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Indigenous Land Rights and Caribbean Reparations Discourse

  • AMY STRECKER
Abstract

In March 2014, a meeting of CARICOM states approved a ten-point plan of the Caribbean Reparations Commission to achieve reparatory justice for the victims of slavery, genocide and racial apartheid in the Caribbean. With assistance from the London-based law firm Leigh Day, the aim is to reach a negotiated settlement with the governments of Britain, France and the Netherlands. What makes this case different from previous discussions on Caribbean reparations is that the claim includes an indigenous component, with ‘native genocide’ included in the title and an ‘indigenous peoples’ development program’ included within the ten-point plan for reparations. Yet reparations are problematic in the Caribbean context due to the ongoing violation of indigenous rights internally. This article analyzes the various dimensions of the Caribbean reparations discourse with regard to contemporary indigenous communities in the region. It highlights the problems at regional level with regard to state responsibility and indigenous rights, particularly in relation to land, and argues that this presents a problematic element in the claim due to the fact that violations are being perpetrated against indigenous peoples by the same states who are representing them in the Caribbean Reparations Commission. Finally, it discusses the onus on European governments to acknowledge past wrongs and the potential of ‘cultural reparations’ to contribute to the Caribbean reparatory justice programme more generally.

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1 The Caribbean Commonwealth was established in 1973 to promote economic integration and co-operation among its members, and now includes 15 Caribbean nations and dependencies. See www.caricom.org.

2 The ten-point plan approved by CARICOM in March 2014 refers only to Britain, France and the Netherlands, although other former colonial powers have been mentioned in previous briefs, namely: Spain, Portugal, Norway, Sweden and Denmark. See CARICOM Reparations Commission Press Statement, 10 December 2013, available at www.archive.caricom.org/jsp/pressreleases/press_releases_2013/pres285_13.jsp.

3 Roy, S.N., ‘Is the Law of Responsibility of States for Injuries to Aliens a Part of Universal International Law?’, (1961) 55 American Journal of International Law 863, at 863.

4 Scott, D., ‘Preface: Debt, Redress.’, (2014) 18 Small Axe vii–x.

5 See, for example, du Plessis, M., ‘Historical Injustice and International Law: An Exploratory Discussion of Reparation for Slavery’, (2003) 25 Human Rights Quarterly 624–59; Fernne, B. (ed.), Colonialism, slavery, reparations and trade: remedying the past? (2012); R. Robinson, The Debt: What America Owes to Blacks (2000); B. Bittker, The Case for Black Reparations (1973, 2003). See also Kushnar, S. (ed.) ‘Reparations for Slavery and Justice’, (2002–2003) 33 University of Memphis Law Review, 277 special issue. In relation specifically to the Caribbean, see H. Beckles, Britain's Black Debt: Reparations for Caribbean Slavery and Native Genocide (2013), which built on the earlier work of E. Williams, Colonialism and Slavery (1944).

6 Much has been written on the extinction narrative and indigenous exile in the Caribbean. See, for example, Newton, M., ‘Returns to a Native Land: Indigeneity and Decolonization in the Anglophone Caribbean’, (2013) 17 Small Axe 108–22; T. Castanha, The Myth of Indigneous Caribbean Extinction: Continuity and Reclamation in Boriken (2011); M. Forte, Ruins of Absence, Presence of Caribs: (post)colonial representations of aboriginality in Trinidad and Tobago (2005).

7 This observation is made from an analysis of newspaper articles from the six CARICOM states with self-identifying indigenous communities: Dominica, St. Vincent, Trinidad of the islands and Belize, Guyana and Suriname on the mainland. It is also due to the increasing number of conferences and events dealing with Caribbean reparations which focus almost exclusively on the transatlantic slave trade and the legacies of slavery. See for example the themes for ‘Repairing the Past, Imagining the Future: Reparations and Beyond’ international conference, University of Edinburgh in collaboration with Wheelock College, Boston, 5–7 November 2015.

8 See note 16 infra.

9 Newton, supra note 6.

10 In addition to Afro-indigenous (such as the Garifuna) and Maroon communities (such as the N'djuka).

11 CARICOM Reparations Commission Press Statement, delivered by Professor Sir Hilary Beckles, 10 December 2013, available at www.archive.caricom.org/jsp/pressreleases/press_releases_2013/pres285_13.jsp.

12 Ibid.

13 Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Durban 31 August – 8 September 2001, UN GAOR, at 5–27, UN Doc. A/CONF.189/12 (2002). For a critical view of the Conference, see Camponovo, C.N., ‘Disaster in Durban: The United Nations World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance’, (2003) 34 Geo. Wash. Int'l L. Rev. 659 .

14 For example, in 2003, President Aristide of Haiti claimed the equivalent of FF90 million in damages from France. See ‘Compensating the past: debating reparations for slavery in contemporary France’, (2015) 19(4) Contemporary French and Francophone Studies 420–9.

15 The ten-point plan for reparations approved by CARICOM is available at www.leighday.co.uk/News/2014/March-2014/CARICOM-nations-unanimously-approve-10-point-plan-.

16 Ibid. This premise rests to a large extent on the work of Hilary Beckles, who notes that, ‘between 1492 and 1730, the native population of the Lesser Antilles fell by as much as 90 per cent’. See supra note 5, at 24. Beckles draws on Craton for this assumption, M. Craton, Testing the Chains, Resistance to Slavery in the British West Indies (1982).

17 It must be noted that there are communities in other CARICOM states – such as Jamaica – who self-identify as indigenous, although there does not appear to be a consensus between the communities themselves on this. The term ‘indigenous’ in this article is based on the premise of self-identification as such.

18 See Art. 25, 1969 American Convention on Human Rights, 1144 UNTS 123; Art. 2(3), 1966 International Covenant on Civil and Political Rights, 999 UNTS 171; 1966 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85; Art. 13, 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222; 1981 African Charter on Human and Peoples’ Rights, 1520 UNTS 217. The International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ILC Articles) provide more elaborate guidance on the content of repair. ILC Arts. 30 (cessation and non-repetition) and 31 (reparation) provide that the state responsible for an internationally wrongful act is under an obligation to i) cease the act, if it is continuing; ii) offer appropriate assurances and guarantees of non-repetition; and iii) make full reparation for the material and moral injuries caused by the act. Art. 34 of the ILC Articles further states that full ‘reparation for the injury caused by the intentionally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination’. The elements of reparation contained in the ILC Articles are also contained in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles). The UN General Assembly adopted the Basic Principles in 2005 and they have since been incorporated into other treaty systems, including and most notably, the American Convention on Human Rights.

19 Cited in Shelton, D., ‘The Present Value of Past Wrongs’, in Lenzerini, F. (ed.), Reparations for Indigenous Peoples (2008), 4772, at 58.

20 Charting the historical data on the legacies of British slavery is the subject of a UCL project Legacies of British Slave-ownership, available at www.ucl.ac.uk/lbs/. The role of the state, the role of the family and the role of the enslaved are examined in this project.

21 F. Lenzerini, ‘Reparations for Indigenous Peoples in International and Comparative Law’, in Lenzerini supra note 19, 3–26, at 11.

22 J.B. Du Tertre, Histoire generale des Antilles habitées par les françois: tome II, contenant l'histoire naturelle (1667), 573–8.

23 L. Honychurch, Carib to Creole: A History of Contact and Culture Exchange, DPhil Thesis (1997) 102 [accessed at the Public Library, Roseau, Dominica].

24 Ibid.

25 Case of Aloeboetoe et al. v. Suriname, Inter-Am Ct HR, Judgment of 10 September 1993. Series C, No. 15.

26 Ibid., para. 56.

27 Ibid., para. 57.

28 E. Kambel and F. MacKay, The Rights of Indigenous Peoples and Maroons in Suriname (1999) International Work Group for Indigenous Affairs Document No. 96, at 63.

29 [1994] 1 ALL ER 633, at 629. See also M. Palmer, ‘The Treaty of Waitangi in Legislation’, [2001] New Zealand Law Journal 207.

30 For example, R v. Secretary of State for Foreign Affairs and Commonwealth Affairs ex parte Indian Association of Alberga [1982] 2 ALL ER 118.

31 Mutua and others v. Foreign and Commonwealth Office [‘Mau Mau case’], [2012] EWHC 2678 (QB).The Mau Mau uprising, also known as the Kenya Emergency, took place between 1952 and 1960, when insurgents were fighting for independence from Britain.

32 Ndiki Mutua and others v. Foreign and Commonwealth Office [‘Mau Mau case’], Judgment of 5 October 2012, [2012] EWHC 2678 (QB), para. 95.

33 In 1975 the International Court of Justice declared that the Western Sahara was not a terra nullius at the time of Spanish colonization since it ‘was inhabited by peoples which, if nomadic, were socially and politically organized tribes and under chiefs competent to represent them’. Western Sahara, Advisory Opinion of 16 October 1975 [1975] ICJ Reports 12, para. 81.

34 Mabo v. Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992).

35 Delgamuukw v. British Columbia, [1997] 3 SCR 1010, 1997 Carswell BC 2358.

36 Mayagna (Sumo) Awas Tingni Community v. Nicaragua [2001] Inter-Am Ct HR (ser C) No. 79, at 71.

37 Shelton, supra note 19, at 69.

38 Benton, L. and Strauman, B., ‘Acquiring Empire by Law: Roman Doctrine to Early Modern European Practice’, (2010) 28 Law and History Review 1 . See also Bulkan, A., ‘From instrument of Empire to vehicle for change: the potential of emerging international standards for indigenous peoples of the Commonwealth Caribbean’, (2011) 37 Commonwealth Law Bulletin 463–89. The latter deals with the mainland Caribbean (Suriname, Belize and Guyana) and not the islands.

39 R. Niezen, Public Justice and the Anthropology of Law (2010), 3. See also Gearty, C., ‘Do Human Rights Help or Hinder Environmental Protection?’, (2010) 1 Journal of Human Rights and the Environment 7 .

40 See in particular Human Rights Committee, General Comment No. 23 concerning Article 27 (Fiftieth session, 1994), UN Doc. HRI/GEN/1/Rev.1 at 38 (1994), para. 7; Committee on the Elimination of Racial Discrimination, ‘General Recommendation No 23: Indigenous Peoples’, 18 August 1997, UN Doc. HRI\GEN\1\Rev.6 (2003), at 212. Article 21 of the American Convention on Human Rights protects the land rights of indigenous peoples and has been interpreted broadly by the Inter-American Commission and Court to include indigenous customary tenure and collective title over ancestral lands. The Court has reiterated that, ‘the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival’ [I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs, Judgment of January 31, 2001. Series C No. 79, para. 149].

41 UN Committee on the Elimination of Racial Discrimination: Concluding Observations, Suriname, 28 April 2004, CERD/C/64/CO/9.

42 Moiwana Village v. Suriname, Inter-Am Ct HR, Series C. No. 124, (15 June 2005) and Case of the Saramaka People v. Suriname, series C No. 172, (28 November 2007).

43 Moiwana Village v. Suriname, Inter-Am Ct HR, Series C. No. 124 (15 June 2005), at 86.

44 Ibid., at 87.

45 The Kaliña and Lokono Peoples v. Suriname, Case 198-07, Report No. 76/07, Inter-Am Ct HR, OEA/Ser.L/V/II.130 Doc. 22, rev. 1 (2007).

46 The Kaliña and Lokono Peoples v. Suriname, Judgment of 25 November 2015, Series C. No. 309, at para 1.

47 Ibid., para 3.

48 Ibid., paras. 114, 142, 160, 198, 212, 258 and 268 respectively.

49 Ibid., para. 305.

50 Amerindian Act, #13 of 2006.

51 Thomas and Arau Village Council v. Attorney General of Guyana and another, No 166-M/2007, HC of Guyana, unreported decision dated 30 April 2009.

52 UN Committee on the Elimination of Racial Discrimination: Concluding Observations, Guyana, 4 April 2006, CERD/C/GUY/CO/14.

53 Amerindian Act, #13 of 2006, s. 2.

54 Ibid., s. 50.

55 Susskind, L.E. and Anguelovski, I. (eds.) Addressing the Land Claims of Indigenous Peoples, Program on Human Rights and Justice, Massachusetts Institute of Technology, 2008, at 68 .

56 Chang v. Guyana Geology & Mines Commission & Isseneru Village Council, Oral judgment of Justice Diane Insanally, delivered 17 January 2013.

57 See supra note 40.

58 Aurelio Cal v. Attorney-General of Belize, Claim 121/2007 (Supreme Court, Belize, 18 October 2007).

59 Ibid., at 127.

60 The Maya Leaders Alliance, the Toledo Alcaldes Association and Others v. Attorney General of Belize and Others, Claim No 366 of 2008 (28 June 2010).

61 BZ Civil Appeal No. 27 of 2010 [2015] CCJ 15 (AJ).

62 CCJ Appeal No BZCV2014/002, paras. 79 and 80.

63 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples: Resolution adopted by the General Assembly, A/RES/61/295 (2 October 2007).

64 Ibid., Art. 11.

65 1966 International Covenant on Civil and Political Rights, supra note 18.

66 1966 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3.

67 Human Rights Committee, General Comment 23, Art. 27, supra note 40.

68 Ibid.

69 General Recommendation No 23: Indigenous Peoples, 18 August 1997, supra note 40.

70 1965 International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195.

71 CERD A/39/18 (1984), para. 198, available at www.ohchr.org/EN/HRBodies/CERD.

72 CERD A/36/18 (1981), para. 436. Although, it must be pointed out that cultural identity is constantly in flux and therefore cannot really be ‘preserved’. The language of the Committee has progressively developed since then.

73 CERD A/50/18 (1995), para. 34.

74 This was originally promised in December 2012 (after many years of requests) and finally occurred in October 2015.

75 CERD/C/63/CO/10 (2003), para.10.

76 F. Shaheed, Report of the Special Rapporteur in the Field of Cultural Rights on her Mission to St. Vincent and the Grenadines (5–9 November 2012), A/HRC/23/34/Add.2, (g) (22 April 2013), para. 64.

77 Ibid., para. 64(h).

79 See for example, Middleton, B.-R., ‘A Landscape of Cultural Patrimony: Opportunities for Using Private Conservation Tools to Protect Balliceaux’, (2014) 60 Caribbean Quarterly 29 .

80 According to the Land Acquisition Act 1946 (revised), the government may issue a compulsory purchase order, provided that adequate compensation is provided to the owners of said land. According to the National Trust Amendment Act No. 37 (2007), the National Trust is authorized to declare any site as ‘protected national heritage’, which it has already done for the neighbouring island of Battowia, a designated wildlife reserve and one of the five breeding sites of frigate birds in the Caribbean.

81 de Albuquerque, K. and McElroy, J., ‘Race, Ethnicity, and Social Stratification in Three Majority Afro-Caribbean Societies’, (2009) 24 Journal of Eastern Caribbean Studies 129 . Pan American Health Organization basic country health profiles, (1999) 21 Epidemiological Bulletin.

82 Patterson, T. and Rodriguez, L., ‘Political Ecology of Tourism in the Commonwealth of Dominica’, in Gössling, S. (ed.), Tourism and Development in Tropical Islands: Political Ecology Perspectives (2003), 6087 .

83 Ibid.

84 Lixinski, L., ‘Cultural Heritage Law and Transitional Justice’, (2015) 9 International Journal of Transitional Justice 278–96.

85 Cited in Prott, L.V. (ed.), Witness to History: Documents and writings on the return of cultural objects (2009), iii.

86 See CARICOM's ten-point action plan for reparations, at supra note 15.

87 For a more in-depth discussion on indigenous rights in the Caribbean islands, see Strecker, A., ‘Revival, Recognition, Restitution: Indigenous Rights in the Eastern Caribbean’, (2016) 23 International Journal of Cultural Property 167 .

88 Ibid.

89 See supra note 6.

90 Art. 11, supra note 63.

* Amy Strecker is Assistant Professor and Postdoctoral Researcher within the ERC Synergy Project Nexus1492 at the Faculty of Archaeology, Leiden University. Her research within the project focuses on the role of law in confronting the colonial past in the Caribbean, specifically in relation to land rights, cultural heritage and restitution []. This research was made possible thanks to the ERC-Synergy Project NEXUS1492: New World Encounters in a Globalizing World, directed by Prof. Corinne Hofman at Leiden University, funded by the European Union's Seventh Framework Programme (FP7/2007-2013)/ ERC grant agreement n. 319209. I would like to thank Melanie Newton for her helpful comments on an earlier draft of this article.

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