A First Nations group in Western Australia is celebrating a land rights victory after taking its case to the United Nations Human Rights Committee (CCPR).
In what is believed to be its first decision on a native title issue in Australia, the body of international experts has ruled Australia has violated the human rights of the Wunna Nyiyaparli people, from the Pilbara region, by allowing mining of their land without permission.
After unsuccessful proceedings in Australia, the Wunna Nyiyaparli people filed a complaint with the CCPR in 2019, alleging multiple breaches of the International Covenant on Civil and Political Rights and the Optional Protocol.
In its decision last month, the CCPR found the Wunna Nyiyaparli people had not been provided with an adequate procedure for the determination of their rights to traditional territory.
In 2012, the group’s native title registration was immediately challenged by a larger Nyiyaparli clan, which was negotiating two Indigenous Land Use Agreements with mining companies in an area wholly encompassing the Wunna Nyiyaparli people’s traditional territory. That clan’s Native Title application, filed in 1998, had not been resolved.
In 2016, after years of legal wrangling, the Wunna Nyiyaparli people’s native title application was dismissed. In 2017, an appeal failed, and a year later, the wider Nyiyaparli group was granted native title over the area.
The CCPR stated the result of that decision was that an indigenous group with no traditional rights to control access to the territory, “but with an interest in mining exploitations on these lands” now had legal control, to the exclusion of the Wunna Nyiyaparli people.
“A concrete consequence of such court’s decision is the impossibility for the Wunna Nyiyaparli to keep ‘looking after’ the culturally important areas on their traditional lands, and, more generally, the extinction of the authors’ rights to their traditional territory,” it stated.
“The impact of such a court’s ruling will be huge, taking into account that the authors’ ability to live, visit, hunt and fish on their traditional lands is essential to their preservation as a people.”
The Wunna Nyiyaparli people submitted to the CCPR that there had a failure by Australia to provide them with legal aid to better understand the complexity of native title proceedings, and that they had no remedies to appeal the eventual determination.
“The committee considers that, in the absence of the authors’ response to courts’ emails, with difficulty in accessing internet, without legal representation, and whilst contemplating the possibility that they were confused regarding the proceedings, the state party (Australia) failed to take measures to ensure that they understood the implications of the proceedings and could effectively participate in such proceedings,” the CCPR stated.
The committee stated Australia was obliged to “provide full reparations to persons whose rights have been violated”, including to:
- reconsider the Wunna Nyiyaparli people’s native title claim and ensure their effective participation in the proceedings, and until then, Australia should abstain from acts which might affect the existence, value, use or enjoyment of the area where the authors live and carry out their traditional activities;
- review the mining concessions already granted within the claimed traditional territory without consulting the authors, in order to evaluate whether changes are needed to preserve the survival of the Wunna Nyiyaparli people; and
- provide adequate compensation to the Wunna Nyiyaparli people for the harm they have suffered.
Australia was also obliged to take steps to prevent similar violations in the future by reviewing legal aid in overlapping native title claims, it added.
The CCPR gave Australia 180 days “to provide an effective and enforceable remedy” to the Wunna Nyiyaparli people.
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