Statement by James Anaya,
Special Rapporteur on the rights of indigenous peoples
6th session of the Expert Mechanism on the Rights of Indigenous Peoples
Human Rights Council, 8 July 2013
Distinguished members of the Expert Mechanism on the Rights of Indigenous Peoples,
Delegates of Member States,
Representatives of indigenous peoples and organizations,
Ladies and gentlemen,
I am grateful to once again have the opportunity to address the Expert Mechanism on the Rights of Indigenous Peoples and all those attending this session. I would like to acknowledge the work of the experts and thank the Secretariat for facilitating my participation in this session. This year marks my final session at the Expert Mechanism in my capacity as Special Rapporteur on the rights of indigenous peoples, as my mandate ends next April.
My mandate as Special Rapporteur began the same year as the establishment of the Expert Mechanism, so in a sense we have grown into our respective roles together. I have seen the Expert Mechanism become an important multilateral forum for dialogue on indigenous peoples’ rights, providing an important space for discussion about those rights. The Expert Mechanism has also played a key role in helping to make the Declaration on the Rights of Indigenous Peoples operational and to contributing towards a better understanding of the scope and content of international standards related to indigenous peoples.
Since 2008, I have worked to contribute to the Expert Mechanism’s thematic studies, including its studies on indigenous languages and cultures, on the right of indigenous peoples to participate in decision-making, and most recently on access to justice in the promotion and protection of indigenous peoples rights. In this context, I have provided information and perspectives that draw on my experience as Special Rapporteur examining specific cases of alleged violations of the rights of indigenous peoples and the situations of indigenous peoples in particular countries.
One of the main points of our collaboration has been surrounding our respective examinations of the issue of extractive industries affecting indigenous peoples. In the case of the Expert Mechanism, the study of extractive industries took place in the context of its investigation into the issue of indigenous peoples’ participation in decision-making. I have dedicated parts of my last three annual reports to the Human Rights Council to the issue of extractive industries affecting indigenous peoples and I will present my final report to the Council on this issue in September. The Expert Mechanism, I believe, has made an important contribution to this subject, especially in its guidance regarding the application of the Guiding Principles on Business and Human Rights in the context of indigenous peoples.
Another important component of our collaboration have been the parallel meetings I hold with representatives of indigenous peoples and organizations during the annual sessions of the Expert Mechanism. I am grateful to the Expert Mechanism and its Secretariat for its assistance in facilitating these meetings. These meetings are good opportunities for me to hear directly from indigenous peoples and organizations about matters of concern to them, and to begin or further the process of taking action in appropriate cases. I look forward to my meetings with week and I also want to express my hope that the next Special Rapporteur will continue this practice.
In the future, I see possibilities for the Special Rapporteur and the Expert Mechanism to continue to coordinate and reinforce each other’s work, especially given that both mechanisms report to the Human Rights Council. I would like to see further collaboration especially in the development of proposed joint guidelines or principles on key issues affecting indigenous peoples, where these are may be of use, in addition to continuing to coordinate in the development of studies and research-based advice.
I would like to say a few words in relation to the study of the Expert Mechanism this year on Access to Justice in the promotion and protection of indigenous peoples rights. As I have stated in the past, and as reflected in the Expert Mechanism’s study, access to justice for indigenous peoples can be seen has having both external and internal dimensions.
In my work as Special Rapporteur, I have seen numerous examples of the problems indigenous peoples face in relation to justice systems that are external to their own, that is, the State justice system. These problems, which are reviewed in the Expert Mechanism’s report, include disproportionately high levels of incarceration of indigenous individuals, the lack of financial resources for adequate legal representation, the lack of access to justice systems in remote areas, and the inadequate provision of culturally appropriate justice services, including translation services for criminal defendants.
I agree with the Expert Mechanism that efforts to address these problems must be carried out in the context of the history of discrimination and marginalization that indigenous peoples have invariably suffered. This history manifests itself in continued troubling structural factors, such as conditions of poverty, or poor access to education and health services. These factors contribute to social problems among indigenous peoples like alcoholism and violence, which bear directly upon indigenous peoples access to justice and on the adequacy of justice services they receive.
In this way, combating problems involving the administration of justice for indigenous peoples requires remedying the structural legacies of colonialism and discrimination that indigenous peoples have faced. This includes advancing in a holistic sense the range of rights guaranteed for indigenous peoples, most prominently those enshrined in the United Nations Declaration on the Rights of Indigenous Peoples, including, as pointed out in the Mechanism’s study, rights to self-determination, non-discrimination, and culture.
With respect the internal aspect of indigenous peoples access to justice, that is, indigenous peoples’ own justice systems, as the study of the Expert Mechanism notes, ensuring adequate respect for these involves both recognizing and assigning value to these systems as well as developing ways for coordinating, or linking, indigenous peoples’ and State justice systems. A first step in this process, I believe, is facilitating a space for intercultural dialogue and cooperation between State and indigenous justice authorities in order to promote mutual understanding of their respective cultures and systems.
In my interactions with States regarding how to develop links between indigenous customary justice systems and State justice systems, I have encouraged States to adopt a flexible approach. A starting point, I believe, is to accord recognition and assign legal validity to customary practices that are already carried out by indigenous authorities de facto, some of which have been carried out with a significant measure of success for a number of years.
In this connection, I have also urged States to avoid establishing rigid jurisdictional boundaries within which indigenous justice systems are to operate. Thus, indigenous jurisdictional competencies should not necessarily be limited only to events occurring within the territory of an indigenous people or community, or only to the internal conflicts or disputes between members of the same indigenous community or people. By the same token, States should avoid making blanket limitations on the material jurisdiction of indigenous justice systems, such as the material or subject matter jurisdiction over certain certain criminal cases, based on an assumption that the State justice system is better equipped to handle these cases or that the application of indigenous systems results in inherently unfair judgments. State responses that limit indigenous control run the risk of undermining indigenous self-determination and have been shown to be less effective long-term solutions, generally speaking, in comparison to judicial responses to problems that indigenous peoples themselves control.
I have also encouraged a flexible approach with respect to the development of procedures for the review of decisions issued by indigenous authorities within their own justice systems. This flexible approach requires innovation and openness to varied models. One possible model, for example, could be an intercultural appellate body, made up of indigenous and state justice system authorities, to review decisions and make judgments through genuine intercultural understanding. In any case, however, the development of such judicial review systems requires consultation with indigenous peoples in order to ensure that the review mechanisms are effective and culturally appropriate.
Finally, as pointed out by the Expert Mechanism in its study, consistent with international standards regarding indigenous peoples’ right to self-determination, States should assist indigenous peoples in strengthening their own systems of justice, in helping to revitalize traditional justice norms and institutions, and in maintaining the autonomy of their judicial authorities. At the same time, there is a need for indigenous peoples themselves to continue to strengthen their own justice institutions, as well as their own organizational and local governance capacity, to meet the challenges faced by their communities.
I would like to conclude by expressing my gratitude for the opportunity to address the distinguished members of the Expert Mechanism and representatives of indigenous peoples and States present today. As always, I am committed to cooperating with the Expert Mechanism in the shared pursuit of promoting and securing the full enjoyment of the rights of indigenous peoples.
Thank you all for you kind attention.
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