A/HRC/40/61 criminalization while properly emphasizing that “the most important right a homeless person has is to exit homelessness”.64 VI. Ensuring equality in access to justice 45. Victims of violations of the right to adequate housing are among the most marginalized groups in society. They face a range of barriers to accessing justice, including challenges related to literacy, education, poverty, discrimination, access to legal representation and ability to navigate complex legal and administrative systems. 65 Where legal aid is available, it is often unavailable for housing cases and rarely available to advance substantive claims to the right to housing. Lengthy delays in cases being heard and decided means that access to justice may be too late to be effective for those in the most dire circumstances. Linguistic, cultural and religious barriers are particularly acute for indigenous peoples, ethnic minorities and migrants. 66 States must take all reasonable measures to overcome these barriers and ensure the widest possible enjoyment of access to justice for the right to housing. Mobile courts can provide access to justice in remote areas and legal assistance should be provided through community outreach, combined with community legal education about the right to housing and how to claim it. The right of access to justice for the right to housing requires distinctive approaches for different groups. 46. Access to justice for indigenous peoples must be implemented in accordance with the United Nations Declaration on the Rights of Indigenous Peoples. 67 The Declaration affirms that indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to housing and other programmes through their own institutions where possible. No relocation or development affecting indigenous communities may occur without their free, prior and informed consent. 68 States must establish, in conjunction with indigenous peoples, “a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources” (art. 27). The Indigenous and Tribal Peoples Convention, 1989 (No. 169) of the International Labour Organization similarly guarantees free and informed consultations, and due regard to indigenous custom where compatible with international human rights. Thus, indigenous peoples have the right to the adjudication of their claims to the right to land and housing in a manner which respects their own laws and traditions. 47. Indigenous justice systems should be fully supported by States so that they may develop distinctive approaches to ensuring the right to housing. Particular efforts are required to ensure that the rights of urban indigenous peoples living outside of traditional territories, often in homelessness or inadequate housing, are equally protected. A number of States have incorporated these international norms into domestic law, either through legislation or through judicial interpretations. 69 Article 57 of the Constitution of Ecuador is exemplary in this regard, though its implementation has been lacking. 48. Some indigenous claims to the right to land and housing that have been denied within national systems have been addressed within regional systems. Considering the eviction of the Ogiek community from ancestral lands in the Mau Forest of Kenya, the African Court on Human and Peoples’ Rights drew on the United Nations Declaration to recognize the obligations of the State to take positive measures to support the rights of 64 65 66 67 68 69 See www.housingrightswatch.org/sites/default/files/Template%20Homeless %20Bill%20of%20Rights%20EN_0.pdf; see also http://housingnothandcuffs.org. A/67/278, paras. 5–6; see also submission by Defenseur des droits, France, for the present report. Julinda Beqiraj and Lawrence McNamara, International Access to Justice: Barriers and Solutions (International Bar Association, 2014). For an elaboration of access to justice for indigenous peoples based on the Declaration, see A/HRC/27/65. Articles 10, 11, 19, 28 and 32. Inter-American Court of Human Rights, Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of 27 June 2012, para. 164. 13