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Appeals Court delivers judgment impactful to Maya land rights case

Photo: Gregory Ch’oc

BELIZE CITY, Thurs. Oct. 12, 2021

Gregory Ch’oc, the Commissioner of Indigenous Peoples’ Affairs and his wife, Francisca Tzalam Ch’oc have lost an appeal in a land ownership claim. The judgment of the Belize Court of Appeal delivered on September 29, coincidentally, is viewed as having great implications for the Maya Land Rights case. That is, the issues at play are reflective of thousands of similar cases of private landholding within areas considered communally owned by the Maya. At the macro level, that is, between villages, similar ownership claims must be resolved as per the Caribbean Court of Justice (CCJ) April 22, 2015 Consent Order acknowledging communal land rights. The Court of Appeal judgment written by Justice of Appeal Arif Bulkan was supported by Court of Appeal President Minnet Hafiz-Bertram and Justice of Appeal Marguerite Woodstock-Riley.

The case surrounds a parcel of land that Coy Creek Farm Limited (CCFL) – owned by an American couple, James and Angela MacArthur of Idaho, U.S.A. – purchased from Ponciano Coy, a resident of San Antonio Village, Toledo in consideration of BZ$100,000. The size of the parcel they purchased is 21.76 acres. The land is located along the Punta Gorda/San Antonio Road near Mafredi Village.

Prior to acquiring title for the land on February 19, 2014, Coy only had a Location Ticket (No. 1390/63) dated May 14, 1964 in consideration of BZ$77. The clash between CCFL and the Ch’ocs arises because it appears Coy “may have ‘sold’” the land twice. According to the judgment, the Ch’ocs argue that they purchased 23 acres of land from Coy in 2013 when they obtained an unregistered Deed of Conveyance dated June 1, 2013. The judgment notes, “From a receipt annexed to one of the witness statements, the purchase price is stated to be BZ$23,000.00 (paragraph 2 of the Defence states it to be $25,000.00), though the consideration is recorded on the Deed as being BZ$4,000.00.” The two sales resulted in an overlap of land claimed by both parties to the tune of between 5.5 acres and 6.43 acres.

In an attempt to cement their purchase, Tzalam Ch’oc visited the Lands Department in February 2013 “but was told by an unnamed agent that they were not facilitating any land transactions in Maya communities in the Toledo district because of a directive and a court order, and there was a note on the wall to this effect as well.” Ch’oc himself would later visit the Lands Department in Punta Gorda only to find a similar notice posted at the office entrance. This was also confirmed by another land agent.

Importantly, as recorded by Justice of Appeal Bulkan, the Ch’ocs testified that “they also followed traditional practices in effecting this acquisition, informing the Village Council of their intent to do so, and they each maintained that they only intended to pursue ‘a private transaction within the Maya customary law sense.’” Justice Bulkan therefore writes that the appellants “claim to have observed traditional practices in obtaining this land from the vendor while simultaneously attempting (unsuccessfully) to invoke national procedures which would give them a legal title, good against the world.” The Ch’ocs asserted ownership, nonetheless, saying their transaction was effected “only according to traditional practices because their attempt to do so at the Lands Department was unsuccessful.” Their explanation behind their attempt to register the conveyance at the Lands Department was because “of the lack of procedures governing customary indigenous lands.” According to Justice of Appeal Bulkan, the Ch’ocs submitted that “the ambiguity inherent in the existence of parallel systems left them vulnerable, and it was this vulnerability that motivated their attempt to safeguard their interest – though the trial judge made no attempt to resolve the contradiction inherent in utilising both traditional Maya procedures and the national statutory one.”

According to the facts of the case as specified in the Court of Appeal judgment, CCFL’s purchase was executed through an attorney “who conducted the necessary title searches and duly registered the conveyance to the first respondent [CCFL] after being satisfied of the source of the title and the lack of any registered encumbrances.”

By 2015, both parties had taken possession of their respective portions of land. It was in mid-June 2016 that the caretaker for CCFL, Macario Salam noted that the boundary pegs of the CCFL land had been moved, and he later saw the Ch’ocs on the land that overlapped. In the year that followed, both sides remained firm in their ownership claims and shifted the pegs accordingly. The Ch’ocs were then seen planting coconut trees on the land, and Ch’oc told Salam that the property was part of Maya lands and belonged to him.

After conducting further investigations, CCFL discovered the Deed of Conveyance between Coy and the Ch’ocs. In July 2017, after Tzalam Ch’oc raised the matter at a village meeting, the Alcalde instructed caretaker Salam to refrain from any activity in the disputed area. Shortly thereafter, CCFL took the matter to the then Supreme Court which issued a judgment on September 6, 2021. Insisting on their ownership of the land, the Ch’ocs responded during trial that they did not trespass on CCFL’s land. Likewise, they denied moving any boundary markers or pegs and made the claim that no markers were on the property prior to a survey done by CCFL in February 2017. They also brought an ancillary claim against the Attorney General arguing that the Government of Belize committed misfeasance in public office by not allowing them to lodge their 2013 conveyance at the Lands Department while subsequently lodging the conveyance for CCFL in 2014. As such, they argued that the violation by the Lands Department rendered CCFL’s deed unlawful, void and of no effect. The Ch’ocs sought an ownership declaration and damages against CCFL. However, the trial judge, then Acting Chief Justice Michelle Arana ruled against the Ch’ocs and declared that CCFL was the legal and beneficial owner of the parcel purchased from Coy. She also granted a permanent injunction restraining the Ch’ocs from interfering with the land. Additionally, she awarded CCFL damages for trespass, mesne profits for wrongful interference with the land and interest. Mesne profits as defined by the Collins dictionary online means, “profits accruing from the time possession of land has been improperly withheld from its rightful owner until his or her reinstatement in possession of the property.”

The counterclaim brought by the Ch’ocs regarding the claim of misfeasance against the Government did not find favour with the trial judge either. She determined that Coy did not have legal title to the property when it was sold to the Ch’ocs, and so he was not in a position to transfer ownership. Justice of Appeal Bulkan writes in the Court of Appeal judgment that the trial judge found that “the appellants were pursuing a standard legal transaction according to the Laws of Belize and not a traditional land transfer according to Maya custom, but were unsuccessful in their attempt. As such, they merely had an unregistered conveyance executed at a time when the vendor did not have legal title, so they in turn did not obtain legal title to the property and were trespassing on the property legally owned by the first respondent.” Justice Bulkan, on this matter determined that it is the village which must challenge the legality of the Lands Department having issued a Minister’s Fiat Grant by virtue of the fact that Maya communal property is collectively owned. Hence, ownership rests with the village.

Notably, CCFL argued at the Supreme Court that, as stated in the judgment, “in the absence of official demarcation of Maya communal lands pursuant to the Consent Order, there is no basis on which to conclude that this property falls within communal territory so as to undermine the title it obtained.” Further, CCFL argued that the Consent Order does not apply to private property so Coy was free to dispose of his land.

As stated, the Ch’ocs unsuccessfully appealed the Supreme Court ruling.

In deciding the competing ownership claims, Justice of Appeal Bulkan sought to address weighty questions surrounding communal land rights, starting with the implications of the judicial affirmation of Mayan customary land tenure in Belize, and the effect of the 2015 Consent Order and related court orders that preceded it. On the first question, Justice of Appeal Bulkan states, “… as is evident from ongoing controversies, including the opposing positions taken in this case, the meaning and implications of Mayan customary rights remain shrouded in some uncertainty.” He continues, “At the outset, it is perhaps important to be reminded of a fundamental principle, which is that the received common law in the territory of Belize anchors the legal system of the country as a sovereign, political entity. While Mayan communal title is recognised and protected at common law, it remains a specie of ownership unknown to English property law and exists alongside the national system of landholding. This fact does not detract from Mayan ownership of their land, but it does have implications for the nature of the title itself. As much as this may be galling to the descendants of those who have occupied this territory for millennia, it is too late in the day to dispute the events accompanying colonialism and which led to the creation of this nation state.” Justice of Appeal Bulkan highlights also that the justices of the CCJ acknowledged in the Consent Order at paragraph 5 that “sovereign authority over all lands is now vested in the Government of Belize.” He therefore concludes, “This means that disputes such as this can only be resolved within the context of national law, whether found in statute, common law or the Constitution.”

Justice Bulkan continued by affirming that, though recognized in common law, “native title is a distinct form of property ownership, described as ‘sui generis’ in Canadian jurisprudence.” He did note then Chief Justice Abdulai Conteh’s application of longstanding common law precedence that when the Crown in Belize, and later, the Government of Belize acquired territorial sovereignty, “it became vested with the radical or ultimate title to all lands in Belize, which was however, burdened by the pre-existing rights to and interests of the indigenous inhabitants in the land.”

Justice Bulkan highlighted from the Cal and others v AG (2007) case presided over by CJ Conteh that under Maya customary law, the land cannot be sold, and if they wish to relinquish it, that can only be done to the nation state. Citing testimony from Professor Wilk in the Cal case, Justice Bulkan notes that what is allowed under Maya customary law is for families to claim plots “in an arrangement that resembles private property. However, the village government would intervene if someone outside the village tried to buy one of these plots.”

Justice Bulkan concludes, “An obvious consequence of these principles is that the same parcel of land cannot be held under both systems simultaneously. Since the source and nature of a title under each system are distinctive, then any given parcel of land is either one or the other. If the source of title is Maya customary law, the form of ownership is communal, vested in the community as an entity, and by nature inalienable; if the source lies in the national system as derived from English common law, ownership is private, and it can be freely transferred or otherwise alienated.” Importantly, Justice Bulkan also makes the observation that, “while indigenous rights would have survived a change in sovereignty pursuant to principles of both international law and common law, this did not guarantee their continued existence over the course of time. Whether by the exercise of raw dominance as settlers simply moved in and appropriated native lands, or whether by operation of law as the Crown seized and disposed of lands, extinguishment was a tragic but unavoidable reality of colonialism.” He considers that wherever this happened unlawfully, it must be settled through negotiation and reparation “which is squarely the remit of the executive and achieved through mechanisms like national commissions.”

Notably, as referenced in the Court of Appeal judgment, the Ch’ocs submitted that “the Consent Order applies to all lands, including private land. Any other interpretation, they argue, would result in an absurdity, as it would allow agents of the government to facilitate innumerable land transactions and defeat the purpose of the undertaking.” However, Senior Crown Counsel Agassi Finnegan for the Attorney General, “vigorously argued that the fifth paragraph of the Consent Order, by acknowledging the constitutional authority of the government over all lands in Belize, was a clear indication that it was not meant to affect private rights and that any other interpretation could cause the government to act unconstitutionally.”

Finding in favour of CCFL, the Court of Appeal further highlighted that at the time they purchased the land from Coy, there was no injunction restraining the government from disposing of lands in the area. That injunction was reinstated when the CCJ’s Consent Order was issued in 2015. Justice Bulkan later states, “given the rights and incidents of ownership under national law, private landholdings that exist within the general area would clearly be unavailable for demarcation and titling in favour of Mayan villages. It seems obvious that just as Maya communal rights are constitutionally protected by virtue of sections 3 and 17 of the Constitution, so too are the proprietary interests of all other landowners in Belize. This being the case, the embargo embodied in paragraph 4 obviously cannot extend onto private lands, as those areas are constitutionally protected from expropriation.” At section 41 of the Court of Appeal judgment, Justice Bulkan writes, “If private titles currently exist over areas regarded as communal Maya property according to traditional knowledge, this may mean that at some time in the past those communal rights were extinguished – whether lawfully or unlawfully – to facilitate the private grants. In any such case, the affected Villages would possibly be entitled to a remedy for their losses in the form of compensation or alternative grants, but ascertaining whether extinguishment occurred and, if so, what (if any) compensation may be due, are matters that can only be resolved by evidence.”

The only area where the Court of Appeal found in favour of the Ch’ocs was in relation to the trial judge’s order for unspecified damages for trespass and damage to the property, and mesne profits for wrongful interference with and occupation of the land which were set aside. The appellants, however, have been ordered to pay the costs of the respondents. The Ch’ocs as appellants were represented by Priscilla Banner while CCFL as first respondent was represented by Darrell Bradley.

Amandala sought an indication from Ch’oc whether he would appeal, but up to press time we had not received a response. Attorney General Anthony Sylvester confirmed, however, that so far, the AG’s Chambers has not been so served. He noted that the parties have 42 days after the decision of the Court of Appeal to file their application for special leave to appeal at the CCJ.