United Nations Human Rights – Office of the High Commissioner for Human Rights

A 15 year old boy was charged with attempting to steal an ice cream. Instead of choosing to make the offence the subject of diversion or a referral to a juvenile justice team, the boy was arrested, refused bail, remanded in custody by a court, and then transported to a youth detention centre in the regional capital. He spent ten days in custody before the matter was dealt with before the Children’s Court. The charge was dismissed on the basis that the boy had already been punished because of the time spent in pre-sentence detention. (Australia’s National Aboriginal and Torres Strait Islander Legal Service cites this case in its submission to a major new study on access to justice for indigenous peoples.)

[The Whipala flag which represents several Andean indigenous groups © EPA/Guillermo Legaria] The study, by the group of experts established through the Human Rights Council to provide advice and research on the rights of indigenous peoples, was commissioned because of the “gravity… [of the] discrimination against indigenous peoples in criminal justice systems, particularly for indigenous women and youth.”*

The Expert Mechanism on the Rights of Indigenous Peoples, as the group of experts is known, focused also on the over representation of indigenous peoples in prison.

Presented at the sixth session of the Expert Mechanism, in Geneva, the study addresses historical injustices and discrimination, particularly in relation to colonization and dispossession, as being of particular importance in achieving access to justice for indigenous peoples.

In her opening remarks, Marcia V.J. Kran, from the UN Human Rights Office, acknowledged that despite access to justice being “firmly rooted” in the Universal Declaration of Human Rights, the UN Declaration on the Rights of Indigenous Peoples and other human rights standards, “for many indigenous peoples obtaining access to justice may still seem like a distant goal.”

Submissions to the study support this view. The Asia Indigenous Peoples Pact (AIPP) describing the situation of indigenous women in South-East Asia noted that most human rights violations faced by indigenous peoples are related to their rights to land, territory and resources.

In its submission, AIPP said governments in the region are “going ahead with large-scale natural resource exploitation… to fuel national economic goals.” Women are particularly badly affected, often generally marginalized in the formal justice system; they are also frequently excluded from indigenous justice systems which “are in the majority male dominated.”

The Canadian Human Rights Commission quotes from the 2011-12 Annual Report of the Correctional Investigator, which said that while 21 per cent of federal offenders are indigenous, only 4 per cent of the Canadian population identifies as indigenous.

Australia’s National Aboriginal and Torres Strait Islander Legal Service, in its submission says “the over-representation of Aboriginal and Torres Strait Islander peoples in the criminal justice system is the most significant access to justice issue in Australia.” It quotes figures, which put the incarceration rate for Aboriginal and Torres Strait Islander peoples at 14 times that of the general population.

The study by the Expert Mechanism confirms that the available data shows “indigenous peoples are often overrepresented in all contact with the criminal justice system: they are more likely to be victims of crimes… they are more likely to have contact with police, to be charged with offences, convicted of offenses and receive harsher sentences.”

The study finds that many of these inequalities are addressed in the international human rights treaties, which, for example, require that in imposing penalties on indigenous people, their economic, social and cultural characteristics should be taken into account.

Transitional justice processes, which can involve both judicial and non-judicial procedures may offer redress for these long-standing grievances, the study suggests, given that they are designed to assist societies emerging from conflict or repressive rule.

“Challenges facing indigenous peoples in obtaining access to justice are not confined to criminal matters,”Kran said. “They are closely interlinked with other central human rights concerns of indigenous peoples, including poverty, illiteracy, poor education, recognition of their lands, territories and resources and self-determination.”

“The report should serve as a catalyst,” Kran said, “for stepping up our efforts to… eliminate the distance between rights and reality.”

The Expert Mechanism urged States to work in partnership with indigenous peoples to address the underlying issues that prevent indigenous peoples from having access to justice and to determine the most effective strategies for overcoming those barriers.

Report of the Expert Mechanism on the Rights of Indigenous Peoples on its fifth session, A/HRC/21/52