Effective participation of indigenous peoples in the mechanism for the determination of their rights to traditional territory

Facts

The Committee’s Views on this case mark a significant step toward ensuring the protection of the fair trial rights of indigenous peoples, particularly in the consideration of legal claims to native lands. In evaluating the claims of the Wunna Nyiyaparli, the Committee went beyond its prior jurisprudence by evaluating the authors’ claims within the specific context of the barriers faced by indigenous peoples. The decision sets an important standard of procedural protection by providing guidance to State parties regarding the subtle nuances that must be considered to ensure that decisions involving indigenous people are taken with their effective participation, respect the principle of equality, and safeguard their fair trial rights.

The authors are members of the Wunna Nyiyaparli, an indigenous community from Australia constituted by approximately 200 people. The Wunna Nyiyaparli are a local landholding group of the larger Nyiyaparli people which, in turn, comprise part of the Western Desert Aboriginal People. The Wunna Nyiyaparli holds rights under traditional laws to “speak for” their traditional territory, which holds the sacred burial sites of their ancestors and other sacred sites. The territory is rich in minerals, such as iron ore. Several mines have been developed or expanded on the territory without consultation with them, restricting their access to parts of the land. The authors assert that further development on the land would pose a danger to their culture, which is intimately and inextricably linked to their territory.

The authors filed an application to have a native title to their traditional territory recognized under the Native Title Act. They did not seek any claim to minerals, petroleum, or gas within the area, seeking only rights to “speak for” the territory, which is roughly equivalent to an English land law right to exclusive possession. The National Native Title Tribunal (NNTT) placed the claim on the Register of Native Title Claims. Although the application had been contested on the basis that the broader group of Nyiyaparli people did not consent to the filing, the NNTT did not give weight to that opposition and considered that the situation of the Wunna Nyiyaparli rendered the group able to seek rights without the permission of the broader group. Moreover, the NNTT made specific findings that supported the authors’ native title claim. The registration was challenged by another Nyiyaparli clan who filed an application for judicial review of the NNTT’s decision, inter alia, on the basis of the fact that, in 1998, it had previously filed a native title application before the Federal Court comprising a larger area that wholly encompassed the lands claimed by the authors (the title application has not been resolved to date).

The Court issued a procedural order deciding to consider jointly the 1998 native title application and the authors’ registration. The Court also ordered that a “Separate Question”, aimed to determine if the authors were actually descendants of the Nyiyaparli was to be decided separately. The authors objected to the “Separate Question,” but the Court failed to respond to their objection. Thus, the authors submitted evidence to their claim and to their Nyiyaparli origin, including an anthropological report and statements by elders.

Thereafter, the authors’ lawyers filed a notice that they were no longer representing the authors. The authors did not have funds to hire other lawyers, did not understand the implications of the case, and took no further steps after that date. They failed to appear at a scheduled hearing, believing that it was not necessary for them to attend. The authors expressed their confusion about the proceedings to the Registrar on multiple occasions. Ultimately, the Court scheduled a hearing on the Separate Question to take place without the authors. However, the authors attended, mistakenly believing it had to do with their native title application. The authors explained that they were unable to effectively participate in the proceedings due to a lack of stable internet connection and legal representation. They asked the Court to consider the evidence that they had previously submitted (and brought with them on that day) on the Separate Question.

The judge stated that the other party had not had a proper opportunity to prepare for the hearing, believing that the Wunna Nyiyaparli would not appear, and ruled that the hearing would go forward, but that the Wunna Nyiyaparli would not be permitted to have any of their evidence considered. As a result, the judge only listened to the other clan. Without considering any of the evidence submitted by the Wunna Nyiyaparli people, the judge answered the Separate Question in the negative, finding that “the Wunna Nyiyaparli Applicants did not adduce any evidence to support the contention that they are part of the wider Western Desert Society”. The judge also dismissed their native title application.

The authors appealed, but it was dismissed and the authors were ordered to pay costs. The Court then made a consent determination of native title in favor of the other Nyiyaparli clan application over the authors’ traditional territory. As a result, another indigenous people—with no traditional rights but with interest in mining exploitations—obtained legal control of the lands to the exclusion of the authors. The authors claimed violations of articles 2, 14, 26, and 27 of the Covenant, all read in light of article 1.

Admissibility

The Committee found that the article 1 claim was inadmissible because the right to self-determination cannot be the subject of a communication, but stated that it would be taken into account in interpreting other articles. The Committee found that the authors sufficiently substantiated their claims under articles 26 and 27 of the Covenant. The Committee found that it was not precluded from examining the uncontested article 14 claim.

Merits

The Committee noted that in the case of indigenous peoples, the survival of culture may be closely associated with the preservation of traditional lands, and this relationship should be respected and protected. As a result, it is of vital importance that any such measure of limitation of access to traditional lands allow for a process of effective participation and for the free, prior and informed consent of the community concerned. Here, the State party failed to ensure the effective participation of the clan in court proceedings before attributing their territory to another indigenous group in violation of their article 27 rights, read in light of article 1 of the Covenant and of the United Nations Declaration on the Rights of Indigenous Peoples.

With regard to article 26, the Committee stated that the authors’ claim of discrimination in comparison with another indigenous group is based on fair trial considerations that are better considered under article 14. Regarding article 14, the Committee found that the facts of the present case constitute a triple violation of article 14 (1) of the Covenant, read alone and in conjunction with article 2 (3), due to: i) the State party’s failure to provide them with legal aid to better understand the complexity of native titles proceedings; ii) the State party’s failure to consider the relevant evidence filed for the Separate Question trial, and to allow an adjournment of the Separate Question proceeding to allow them to file the evidence; and iii) the State party’s failure to allow them to appeal the consent determination of native title made by the Court in favor of another clan over their traditional territory. The State party’s failures violate principles of equality before courts and fair trial. In cases involving indigenous peoples, it is indispensable to consider their particularities, social and economic characteristics, as well as the situation of special vulnerability, customary law, values, customs, and traditions.

Moreover, the specific proceedings in question were created to provide a place for indigenous peoples to claim the their traditional territories, and these proceedings in particular must provide for judicial guarantees and effectiveness, be accessible and simple, be conducted with respect for the right to a fair trial, be free of unnecessary formalisms or requirements, be free of legal rigors or high costs, imply a substantial independent review of the historical or other evidence to allow for a decision in a substantive manner, and allow for judicial review. Considering the evolution of indigenous peoples’ rights in combination with article 14 (1) of the Covenant, the State party is under an obligation to provide due process guarantees taking into account their particular circumstances. Here, the State party provided short timeframes to the authors, did not provide them with legal representation, communicated with the authors via email despite their limited internet access, and failed to clearly communicate with the authors. Moreover, knowing all of this, the State party held a hearing where it excluded all of their evidence and refused to adjourn the proceedings, both of which were arbitrary rulings which violated the principles of fair trial and equality of arms. As such, the State party violated the Wunna Nyiyaparli’s article 14 rights under the Covenant.

Recommendations

The State party should, inter alia:

a) Reconsider the Wunna Nyiyaparli’s native title claim and ensure their effective participation in the proceedings, in order to carry out the delimitation, demarcation, and titling of their claim traditional territory; and until then, abstain from acts which might lead to affect the existence, value, use or enjoyment of the area where the authors lived and carry out their traditional activities;

b) Review the mining concessions already granted within the claimed traditional territory without consulting the authors, in order to evaluate whether a modification of the rights of the concessionaires is necessary to preserve the survival of the Wunna Nyiyaparli;

c) Provide adequate compensation to the authors for the arm they have suffered. The State party is also under an obligation to take steps to prevent similar violations from occurring in the future.

Implementation

Deadline for implementation: 15 September 2023

More information on the case:

— Minority Rights Group – Roy v. Australia: MRG Welcomes Win for Wunna Nyiyaparli Land Rights

— Charles Stuart University – Historic UN Human Rights Committee decision on native title and government procedures