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Sarstoon Temash Institute for Indigenous Management et al v. Attorney General et al

A multinational company applied for permission to engage in exploratory oil drilling in the Sarstoon Temash National Park. The Environmental Impact Assessment for the proposed project was subject to a public consultation, held by the Department of Environment on 25 October 2012. Following consultation, Mayan Communities wrote to the Prime Minister, formalizing their objections to drilling in the National Park. The company was granted drilling permission on 5 April 2013 contingent on an Environmental Compliance Plan. It was also authorized to commence the construction of an access road to the proposed well site which began on 16 June 2013. The claimant objected to oil drilling inside the National park and on Maya traditional lands alleging it was contrary to Belize law and requested that any permits or licenses issued be struck down. The permit had been granted without the free, prior and informed consent of the indigenous Maya communities and breached the claimants’ legitimate expectation that the Government of Belize would comply with its obligations under the United Nations Declaration on the Rights of Indigenous People and the Judgment of the Supreme Court.

Destacados

[9] The permission granted by the Government of Belize to conduct road construction and commercial oil drilling within the Sarstoon Temash National Park was not ultra vires the National Park System Act or the Petroleum Act. While it is obvious that road construction and commercial oil drilling are activities which will definitely damage the pristine nature of the park, the National Parks System Act itself allows the Administrator of the park to give permission for such activities to be conducted, once the Government of Belize has decided that there are other pressing uses in the national interest e.g. commercial oil drilling to which that piece of land can be put.
[13] I agree fully with the submissions of Counsel for the Claimants on this issue. It is clear that the Supreme Court of Belize in Maya Lands Rights case No. 1 (which has not been appealed) and in the majority judgment of the Court of Appeal in The Attorney General of Belize v. The Maya Leaders Alliance and the Toledo Alcaldes Association on behalf of the Maya Villages of the Toledo District et. al., Civil Appeal No. 27 of 2010, have recognized that the Maya have rights to lands in Southern Belize based on the Maya People’s traditional use and occupation of those lands. I fully understand and appreciate the argument made on behalf of the Defence that since the lands claimed by the Maya have not been demarcated, or surveyed, then it is not clear whether those lands do or do not lie geographically within or extend to the National Park. However in deciding this issue I pay heed to the points raised by Mr. Courtenay that: (1) the nature of title of Maya historical lands is not such as can be delineated by meets and bounds, as they are an agrarian nomadic people and the nature of their title is anecdotal, rooted in stories of their traditional use of the land for farming, hunting, fishing, etc.; (2) the IACHR has already found in Maya Indigenous Community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, InterAm. C. H. R., OEA/Ser.L/V/II.122 Doc. 5 rev. 1 at 727 (2004) that the Government of Belize had violated the rights of the Maya by granting a permit without first obtaining the free, prior and informed consent of Maya when dealing with land that could fall within those claimed by them as traditional Maya Lands; (3) the judgment of Conteh CJ in Maya Lands case No. 1 plainly puts the onus of demarcating property belonging to the Maya on the Government of Belize in consultation with the Mayas. It is not for the Mayas to come and prove that their land lies within the park. It is for the Government of Belize to meet with the Mayas and make good faith attempts to arrive at a mutual understanding and agreement as to what areas of land will be demarcated as Maya Lands. The principle of “free, prior and informed consent” is one which was set out very clearly in the United Nations Declaration on the Rights of Indigenous Peoples at Article 32 [...]I agree with the submission made on behalf of the Claimants that Belize, as a member state of the United Nations which voted in favor of the United Nations Declaration on the Rights of Indigenous Peoples on 13th September, 2007 is clearly bound to uphold the general principles of international law contained therein [...].
[13] It does not appear to be good faith on the part of the Government or the oil company to throw a 300 plus document written in English in highly technical scientific language at these indigenous people and give the agrarian Mayan communities many of whom speak only Mopan/Q'eqchi language twenty days to digest it before the scheduled meeting. I find that the failure of the Government of Belize to obtain the free, prior and informed consent of the Maya people prior to granting the concessions and permissions for the construction of a road and drilling for oil within the National Park was unlawful.
[14] [...]The decision is irrational for the reasons stated by the Claimants that: (1) the Defendants knew that the Supreme Court and the Court of Appeal of Belize had recognized and declared the communal property rights of the 1st to 5th Claimants; (2) the Defendants knew that the concessions, permissions and licenses fell within, or were likely to fall within the Claimants’ communal property; (3) the Defendants proceeded to grant the permissions and licenses or continued the concessions despite this knowledge. I would add to this the fact that the Government failed to obtain the free, prior and informed consent of the Claimants as discussed above, despite being aware of the judgments of the Supreme Court and the Court of Appeal and in so doing I find that the Government of Belize acted irrationally, especially in light of Belize’s obligations to its indigenous peoples under the American Declaration of Human Rights and United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

[15] [...] I fully agree with the submissions made on behalf of the Claimants on this issue. In the Maya Lands case No. 1 at the Supreme Court Conteh CJ set out the rights of the Maya to lands in Southern Belize based on their ancestral title and the accompanying principle of free, prior and informed consent. This was affirmed by Morrison JA at the Court of Appeal level. In my view, legitimate expectation arises not merely from the fact that Belize is a signatory to the American Declaration of Human Rights and has ratified the treaty, but also from the fact that the Government of Belize has itself made a treaty with the Maya people in 2000 [...]. 

Decisión

The Court found that the Government’s grant of permission for both oil drilling and road construction in the National Park was irrational and unreasonable, as it was made without the free, prior and informed consent of the indigenous Maya communities. It also found that the permission constituted a breach of the legitimate expectation of the Maya Peoples that the Government would comply with their international obligations. While not striking down the permits or licenses, the Court ordered the Government to obtain free, prior and informed consent from the claimants with respect to any contract permit or licence that falls within the National Park. 

País

Fecha de la sentencia

03/04/2014

Órgano resolutor

Supreme Court of Belize