Photo: Virtual Compliance Hearing in the Maya Leaders Alliance v the Attorney General of Belize
by Kory Leslie (Freelance Writer)
BELIZE CITY, Wed. Nov. 30, 2022
On Tuesday of this week, the Caribbean Court of Justice, at a compliance hearing that was held to track the progress of the implementation of Maya communal land rights, in line with a 2015 court ruling, has described the government’s approach to the rollout of a Free, Prior, Informed Consent (FOIC) protocol which would govern the implementation of those rights to be “disappointing”.
In January of this year, the Government of Belize had announced via a Cabinet brief the approval of a Free, Prior Informed Consent (FPIC) protocol, which it said, would “guide consultations with Maya communities, whether by government or private entities, in keeping with government’s commitment to the implementation of the 2015 Consent Order of the Caribbean Court of Justice”. However, what it did not mention is that the other key party in the implementation process—the representatives of the Maya community, had not approved that protocol and, in fact, claimed that they were not fully consulted about it. In an exclusive interview in January with AMANDALA, Cristina Coc, spokesperson for the Toledo Alcaldes Association (TAA) and Maya Leaders Alliance (MLA), had stated that the Maya communities rejected the Government’s proposed FPIC protocol. Nonetheless the document was sent to the Caribbean Court of Justice (CCJ), without seemingly having the consent of those groups.
“The protocol was sent out to the Caribbean Court of Justice by way of a surprise to us. We have not seen this protocol; it has not been consulted with us, and it certainly does not carry our consent as the appellants to the CCJ consent order,” Coc had said. Coc had further noted that although they had not had a chance to thoroughly look at the revised version of the FPIC protocol, they had already spotted wording that was cause for concern.
“Just on the surface, we immediately flag that the Government is calling it a consultation protocol, and even in the body and language of the protocol, it continues to use this ambiguous term of consultation rather than consent, which is what is ultimately the safeguard,” she had said. She had also stated, according to an AMANDALA article dated Thursday, January 27, 2022, that “The protocol does not meet the requirements of the CCJ’s 2015 order, since the court at the last compliance hearing made it clear to the government that meaningful and timely consultations were to be carried out with the appellants, the MLA and TAA.” That article further noted that “Agreeing on the FPIC Protocol is necessary for establishing a Consent Order which would govern the use of the natural resources in Maya communal territory and future interactions between the Maya leadership and the GOB. The CCJ has been mediating the implementation of the land rights since 2015 but continue to receive complaints from the Maya representatives that the Briceño administration has been neglecting due process and opted to proceed with implementation without buy-in from their indigenous counterparts.”
When the government and the Maya representatives were back before the court at a compliance hearing in early May, however, the acrimony in the relations between the two was clear—prompting presiding judge Justice Wit to state, “I think all present would agree that we have to lower the temperature maybe and get back to a more practical working relationship between the parties, because that relationship has to be maintained whether some like it or not.”
Lead counsel for the government at that compliance hearing, Andrew Marshalleck, had even stated, “We need to get back to rebuilding the relationship and reestablishing if possible the trust and confidence in each other in pursuing the steps that need to be taken to achieve the objectives that we all agree must be achieved.”
Justice Wit had, in response, expressed the faintest hope that increased cooperation between the Maya reps and the government was possible. “Yes, well, you never know, miracles do happen … and it should not really be a miracle … but we will see how thing goes,” Justice Wit had said.
But at the most recent compliance hearing, it was clear that there had not been the type of cooperation that the judge was hoping for—something that the court referred to at that hearing as a disappointment. Specifically, the court became aware that the government commenced a process of implementation of the FPIC without sending the final version of that document to the Maya reps.
The current CCJ president, Justice Adrian Saunders, asked Marshalleck, “Were the Appellants sent an English language version – the final copy?”. To this, Marshalleck responded, “With the new title? I don’t think so”. This prompted Justice Saunders to state, “Mr. Marshalleck, I don’t know. I don’t quite understand how this process evolving. Because all of this, you know, that is being done arises not out of the Government’s own deliberate desire to do what it thinks best for Belize and its people. It arises out of litigation. And it arises out of litigation where the parties consented to an order. Now, this is a very novel, awkward kind of order because it is one where one side of the litigation has the responsibility of implementing that order. But, they have to implement it in good faith and in a spirit that respects the fact that the implementation emerges out of a consent order, where there are litigants on the other side. I am disappointed to hear that the FPIC Protocol, which is an important aspect of implementing that consent order, could be finalized by one party and be implemented, and the other party has not seen the final version. That is very disappointing.”
On Wednesday, a joint statement issued by the Maya Leaders Alliance, the Julian Cho Society and the Toledo Alcaldes Association on Wednesday further pointed out that the CCJ had to remind Senior Counsel Andrew Marshalleck and members of the Attorney General’s Office that “the international community is keeping its gaze on Belize as it implements the novel Consent Order agreed to by the Parties.”
The statement goes on to assert that if the government continues to exclude the Maya from the implementation process, they risk going against the ruling of Hon. Dr. Abdulai Conteh who, in his 2010 judgement in the case of Maya communal land rights, ordered that a reconciliation process be put in place as soon as possible.
The spokesperson for those groups further noted to 7News, “The document is, as far as our views go—that document is still being negotiated. As you heard, even the court expresses its disappointment in saying that how can party finalize an FPIC Protocol—something so important to the implementation of their order. How can one party implement this FPIC Protocol without the other party even seeing the last or the final version? We should learn—all of us, Belizeans, Maya people in Toledo. The only reason we still enjoy the use and enjoyment of our lands is that we have struggled for the recognition and respect of our rights. And so, we rely on the wisdom of the Caribbean Court of Justice. I heard the President resoundingly say yesterday that we must be reminded that this desire to – this implementation of the consent order did not arise out of a pure desire of the Government to do good for its people. In fact, it arose out of litigation. We had to fight for it. We had to struggle for it. And so, it reminded the Government that there are litigants on the other side, that you cannot be doing this unilaterally, that we, as Maya people, have a stake in how this consent order is implemented, and that the court itself has an interest in how its order is implemented.”
Upon his return from Venezuela earlier this week, Prime Minister Briceño briefly mentioned the FPIC Protocol in relation to potential oil exploration in Toledo during a media briefing. PM Briceño said that the Commissioner of Indigenous Peoples’ Affairs, Gregory Ch’oc, has been consulting the residents in the area to get their views on potential seismic testing in the area:
“I had a meeting two Fridays ago in the Toledo District where I met 60 acaldes and chairpersons. None of them were talking that they were against oil exploration – not a single one of them. Now, the Commissioner is going his job. The Commissioner – since they’re going to have under the FPIC they’re going from village to village to meet with the villagers to inform them on what’s going on and try to see whether they will get the support or not. He’s just there as the witness, he’s not there to encourage them one way or the other. I can tell you that several villages have informed me that they have signed a petition. They have signed that they want the seismic test to commence because they believe that by doing that, they can again create jobs for them,” he said.
Christina Coc, however, has challenged that assertion by the PM.
“… As far as I’m concerned, the meeting that happened in Toledo – while I was not there in person, members of my team and the Toledo Alcaldes Association were present. At no point was US Capital’s development discussed at this meeting. Yes, there was a meeting, and there was an audience with leaders of many villages, but at no point. So, how would the communities have yes, I am for US Capital, or no, I’m not for US Capital? How would they have said that? And to simplify it to that point, the Maya people have never been against development. We have always been protecting the communities against exploitation. So, you can’t just ask, do you want oil exploration or not, right? We want to be able to explore, through a free prior informed consent process, what will result. If we end up with at a consent agreement that upholds the conditions that the communities set, that upholds the standards that the communities set, and upholds the benefit-sharing and compensation, that the communities desire, then the communities are at liberty to give their free prior informed consent, right? But, you can’t just go and tell the community, [whether] you want US Capital or not. That is not the consent process. That is not due process,” she told a 7News reporter.