The Wunna Nyiyaparli is a landholding group within the larger Nyiyaparli Indigenous group in the Pilbara region, covering territory known as the Roy Hill Pastoral Lease. The group hold the rights over that land, under Western Desert traditional law and customs. However, there are three mines on this parcel of land: the Christmas Creek and Cloudbreak mines and the Roy Hill mine, run by two separate parties.

In 2019, the group filed a complaint with the CCPR, stating that their 2012 native title claim to the land was recognised, but as the claim conflicted with a wider matter, whereby the larger Nyiyaparli were negotiating with mining companies, the dispute eventually went to court, where the Wunna Nyiyaparli were excluded from proceedings.

Four years later, the CCPR found that Australia violated the Wunna Nyiyaparli’s human rights under the International Covenant on Civil and Political Rights (ICCPR) and ordered justice for the group.

Human rights lawyer Scott Calnan represented the Wunna Nyiyaparli Indigenous people and told Lawyers Weekly that the group lodged the claim to “ensure they had control over the traditional land that they are custodians of and to have some say over mining activity on that land”.

“When they lodged their native title claim, the Wunna Nyiyaparli were represented by lawyers. However, shortly afterwards, communication between the Wunna Nyiyaparli and their lawyer broke down, and their lawyers ceased acting for them. Thereafter, the Wunna Nyiyaparli had no further money to pay for legal representation and represented themselves,” he said.

“At the same time, the Federal Court approved a separate question procedure in the Wunna Nyiyaparli native title matter to determine whether the Wunna Nyiyaparli native title claim should be struck out. As they were legally unrepresented, the Wunna Nyiyaparli did not understand that the separate question procedure was occurring or what it meant.

“At the hearing of the separate question in the Federal Court, the Wunna Nyiyaparli turned up saying that they thought that it was the final hearing of their native title claim. The court ruled that the Wunna Nyiyaparli were deliberately not following court procedure and denied them the ability to put on evidence.”

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The Wunna Nyiyaparli first lodged their native title claim in January 2012, which then passed the registration test in sections 190B and 190C of the Native Title Act 1993 (Cth) in April. The land the claim covers also sits within the region of the wider 1998 Nyiyaparli native title claim that was lodged by five people.

However, after the Federal Court denied the Wunna Nyiyaparli the chance to present evidence in their 2019 claim, it was struck out by the Federal Court. The group tried to appeal the decision but was unsuccessful.

The Federal Court later approved an authorised determination of native title for a different Nyiyaparli native title claim that included the Wunna Nyiyaparli traditional lands.

“As a result, the Wunna Nyiyaparli have had no legal control over the lands that they are responsible for under traditional laws and customs and other Aboriginal people have had legal control of those lands. When the Wunna Nyiyaparli have tried to go on their traditional lands, they [were] arrested for trespass.

“The Wunna Nyiyaparli complained to the United Nations Human Rights Committee that the striking out of the Wunna Nyiyaparli native title claim by the Federal Court violated the international human rights Australia was bound to uphold under the International Covenant on Civil and Political Rights,” Mr Calnan added.

“Specifically, the Wunna Nyiyaparli argued that there was a violation by Australia of their cultural rights to land, their right to a fair process, their right to be free of discrimination and their right to self-determination as an Indigenous people. In particular, they argued that the lack of legal aid to pay for legal representation meant that they did not understand what was going on and could not substantively participate in the proceedings.”

As such, the CCPR found in favour of the Wunna Nyiyaparli and against Australia on the basis of cultural rights to land, the right to a fair process and the right to self-determination – and noted that the process was unfair, as the group “were not legally represented after having been denied funding for legal aid, and had difficulties in accessing [the] internet to get informed about the court’s orders”.

“[Australia] failed to take measures to ensure that they understood the implications of the proceedings and could effectively participate in such proceedings,” the judgment stated.

“The court’s decision not to allow them to adduce evidence and adjourn the proceedings was arbitrary and violated the principles of fair trial and equality of arms.”

“The decision by the UN Human Rights Committee in the Wunna Nyiyaparli’s matter is the first decision by the committee on a native title issue in Australia,” Mr Calnan added.

“It is also the first decision by the committee as to the elements of a procedure for determining legal rights of Indigenous peoples to their traditional land that comply with internationally guaranteed human rights. In short, it marks a significant step forward in international Indigenous rights.”

Following the landmark decision, Australia was given 180 days “to provide an effective and enforceable remedy” to the Wunna Nyiyaparli people.

Although Australia is not bound by international law in this case, Mr Calnan noted that a decision such as this one is “highly influential”.

“The UN committee’s decision will be a test of the commitment by the federal government to the rights of Indigenous people and a rules-based international order in the same year as the Voice referendum will be held.

“The Wunna Nyiyaparli have their ancestors buried on their traditional lands. They have sacred sites and songlines on that land that need to be cared for and passed on to future generations. They cannot do that if they have no legal control over their traditional lands,” he said.

“It is, therefore, vital that the federal government act to provide the remedies to the Wunna Nyiyaparli that the UN Human Rights Committee said that they should receive.”