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offices, prisons and correctional centres, designated law enforcement units, public
prosecutors and legal services of all kinds, including all kinds of legal aid clinics.
25. Due to the flexible and makeshift manner in which national legislation
concerning indigenous peoples has developed over the years, conflicts have often
arisen between different laws, and this can have implications for the protection of
rights accorded to indigenous peoples in various constitutions. The Special
Rapporteur notes that there may be incompatibility between such legislation and
other sectoral laws (such as legislation regarding the environment or the exploitation
of natural resources, or the titling of private landholdings). When asked to rule on
competitive claims on such issues (for example, in the cases of the Constitutional
Court of Colombia or Canada’s provincial courts) the courts often render
judgements that protect the rights of indigenous communities, but just as often they
may hand down rulings that are detrimental to these rights. The Special Rapporteur
has recommended that the rights of indigenous peoples as set out in national and
international laws should have priority over any other interests and has called upon
governments to make efforts to adjust their legislations accordingly.
26. Moreover, indigenous peoples are demanding the recognition of their cultures
and customary legal systems in the administration of justice. The non-recognition of
native customary laws is another indication of human rights violations that lead to
abuses being committed in the justice system. The non-recognition of indigenous
law is part of a pattern of the denial of indigenous cultures, societies and identities
in colonial and post-colonial States, and the difficulty that modern States have had
in recognizing their own multicultural make-up. In many countries, a monist
conception of national law prevents the adequate recognition of plural legal
traditions and leads to the subordination of customary legal systems to one official
legal norm.
27. In these circumstances, non-official legal traditions have hardly survived at all,
or have become clandestine. While legal security is provided in the courts in the
framework of one official judicial system, indigenous peoples, whose own concept
of legality is ignored, suffer from legal insecurity in the official system and their
legal practices are often criminalized. Given the discrimination existing in the
national judicial systems, it is not surprising that many indigenous peoples distrust
those systems and that many ask for greater control over family, civil and criminal
matters. This reflects questions relating to self-government and self-determination.
To remedy the many injustices and indignities that indigenous peoples suffer in the
justice system, alternative ways of dispensing justice and solving social conflicts
have been attempted in many countries. Some States have made progress in recent
years in recognizing and taking account of such customary practices, but others are
still reluctant to modify their own legal structures accordingly.
28. The Special Rapporteur believes that a fair and effective system for the
administration of justice is crucial in fostering reconciliation, peace, stability and
development among indigenous peoples. Some countries have recognized the needs
of indigenous peoples in the area of justice, creating institutions specifically
designed to protect their human rights. Moreover, it is clear that legal institutions,
lawmakers and public administrations are increasingly willing to recognize the
importance of indigenous customary law.
29. In many countries, however, indigenous peoples do not have equal access to
the justice system and encounter discrimination of all kinds in the operation of the
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