Expert Mechanism on the Rights of Indigenous Peoples
Sixth Session, United Nations, Geneva, 8-12 July 2013
Notes provided by Foundation for GAIA and taken by Jordi Mallarach Parés
Access to Justice
Many Indigenous Peoples proposed the creation of a tribunal within the UN to tackle issues related to Indigenous Peoples and especially in the supervision of state violations against them, as well as for the correct implementation and respect of judicial sentences with the same legitimacy as those emitted by the International Criminal Court. The Chair expressed it is important to implement transitional justice mechanisms for the reparation of historical aggravations.
The Indigenous People of Africa Coordinating Committee emphasized there are many violations of Human Rights, and victims are often prevented from issuing complaints, in what they consider a structural discrimination on access to justice. The Association Espoir pour les Jeunes Batwa explained that there has been no initiative by the Rwandan government to recognize the Batwa Indigenous Peoples. They also note that the Rwandan constitution established that 30% of seats in parliament are for women, but they made clear that not a single Batwa woman is represented in parliament or at any decision-making position.
The Association de Peuples de Kabylie asserted that North African states do not recognize their people, do not apply international law, and do not inform legal experts within the country on the Rights of Indigenous Peoples. Similarly, the Association Culturelle Ath Koudia Amazighe Algérie exposed that the Algerian government is using the legal system to illegalize demonstrations by Tamazigh people and that thereby Algerian justice system is being manipulated. In the same direction, they also made it clear that the Tamazight people of morocco have no access to justice, and are evicted from their lands without prior consultations. Also related to the judiciary, Kenneth Deer from the Indigenous World Association expressed their view that Indigenous Peoples in the United States do not have fair access to justice, explaining that the existing legal framework and procedures impede the achievement of justice. They encouraged States and Indigenous Peoples to incorporate the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in their internal legislation. The Native Youth Sexual Health Network expressed concern on racial profiling in legal system as well as higher incarceration rates in the United States and Canada, also noting the increased criminalization of homosexual and transgender Indigenous youth.
The Altai Indigenous Peoples expressed their concern that there is not a single Indigenous judge. In courts they are provided with bad translators, and judges are also not helpful. They also note that the Watami Indigenous Peoples tribunals in New Zealand are often not acknowledged by the government.
The Negev Coexistence forum for Civil Equality noted that there is forced relocation of Bedouin people, with 200.000 living in unrecognized villages. There have been no prior consultations with the Bedouin community and force has been used by the Israeli state. They highlight that this is in violation of numerous UNDRIP articles, notably article 10 that states that all non-informed relocation constitutes a violation of rights. The Ogiek People Development Organization said no previous government has respected “free and prior informed consent” when interacting with Indigenous Peoples. They also express concern that their court systems are not functioning due to endemic corruption.
The Kanak Indigenous People of Caledonia said they are French but do not enjoy status of common law. They do not have any program training them in the legal system. There is no single Indigenous lawyer in the whole territory. Their traditional structures such as their grand chieftains do not have legal recognition. The New South Wales Aboriginal Land Council said there is a conflict with judicial cases in Australia related to child removal and discrimination. They explained how they are still affected by a lack of recognition of customary laws, along with decades of perverse racial policies, and this has created a legacy of mistrust between Indigenous Peoples and the state of Australia. The West Papua Indigenous Peoples said they have no freedom of expression, and demand a referendum for independence as a means to end the conflict and ensuing human rights violations. The Northeast Forum of Indigenous People of Manipur (PIPM), India voiced that there has been looting and rape carried out by Indian armed forces in their territory and that the perpetrators have impunity under the current legal system. They also express their concern on oil exploration and drilling in Indigenous Peoples lands without having been informed nor having given consent. The New Zealand Human Rights Commission explained how their traditional legal systems are marginalized in the New Zealand constitution and how they suffer discrimination at all levels of the legal system. In Indonesia, the special rapporteur was not allowed to meet Maluka political prisoners in clear violation of UNDRIP. The Sami Indigenous Parliament proposed that UNDRIP would be more effective if states made annual reports on how UNDRIP is being applied in their countries, through the creation of state institutions to supervise application and implementation, with close cooperation with national human rights organizations. The Indigenous Peoples Alliance of the Archipelago (AMAN) said law enforcement had been used to deprive Indigenous Peoples of their lands and rights for over ten years in Indonesia. They urge the government to recognize customary law and change any discriminatory laws towards Indigenous Peoples in order to improve their access to justice. The Association of South-Western Siberia Indigenous People said institutions that deal with Indigenous Peoples are Russian, and they don’t speak their language nor do they understand their culture.
The Leuphana University of Lüneburg expressed their view that one of the biggest challenges for Indigenous Peoples in accessing justice is the difficulty in accessing international courts, which only recognize cases between states. They also point out that in many South American countries there has been a growing recognition of Indigenous Peoples’ legal systems. In this regard, Denmark expressed their will to strengthen Indigenous Peoples legal systems within the UN framework and international law. Kanyinke Sena, the Chairperson for the Permanent Forum on Indigenous Issues, stressed the importance of Indigenous Peoples being allowed to access the international criminal court in order to settle cases against states.
June Lorenzo (American Indian Law Alliance) pointed out that there is often a different understanding of the concept of justice by Indigenous Peoples, governments and companies. The Indigenous Peoples Organization Network of Australia asked the HRC to encourage states to include constitutional, legislative and policy responses in partnership with Indigenous Peoples. The Grand Council of the Crees expressed their will that states should eliminate barriers such as discriminatory laws and practices to facilitate access of Indigenous Peoples to justice. The UN Voluntary Fund for Indigenous Peoples noted that often displacement of Indigenous Peoples is executed via legal mechanisms, making an increased dialogue between states and Indigenous Peoples vital. In this regard, Independent Expert Jannie Lasimbang pointed out that many states use constitutional and legal mechanisms to ensure application of UNDRIP, with a special recognition given to Bolivia. He also noted there should be more respect for traditional justice systems and the reinforcement of transitional justice mechanisms. He also hoped NGO’s would collaborate with Indigenous Peoples with their legal procedures in court. Ecuador said their government has made legal reforms to guarantee respect of customary laws of Indigenous Peoples. In this same direction, Bolivia said traditional legal systems have been incorporated into the constitutional and legal system. Venezuela said they support the UNDRIP and have various laws that guarantee the rights of Indigenous Peoples, granting them constitutional prerogatives. They also include Indigenous representatives in high levels of public power and policy-making. The Cumanagoto Indigenous People of Venezuela explained how the current Venezuelan constitution respects the rights of Indigenous Peoples, and stresses that governments should consider traditional Indigenous legal systems as valid. Mexico explained they have created special programs to facilitate the exercise of collective and individual legal rights by Indigenous Peoples, with mechanisms based on recognition and respect of cultural diversity. They also have a special Indigenous Peoples incarceration procedure, assisting incarcerated Indigenous Peoples with interpreters that understand their language and cultural background. The Russian Federation said they have appointed ombudsman and commissions that provide assistance to Indigenous Peoples in their access to justice. Argentina said they pay for any legal procedures involving Indigenous Peoples in order to allow them full access to justice.