Jose Ical on His Own Behalf and on Behalf of The Maya Village of Jalacte v The Attorney General

• Judge: Madam Justice Michelle Arana
• Judgment Date: 01 January 2021
• Court: Supreme Court (Belize)
• Docket Number: CLAIM NO. 190 OF 2016

IN THE SUPREME COURT OF BELIZE A.D. 2016

Before

The Honorable Madam Justice Michelle Arana

CLAIM NO. 190 OF 2016

Between

Jose Ical on His Own Behalf and on Behalf of The Maya Village of Jalacte

First Claimant

Estevan Caal

Second Claimant

and

The Attorney General

First Defendant

The Minister of Agriculture, Fisheries, Forestry, The Environment, and Sustainable Development

Second Defendant

and

The Minister of Works, Transport, National Emergency Organization

Third Defendant

Mrs. Magali Marin Young S.C. together with Ms. Monica Coc Magnusson and Allister Jenkins for the Claimants

Mr. Nigel Hawke, Solicitor General along with Mrs. Samantha Matute Tucker for the Defendants

FACTS

1 This is a Claim for damages and other relief sought by the villagersof Jalacte against the Government of Belize as compensation for the acquisition and use of their lands without first obtaining prior consent of the villagers of Jalacte. The residents of the village of Jalacte use and occupy land in and around the village in accordance with Maya customary land use. The area which is used and occupied by Jalacte residents in accordance with Maya customary land tenure includes both sides of the old road between Rio Negro Bridge and the Belize -Guatemala border. Mr. Estevan Caal is one of the Jalacte residentswho used and occupied lands on both sides of the road. Prior to any works being carried out by CISCO Construction Ltd. (“CISCO”), a public hearing was held in San Antonio Village, Toledo District, where persons from neighboring villages, including Jalacte Village, were present for a presentation on the EIA (Environmental Impact Assessment) and the road upgrade project itself. This hearing occurred approximately in 2010 with all the villages within the immediate environment of the proposed works.

2 In March or April 2013, the Defendant, Minister of Works, contractedCISCO to upgrade the existing rural road, which ran from the Dump to Jalacte Village lands near the Belize/Guatemala border, and which was at that time a one-lane dirt road measuring less than 25 feet in width. The road upgrade included straightening and widening about three (3) miles in length, beginning at the Rio Negro Bridge all the way to the Belize-Guatemala border. It is this aspect of the road upgrade that is involved in this claim. The highway construction activities authorized by the Defendant, Minister of Works, are now complete, including the construction of the bridge over the Jalacte River near Treetop.

3 On or about October/November 2014, the Defendant, Minister of Agriculture, through his Ministry and BAHA, placed two re-fabricated structures on the North side of the road, in lands used and occupied by Mr. Estevan Caal in accordance with Maya customary land tenure. In September or October 2015, the Defendant, Minister of Agriculture, through the Ministry and BAHA, cleared land located on the South side of the road and erected a thatch structure. In October or November 2015, the Defendant, Minister of Agriculture and BAHA placed another structure that appears to be a greenhouse next to the 2 pre-fabricated structures on the North side of the paved highway inside the fenced area. At no time prior to nor after commencing the work on the road between the Rio Negro Bridge and the Belize/Guatemala border, nor before or after the erection of structures on lands adjoining that road, did any of the Defendants enter into negotiations with Estevan Caal, nor Jalacte Village through its leaders, regarding compensation for the acquisition of the land.

4 On or about November 23, 2015, CISCO sent a letter to Jalacte Village leaders, advising that the company, on behalf of the Defendant, Minister of Works, planned to begin the construction of a bridge and complete the paving of the highway within the three mile corridor. In this letter, CISCO requested permission from the village to occupy approximately 2 acres of land on the South side of the highway beginning at the crossroad leading to the main residential area of Jalacte Village, for the purpose of setting up a campsite for the company's use throughout the duration of the new round of construction. At the time that the November 23, 2015 letter was presented to the village leaders, CISCO had already entered onto the two acre parcel, and placed several items of construction equipment and a trailer home on the land. CISCO continued the occupation and use of the 2 acre parcel and continued the construction of the bridge which is now completed.

5 ISSUES

• 1) Whether the land in issue is national land within the meaning of the National Lands Act.

• 2) Whether the land in issue was used and occupied by the Maya village of Jalacte, in accordance with Maya customary land tenure.

• 3) If the answer to both (1) and (2) above is yes, does the Government have the authority to take up the lands as they have, without complying with the Lands Acquisition (Public Purposes) Act

• 4) Whether the Defendants took possession of the land in issue and/or resources on that land, without the consent of the Maya village of Jalacte and Estevan Caal

• 5) Whether the Defendants have breached any of the Claimants' rights as guaranteed under the Constitution of Belize, particularly section 3 (a), 3 (d) and 17(1)

• 6) Whether the outbreak of the medfly disease invokes the public interest exception as enshrined in section 17(2) of the Constitution trumps the issue of the constitutional rights given the facts and circumstances of this case

• 7) Whether the Claimants ought to be allowed to prosecute this constitutional claim sought six years after the date the issue arose

• 8) Whether the actions of the Defendants were done in breach of the Caribbean Court of Justice order of April 22, 2015 in TAA, MLA et.al. v The AG of Belize, in particular paragraph 4 of that order.

• 9) Did the Defendants fail to comply with the requirements of the Land Acquisition (Public Purposes) Act

• 10) Whether in the circumstances, the Claimants are entitled to an award of damages

6 These facts and issues are those agreed upon as undisputed between the parties in the Agreed Statement of Facts and Issues signed by the counsel for the parties on January 26, 2018, pursuant to case management order of this court dated November 3, 2017.

7 Evidence of Jose Chen

There were eight witnesses called on behalf of the Claimants; the first witness for the Claimants was Jose Chen. Mr. Chen is one of the leaders of Jalacte Village and he has lived in that village for approximately 32 years. He served as Alcalde of Jalacte Village from 2011 to 2014. An Alcalde is the traditional leader in each Maya village, including Jalacte Village. The roles of the Alcalde include looking after village lands and resources, calling village meetings, dealing with issues that arise in the community, including civil and criminal disobedience. The Alcalde is also the voice of the village to the government and others about issues that affect the village.

8 Mr. Chen stated that Jalacte Village holds collective property rights to lands within and surrounding the village in accordance with the Maya customary land tenure system that exists in southern Belize. Jalacte's property rights in their lands was affirmed by the April 22, 2015 Consent Order of the Caribbean Court of Justice as the village was a party in the lawsuit involving the Maya Leaders Alliance et al v the Attorney General of Belize.

Jalacte's lands are bordered by several other Maya villages, namely San Vicente to the North and San Benito Poite and Aguacate to the South. To the West is the Belize/Guatemala border and the Guatemalan village of Santa Cruz. To the East is Pueblo Viejo village. Pueblo Viejo is the most adjacent village and is connected to Jalacte through the paved highway; the boundary between Jalacte and Pueblo Viejo is marked by Rio Negro Creek.

9 Located within the boundary of Jalacte is the village land used and occupied by Mr. Estevan Caal (“Mr. Caal”) which he holds in accordance with Maya customary land tenure practice as a member of the village. Mr. Caal holds an individual customary proprietary right to the parcels of village land used by him and which derives from Jalacte's collective property rights. This particular village land used by Mr. Caal is located near the “UK ba kab Ha” Bridge and the “Chi na Ha” Creek. More specifically, the land is about a quarter mile from the crossroads leading to the border village of Santa Cruz in Guatemala and Jalacte's main residential center. The land is about two and a half miles past the boundary line between Jalacte Village lands and Pueblo Viejo village lands beginning at the Rio Negro Bridge. The land that has now been leveled by the Ministry of Works and is currently being occupied by the Ministry of Agriculture was Mr. Estevan Caal's huamil land. The witness says that he knows this because he was alcalde of Jalacte. Even before he was alcalde, he knew these facts as those were Mr. Caal's lands for many years, and all the farmers in the village know which areas other farmers work

10 The Ministry of Works, through CISCO Construction Ltd., has now leveled the hills on both sides of the narrow dirt road that runs through the village land used by Mr. Caal and other village members, and constructed a wide paved highway in its place leading all the way to Tree Top at the Belize/Guatemala border. CISCO took gravel and other valuable materials from the village land used by Mr. Caal to construct the paved highway. The Ministry of Agriculture currently occupies the village land used by Mr. Caal where it placed two pre-fabricated houses and a greenhouse on the North side of the highway. The Ministry of Agriculture also constructed a fence around these houses.

11 Sometime in 2013, during the beans harvesting season around March/April, Mr. Chen noticed that CISCO had begun converting the then narrow, curvy and bumpy dirt...