GOVERNMENT OF BELIZE ? NATIONAL GARIFUNA COUNCIL

NEGOTIATION OF COMMUNAL RIGHTS OF THE GARINAGU TO
CERTAIN LANDS PURSUANT TO PARAGRAPH 6 OF THE GOB-NGC
MEMORANDUM OF UNDERSTANDING

Second Meeting:  July 11, 2003

   The Garinagu Are An Indigenous People Entitled to Special Protections Under International Law

I. Background

In 1972, the Inter-American Human Rights Commission held that ?for historical reasons and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred commitment of the states.?1  Over the last three decades, the rights of indigenous peoples have found increasing recognition and protection within the Inter-American human rights system as well as in other systems of international and domestic law.

II. Defining ?Indigenous Peoples?

The term ?indigenous peoples? has no single, fixed meaning within international law.  Instead, various definitions have been formulated within different international institutions and normative instruments.  The following are the most frequently cited examples:

* United Nations ? The United Nations Draft Declaration on the Rights of Indigenous Peoples, which, once adopted, will be the most important international treaty on this subject, omits any definition of the term ?indigenous peoples.?2   Instead, the UN Draft Declaration provides that self-identification as indigenous is the most important factor, recognizing self-identification to be a right in and of itself subject to protection.  Specifically, article 8 of the Draft Declaration provides that ?[i]ndigneous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.? 3

An early UN working definition of ?indigenous peoples? was set out in the 1986 report of UN Special Rapporteur Martinez Cobo, as follows:

?Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct{ from other sectors of the} from other sectors of the societies now prevailing in those territories, or parts of them.  They form at present, non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.? 4

The omission of this definition from the UN Draft Declaration indicates that it does not currently have wide acceptance within the UN system and should not be considered authoritative.

* International Labour Organisation ? ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries defines ?indigenous peoples? as follows:

?[peoples] who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or  colonisation or the establishment of present State boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.? 5

The protections of ILO Convention No. 169 extend equality to ?tribal peoples,? who are defined by the Convention as:

?[peoples] whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.?6

Like the UN Draft Declaration, ILO Convention No. 169 places particular emphasis on the importance of self-identification, stating that ?[s]elf-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.? 7

* Organization of American States  ? Like the UN Draft Declaration, the Proposed American Declaration on the Rights of Indigenous Peoples omits any definition of the term ?indigenous peoples.?8  As is the case with ILO Convention No. 169, the rights and protections recognized in the Proposed American Declaration apply not only to indigenous peoples, but also to ?people whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations.?9  Again, self-identification as indigenous is given particular emphasis:  ?Self identification as indigenous shall be regarded as a fundamental criterion for determining the peoples to which the provisions of this Declaration apply.? 10

Clearly, self-identification as indigenous is a critical factor.  In addition, one can look to elements of commonality that are generally shared by indigenous peoples and which form the underlying need for their special legal protections.  Factors frequently mentioned in the literature include:  (1) a special connection with land and natural resources; (2) a distinct culture and language; (3) an historical experience of incursions by other groups; (4) severe disruption, dislocation or exploitation, including dispossession of traditional lands;  (5) the wish to retain a distinct identity; (6) a long history of discrimination and poverty; and (7) non-dominance in the state or region.

III. The Garinagu Are An ?Indigenous People?

A. The Garinagu Self-Identify As ?Indigenous?

The Garinagu people of Belize self-identify as indigenous.  Self-identification as indigenous is evidenced by Garinagu membership in national and international indigenous peoples? organizations, such as:  The Belize National Indigenous Council (BENIC), Consejo Indigena Centro Americana (CICA), Fondo Indigena. It should be noted that The Government of Belize accredited Mr. Augustine Flores, President of the National Garifuna Council, to represent Indigenous people of Belize on Fondo Indigena, implicitly acknowledging the identification Garifuna people as indigenous. No less worthy of note is the fact that Ernest Castro of the National Garifuna Council was appointed by Government to represent the indigenous people on the Political Reform Commission and that in relation to Recommendation 6, which called for the ?Exclusion of Reference to Indigenous People in the Constitution?, he authored a dissenting view with which the Government concurred, that being one of the recommendations that the Government rejected outright.

[Let me know what you think about this paragraph.  Should it be eliminated?] [I, Roy, think this can stay] Although the Garinagu of Belize self-identify as indigenous, they also acknowledge and honor their African heritage.  There is no support in international law for any argument that the Garinagu must ?choose? one aspect of their identity as a people.  Certainly, any suggestion that the Garinagu should be classified as afro-descended rather than indigenous based solely on their physical appearance or genetic makeup would itself be a form of racism and discrimination prohibited by international law.

B. The Garinagu Share the Characteristics of ?Indigenous Peoples? That Create the Need for Special Protections Under International Law

Like other indigenous peoples in the Americas, the Garinagu were subjected to dispossession of their traditional lands, loss of political autonomy and near genocide as a result of European colonization of the region.  Anthropological and historical data indicate that the Garinagu are a distinct culture with Amerindian roots that originated on the Caribbean island of St. Vincent prior to the time of European colonization of that island.  It is clear from the historical record that the British?who colonized both St. Vincent and subsequently what is now Belize?considered the Garinagu to be an indigenous group.  For example, in 1772, the British, following Crown policy for dealing with indigenous peoples, entered into a treaty with the Caribs of St. Vincent for the cession of certain Carib lands.11  After being removed from St. Vincent by the British, Garinagu began migrating into the area south of the Sibun River, prior to the exercise of British control over this area.  The British colonial government of Belize also treated the Garinagu as indigenous, one example being the creation of special Garifuna reserves like those created for the Maya.

Like other indigenous peoples, the Garinagu maintain a strong connection with the land and natural environment.  On St. Vincent, the Garinagu declared to the British colonizers that they would rather die than give up their lands.12  In modern times, even when Garifuna individuals relocate to urban areas or perhaps to other countries to work or obtain an education, the connection to birthplace generally remains strong and many such individuals express the intention to eventually return to their birthplace.  [Is this an accurate statement?  Is there a better way to express it?  Any authority to cite? (I cannot think of an authority to cite, but this is accurate)]  In addition, like other indigenous peoples, the Garinagu have retained their own language and have struggled to preserve their cultural identity.  They have also suffered from discrimination and poverty.

Although the Garifuna culture did not originate in what is now Belize, the culture did originate in the circum-Caribbean region of which Belize is a part.  In addition, the culture originated in [what became] the territory of the former British sovereign, which included both St. Vincent and Belize.  As successor to the British sovereign, Belize has ?stepped into the shoes? of the British sovereign with respect to its relationship with, and obligations to, the Garinagu.  Any argument that the Garinagu have somehow ?forfeited? their identity as an indigenous people due to their forced removal by the former sovereign from their homeland in St. Vincent is offensive to all relevant moral and legal standards and simply cannot stand.

C. The Garinagu Are Widely Accepted by Others As An ?Indigenous People?

The Garinagu are widely viewed as an ?indigenous people.?  While examples are too numerous to list, some of the most significant include:

* The Guatemalan Agreement on the Identity and Rights of Indigenous Peoples, which specifically lists the Garifuna people as one of the indigenous peoples of that country;

* The government of Nicaragua?s inclusion of the Garifuna people of that country in its 1996 terms of reference for a general diagnostic study on the land tenure of indigenous communities;13

* The Belize National Indigenous Council?s inclusion of the National Garifuna Council as a founding member with Augustine Flores, the NGC President, as the first to be elected to the Presidency of BENIC;

* The Belize Indigenous Training Institute?s inclusion of the National Garifuna Council as member organization with representation on its Board on an equat footing with Mayan organizations.

* The Indigenous Co-Management Plan ? [Marion?]

* Any more examples we should add?
WHAT ABOUT SHOMAN?S HISTORY OF BELIZE?  DOES ANYONE KNOW IF HE REFERS TO GARINAGU AS INDIGENOUS IN HIS WRITINGS?  I?m not sure if we should include Shoman?s statement to the World Conference Against Racism, as he seems to make a distinction between the Garifuna and the ?indigenous? Maya.  Specifically, he stated:  ?In the past few years, my government has signed agreements with the Garifuna and with the indigenous Maya, recognizing the rights of each as a people.? [While I do not think that this statement by Shoman denies our status as indigenous people, it does not further our argument, so I would not include it]
1  Resolution on the problem of ?Special Protection for Indigenous Populations:  Action to Combat Racism and Racial Discrimination,? transcribed in Report 12/85 (Yanomami Case).
2  United Nations Draft Declaration on the Rights of Indigenous Peoples, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, U.N. ESCOR, 46th Sess., U.N. Doc. E/CN.4/Sub.2/1994/45 (1994) (hereinafter ?UN Draft Declaration?).
3  UN Draft Declaration, art. 8.
4  Jos? Mart?nez Cobo, Study of the Problem of Discrimination Against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7/Add.4, paras. 379-80.
5  ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries (No. 169), 27 June 1989, art. 1(1)(a), 28 ILM 1382 (1989) (hereinafter ?ILO Convention No. 169).
6  ILO Convention No. 169, art. 1(1)(a).
7  ILO Convention No. 169, art. 1(2).

8  Proposed American Declaration on the Rights of Indigenous Peoples, approved by the Inter-American Commission on Human Rights at its 133rd session on February 26, 1997, in OEA/Ser L/V/II.95.doc.7, rev. 1997 (hereinafter ?Proposed American Declaration?).
9  Proposed American Declaration, art. I(1).
10  Proposed American Declaration, art. I(2).
11  See NANCIE L. GONZALEZ, SOJOURNERS OF THE CARIBBEAN:  ETHNOGENESIS AND ETHNOHISTORY OF THE GARIFUNA 16 ? 17 (1988).  The 1772 treaty was subsequently repudiated by Carib chief Chatoyer.  Id. at 19.
12  NANCIE L. GONZALEZ, SOJOURNERS OF THE CARIBBEAN:  EHTNOGENESIS AND ETHNOHISTORY OF THE GARIFUNA  21 (1988).
13  See Reply of the Public of Nicaragua to the Complaint Presented Before the InterAmerican Court of Human Rights in the Case of the Mayagna Community of Awas Tingni (Submitted October 21, 1998), at footnote 6 (unofficial translation included in 19 Arizona Journal of International and Comparative Law 101 (2002)).