Indigenous rights: Maya in Belize, San in Botswana both get ambiguous outcomes in court
By Jerry Reynolds
On June 28 in Belize, the high court delivered a verdict in favor of customary Maya land rights. Less than a month later, on July 21, an ocean away, the high court in Botswana ruled against San water rights in the parched Central Kalahari Game Reserve.
But in an indication of the ambiguities that have come to surround Indigenous Peoples as various governments and corporations contend for their resources, it is difficult to know whose rights are more at risk.
The risk to Indigenous rights, at any rate, remains unambiguous in both cases.
In Belize, prior court decisions in favor of Maya rights under the national constitution have not kept the government from granting unilateral concessions and leases, of Maya lands and rainforests, to logging and hydroelectric companies, oil and gas explorers, and commercial resort developers.
In Botswana, the courts have already awarded the San a right of return to the Kalahari Desert, following their expulsion by the government in favor of the newly declared Central Kalahari Game Reserve, a tourist attraction. But the July 21 ruling leaves them without a water source beyond sparse rain and melons, this in one of the driest settings on earth.
In Belize, the government is trying a case lost at law in the court of public opinion. It has launched a divisive media campaign against the court decision and Maya rights, poisoning public sympathies in anticipation of an appeal. In addition, the president of the country responded to the filing of the lawsuit by installing his brother, an attorney, on the appeals court that will hear the case. The president’s first wife, also an attorney, is expected to handle the appeal. And the chief justice who delivered the verdict for the Maya has retired without being granted the usual time to conclude his active case load, according to Gregory Ch’oc, executive director of Sarstoon Temash Institute for Indigenous Management.
Ch’oc can’t help but fear the worst for the Maya case and the Belize court system. “Whether we will have an independent judiciary after this is anyone’s guess.”
In Botswana by contrast, a court decision seemingly beyond redemption turns out to rest on a principle that presides over water rights cases in many courts: the principle of quantification. As reported by Agence France-Presse, Judge Lashkavinder Walia ruled that the San of the Kalahari (widely referred to as Bushmen) must first quantify the amount of water they wish to pump, in compliance with regulations, before they can hope to reactivate a defunct water borehole.
“No evidence has been placed before me of the quantities required by the applicants,” the judge stated. “I find, therefore, that the applicants do not have the right … to extract water.”
Agence France-Presse goes on to report, “The judge also urged government to clarify ambiguities in water regulations, and appeared to leave the door open for the Bushmen [San] to make a new petition.”
Gordon Bennett, courtroom representative for the San, said water quantification isn’t required by the relevant law, so-called Section 6. Under the law, an owner or occupant is entitled to sink a borehole on the land for domestic water use, Bennett said. A “minister” prescribes the volume of water allowed for domestic use, but which minister isn’t defined. “The whole thing is nonsense really. … I think what troubled the judge is that no one has tried this before” – that is, argued for domestic water rights under the much-neglected provisions of Section 6.
“The prospects for an appeal are excellent.”
The court process that ultimately awarded the San a right of return to the Kalahari was the lengthiest in Botswanan history.
A nearby tourist resort and prospective diamond mine show no evidence of the water shortages that plague the San – sparking non-governmental organizations to call for an international boycott of Botswana’s Kalahari-based tourism industry and diamond trade. The resort has invested heavily in the latest technology for rain water collection and conditioning, Bennett said. He added that the diamond mine, now being negotiated with the government, has gotten environmental clearances for boreholes that would supply water to the mine, but not to its only other users in the vicinity – the San.
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