E/CN.4/2004/80 page 7 10. Here justice must be understood not simply as the effective application of the law and the operation of a good judiciary system, but also as a process whereby people who are persistently and severely disadvantaged may find ways to overcome different types of disadvantage through legitimate and socially acceptable means over the long run. Indigenous peoples are one segment of human society (but by no means the only one) that fits this description. Social responses to such persistent inequalities that affect individuals and collectivities vary widely: from different kinds of public policies to remedial action, restitution, compensation, and access to the courts. All have been attempted somewhere at one time or another, with varying outcomes, and the human rights performance of any State must be measured against the results. 11. Indigenous communities have struggled long and hard to overcome these structural injustices, albeit not always successfully. They have used various means in different proportions, such as confrontation, mobilization, negotiation, legislation and litigation. In fact, First Nations in Canada have been very actively litigating in order to obtain justice and have obtained some notable successes, but litigation is a drawn-out and expensive process that is not always available to indigenous peoples in other countries that have different legal traditions. Confrontation and social mobilization are occurring in many places where legal and political processes do not always work in favour of the rights of indigenous peoples. In recent years, negotiation and legislation have become an important recourse for indigenous rights, but even then the issue of their effective implementation is still open. In this wider context, justice issues facing indigenous peoples take on many different forms that may be dealt with under various subcategories. A. The courts and the rights of indigenous peoples 12. Pervasive denial of justice may be the result of historical processes such as the appropriation of indigenous land by colonizers and settlers on the basis of the now defunct doctrine of terra nullius, the imposition of land-titling schemes from which indigenous communities may be excluded, the non-recognition of their cultural identity, the unilateral abrogation of treaties and agreements with indigenous peoples by national Governments, the pillaging of the cultural heritage of native communities, the official rejection of the use of native languages, etc. Land rights have played a crucial role in the search for justice by indigenous peoples. When the laws and the courts uphold the dispossession of indigenous lands (as has happened throughout history in numerous parts of the world), then the cause of justice is not well served. On the other hand, recent judicial decisions and new legislation in some countries show promise that the situation may improve under certain circumstances, in accordance with evolving international standards regarding the human rights of indigenous peoples. The following examples illustrate some of these issues. 13. Court decisions are sometimes based on the recognition of aboriginal title, and they point to an encouraging trend in various countries. In Australia, for example, the High Court noted that the nature and occurrence of native title must be ascertained as a matter of fact, by reference to the laws and customs of the indigenous inhabitants who possess that title. However, in another decision in 2002, concerning the Yorta Yorta land claim, the High Court made requirements for native title claims more difficult for indigenous peoples to fulfil.