A/HRC/42/37
understand their system, and to subsequently design, jointly with indigenous
representatives, engagement and coordination strategies.
86.
In Timor-Leste, the Government has committed to developing a hybrid justice
system, inclusive of cultural traditions, and intends to undertake consultations with
communities across the country on how the formal and customary justice systems can
harmonize their coexistence and strengthen their contribution to ensuring access to justice
for all (A/HRC/42/37/Add.2, para. 38).
87.
In Yukon, Canada, the Teslin Tlingit Council agreement established a community
peacemaker court, which relies on clan processes for resolving disputes and includes
provisions relating to enforcement and correction. The agreement also outlines the
interaction between the peacemaker court and the ordinary justice system.
88.
In Bolivia, an intercultural protocol for judges was adopted in 2017 with the aim of
improving coordination and cooperation with indigenous authorities within the indigenous
jurisdiction.47 Indigenous authorities may request the assistance of the State authorities to
advance the interests of their community, such as for example, seeking the support of State
law enforcement officials to help with enforcement of an indigenous justice decision. 48
89.
The Navajo Nation court system in Arizona, United States of America, has
contributed to the rediscovery and revitalization of Navajo justice and relies on customary
laws and Navajo values to hand down decisions. The Navajo Nation courts try criminal and
civil matters within the Navajo Nation territorial jurisdiction.
90.
Review or appellate bodies that bring together judicial authorities from both
indigenous and ordinary justice systems can have a mandate to jointly resolve any question
related to human rights concerns or to the adequacy of indigenous jurisdiction, through a
process of true intercultural dialogue and decision-making (A/HRC/15/37/Add.7, paras. 17
and 48 (d)).
Cultural adaptation of ordinary justice systems
91.
As part of the effort towards harmonization, State justice systems should seek to
accommodate the needs of indigenous peoples. Human rights mechanisms have called on
States to recognize the access to justice and effective remedies of indigenous peoples
through their institutional structures and the collective and legal personality of indigenous
and tribal peoples in their legal and judicial systems.
92.
In Australia, the Children’s Koori Court in Victoria involves Elders from the Koori
community in adapting proceedings to be more culturally appropriate and in the
identification of alternative sentencing options to reduce imprisonment (see
A/HRC/36/46/Add.2).49 In New Zealand, the Rehabilitation and Reintegration Service of
the Department of Corrections provides a number of therapeutic programmes drawing on
tikanga Maori (customary Maori) concepts and values, including programmes connecting
prisoners to the various levels of the Maori social organization prior to release
(A/HRC/18/35/Add.4, para. 63).
93.
In Guatemala and Mexico, cultural experts, such as anthropologists, can be invited
to participate in cases before the formal justice system, to explain indigenous culture to
judges.50
94.
In Canada, indigenous court staff play a role in providing information to Crown
prosecutors and judges on the history and circumstances of the accused and on community
based non-custodial options and alternatives. Canadian judges must recognize the adverse
systemic and background factors faced by indigenous offenders before reaching any
47
48
49
50
16
See contribution of Bolivia to the present report.
See Kimberly Inksater, “Transformative juricultural pluralism: indigenous justice systems in Latin
America and international human rights”, Journal of Legal Pluralism and Unofficial Law, vol. 42,
No. 60 (2010).
See also contribution of Australia to the present report.
See contributions of Guatemala and Mexico to the present report.