Monday, 2 January 2012

Sacred Spaces: Litigation and Access to Justice

The Wetlands in Lawrence, Kansas, USA are not the only indigenous sacred spaces subject to litigation. In Australia, there is on-going litigation to prevent mining which is said to put many sacred sites at risk.

The article Aboriginal Group Challenges Mining Project published here contains comments from Professor Jon Altman who points out the disparity in power and resources that indigenous peoples face when it comes to litigation with large corporate interests.

This points out a very real dilemma for indigenous peoples. Access to courts can be expensive, and as the Wetlands litigation points out might conceivably go on for years. It is well and good to have laws on the books—even the “soft law” of the United Nations Declaration on the Rights of Indigenous Peoples. But those laws—as discussed in my earlier posts about the Indian Child Welfare Act-- are rendered meaningless in reality where there is no implementation or compliance with them, or when the protections that they offer are difficult to reach. But the concerns about indigenous rights is more than a point about barriers to reaching the laws or faulty implementation of laws on the books. As a report from Amnesty International (at this link) points out “Indigenous human rights defenders who speak out face intimidation and violence, often with the collaboration of the state.”

Any discussion or contemplation of indigenous rights and the exercise and access to those rights must keep in mind that the claiming and utilisation of rights is far more than an academic exercise. It is a real problem that confronts people in their every day lives. At times it seems that the academic study of indigenous rights runs the risk of being a “fad”-- the topic de jure with much ivory tower theorising—which will fade when the next major international instrument is passed. Any discussion of indigenous rights must keep in mind that there is a very human element to the discussion and that should not be forgotten.

There are many studies done that focus on the practical and real problems indigenous peoples face in accessing and exercising rights. Rachel Sieder and Maria Teresa Sierra have a paper on “Indigenous Women’s Access to Justice in Latin America”, which can be accessed at this link. The International Labour Organisation has a publication from 2009, “Indigenous and Tribal Peoples’ Rights In Practice”, which focuses on ILO Convention 169, and can be accessed at this link.

Written by Sarah Sargent.

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