A/HRC/27/52
30.
Also essential to reconciliation are affirmative steps of redress to remedy the
ongoing manifestations of harm. Throughout the United Nations Declaration on the Rights
of Indigenous Peoples there are calls for “effective mechanisms” for redress in connection
with a range of rights. Indeed, as noted by the previous Special Rapporteur in his first
report to the Human Rights Council, the Declaration in its entirety can be understood as
fundamentally a “remedial” instrument that “aims at repairing the ongoing consequences of
the historical denial of the right to self-determination and other basic human rights affirmed
in international instruments of general applicability” (A/HRC/9/9, para. 36). Specifically,
redress is required for any action aimed at depriving indigenous peoples of their integrity as
distinct peoples (art 8, para. 2 (a)); any action with the aim or effect of dispossessing them
of their lands, territories or resources (art. 8, para. 2 (b)); any form of forced assimilation or
integration (art. 8, para. 2 (d)); for the taking of their cultural, intellectual, religious or
spiritual property (art 11); depriving them of their means of subsistence (art. 20, para. 2); as
well as for the development, utilization or exploitation of their mineral, water or other
resources (art. 32, para. 2).
31.
Perhaps the clearest manifestation that redress is still needed for indigenous peoples
around the world is their continued lack of access to and security over their traditional
lands. In that regard, in article 28 of the Declaration, it is stated that “indigenous peoples
have the right to redress, by means that can include restitution or, when this is not possible,
just, fair and equitable compensation, for the lands, territories and resources which they
have traditionally owned or otherwise occupied or used, and which have been confiscated,
taken, occupied, used or damaged without their free, prior and informed consent” and that
this compensation “shall take the form of lands, territories and resources equal in quality,
size and legal status or of monetary compensation or other appropriate redress”. While
advances have without a doubt been made over the past several decades in returning lands
to indigenous peoples and protecting their existing land bases, more remains to be done
nearly everywhere. There are, of course, a number of ways in which land restitution can
and has taken place, including through executive decrees, judicial decisions or negotiated
arrangements, although complications can arise, especially when competing private third
party interests are involved.
32.
Finally, meaningful reconciliation must also include steps to ensure the nonrecurrence of violations. This is essential for rebuilding trust and restoring confidence in the
State and indeed, it is difficult to envision true healing by indigenous peoples in an
environment in which violations continue to occur. While States have gone a long way
towards putting an end to the most egregious human rights violations against indigenous
peoples, abuses are still occurring in all the countries in which they live. Current violations
often present the most urgent issues that need addressing and are often the focus of
attention of the international human rights system. However, addressing those violations
does not take the place of the still much needed deeper reconciliation efforts that
recognition and redress can provide.
33.
The Special Rapporteur would like to point out that implementing all of the abovementioned measures does not necessarily guarantee that true reconciliation will occur. An
essential component of the process also involves shifting attitudes on a personal and
societal level, which the Special Rapporteur fully acknowledges is not an easy task. She
discusses particular concerns in that regard in the following section. It should also be noted
that, in 2014, the Expert Mechanism on the Rights of Indigenous Peoples continued its
study entitled “Access to justice in the promotion and protection of the rights of indigenous
peoples — restorative justice, indigenous juridical systems and access to justice for
indigenous women, children and youth, and persons with disabilities” (see
A/HRC/EMRIP/2014/3/Rev.1), including a discussion on restorative justice and provides
further comments on the issue.
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