Human Rights Council holds Panel discussion on access to justice for Indigenous Peoples

Human Rights Council
MIDDAY

18 September 2012

The Human Rights Council today held a panel discussion on the access of indigenous peoples to justice. 

Mona Rishmawi, Representative of the Office of the High Commissioner for Human Rights, in an opening statement on behalf of High Commissioner for Human Rights Navi Pillay, said access to justice was a very real human rights concern for indigenous peoples and constituted a universal issue in both developed and developing States.  Issues facing indigenous peoples in obtaining access to justice included poverty, illiteracy, poor education, recognition of lands and territories, and self-determination.  The Council was urged to focus on practical and targeted solutions to problems associated with indigenous peoples’ access to justice in close partnership with indigenous peoples.

James Anaya, Special Rapporteur on the rights of indigenous peoples and moderator of the panel discussion, said the significant challenges in ensuring access to justice for indigenous peoples included internal and external dimensions: internally, the indigenous peoples were trying to safeguard their own customary and traditional systems; and externally, access to justice was hampered by racial discrimination, education, language barriers and other factors.

The panellists were Ramy Bulan, Associate Professor of Law, University of Malaya, Malaysia; Megan Davis, Professor of Law and Director, Indigenous Law Centre, University of New South Wales, Australia; Vladimir Kryazhkov, Professor of Law at Moscow State University, Russia; Casilda De Ovando Gómez Morín, Director for the Promotion of Covenants on Justice, National Commission for the Development of Indigenous Peoples, Mexico; and Abraham Korir Sing’oei, Human Rights Attorney, Kenya.

Ramy Bulan, Associate Professor of Law at the Faculty of Law, University of Malaya, Malaysia, said that the core values of indigenous societies were embedded in their distinctive customs and traditions and had to be preserved.  Women were especially at risk and in recent years there had been reports of sexual exploitation of indigenous women and girls.  In order to deal with that some women’s groups had taken a holistic approach to empower indigenous women through education.

Megan Davis, Professor of Law and Director, Indigenous Law Centre, Faculty of Law, University of New South Wales, Australia, said cultural barriers to access to justice were also reported, such as taboos prohibiting the discussion of violence against indigenous women by indigenous persons.  In terms of mainstream institutional racism, there was widespread mistrust of the authorities, especially concern for police brutality and fear that partners would be incarcerated. 

Vladimir Kryazhkov, Professor of Law at Moscow State University, Russia, said the legal protection of indigenous peoples was enshrined in the Constitution, which recognized indigenous peoples as separate people.  The challenges lay in the full application of customs, traditions and the full comprehension of the culture of indigenous peoples.  It was up to judges to interpret what the best interest of the indigenous peoples was, and that sometimes ran contrary to their own understanding of their best interests. 

Casilda De Ovando Gómez Morín, Director for the Promotion of Covenants on Justice, National Commission for the Development of Indigenous Peoples, Mexico, said Mexico had worked to improve the access of indigenous peoples to justice and to create a structure of specialized lawyers who knew native languages and cultures.  The basic rights of indigenous peoples, including the right to indigenous identity, the right to autonomy and self-determination, and the right to a bilingual and intercultural educational system, were upheld and recognized. 

Abraham Korir Sing’oei, Human Rights Attorney, Kenya, said access to justice for indigenous peoples in Africa was hampered by discrimination, illiteracy and lack of awareness of financial means to access legal services.  Justice for indigenous peoples was not only a court process; many disputes were resolved using traditional and customary norms and mechanisms that were often undermined.  Despite the challenges, various models were emerging across the continent that embraced the cultural diversity enshrined in customary law while providing the stability required for reducing ethnic tensions and fostering pluralism.

In the interactive dialogue, speakers said that access to justice could be improved through the greater availability of dedicated legal services which respected cultural sensitivities and language barriers.  Speakers made various recommendations that included community-based justice systems, promotion of alternative sentencing, and enhancement of family and civil meditation services.  The judiciary must address the need to have translators and interpreters, a speaker said.  The establishment of native courts which could exist in parallel to State court systems and could ensure greater justice for indigenous peoples and constitute recognition of their legal systems was another proposal, as well as the importance of qualified legal aid

Speaking in the panel discussion were Mexico on behalf of the Latin American and Caribbean Group, Canada, the European Union, Ecuador, Austria, Sweden, Finland, Peru, United States, Guatemala, Russia, Iran, Chile, Norway, Australia, Venezuela, and Bolivia.

Also speaking were the Human Rights Commission of Malaysia in a video message, International Commission of Jurists and Minority Rights Group International, Canadian Human Rights Commission, Indian Council of South America, and France Liberté.

The Council today is holding a full day of meetings from 9 a.m. to 6 p.m. At 3 p.m. it will continue the clustered interactive dialogue with the Special Rapporteur on indigenous peoples and the Chairperson of the Expert Mechanism on the rights of indigenous peoples.

Opening Statement

MONA RISHMAWI, Representative of the Office of the High Commissioner for Human Rights, in an opening statement on behalf of the High Commissioner for Human Rights NAVI PILLAY, said that the Declaration on the Rights of Indigenous Peoples remained a ground-breaking and central component of international human rights law.  It was an invaluable tool, as well as an incentive, for the promotion and protection of the rights of indigenous peoples.  Access to justice was a very real human rights concern for indigenous peoples from all parts of the world and constituted a universal issue that affected indigenous peoples living in both developed and developing States.  In one State, where indigenous peoples made up only 2.5 per cent of the population, statistics indicated that indigenous adults were 13 times more likely to be imprisoned compared to non-indigenous adults.  Structural and practical problems associated with indigenous peoples’ access to justice within criminal justice systems were multifaceted and included a lack of access to legal advice, cultural insensitivity, insufficient emphasis on rehabilitation and inadequate provision of interpretation.  Issues facing indigenous peoples in obtaining access to justice were not confined to criminal matters but were closely related to other human rights issues facing indigenous peoples, including poverty, illiteracy, poor education, recognition of their lands and territories, and self-determination. 

The Expert Mechanism on the Rights of Indigenous Peoples, the Permanent Forum on Indigenous Issues and the Special Rapporteur on the rights of indigenous peoples had highlighted the close connection between indigenous peoples’ self-determination and the attainment of other human rights.  The United Nations human rights system including the treaty bodies and the Office of the High Commissioner had significant experience in dealing with issues associated with access to justice and indigenous peoples’ access to justice specifically.  The Committee on the Rights of the Child had emphasised that indigenous children must have access to culturally appropriate legal and translation services, interacting with juvenile justice systems.  The Office of the High Commissioner had played a practical role in supporting indigenous peoples’ access to justice and was exploring the value of rights and principles associated with transitional justice for indigenous peoples in their pursuit of access to justice.  It was also developing a guide for national human rights institutions on the use of the Declaration on the Rights of Indigenous Peoples.  Ms. Rishamawi urged the Council to focus on practical and targeted solutions to problems associated with indigenous peoples’ access to justice in close partnership with indigenous peoples.

Statements by Panellists

RAMY BULAN, Associate Professor of Law at the Faculty of Law, University of Malaya, Malaysia, said that the core values of indigenous societies were embedded in their distinctive customs and traditions and had to be preserved.  Malaysia was a good example of a State which had special courts dealing with breaches of native customs, even if they only had limited jurisdiction.  Women were especially at risk when it came to the entry of individuals and companies into traditional lands for economic reasons.  In recent years there had been reports of sexual exploitation of indigenous women and girls and in order to deal with this some women’s groups had taken a holistic approach and worked to empower indigenous women through education.  In addition, conflicts abounded as social and land tenure rights were affected by laws and State development policies.  Malaysian courts had recognized the customary rights of indigenous communities as a priority interest but they also needed to be recognized and reflected in government policies.  To resolve issues facing indigenous communities it was important for them to have access to justice and adequate representation.  

MEGAN DAVIS, Professor of Law and Director, Indigenous Law Centre, Faculty of Law, University of New South Wales, Australia, said that the challenges of access to justice for indigenous women manifested themselves in different ways depending on the jurisdiction and context.  There was often little education in the community about mainstream law and inequity in access to justice was compounded by the lack of elementary knowledge about civics, law, government services and programmes in indigenous communities.  Concerning civil law matters, indigenous women had frequently noted that there were insufficient services including legal aid to deal with civil matters for indigenous women, other areas in which inadequate access to justice manifested was in the area of criminal law and domestic violence.  Cultural barriers to access to justice were also reported, such as taboos prohibiting the discussion of violence against indigenous women by indigenous persons.  In terms of mainstream institutional racism, there was widespread mistrust of the authorities, especially concern for police brutality and fear that partners would be incarcerated.  In some jurisdictions, conflicting and overlapping levels of criminal jurisdiction could also act as a barrier to accessing justice.  Data collection, in particular disaggregated data, was required to address indigenous women’s access to justice and to deliver responses to victims.  States should strengthen national census and data collection on socio-economic and well-being indicators, including data disaggregation on access to justice and violence against indigenous women.  

VLADIMIR KRYAZHKOV, Professor of Law at Moscow State University, Russian Federation, said that indigenous peoples in Russia were ethnic communities comprising 40 different peoples, living in 22 different legal units and numbering close to 300,000.  Their legal protection was enshrined in the Constitution and there were provisions enabling the indigenous peoples to uphold their rights in the courts.  Furthermore, the Constitution recognized the indigenous peoples as separate people, and accorded them all internationally recognized rights.  The law guaranteed the participation of indigenous peoples in consideration of their cases in courts.  Full application of customs and traditions and full comprehension of the culture of indigenous peoples was where the challenges were; the norms of the law and the applicable legislation were understood and applied from a general point, taking into account the interest of the public at large, rather than the particular interest of indigenous peoples.  It was up to judges to interpret what the best interest of the indigenous peoples was, and this sometimes ran contrary to their own understanding of their best interests.  For the time being, Russia was not really developing non-State approaches to conflict settlement using traditional indigenous mechanisms; rather, Constitutional pre-requisites were used in dispute resolutions.  Russia had built up the required basis for effective and specialized access of indigenous peoples to the justice system; at the same time, the application of the law in this sphere had not been very effective to date.

CASILDA DE OVANDO GÓMEZ MORÍN, Director for the Promotion of Covenants on Justice, National Commission for the Development of Indigenous Peoples, Mexico, said that Mexico was a pluricultural country with indigenous peoples making up 14 per cent of its total population and with over six million persons speaking an indigenous language.  She recognized that inequality, poverty and marginalization had not been totally eradicated but added that Mexcio had taken measures to tackle those problems.  More specifically, the basic rights of indigenous peoples, including the right to indigenous identity, the right to autonomy and self-determination, and the right to a bilingual and intercultural educational system were upheld and recognized.  Mexico had taken steps to promote the recognition of indigenous languages alongside Spanish as official languages of the country.  It had also sought through various programmes to improve the access of indigenous peoples to justice and to create an operational structure of specialized lawyers who knew native languages and cultures.  Fundamental was the constitutional reform which ensured the implementation of Constitution Article 1 on human rights and their protection.  In addition, Mexico participated actively in the relevant international bodies and also had a new system of criminal justice in place whose aim was the protection of the vulnerable and the elimination of discrimination against indigenous peoples.

ABRAHAM KORIR SING’OEI, Human Rights Attorney, Kenya, said that indigenous peoples in Africa experienced numerous human rights violations, including dispossession of ancestral land, over-exploitation of natural resources, violence, denial of socio-economic rights, discrimination in access to socio-economic opportunities and others.  Their access to justice was hampered by discrimination, illiteracy and lack of awareness of financial means to access legal services.  Justice for indigenous peoples was not only a court process; many disputes were resolved using traditional and customary norms and mechanisms.  Those justice mechanisms were often undermined; imposition of monoist legal systems was a factor in disenfranchisement of the poor, rural and less educated African societies, including indigenous peoples.  The refusal or failure of States to enforce judicial decisions relating to the rights of indigenous peoples was emerging as the greatest challenge to access to justice for those communities.  Weak legal aid schemes in many African States were another challenge and the situation was often compounded by the physical remoteness of areas inhabited by indigenous peoples.  Despite the challenges, various models were merging across the continent, including pluralistic legal systems in several African that embraced the cultural diversity enshrined in customary law while providing the stability required for reducing ethnic tensions and fostering pluralism, and documentation of customary land transfer and inheritance practices in Uganda.

JAMES ANAYA, Special Rapporteur on the rights of indigenous peoples and Panel Moderator, said that there were significant challenges in ensuring access to justice for indigenous peoples.  There were internal and external dimensions of this problem: internally, the indigenous peoples were trying to safeguard their own customary and traditional systems; there were limitations imposed on the jurisdiction of traditional justice systems and their breakdown resulting from pressures from outside.  Externally, access to justice was hampered by racial discrimination, the lower degree of education of indigenous peoples; language barriers to access to justice, lack of respect for indigenous peoples collective rights, and lack of implementation by States of important judicial decisions affirming indigenous rights.

Discussion

Despite positive developments in recent years, indigenous peoples continued to be at risk of a wide range of human rights violations, said the European Union, and added that their access to justice could be improved through greater availability of dedicated legal services which respected cultural sensitivities and language barriers.  Austria said that social marginalization put indigenous peoples at risk of many human rights violations; they were often disproportionately incarcerated.  Sweden added that indigenous women faced discrimination and particular challenges because of their gender and their status as indigenous.  Land rights of indigenous peoples were central to their access to justice, said Minority Rights Group International and outlined challenges that included lack of national legislation to protect the specific rights of indigenous peoples, reluctance on the side of lawyers to take on cases affecting indigenous communities, minimal understanding on indigenous rights, and others. 

Mexico, speaking on behalf of the Latin American and Caribbean Group, said that the representation of indigenous peoples in this region was the highest in the world and outlined challenges in ensuring their access to justice, which included language barriers.  Canada had developed strategies to ensure access to justice for its Aboriginal people, which supported community-based justice systems and promotion of alternative sentencing and enhancement of family and civil meditation services, while Ecuador’s Constitution recognized the access to justice for indigenous peoples as their right and also recognized their traditional justice mechanisms.  United States agreed that justice for Native American women and girls who had survived violence was a pressing issue and had proposed legislation to the Congress that would recognize certain tribes’ power to exercise concurrent criminal authority over domestic violence cases.  Human Rights Commission of Malaysia in a video message, recommended the establishment of native courts, which could exist in parallel to State court systems and could ensure greater justice for indigenous peoples and constitute recognition of their legal systems.  International Commission of Jurists recommended that Guatemala adopt the new law on public order and the law on agrarian systems.

Finland asked panellists to share examples of good cooperation and dialogue between formal State justice and traditional indigenous justice institutions with the aim of improving access to justice for indigenous women.  Peru underlined the particular question of communal versus State justice and asked what systems could State justice systems use in meting out intercultural justice.

RAMY BULAN, Associate Professor of Law at the Faculty of Law, University of Malaya, Malaysia, responded to one question on how to contribute to intercultural justice and how courts could help indigenous people.  An important thing to bear in mind was that customary laws should be interpreted in their own context, and that States often emphasized positive laws to override customs to the detriment of indigenous peoples.  In terms of evidence used in courts, very often indigenous peoples’ way of giving evidence was through stories, oral narratives of their history.  These should be taken into account and stringent positions should not be used to defeat the kind of evidence they used in cases before the courts. 

MEGAN DAVIS, Professor of Law and Director, Indigenous Law Centre, Faculty of Law, University of New South Wales, Australia, said that one problem found on combating violence against women and access to justice was data collection, and being able to obtain disaggregated data on indigenous women and access to justice.  Another obstacle in finding best practices was the lack of evaluation in finding best practices.  This was common around the world.  Often funding was ad hoc and not ongoing.  In Redfern, Australia, it had been agreed by police that domestic violence issues be addressed prior to address any other issues such as outstanding fines or warrants (one reason why women sometimes were reluctant to report domestic violence).  However, if the issue was not addressed more broadly, such measures were only interim.

VLADIMIR KRYAZHKOV, , Professor of Law at Moscow State University, Russian Federation, said that States shared general problems in ensuring access to justice, but that there were also specific problems.  The protection of collective rights was a basis for the protection of individual rights.  The question of pluralism and existence of parallel legal systems was an interesting and complex question, together with how justice systems dealt with intercultural cases.  It would be useful to consolidate the good practice in this regard, said Mr. Kryazhkov.

CASILDA DE OVANDO GOMEZ MORIN, Director for the Promotion of Covenants on Justice, National Commission for the Development of Indigenous Peoples, Mexico, said that the justice systems were implemented differently in different states in Mexico and each had specific means of accessing indigenous rights.  Even though the principles were recognised in Mexico’s Constitution, the challenge was in the implementation of international standards at the local level, where they had to be recognized by local courts and justice systems.

ABRAHAM KORIR SING’OEI, Human Rights Attorney, Kenya, said there was no sufficient coordination mechanism on coordination between indigenous systems of justice and State systems.  The challenge was often in the multi-ethnic make-up of States and continents, which made the process of agreeing such a mechanism very complex.  In many States, because of the perceived inferiority of traditional systems, there was no thinking about the need for such coordination.  Before talking about coordination mechanisms, there was a need to first address those deep-seated notions of States concerning indigenous justice systems.

Access to justice was a legal obligation incumbent on States, said Chile. Guatemala said that the right of indigenous people to access to justice meant that the judiciary must address the need to have translators and interpreters.  The need to train on the application of certain laws was also important.  Despite the adoption of relevant instruments, Iran noted that indigenous people often remained victims of discrimination and violations of access to justice.  According to Bolivia, it was not correct to identify the law of indigenous peoples solely through the use of terms such as practice and custom, as this had colonial connotations that reduced their norms to a lower level of ranking and not as constituting law. 

Russia said that in accordance with the Constitution of Russia and its Federal Constitutional laws, all citizens had equal access to the administration of justice regardless of gender, religious and ethnic background, and if necessary they were entitled to express themselves in their mother tongue, as well as to access to translators and qualified legal aid.  Norway said that the Norwegian courts’ knowledge of Sami culture and the right to use Sami languages before the courts were, in its opinion, cornerstones in indigenous peoples’ right to justice.  Many issues remained to be addressed, including the rights to land and legal aid to ensure indigenous peoples’ access to justice.  On its part, Venezuela said that it recognised the right of indigenous communities and peoples to make use of legitimate authorities where they lived, in their own environment and with their own forms of justice, in so far as this was not incompatible with the Venezuelan Constitution and/or the relevant conventions.  Canadian Human Rights Commission said that indigenous peoples were overrepresented in the criminal justice system.   Women in particular faced discrimination on the basis of gender and indigenous identity.  Indian Council of South America asked how access to justice over land and territories could be expected when it could not even be expected to be rendered when court was entered.

Australia said it would be interested to hear about best practice legislative or policy measures that assisted in advancing access to justice for indigenous peoples, as well as views on how Governments could strengthen indigenous peoples’ trust in the justice system.  Chile was interested in hearing what practices could be proposed to, in particular, benefit indigenous women and children.  France Liberté said that in order for the Ogoni people of Nigeria to have access to justice and obtain redress, it called upon Council to prevail on the Government of Nigeria to stop the ongoing forceful seizure of Ogoni land without their free, prior and informed consent.  

Concluding Remarks

RAMY BULAN, Associate Professor of Law at the Faculty of Law, University of Malaya, Malaysia, said in her concluding remarks that it was encouraging that so many States had justice mechanisms for indigenous peoples.  The communal right to land of indigenous peoples was fundamental and there was a need to bridge the gap in understanding of the indigenous concepts of property among the bar and law students.  Education of indigenous peoples was essential, not only in schools, but in communities as well, and this was one of the strategies to use to combat discrimination and violence against indigenous women.  The problem of language was real and many indigenous peoples did not understand legal documents; it was incumbent to States to provide translation so that indigenous peoples knew what they were dealing with.

MEGAN DAVIS, Professor of Law and Director, Indigenous Law Centre, Faculty of Law, University of New South Wales, Australia, in her closing observations said that in Australia there were many examples of good policy in ensuring access to justice for indigenous women; the problem was in short funding cycles and robust evaluation of programmes.  Research had shown that programmes were successful where there was strong partnership between communities and the State and where there was a sense of ownership of those programmes by the community.  Indigenous peoples’ trust in the justice system in Australia was at an all time low and was exacerbated by the failure to resolve women’s issues in a culturally appropriate way.  Aboriginal women legal services were usually found in rural areas in Australia, even though most women were residing in towns. 

VLADIMIR KRYAZHKOV, Professor of Law at Moscow State University, Russian Federation, in his closing remarks expressed support for the idea of the introduction of courses on indigenous law in universities, as this would fulfil requirements that the justice bodies that applied the law would be able to take into account culture and the way in which traditional systems functioned.  This was an important precondition for fair consideration of cases involving indigenous people and issues, without which fair justice was impossible.

CASILDA DE OVANDO GOMEZ MORIN, Director for the Promotion of Covenants on Justice, National Commission for the Development of Indigenous Peoples, Mexico, said that one of the main problems concerning access to justice was that many indigenous peoples did not speak Spanish.  Among other measures to improve access to justice by indigenous populations, interpreters in different indigenous languages and dialects had been accredited.  Nevertheless, much remained to be achieved and there was an important gap to cover beyond the issue of interpretation.  For example, it was necessary to improve translators’ understanding of the legal process.  Moreover, these support services were not yet available at the national level and, for example, people from Oaxaca undergoing trial in a different part of the country faced further challenges in accessing translators.  Much more could be done to provide assistance to indigenous peoples in Mexico and Latin America.

ABRAHAM KORIR SING’OEI, Human Rights Attorney, Kenya, suggested that the situation of indigenous justice systems in Africa was partly a function of the failure of States to recognise the contribution of these systems to the stability of countries and society as a whole.  If countries valued the contribution of indigenous justice system to stability, much could be achieved.  It was important to learn from examples such as the case of Rwanda and the savings that had been delivered to the State.  African States had an opportunity to look at these systems which could provide resilience.

JAMES ANAYA, Special Rapporteur on the rights of indigenous peoples and Moderator, thanked participants and emphasised that a range of perspectives from different regions and focusing on a different array of topics had been heard.  This discussion could be thought of as having individual and collective dimensions.  Concerning individuals’ access to justice and the protection of rights for individuals, indigenous justice systems could contribute to address the concerns of indigenous peoples.  It was also important that indigenous peoples had access to the mainstream justice system.  Concerning the collective dimension, indigenous peoples had the right to maintain their own judicial system as part of their essential right to self-determination and therefore the recognition of these systems was essential as part of their assertion of collective rights.  Mainstream justice systems should aim to better integrate traditional and indigenous justice systems, including with regards to land-ownership and other concerns.  At heart, this was a question of recognition and perhaps, as Bolivia had suggested, the appropriate term should be “indigenous law” in order to avoid any demeaning connotations.  Reference was made to the need to think about mainstream legal systems in a more multicultural way.  Education was also exceedingly important, including as a means for overcoming discrimination.  What was needed at all levels was decisive action to operationalize the rights of indigenous peoples both as individual and collective rights, and this underlined once again the importance of the Declaration on the Rights of Indigenous Peoples.  
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