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Indigenous Rights and the Mayan Victory in Belize

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Issue: 49 Section: Original Peoples Geography: Canada, Latin America Belize Topics: Indigenous

January 23, 2008

Indigenous Rights and the Mayan Victory in Belize

Implications for Indigenous Title Rights in Canada

by Kim Petersen

A decision by Belize's highest court recently reaffirmed indigenous rights to land they inhabit.

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.”

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Kichesipirini Traditional Title / Jurisdiction Good For Canada

The Kichesipirini Algonquin First Nation Continues Claims of Traditional Title and Jurisdiction

Federal representatives, provincial representatives, Indian Act bands, contemporary communities or their amalgamated tribal councils are not qualified to negotiate away unceded traditional Aboriginal territory or jurisdiction, no matter how much the government pays them.

Kichesipirini Algonquin First Nation is continuing in their struggle for the protection of the constitutionally protected rights of the traditional Algonquin Nation, through the examination by competent experts, and protection of the traditional title of the Kichesipirini / Kichi Sibi Anishnabe, and their traditional jurisdiction within the Canadian nation state.

Even despite tremendous challenges generated by cancerous internalized oppression and government funded divisions the Kichesipirini Algonquin First Nation valiantly continues to draw attention to the terrible injustices visited upon the traditional Algonquin Nation and continues now in its struggle to educate and inform Algonquins about their full inherent rights and responsibilities.

The Kichesipirini contend that Canadian law and internal policy are inconsistent in their response to Aboriginal issues and that Canadian domestic policy is in fact used to abrogate or derogate inherent international and constitutionally protected Aboriginal rights. The Kichesipirini Algonquin First Nation in their legal actions assert that the unilateral application of faulty domestic policy supports the creation of contemporary "Indian" or "First Nations" that qualify for modest recognition at the expense of destroying the actual sovereign Aboriginal polities. The Kichesipirini Algonquin First Nation insists that the continued discrimination against the Kichesipirini is the Canadian government’s attempt to eradicate this Aboriginal polity through numerous forms of genocidal policy and breaches of human rights.

Detailed research confirms that sadly Canadian policy and federal and provincial monetary distributions to Aboriginal organizations has also contributed to creating an environment of oppression and discrimination within the Aboriginal community. Vast amounts of Canadian taxpayers’ dollars are being wasted to facilitate processes that have no lasting legitimacy and will not stand the test of time or the courts.

Despite the Canadian government, along with New Zealand, Australia and the United States, rejecting the Declaration and trying to emphasize that it is not considered legally binding it must be noted that the principles are widely supported within the global community and international principle is considered to have increasing weight within Canadian case law. Many Canadian officials say the country takes any international commitment it makes seriously, whether written in law or not.

It is interesting to note that while the Canadian state opposes the Declaration Louise Arbour, a Canadian citizen currently serving as the UN's High Commissioner for Human Rights, expressed satisfaction at the hard work and perseverance that had finally "borne fruit in the most comprehensive statement to date of indigenous peoples' rights.” Her comments give a clear example of the disparity of the Canadian state and the will of the Canadian people regarding Aboriginal issues.

It should also be noted that those states refusing the Declaration have a long history of colonization, violations and manipulations of Aboriginal rights. "Their inability to vote for the declaration is more a reflection on the countries than it is on the declaration itself," said Les Malezer, chair of the Global Indigenous Caucus. "In this case, Canada [and the others] are finding themselves in a situation where their policies are being found out, and are showing they are not prepared to commit themselves to fair treatment of indigenous peoples in their countries." A critical examination of the Kichesipirini Algonquin First Nation experience clearly exposes Canada’s discrimination and duplicity.

Canada has actually been alleged to have possibly attempted to use undue influence to negatively affect the passing of the Declaration. Canada’s desperation to attempt to oppress the traditional Aboriginal people of this nation, through attempted blockade of the Declaration, was also possibly exposed after the African countries announced their support for the revised document and a senior official with the African Indigenous Caucus accused Canada of having tried to use aid as a bribe to keep them on side. "By approaching Africa, which had so many problems, and trying to use aid as a tool, Canada was committing a crime," said Joseph Ole Simel, caucus co-ordinator, according to UN note takers. "Many poor countries did not have the ability to negotiate because they were dependent on aid from developed countries. "Canada had tried to use any kind of sweet language for the declaration to be blocked," he added.

The Kichesipirini Algonquin First Nation legal assertions clearly expose Canada’s colonial skeletons still attempting to rule from the closet. The Conservative government says the Universal Declaration of Indigenous Peoples' Rights is simply inconsistent with Canadian law. Minister of Indian Affairs and Northern Development Chuck Strahl described the document as "unworkable in a Western democracy under a constitutional government." Really? You would have thought that Louise Arbour, UN High Commissioner for Human Rights, a former justice of the Supreme Court of Canada , former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, would have caught that.

Canada uses negotiations as a means of avoiding legal realities and robbing Aboriginal peoples the opportunity to clearly establish their legal rights within the democracy and constitutional framework.

It must be understood that issues affecting the reconciliation of Aboriginal issues in Canada are not an internal domestic “problem.” These are issues of global significance. These are issues regarding the setting straight, the bringing justice to the first crimes of the earliest waves of globalization. These are human rights issues. These are legal issues. These are huge socio/political/economic justice issues. Do not let the Canadian state and it’s corporate profit agendas dominate the people of the Canadian nation into becoming ignorant accomplices in the state’s refusal to genuinely comply with international law and obligations.

The fox has been guarding the hen house for far too long. The Kichesipirini Algonquin case demands genuine consultation of the relevant groups, competant examination of the facts and the application of internationally agreed upon laws and good governance principles to Aboriginal Canadian relations. How is that a threat to real democracy? Who actually rules here? Is it the state or the nation? Is the tail wagging the dog? The Algonquin situation has the opportunity to set global precedent for genuine de-colonization. How is that bad for Canada? Or is it just bad for a selct elite few, Aboriginals included. This is a social justice movement against systemic injustice and exploitive domination systems. This is a social justice movement towards systemic justice defined by structural, social, substantive and distributive justice.

Watch us prove, beyond a shadow of a doubt, if given the chance and the proper resources, that an Aboriginal people can develop world class governance that is fair, accountable, transparent, sustainable, respectful of law, friendly relations and human rights, complimentary to Canadian law and Constitution, and in the best interests of all Canadians, according international standards far beyond those puny attempts in domestic policy. We invite accountability. We shout for legitimacy.

Give us the resources. Do not deny us our history, our heritage, our identity. Why are we being denied?

Paula LaPierre
Principal Sachem
Kichesipirini Algonquin First Nation

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