What Makes Justice ‘Inclusive’ for Indigenous Persons?
Watch the webinar here.
Indigenous People (IP) often belong to the most vulnerable groups in many parts of the world. Throughout history, IPs have suffered massive human rights violations and have long struggled to attain justice.
In furtherance of its advocacy to advance human rights and equal justice, the International Association of Women Judges (IAWJ) conducted its second webinar on “Inclusivity,” entitled “What Makes Justice ‘Inclusive’ for Indigenous Persons.” The webinar was graced by an expert panel of speakers from different parts of the world, who discussed how the legal system in their jurisdictions fosters inclusivity for Indigenous People. The speakers were Judge Mia Joy C. Oallares-Cawed (Philippines), Judge Warwick Hunt (Australia), and Prof. Jacinta Ruru (New Zealand).
Judge Warwick Hunt began his presentation by paying respect to the traditional custodians of the Eora Nation and to their elders, past and present.
In Australia, a particular program has been designed as an alternative sentencing procedure for Aboriginal and Torres Strait Islander people with criminal matters in the District Courts, called the ‘Walama List.’ The primary aim of the program is to reduce the risk factors related to reoffending by Aboriginal and Torres Strait Islander offenders, and to address their overrepresentation in custody in New South Wales. This is largely achieved by encouraging reconnection with culture and community, which are known protective factors for First Nation people.
An important point about this model is that there are no mechanisms to include First Nations' notions of punishment. Nonetheless, the elders play a significant role in assisting with the process, a responsibility they take on with great care. Although culturally appropriate punishment options are not used, the process helps participants understand what went wrong and how they can do things differently. This is accomplished mainly through dialogue with the elders. Many participants said they felt heard for the first time in their lives. It is quite extraordinary how being heard by a leader within one's own community still makes such a significant difference.
Judge Mia Joy C. Oallares-Cawed presented six key points in her talk entitled “On Inclusivity in the Legal System for the IP of the Cordillera Administrative Region (CAR): Beyond Decisions to Processes.”
First, she discussed the demographics of Indigenous Peoples in the Philippines. In 2020, the National Commission on Indigenous Peoples (NCIP) identified 9.84 million IPs, or 9.1 percent of the 108.67 million household population. This shows that the Philippines is home to a large and diverse tapestry of Indigenous communities, including over 110 distinct ethno-linguistic groups spread across the archipelago. The Igorot people, who dominate the population of the CAR, are among these groups and have their own unique culture, language, and traditions.
Second, she highlighted the role of the pillars of justice and legal institutions in supporting inclusivity. In the quest for inclusivity, the judiciary, the prosecution, and the defense all play crucial roles. It is noteworthy that the legal profession is already inclusive, as some members are either part of the Integrated Bar of the Philippines (IBP), judges, or married to Indigenous People.
Third, she discussed the Indigenous People’s Rights Act (IPRA). Enacted in 1997, this landmark legislation addresses historical injustices and ensures that the rights and interests of IPs are upheld. One of IPRA's key provisions concerns ancestral domain titles, which grant legal ownership of lands to Indigenous communities. This is essential for safeguarding their traditional territories from encroachment and exploitation.
Fourth, she touched on alternative dispute resolution (ADR) and the inclusion of traditional systems like the Bolong, Pagta, and Sipat. The integration of these systems into the ADR framework enhances the inclusivity and effectiveness of dispute resolution in the Philippines while ensuring that Indigenous methods are respected and preserved. This approach aligns with the country's commitment to respecting cultural diversity and promoting justice through various mechanisms.
Fifth, she referenced a landmark case affirming Indigenous land rights: *Mateo Cariño vs. The Insular Government* (1907). This pivotal case marked a significant step toward recognizing the legitimacy of Indigenous land claims and practices. The decision upheld the Indigenous claim to land based on traditional usage and occupation, demonstrating a commitment to inclusivity by acknowledging that legal principles must adapt to respect diverse cultural differences. This approach helps rectify historical injustices and reinforces the broader legal principle that justice must be inclusive of all societal groups, including the marginalized and Indigenous communities.
Sixth, she highlighted continuing court practices that foster inclusivity. The Philippine judiciary continues to evolve in this regard, with courts increasingly recognizing the importance of respecting Indigenous law and customs. For instance, cultural sensitivity training for lawyers and judges has become more common, and courts are more likely to consider historical and cultural contexts when making decisions that affect Indigenous communities.
The Philippines has made significant strides in promoting justice and inclusivity for Indigenous Peoples through legislation, the integration of traditional systems into the modern legal framework, and progressive court practices. This commitment is enshrined in the 1987 Constitution of the Philippines, Article 2, Section 22, which states: “The State recognizes and promotes the rights of Indigenous cultural communities within the framework of national unity and development.”
Professor Jacinta Ruru shared the work being done in Otago, New Zealand, regarding the interface between the State legal system and the Indigenous (Māori) legal system.
The New Zealand Parliament has made significant decisions, legislation, and policies recognizing the Māori legal system as the country’s first legal system. This system continues to operate and adds value to New Zealand’s state legal system. However, she also acknowledged New Zealand's dark legal history, with legislation and judicial decisions having attempted to destroy the Māori legal system in many ways.
Prof. Ruru mentioned two cases highlighting the recognition of the Māori legal system in court decisions. First, in 2021, the High Court acknowledged that Māori law reflects the beliefs, systems, and life experiences of the Māori people. Second, in the landmark case *Peter Alas*, decided by the Supreme Court in 2022, it was stated that “The core principles and values of the Māori legal system are enduring and readily identifiable. The Māori legal system has shaped the broader values of New Zealand society and thus regulates the lives of all New Zealanders, not just the Māori.” The court recognized that the Māori legal system is a source of rights and that the Māori people need to be empowered. Prof. Ruru also referenced Canada’s justice system, which has made a multi-million dollar investment in the recovery and revival of Indigenous laws, as an example for New Zealand to follow in reviving the Māori legal system.
At the end of the session, the speakers were asked to share their journeys and how they became involved in Indigenous Peoples' rights.
Prof. Ruru shared that, as a Māori herself, her heart led her to this work. Being the first in her family to attend university, let alone study law, made her even more passionate about ensuring Māori rights are recognized.
Judge Hunt shared that he has a strong sense of social justice and felt that he could do something more meaningful with his law degree. This belief led him to work on Indigenous People’s rights.
Judge Oallares-Cawed shared that, aside from being married to an Indigenous person, her interest in IP rights came naturally. Part of legal education in the Philippines focuses on IP rights, and in her private practice before becoming a judge, she handled many cases of sexual abuse involving minors, some of whom were Indigenous. This interaction deepened her interest and respect for their culture.
In conclusion, significant efforts are being made in various jurisdictions to make justice inclusive for Indigenous People. However, the work does not end here. Ongoing efforts are still needed to ensure that the rights of vulnerable groups, including Indigenous People, are realized and protected.