E/CN.4/2004/80 page 10 B. Discrimination and the justice system 23. The widespread lack of access to the formal justice system due to ingrained direct or indirect discrimination against indigenous peoples is a major feature of the human rights protection gap. Often this only reflects the physical isolation and lack of means of communication in indigenous areas, but it also occurs when public resources are simply insufficient to build up an effective judiciary designed for the needs of indigenous communities. More seriously, it may signal the fact that the official legal culture in a country is not adapted to deal with cultural pluralism and that the dominant values in a national society tend to ignore, neglect and reject indigenous cultures. Numerous studies document bias or discrimination suffered by indigenous persons in the justice system, particularly in the criminal justice area, where women, youth and children are often particularly disadvantaged. Of special concern is the overrepresentation of indigenous people in criminal proceedings and prisons. Some cases illustrate this situation. 24. Entrenched habits of discrimination against indigenous peoples weigh heavily on the justice system in some countries, such as India. During discussions about justice reform, it was observed that plea bargaining is used as a way of making indigenous and vulnerable persons accept charges for crimes they have not committed; laws protecting vulnerable groups are not enforced, because of the negative attitude of law enforcement agencies towards these persons; and a survey indicates that the prosecution system does not appear to work properly.6 25. Indigenous people are still victims of discrimination in the administration of justice in Australia. Since 1997, Aboriginal prisoners regularly constitute over 20 per cent of the total prison population of the country, although Aboriginals make up only 2.4 per cent of the total population. The situation is even worse in women’s and youth facilities, where the number of indigenous women is 20 times that of non-indigenous women. Young Aboriginal people are more likely to receive harsher treatment by the police; they are overrepresented in juvenile detention centres by 10 per cent and in police custody and correctional institutions by 21 per cent. Indigenous children make up more than 40 per cent of all children in correctional institutions. A review of the Children (Protection and Parental Responsibility) Act 1997 in New South Wales found that the Act “has impacted almost solely on Aboriginal young people to the extent that it may be grounds for a complaint of indirect racial discrimination to domestic and international bodies”.7 26. Reports also indicate that, as in the case of Mexico,8 indigenous women tend to be abused and harassed while in detention, and may become involved in drug and prostitution schemes operating in prisons. 27. The Royal Commission on Aboriginal Peoples found that in Canada “Aboriginal people who encounter the justice system are confronted with both overt and systemic discrimination, which is one of the reasons why many Aboriginal persons have not received due justice”.9 Canadian Aboriginals make up 16 per cent of the prison population, although they only represent 2 per cent of the whole population. They are incarcerated 8.5 times the rate of non-Aboriginal peoples, their arrest rate is nearly double and the rate of incarceration nearly four times the national average.10