• Koowarta v Bjelke Petersen – Stephen J
– RDA preamble
• CERD in force on 2 January 1969
• Desirable pursuant to power to make laws re external affairs re people of a race, immigration – give effect to
Convention
– International obligation to suppress racial discrimination – respect for human dignity, fundamental rights – part of customary international law = external affairs
• Constitution s 51(xxix)

• ‘Property’:
– a legal relationship with a thing: Dalziel
– A legally endorsed concentration of power over things and resources: Yanner v Eaton
Right to own property alone as well as in association with others: UDHR Art. 17; CERD Art. 5(d)(v);
Koowarta; Mabo (No 1)
Care and Management: Bropho and RDA S 10(3)
Arbitrary deprivation: UDHR Art. 17 Mabo (No 1);
Bropho

• – management decisions –
– CERD, Art 5(b)
– ICCPR, Art 1(1)
– ICESCR, Art 9(1)
– UNDRIP, Art 1-5, 8(1), (2)(a), (b), (c) and (d), (9),
18, 19, 20(1), 21(1),23,26,32(2))4,35

• Private clause and denial of natural justice clauses in Reserves Act
– CERD, Art 5(a)
– UDHR, Art 8
– UNDRIP, Art 27 and 40

• Right to lands, territories and resources traditionally owned, occupied, used or acquired: UNDRIP, Art 26
• Right to property: CERD, Art 5(d) (v)
• Right not to be arbitrarily deprived of property: UDHR, Art
17(2)
• Right not to be forcibly removed from lands or territories, UNDRIP, Art 10
• Right to protect and develop sites manifesting culture:
UNDRIP, Art 11
• Right to redress for taking land, without free, prior and informed consent:UNDRIP, Art 28

• Right to be actively involved in determining health, housing and economic and social programmes: UNDRIP, Art 23
• Right to maintain spiritual relationship with land and cultural sites: UNDRIP, Art 12, 25

• CERD, Art 5(d)(v)
• UNDRIP, Art 26

• Right to freedom of movement and residence:
CERD, Art 5(d)(i): Cp Gerhardy v Brown
• Right to freedom from arbitrary interference with one’s home: ICCPR, Art 17

• Belize – Monarch QEII – until 1973 British
Honduras – self governing from 1964
• Mayan civilization between 1500 BCE-300BCE
• Belize pop abt 300,000 – 49% = mixed
Mayan/European (Mestizo) – 10 ethnic groups
• Indigenous Mayans = 10% of population

Inter-American Commission on H R 2004
• Petition: breach of American Declaration of Rights and
Duties of Man 1948
– Right to life, Art I
– Right to equality before law, Art II
– Freedom of religion, Art III
– Family protection, Art VI
– Health, Art XI
– Fair trial, Art XVIII
– Participate in government, Art XX
– Property, Art XXIII
• Failure to protect rights in granting oil and logging concessions

• Supreme Court of Belize 2007
• Maya Communities in Southern Belize
• Alleged violations of Belize Constitution, s 3 – fundamental rights whatever race s 16 – no discrimination on gronds of race ss 3(d) and 17 – right to property, ss 3(a) and 4 – rights to life, liberty, security of person and protection of law
• Failure to recognise, protect and respect customary land rights i.e., property protected by Constitution
• Property rights recognised by Inter-American Commission on
Human Rights
• Government issue or threat to issue leases, grants and concessions without respecting traditional land tenure

• Maya customary land tenure exists in
Southern Belize
• Individual and communal rights are usufructuary – occupy, farm, hunt, fish and take for their own use fruits and resources in accordance with Maya customary law and usage
• Communal title

• Right to property:
ICCPR
CERD
Charter of Organisation of American States,
DRIP, Art 26
– Injunction to abstain from acts affecting Maya collective traditional title unless pursuant to informed consent and compliance with safeguards of Belize Constitution

•

• Republic of Suriname -formerly known as Dutch Guiana
• Suriname independent from the Netherlands since 1975
• Saramaka (or Saramacca) - since 2010 “Saamaka” People =
1/6 Maroon People
• Maroon People = 12% of Suriname population = 1/8 ethnic groups
• Saamaka population 55,000 (1/3 live in French Guinana since 1990)
• Saamaka people escaped from slavery 17/18 Century in treaty with the Dutch to live along upper Suriname River and tributaries
• Now live in colonial/Alcoa housing in lower Suriname River
– hydro scheme for aluminium smelting flooded ½ land

Inter-American Court of Human Rights
American Convention on Human Rights (ratified by Suriname 1987)
Inter-American Commission on Human Rights application against State of Suriname
Petition of Association of Saramaka Authorities and and 12 Saramaka captains

• Violation of right to property: ACHR, Art 21
– No effective measures to recognise communal property rights
• Violation of the right to judicial protection:
ACHR, Art 25
• No effective access to justice
• Failure to recognise or give effect to collective rights to land and territories of Saramaka
People: ACHR, Art 1 and 2

• Lack of standing of petitioners
• Lack of standing of representatives
• Irregular procedures before the Commission
• Non-compliance with time limits under
Convention
• Non-exhaustion of domestic remedies
• Duplication of international proceedings
• Lack of jurisdiction for acts re Dam prior to current sovereignty (facts not in application)

• Affidavits and testimony of clan members and representatives and Association office holders re
– destruction of farms by foreign logging company
– Efforts to obtain redress
– Efforts to protect land and resources
– Attempts to settle case with the State
– Documentation of traditional use
– Customary law governing ownership
– Saramaka treaty rights
– Contemporary use of land and resources
– Impact of mining and displaced villages
– Flooded villages and forced displacement
• Opinions of Anthropological experts

Saramaka People are tribal community subject to special measures ensuring full exercise of rights: AHRC Art
1(1), 2
Rights to use and enjoyment of communal property protected: AHRC Art 21; ICCPR Art 27
State has not recognised right to property (mere privilege)
Saramaka people right to use and enjoy natural resources to prevent their extinction as a people – necessary for survival, development and continuation of way of life

Concessions for exploration and extraction of resources issued by
State: Failure to comply with International law safeguards:
AHRC, Art 21
Restrictions on right of property a) previously established law b) necessary c) proportional d) aim of achieving legitimate objective of democratic society
Safeguards against denial of survival: AHRC, Art 1
• Effective Saramakas participation re development or investment plan
• Reasonable Saramakas benefit
• Environmental and social impact statements

– Lack of recognition as juridical personality does not effect rights under domestic law to judicial protection and property: right to recognition is a special measure: AHRC Art 3, 21 and 25
– Inadequate effective remedies providing judicial protection against violation of rights: AHRC Art 3,
21 and 25

• Right of Indigenous Peoples to determine and develop priorities and strategies for development or use of lands, territories and resources: UNDRIP, Art 32(1)
• State obligation to consult in good faith to obtain free and informed consent to projects affecting land, territories or resources, UNDRIP, Art 32(2); ILO Conv 169, Art 15(2)
• Effective State mechanisms for just and fair redress and measures to mitigate adverse environmental, social, cultural or spiritual impact, UNDRIP, Art 32.3; ILO Conv 169,
Art 15(2) = right to just compensation: AHRC, Art 21(2) = right to share in benefits resulting from deprovation of use of traditional lands and resources