A/HRC/45/38 law” and must fulfil the purpose of restitutio in integrum, which consists of “reestablishing the situation prior to the violation”.71 In the Endorois case, the African Commission on Human and Peoples’ Rights found that the Government of Kenya had failed to provide sufficient redress for the eviction of the Endorois and to include that community in the relevant development processes.72 34. Any remedy for human rights violations must be accessible, effective and timely. Any barriers to participation and presentation of evidence must be resolved. Procedures must be efficient enough to minimize risk of further harm73 and must have the power to ensure compliance with the final determination. 74 The Inter-American Court of Human Rights found that both the Sawhoyamaxa case, which lasted 13 years, and the Xákmok Kásek case, which lasted 11 years and concluded without a clear resolution, were handled in an unreasonable manner, given their long duration, and that an adequate legal remedy should be provided.75 In 2018, the Court determined Brazil responsible for violating the right to judicial protection and the right to property of the Xukuru indigenous people due to a delay of over 16 years to complete the demarcation of land and to remove non-indigenous occupants. The Court considered the sentence a form of reparation in itself, decided on a payment of US$ 1 million in compensation and the necessary measures to complete the removal of non-indigenous intruders and the prevention of new intrusions. 76 35. Where land has been lost to third parties, indigenous peoples’ rights continue so long as the spiritual and material basis for indigenous identity is supported by their unique relationship with their traditional lands, as expressed by the Inter-American Court of Human Rights in the Yakye Axa and Sawhoyamaxa cases. The Court also noted that the appropriate resolution of such disputes must consider the fact that non-indigenous interests may often be appropriately addressed through financial compensation, while for indigenous peoples the relationship to the land is spiritual, fundamental to identity and survival and therefore generally irreplaceable.77 Thus, the preferred type of redress is clearly restitution. The United Nations treaty bodies have also pointed to the need to return lands of which indigenous peoples were deprived without their free, prior and informed consent.78 36. If actual restitution of indigenous lands is not possible, just, fair and equitable compensation must be provided. Compensation should not be limited to financial awards but also take the form of alternative similar lands, equal in quality, size and legal status or, if freely agreed upon by the indigenous peoples concerned, other forms of compensation or redress. As highlighted by the Committee on the Elimination of Racial Discrimination, compensation “should as far as possible take the form of lands and territories”.79 Failing that just, fair and equitable monetary compensation should be provided. In Kerajaan Negeri Selangor and others v. Sagong Tasi and others, the High Court of Selangor concluded that Malaysia had a duty to compensate the Orang Asli community for the expropriation of their 71 72 73 74 75 76 77 78 79 Case of the Yakye Axa Indigenous Community v. Paraguay, paras. 151 and 181. Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya. Inter-American Commission on Human Rights, report No. 40/04, case 12.053, on the merits of the petition brought by the Maya indigenous communities of the Toledo District, Belize (12 October 2004), para. 176. Inter-American Court of Human Rights, Case of the Saramaka People v. Suriname, para. 105. Joel E. Correia, “Adjudication and its aftereffects in three Inter-American Court cases brought against Paraguay: indigenous land rights”, and Case of the Xákmok Kásek Indigenous Community v. Paraguay, judgment, 24 August 2010. Case of the Xucuru Indigenous People and its Members v. Brazil, judgment, 5 February 2018. Case of the Yakye Axa Indigenous Community v. Paraguay, paras. 146–148. Committee on the Elimination of Racial Discrimination, general recommendation No. 23 (1997) on the rights of indigenous peoples; Committee on Economic, Social and Cultural Rights, general comment No. 21; and A/HRC/4/77, para. 8. Committee on the Elimination of Racial Discrimination, general recommendation No. 23. 11