HRC and Indigenous Issues

Council starts dialogue with Special Rapporteur on Indigenous Peoples and Expert Mechanism on Rights of Indigenous Peoples

On September 18th, 2012, the Human Rights Council started a clustered interactive dialogue with the Special Rapporteur on indigenous peoples, James Anaya, and the Chairperson of the Expert Mechanism on the rights of indigenous peoples, Wilton Littlechild.  It also concluded its general debate on human rights situations requiring the Council’s attention after hearing from a series of non-governmental organizations. Anaya presented his fifth report to the Human Rights Council, which described his activities in promoting good practices, responding to cases of alleged human rights violations, country assessments and thematic studies.  Mr. Anaya also presented his reports on the situation of indigenous peoples in Argentina and in the United States.  The Special Rapporteur had continued to focus on the issue of extractive industries affecting indigenous peoples and said that violence against indigenous women and girls remained a recurring issue.  Despite the positive developments in many places, he remained concerned about the reality of ongoing struggles and violations of indigenous peoples’ rights throughout the world.

Wilton Littlechild, Chairperson of the Expert Mechanism on the rights of indigenous peoples, said that the principal study of the Expert Mechanism for this last year was on the role of languages and culture in the promotion and protection of the rights and identity of indigenous peoples.  The Council was urged to stress the importance of the inclusion of indigenous peoples in all aspects of the World Conference on Indigenous Peoples, including preparatory meetings, the outcome document, and all Council sessions including this one.  The Expert Mechanism hoped to contribute to a dialogue between United Nations bodies on the common understanding of obligations to indigenous peoples when extractive industries took place in or near indigenous peoples’ lands, territories and resources. Dalee Sambo Dorough, Representative of the United Nations Voluntary Fund for Indigenous Populations, said that since its inception the Fund had supported more than 1,450 indigenous people’s representatives to attend United Nations meetings and that without the financial support provided by the Fund it would have been very difficult for indigenous peoples to participate in international human rights processes.  Ms. Dorough stressed that the Fund relied on voluntary contributions and urged governments to support the participation of indigenous peoples in the forthcoming 2014 World Conference on Indigenous Peoples and appealed to public and private donors to support the Fund.

The Special Rapporteur also presented his fifth report to the Human Rights Council, which described his activities in promoting good practices and responding to cases of alleged human rights violations, country assessments and thematic studies.  Mr. Anaya also presented his reports on the situation of indigenous peoples in Argentina and in the United States.  The report from last month’s visit to El Salvador was being drafted and Mr. Anaya would visit Namibia later this week.  Argentina had taken important steps acknowledging the rights of indigenous peoples, including the 1994 Constitution and legislation on land tenancy, and the ratification of ILO Convention No. 169.  Nevertheless, a gap between legal protection and implementation remained and efforts to ensure implementation at federal and local levels were needed as were clear policies and additional administrative measures to improve knowledge across the State.  The indigenous peoples in the United States constituted vibrant communities that had contributed greatly to the life of the country but, at the same time, faced significant challenges related to widespread historical wrongs.  Significant federal programmes had been developed over the last few decades and especially in recent years that constituted good practices because they responded significantly to the indigenous peoples’ concerns; still, they needed to be improved and their execution made more effective.

Turning to his thematic studies, the Special Rapporteur said that he had continued to focus on the issue of extractive industries affecting indigenous peoples.  He noted that violence against indigenous women and girls remained a recurring issue.   Mr. Anaya recalled that the participants in last year’s Permanent Forum of Indigenous Issues stressed the need for a holistic approach to combating violence against indigenous women and girls and that the report stressed that implementation of the Declaration on the Rights of Indigenous People should be furthered concurrently with programmes that targeted the problem of violence against women and girls.  Concerning his work on extractive industries, he noted the narrow focus on principles of consultation and free, prior and informed consent.  This focus was impeding a full and adequate understanding of the human rights framework that was relevant in this context and a better approach required the examination of the primary substantive rights that may be implicated in natural resource extraction, including rights to property over land and natural resources; the rights to culture, religion and health; and the right to set and pursue their own development priorities, as part of their fundamental right to self-determination.  There was a fundamental problem with the current dominant model of resource extraction in which plans were developed by the corporation, perhaps with some involvement by the State, but with little or no involvement of the affected community or people.  Despite the positive developments in many places, Mr. Anaya remained concerned about the reality of ongoing struggles and violations of indigenous peoples’ rights throughout the world.

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

On September 18th, 2013, the Human Rights Council 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, and 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.

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.

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 emphasized 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.

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.