INDIGENOUS ISSUES UPDATE:
DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES &
INDIGENOUS MAYA LAND RIGHTS VICTORY

by
Melody Kapilialoha MacKenzie, Director


UN Declaration on the Rights of Indigenous Peoples Adopted

On September 13, 2007, the United Nations General Assembly adopted the long anticipated Declaration on the Rights of Indigenous People. Only four states – the United States, Canada, New Zealand, and Australia – voted against the Declaration, while eleven others abstained.

The Declaration recognizes a wide range of basic human rights and fundamental freedoms of Indigenous peoples. Among these are the right to self-determination and to freely determine their political status; an inalienable collective right to the ownership, use and control of lands, territories and other natural resources; and the right to maintain and develop political, religious, cultural and educational institutions along with the protection of cultural and intellectual property.

The Declaration highlights the requirement for prior and informed consultation, participation and consent in activities that impact Indigenous peoples, their property or territories. It requires fair and adequate compensation for violation of the rights recognized in the Declaration and establishes guarantees against genocide. The Declaration also provides for fair and mutually acceptable procedures to resolve conflicts between Indigenous peoples and States, including resort to international and regional mechanisms for examining human rights violations.

Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on Indigenous Peoples, hailed the achievement, noting that the day would be remembered as one in which the “United Nations and its Member States, together with Indigenous Peoples, reconciled with past painful histories and decided to march into the future on the path of human rights.” She acknowledged the long struggle, spanning over two decades, to draft and negotiate the document, but observed that the Declaration was the only UN declaration “drafted with the rights-holders, themselves, the Indigenous Peoples.” Ms. Tauli-Corpuz noted that the length of time devoted to drafting the Declaration

stemmed from the conviction that Indigenous Peoples have rights as distinct peoples and that a constructive dialogue among all would eventually lead to a better understanding of diverse worldviews and cultures, a realignment of positions and, finally, to the building of partnerships between states and Indigenous Peoples for a more just and sustainable world.

Less than a month after its adoption, the Declaration on the Rights of Indigenous Peoples played a significant role in protecting the customary land rights of the Maya people in Belize.

Customary Land Rights of Indigenous Maya Communities Affirmed

On October 18, 2007, the Supreme Court of Belize issued a landmark opinion recognizing the rights of indigenous Maya communities in Belize to lands and resources that they have used and occupied for centuries. The villages of Conejo and Santa Cruz had argued that the government failed to acknowledge their customary land rights by approving logging and oil exploration on traditional Maya lands.

In the decision, Chief Justice Abdulai Conteh accepted the villages’ claim that Maya customary property rights, like other forms of property, are protected by the Belize Constitution and by international treaty and customary international law. The Chief Justice took over two and a half hours to read his decision aloud, describing at length the relationship between the Maya people and their land, a relationship upon which both the physical and cultural life of the Maya people depend.

In a precedent-setting decision affecting over thirty-eight Maya communities in southern Belize, the Chief Justice held that the Belize government’s failure to recognize, respect, and protect the customary land rights of the Maya villages violates their rights to property, equality, and life, liberty, and equal protection of the law. The Chief Justice stated:

I have no doubt that the claimants’ rights to and interests in their lands in accordance with Maya customary land tenure, form a kind or species of property that is deserving of the protection the Belize Constitution accords to property in general. There is no doubt this form of property, from the evidence, nurtures and sustains the claimants and their very way of life and existence.

The decision also affirmatively rejected the Belize government’s arguments that pre-existing rights of the Maya communities had been extinguished by the assertion of British sovereignty, government-issued land grants, and the creation of reservations in the area.

The court found persuasive a 2004 report of the Inter-American Commission on Human Rights affirming the rights of the Maya to their traditional lands and resources as a matter of international law, and recommending that Belize give the Mayan villages title to their lands.

Most significantly, the decision specifically relied upon the United Nations Declaration on the Rights of Indigenous Peoples, citing it as evidence of general principles of international law. The Chief Justice stated:

I am therefore, of the view that this Declaration, embodying as it does, general principles of international law relating to indigenous peoples and their lands and resources, is of such force that the defendants, representing the Government of Belize, will not disregard it. Belize, it should be remembered, voted for it . . . I therefore venture to think that the defendants would be unwilling, or even loath to take any action that would detract from the provisions of this Declaration importing as it does, in my view, significant obligations for the State of Belize in so far as the indigenous Maya rights to their land and resources are concerned.

Professor S. James Anaya of the James E. Rogers College of Law at the University of Arizona noted, “this seminal judgment constitutes the most far-reaching application of international law by a domestic court to recognize the right of an Indigenous group to their traditional lands and resources.” Professor Anaya, his associates, and many students in the Indigenous Law & Policy Program at their law school have worked on this and a related case over the last decade.

A copy of the UN Declaration on the Rights of Indigenous Peoples can be found at: http://www.iwgia.org/sw248.asp, and the Belize Supreme Court’s decision can be found at: http://www.law.arizona.edu/depts/iplp/advocacy/maya_belize/documents/ClaimsNos171and172of2007.pdf