CONSEJO INTERNACIONAL DE TRATADOS INDIOS

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At its 58th session, the Commission on Human Rights received and approved my first report as Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people (E/CN.4/2002/97). Thus encouraged by the Commission and the feedback I have received from numerous indigenous organizations and other NGOs, I am beginning work on the preparation of the second report to the Commission at its fifty-ninth session.

The two major, but not exclusive, topics that will be dealt with in the substantive part of the report are:

(1)   The impact of major development projects on the human rights and fundamental freedoms of indigenous communities; and

(2)   Human rights issues for indigenous people in the realm of administration of justice, including, where relevant, the relationship between positive and customary (non-written) legal systems.

Regarding the first topic (the impact of major development projects on the human rights and fundamental freedoms of indigenous communities), it should be recalled that numerous complaints presented over the years by indigenous peoples representatives to the sessions of the Working Group on Indigenous Populations refer to the human rights implications of such projects.  Much academic research has been carried out, numerous field studies and assessments have been made by national and international institutions on these issues, and there is a growing specialized literature on this topic.  At the first session of the Permanent Forum on Indigenous Issues held at the UN in New York in May, the OHCHR together with the World Bank organized a panel discussion that brought a number of these issues into the debate.  Other multilateral agencies such as UNDP and the regional development banks have accumulated much relevant information on the subject.  In some countries, impact studies over the years have been produced, which provide useful knowledge about changes over time.

Regarding the second topic (Human rights issues for indigenous people in the realm of administration of justice, including, where relevant, the relationship between positive and customary (non-written) legal systems), it may be recalled that indigenous peoples and organisations have long complained about discrimination against them in the administration of justice system.  These complaints are frequently supported by statistics and research studies that show indigenous persons represented disproportionately amongst people detained, jailed or sentenced in criminal justice procedures.  Very often indigenous persons do not have the same access to the courts or various kinds of administrative tribunals than the non-indigenous.  Furthermore, in numerous regions there are serious language problems in the judiciary when official proceedings are carried out in a language other than that spoken by the indigenous communities.  Moreover, national judicial systems do not usually recognize the customary law practised by these communities, thus creating sources of conflict and misunderstanding that may have implications for human rights issues of indigenous peoples.  In recent years, legal changes in some countries have been adopted to solve these issues and certainly progress has been made on this score. Nevertheless, it is still possible to speak of a "human rights protection gap" between the spirit and text of the laws and their practical implications as far as indigenous human rights are concerned.

I am writing you to invite you to contribute to the preparation of this report by providing me with relevant information on the two topics discussed above, that you may have available.  Any material on the topics, even if fragmentary, will be useful in the preparation of the report.  I would also appreciate your guiding me to relevant sources on these topics, as well as any suggestions you may have concerning the preparation of the report.

Please kindly note that a questionnaire on the above two topics is attached herewith in order to facilitate and solicit more concrete responses. 

I look forward eagerly to your reply to this request.  Your contribution, however modest, will be very valuable for the task of the Special Rapporteur

Thank you for your prompt attention to this matter.

Sincerely,

Rodolfo Stavenhagen

Special Rapporteur of the Commission on Human Rights

on

the situation of human rights and fundamental freedoms of indigenous people