The United Nations Declaration on the
Hearing and investigating complaints
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- 2. Creating an effective and accessible complaints process
1. Hearing and investigating complaintsIt is always preferable that the powers of NHRIs in relation to complaints investigation are entrenched in law, with clearly defined procedural responsibilities. From this basis, NHRIs can define the scope and role of a complaints investigatory mechanism and identify priority issues to be considered.
NHRIs should also specify the criterion for admissible complaints. Human rights issues arise in almost every area of human activity. In order to avoid a misallocation of resources, NHRIs should prioritize complaints and be careful not to deal with matters that are outside their mandate. Generally, complaints should relate to human rights conferred in the constitution, legislation or other instruments considered part of national law. Considering its relative youth and “non-binding”232 nature, NHRIs may not have a specific and delineated mandate to investigate complaints for violations of the Declaration. However, it is important to remember that the Declaration elaborates upon existing human rights standards as they apply to indigenous peoples. As such, if a compliant is admissible under another instrument, the NHRI could still consider the complaint and use the Declaration as an interpretative tool. In order to maximize the ability of NHRIs to hear indigenous peoples’ human rights complaints, and to maximise the effectiveness of the Declaration as a lever for addressing these complaints, it is important that NHRI officers are adequately trained. In this regard, this Manual and accompanying training materials will be of practical benefit for policy officers working within NHRIs and for staff with responsibility for complaint handling and investigations. Where NHRIs have the mandate to conduct alternative dispute resolution, it is advisable that complaints officers be provided with professional development training. A specific focus of this training could include indigenous models of alternative dispute resolution. In addition, NHRIs can play a valuable role in situations of conflict or escalating conflict between indigenous communities and the State or other groups, including private enterprises. Potential conflict situations could include the threat of or actual: Use of indigenous lands and territories by extractive industries Use of force against peaceful demonstrations by indigenous communities Illegal or arbitrary arrest of indigenous leaders. NHRIs may undertake a range of activities to attempt to promote peaceful resolution of these issues, including efforts to: Promote dialogue between the parties Promote the establishment and growth of peace building mechanisms Encourage acceptable and necessary accommodations to deal with underlying human rights issues that may be at the root of the conflict.233 NHRIs can also play an important role in helping address disadvantage or inequality in negotiations or dialogue with the State or private enterprise.
A robust system of complaints management can be broken down in to three basic stages: Early resolution Screening Counselling Alternative dispute resolution/mediation (if within the mandate of the NHRI) Complaints investigation Case management strategies Investigation Reporting findings Discussing options for domestic and international recourse Recommendations and remedies Disseminating case reports, results and recommendations Seeking to enforce a remedy, including settlements, judicial decisions or confidential interventions Communicating with treaty bodies and regional bodies when internal and national remedies have been exhausted.236 It is particularly important that NHRIs ensure that their complaints processes are accessible to indigenous peoples. As outlined in Chapters 6 and 7, NHRIs should undertake awareness raising activities targeting indigenous peoples to ensure their functions and complaints handling mandate are well understood. In addition, processes must be flexible to ensure maximum engagement with indigenous peoples. This could include ensuring that: Lodging a complaint is free of charge There is capacity to receive both oral and written complaints Interpreters and/or indigenous liaison officers are used Processes are not unnecessarily formal Processes do not violate the cultural traditions of the relevant indigenous peoples (i.e. That a woman officer hears a complaint that involves cultural issues that are not to be discussed in the presence of men) If a complaint is rejected, complainants are clearly informed of the reasons in a detailed and understandable manner, and they are informed of alternative avenues of redress where appropriate.237 Furthermore, it is important that NHRIs keep the victim at the centre of any complaints process. Victims need access to necessary information and resources. They must be consulted appropriately and given detailed explanations of decisions.238
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