E/CN.4/2004/80
page 13
indigenous people because of their language and culture. Language is one of the main
difficulties preventing access by the indigenous to ordinary justice, national registries and any
legal proceeding. Indigenous-language speakers are at a disadvantage in the justice system,
which operates in a cultural and linguistic framework that is not theirs. Judicial proceedings take
place in Spanish, even in areas with a high concentration of indigenous people, and the number
of interpreters or bilingual legal practitioners is totally insufficient. The situation of indigenous
women is even more serious because of their high rates of monolingualism and illiteracy.19
39.
Ongoing intercultural training should be given to justice administration officers.
Officials of judicial bodies need to be aware of the indigenous groups in their areas. Indigenous
people should have the opportunity to become members of the judicial administration, in order to
overcome the atmosphere of “learned helplessness” in which they are immersed. States should
adopt positive measures that encourage indigenous employment in legislative, judicial,
enforcement and corrective bodies.
40.
In order to facilitate indigenous peoples’ contacts with the judicial system, the idea of
court facilitators, or court navigators, has been suggested. The facilitator is a person familiar
with the legal systems and court processes and who also understands indigenous native
languages and cultures. Courts in Manitoba and Colorado have already put this into practice.
The Canadian 2003 Youth Criminal Justice Act is a step in the right direction, reducing the use
of the formal justice system and overreliance on incarceration and improving mechanisms of
reintegration and rehabilitation for indigenous youth. The Act also applies the principles of
participation and consultation with indigenous communities concerning youth in the criminal
justice system.20 The Committee on the Rights of the Child has recommended that States parties
respect the methods customarily practised by indigenous peoples for dealing with criminal
offences committed by children when it is in the best interest of the child and in accordance with
the Convention on the Rights of the Child. All these dimensions are also taken into account in
other international instruments related to juvenile justice, including the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice (“The Beijing Rules”), and the
United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh
Guidelines).21
41.
In this regard, traditional methods of restorative justice have been identified as a means
of responding positively to offences committed by children, in accordance with human rights
principles. Indigenous traditions can be a means of dealing with children in conflict with the law
in a constructive manner, without resorting to punitive approaches, hence favouring their
reintegration in the community. Constructive approaches to dealing with children in conflict
with the law should build on indigenous traditions; they can be educational, favouring the child’s
rehabilitation, as they involve both the child and the community, and they prove to be less costly
and more effective than keeping a child in detention.
42.
The obstacles indigenous people face in the justice system are merely symptoms of a
larger picture of complex social problems related to a history of discrimination, marginalization
and social exclusion, including poverty and unemployment, which is often expressed through
alcoholism and drug abuse, homelessness and violence. Indigenous women are even more