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and Southern Peoples’ regional governments have formed pastoral commissions.
In Burkina Faso, the State and territorial collectives are mandated with the identiication, protection and
conservation of areas where pastoralism take place. 2005 Constitution of Burundi; 2002 Congolese
Constitution;2006 DRC Constitution; Reports of the Working Group of the ACHPR on
indigenous populationscommunities, concerning Ethiopia and Burkina Faso.
Case prepared by Naomi Kipuri
Australia: Aboriginal and Torres Strait Islander Social Justice Commissioner
In 1992, the position of the Aboriginal and Torres Strait Islander Social Justice Commissioner was
created under the Australian Human Rights Commission, in response to the extreme social
and economic disadvantages faced by indigenous Australians as well as the indings of the Royal
Commission into Aboriginal Deaths in Custody and the National Inquiry into Racist Violence.
The Commissioner’s role includes reviewing the impact of laws and policies and monitoring
the enjoyment and exercise of human rights for indigenous Australians. The Commissioner
produces an annual Social Justice and a Native Title Report, which are tabled in Parliament and he
promotes understanding and respect for the rights of indigenous Australians. He does this by reviewing
legislation, providing policy advice and undertaking research on human rights issues including health
, family violence
, children’s rights, cognitive disabilities and the
‘stolen generation’. http:www.hreoc.gov.ausocial_justiceindex.html
3.6.2. Combating discrimination and closing the socio-economic gaps
Australia: Closing the gap Our challenge for the future is to embrace
a new partnership between Indigenous and non-Indigenous Australians… [T]he core of
this partnership for the future is closing the gap between Indigenous and non-Indigenous
Australians on life expectancy, educational achievement and employment opportunities.
This new partnership on closing the gap will set concrete targets for the future: within a
decade to halve the widening gap in literacy, numeracy and employment outcomes and
opportunities for Indigenous children, within a decade to halve the appalling gap in infant
mortality rates between Indigenous and non- Indigenous children and, within a generation,
to close the equally appalling 17-year life gap between Indigenous and non-Indigenous
when it comes to overall life expectancy. Prime Minister Kevin Rudd, Apology to
Australia’s Indigenous Peoples, 13 February 2008
The life expectancy of indigenous Australians is 17 years lower than other Australians. While most
Australian women can expect to live to an average age of 82 years, indigenous women can expect
to live only 64.8 years and the life expectancy of indigenous men is lower still at 59.4 years. In
response to this alarming situation, the Council of Australian Governments COAG
4
in December 2007 agreed to a partnership between all levels of
government to work with indigenous communities to achieve the target of “closing the gap”.
In March 2008, a “Close the Gap Statement of Intent” on indigenous health was signed between
the Government and the indigenous peoples see section 11.2.. Since the targets were
set, all Australian governments have been working together to develop fundamental
reforms to address these targets, and have
4 COAG comprises the Prime Minister, State Premiers, Territory Chief Ministers and the President of the Australian Local Government
Association.
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also acknowledged that it is “an extremely signiicant undertaking that will require substantial
investment”. In 2008, COAG agreed to initiatives for indigenous Australians to the sum of 4.6
billion across early childhood development, health, housing, economic development and remote
service delivery.
COAG notes that “these new agreements represent a fundamental response to COAG’s commitment
to closing the gap. Sustained improvement in outcomes for Indigenous people can only be
achieved by systemic change. Through these agreements, all governments will be held publicly
accountable for their performance in improving outcomes in these key areas.”
http:www.coag.gov.aucoag_meeting_ outcomes2008-11-29index.cfmindigenous;
http:www.humanrights.gov.ausocial_justice healthtargetsclosethegappart2_1.html
India: Afirmative action for schedules tribes. The “Scheduled Tribes” see section 1.4. belong to
the most socially and economically disadvantaged communities in India. Many laws and programmes
have been framed with a view to improving the conditions of disadvantaged groups, including the
Scheduled Tribes. There are certain provisions in the Indian Constitution regarding fundamental rights,
which are framed speciically to protect their rights.
5
Some of the provisions on afirmative actions are: Article 15 4, which stipulates that the
• Government should make “special provision
for the advancement of any socially and educationally backward classes of citizens or
for… the Scheduled Tribes”. Article 164 and 4A empowers the State
• to develop mechanisms or schemes
or regulations for the reservation of appointments or posts and promotions with
consequential seniority in favour of Scheduled Tribes.
Articles 15 and 16 provide for special measures, including afirmative action to reserve jobs and seats
in educational institutions for marginalised peoples. The reservation policy has created opportunities
for the indigenous community to have access to
5 These are in addition to the general provisions, which are applicable to all the Indian citizens
better education and jobs. However, the reservation policy only covers the public sector and does not
extend to the private sector. Moreover, the beneits are often monopolised by the better-off sections
of the communities rather than reaching those who are most in need. Further, there are many
indigenous peoples who have not been categorised as “Scheduled Tribes” and thus are denied these
beneits.
Article 29 of the Constitution empowers “any •
section of the citizens residing in the territory of India or any part thereof having a distinct
language, script or culture of its own” with the right to conserve them.
Article 29, along with various other constitutional provisions - including the speciic provisions for
different states Articles 371A and 371G and the ifth and sixth schedules of the Constitution -
give a wide scope and are powerful tools for the indigenous communities to establish institutions,
which would include the establishment, preservation and perpetuation of culture and customary practices
over the generations.
There are also other fundamental rights along with the judicial interpretations given by the Supreme
Court through which recourse can be sought to protect the basic rights of the indigenous peoples.
6
Such rights include equality before law, right to life, right to education for all children between the ages
of six and fourteen, freedom of expression and association, prohibition of human traficking and
child labour.
The Directive Principles of State Policy under the Constitution also ask states to ensure welfare of the
indigenous people while implementing measures of governance; thus adding weight to judicial
interpretations in favour of indigenous peoples.
7
These provisions, if used effectively, can be valuable in protecting the rights and interests of indigenous
peoples. Case prepared by: Chonchuirinmayo Luithui.
6 According to Article 141 the law declared by the Supreme Court is binding to all the courts of the land which basically means that it
becomes the law of the land. 7 Article 46 speciically provides that the State shall promote the
educational and economic interest of schedule castes and schedule tribes and other weaker sections of the society.
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Iv. INDIGENOUS INSTITUTIONS
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I V. I N D I G E N O U S I N S T I T U T I O N S
4.1. RETAINING AND DEVELOPING INDIGENOUS CUSTOmS, TRADITIONS AND
