A/HRC/24/38
financed by public funds, that
will gradually replace the
bureaucratic/administrative government branches now in charge of those issues.
existing
308. This special jurisdiction, in his view, should have four distinct specialized branches
(permanent and with adequate professional staffing):
(i)
an advisory conflict-resolution body to which all disputes, including those
relating to treaty implementation, arising between indigenous peoples and nonindigenous individuals, entities and institutions (including government institutions)
should be mandatorily submitted, and which should be empowered to encourage and
conduct negotiations between the interested parties and to issue the
recommendations considered pertinent to resolve the controversy;
(ii)
a body to draft, through negotiations with the indigenous peoples concerned:
(a) new juridical bilateral, consensual, legal instruments with the indigenous peoples
interested and (b) new legislation and other proposals to be submitted to the proper
legislative and administrative government branches in order gradually to create a
new institutionalized legal order applicable to all indigenous issues and that accords
with the needs of indigenous peoples;
(iii) a judicial collegiate body, to which all cases that after a reasonable period of
time have not been resolved through the recommendations of the advisory body,
should be mandatorily submitted. Such a body should be empowered to adjudicate
these cases and should be capable of making its final decisions enforceable by
making use of the coercive power of the State;
(iv) an administrative branch in charge of all logistical aspects of indigenous/nonindigenous relations.
309. The Special Rapporteur is fully aware of many of the obstacles that such an
innovative, far-reaching approach might encounter. To mention only one, it is not difficult
to appreciate the many vested interests that might be affected by the redundancy of the
structures now existing to deal with indigenous issues in many countries. Only strong
political determination, particularly on the part of the leadership of the non-indigenous
sector of the society, can make this approach viable. One other essential element is also
clear: the effective participation of indigenous peoples - preferably on a basis of equality
with non-indigenous people - in all four of the recommended branches is absolutely central
to the "philosophy" presiding over the Special Rapporteur's overall approach to this
question.
310. It is obvious that the above is a mere sketch of the new institutionality
recommended. Much lies ahead in terms of filling in its quite visible lacunae. While the
Special Rapporteur does not lack ideas on how to fill some of the gaps, he has considered it
wise to allow for the required fine-tuning to be done at a later stage, around a negotiating
table, by the interested parties themselves in the different countries. The way in which such
a negotiation process is organized and conducted may well be the true litmus test eventually
of the merits of his recommendation and of the viability of the structure proposed in a given
socio-political context.
311. In advancing the recommendations set forth above, the Special Rapporteur has
benefited from the highly interesting ideas on the same subject formulated in the final
report (1996) of the Royal Commission on Aboriginal Peoples established by the
Government of Canada. (71)
312. While it is generally held that contentious issues arising from treaties or constructive
arrangements involving indigenous peoples should be discussed in the domestic realm, the
international dimension of the treaty nevertheless warrants proper consideration.
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