should not be awarded as it was too imprecise — Finding that having considered the powers granted under section 20 of the Constitution it would appropriate to order that the Government of Belize establish a fund of BZ$300,000.00 as a first step towards compliance with its undertaking at the Consent Order of April 22, 2015 to protect Maya customary land tenure.

1 This appeal involves a claim by twenty-five appellants comprised of the Maya Leaders Alliance, the Toledo Alcaldes Association, Juan Pop (the alcalde of Golden Stream) and twenty-two other alcaldes representing villages in the Toledo District against the Government of Belize. It arose out of an incident in 2008 where Mr Francis Johnson, now deceased, who claimed to hold a lease to farm lands in the Golden Stream village, proceeded to enter the lands and clear large portions despite active protestations of the alcalde, Juan Pop and other Maya villagers. This incursion was the catalyst behind the appellants' constitutional claim alleging that the failure of the Government of Belize to recognise and protect their customary land rights infringed sections 3, 3(a), 3(d), 4, 16 and 17 of the Constitution of Belize and seeking mandatory orders, an injunction and damages by way of relief.

2 The appellants' claim only partially succeeded before the Honourable Conteh, C.J., sitting in the High Court of Belize. The Chief Justice affirmed that Maya customary land tenure extended to the entire Toledo District and gave rise to collective and individual property rights within the meaning of sections 3(d) and 17 of the Constitution. The learned Chief Justice issued the requested mandatory order and injunctive relief directing the Government to develop a system to accord legal protection to Maya customary land tenure and refrain from any action which might prejudice the property rights of the Maya. However the learned Chief Justice failed to find any constitutional breach and refused to make an award of damages. His reasoning was predicated on the fact that his earlier decision in the Aurelio Cal v. The Attorney General of Belize and Manuel Coy v. the Attorney General of Belize (the Maya Land Rights case) (2007) 71 WIR 110 was limited in scope, covering only the Santa Cruz and Conejo villages, and no lease was produced in evidence showing a grant of lands by the Government to Mr Johnson. As such, the learned Chief Justice could find no State action which fell afoul of the constitutional rights of the appellants.

3 This decision was partly upheld by the Court of Appeal (Morrison, J.A.; Alleyne, J.A. with Sosa, P. dissenting). The Court of Appeal agreed that the appellants' system of customary land tenure was protected under the Constitution but there had been no proof of a breach of these rights at the hands of the State. It varied the decision of the learned Chief Justice in relation to the mandatory order and injunctive relief issued against the Government and awarded the appellants sixty-five percent (65%) of their costs.

4 Both the appellants and the Government filed separate appeals with the Caribbean Court of Justice challenging the decision of the Court of Appeal. The appellants argued that the court erred in failing to find a breach of their constitutional rights as alleged. The Government challenged the court's finding that the test for indigenous title had been satisfied and asserted that the appellants could not show the requisite link to the original inhabitants of the Toledo District. However by virtue of a Consent Order dated April 22, 2015 the scope of both appeals narrowed significantly. Both parties conceded that Maya customary land tenure exists in the entire Toledo District and gives rise to collective and individual land rights within sections 3(d) and 17 of the Belize Constitution. The Government committed to developing a mechanism to recognise and protect these rights and to cease and abstain from any acts that might adversely affect the value, use or enjoyment of the lands that are used and occupied by the Maya villagers without the informed consent of the Maya people. Based on the Consent Order, the sole issue remaining for determination by the Court was the issue of damages for breach of the appellants' constitutional rights.

5 The appellants’ claim for breach of their constitutional rights was examined under three separate heads: (1) the protection against arbitrary deprivation of property, (2) the right to equality and non-discrimination and (3) the right to protection of the law. Each of these categories was assessed against the backdrop of the factual history of the dispute between the parties ranging from the Ten-Point Agreement of 2000, the 2004 Recommendations of the Inter-American Commission on Human Rights in the Maya Indigenous Communities of the Toledo District v Belize (the Maya Communities case), (Case 12.053, Report No. 40/04, Inter-Am. C.H.R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004).) the decision of the High Court of Belize in the Maya Land Rights case, (Cal (n 2).) the March 2008 ‘cease and desist’ directive issued by the Solicitor General to prevent incursions on Maya lands, the April 2008 directive issued by the Solicitor General limiting the earlier directive to the Santa Cruz and Conejo villages and the May 2008 incident in the Golden Stream village involving Mr Johnson.

6 In relation to the protection against arbitrary deprivation of property under sections 3(d) and 17 of the Constitution, the Court emphasised that section 3(d) is separately enforceable and not to be regarded as a mere preamble. Therefore the concept of deprivation is not to be limited to compulsory acquisition as contained in section 17. However the Court failed to find a breach of any right under these sections owing to the fact that the nature of the appellants' property rights and the entitlement flowing therefrom are yet to be precisely defined. The Court dismissed the equality and non-discrimination claim on the basis that there was no evidence of discriminatory treatment of the appellants on the basis of race or ethnicity either in the Golden Stream incident or otherwise.

7 The Court held that the appellants' right to the protection of the law as set out in section 3(a) had been breached. The Court noted that while the notion of the protection of the law has traditionally been understood through the prism of access to courts or quasi-judicial bodies, particularly given the provisions of section 6(7) of the Constitution, it is not to be regarded as coterminous with the same. This...