At the time this book was going to press, the General Assembly of the United Nations was adopting its Declaration on the Rights of Indigenous Peoples. The Declaration, the mere existence of which may be seen as a means of reparation, is the result of a lengthy process, driven by the Working Group on Indigenous Populations, which was set up in the early 1980s. Other international organizations have been active in protecting indigenous rights and, over the last three decades, a change of attitude has been supported by several international legal instruments, such as the latest International Labour Organization's Convention (No 169) concerning Indigenous and Tribal Peoples in Independent Countries or the more recent adoption by the World Bank of its revised operational policy 4.10.
Currently, and until 2015, we are in the second decade dedicated by the UN as a period for ‘action and dignity’ for indigenous peoples. Thus, needless to say, this edited series of articles is a timely contribution to an area of international law still very much in development. As this publication demonstrates, the interest in this area is varied, with contributions from international academics and activists. Together they cover a wide range of issues pertaining to indigenous rights, from land to cultural rights. All the matters developed are successfully framed within the public international law debate.
As indicated by its title, this book focuses on the issue of reparation for breaches of individual and collective indigenous rights. The theme is thus not remedies in general but substantive reparation in particular, including both restitution and compensation, especially when restitution is not possible, such as when the loss is cultural in nature (Chapter 8). Even apologies are considered as a desired means of reparation because acknowledging past wrongs may restore relationships and offer a basis for future partnerships (Chapter 3). The types of claims covered are also wide-ranging, including inter-States claims, human rights claims brought by an individual against a State, and national claims.
The book is divided into three parts, with the first introducing the role of international law as it provides for reparation mechanisms for human rights violations in general. This introductory part also details how the status of indigenous peoples evolved within customary law and the international legal framework (Chapter 4), from earlier attempts at assimilating indigenous culture to the recognition of their right to reparation for violations of basic human rights as an ‘essential element for ensuring the concrete effectiveness of such rights’ (Chapter 1). International legal standards, such as the ILC Articles on State Responsibility and general human rights legal principles, are analysed in relation to indigenous peoples, for example the issue of State responsibility towards non-state actors. General legal obstacles to reparation, such as non-retroactivity principles, as well as governmental objections based on political or economic grounds, are also presented (Chapter 2 and 3). Statutes of limitations are described as particularly problematic barriers to claims given the universal and timeless character of human rights. However, the biggest hurdle for indigenous reparation claims may still lie in the implementation gap, which has been identified by the Special Rapporteur on the situation of human rights and fundamental freedoms of Indigenous peoples. This series of essays does not only refer to all relevant legal aspects, but it is also far-reaching in geographical terms. Part Two investigates international, regional and national case studies throughout the world, such as the situation of the Sámi People in Europe (Chapter 14) or the Masyarakat Adat in Indonesia (Chapter 17), once again highlighting the variety and complexity of indigenous claims. The third and final part of this book presents the current best practices for effective redress and compensation, which are well synthesized in the final chapter (Chapter 21).
This collection of essays is the first publication tackling the issue of reparations for Indigenous peoples in such a comprehensive manner. As such, it will certainly become a point of reference for international and comparative lawyers interested in the rights of minorities, especially given the fact that human rights treaties are mostly vague when it comes to remedies (Chapter 7). A very positive aspect of the book is that it underlines the need to take an indigenous perspective when considering these claims, such as with the definition of legal terms such as ‘tort’, ‘wrong’ or ‘damage’ and the possibility of making collective claims for redress (Chapter 1).
The focus of the book allows an understanding of the potential role of reparation as restorative justice with the ability to transform society (Chapter 3). By going further than purely legal considerations, the book also points out the importance of taking into account psycho-social aspects by seeking effective reparation through the development of a process based on participation and inclusion to increase the potential of the victims feeling compensated (Chapter 6). While certain governments of countries with an important indigenous population have now made public apology with regard to past wrongs (eg the Prime Minister of Canada's recent apology to former students of residential schools), indigenous rights are still in need of firmer international instruments to provide reparations for past wrongs and thus ensure the future protection of their rights. As Federico Lenzerini points out in his introductory chapter (p 19), reparation ‘represents a crucial and indispensable ingredient for construing a solid basis from which the movement for the effective realization of these rights and aspirations may spread its wings.’
