Months out from a referendum on the Voice to Parliament, the United Nations Human Rights Committee (CCPR) determined on July 10 that a Federal Court decision which benefited mining interests had run roughshod over First Nations rights.
The Wunna Nyiyaparli people, part of the larger Nyiyaparli people of Western Australia’s eastern Pilbara region, filed a complaint in 2019 with the CCPR. Despite their 2012 native title claim being recognised, it conflicted with a wider claim of the Nyiyaparli, whose territory covers the Roy Hill Pastoral Lease and who were negotiating with mining companies.
The dispute went to court, but the Wunna Nyiyaparli were locked out of proceedings.
Under Western Desert traditional law and customs, the Wunna Nyiyaparli “speak for” or hold the rights over that land.
The land in dispute happens to be rich in iron ore; Andrew Forrest’s Forestque Metals Group operates the Christmas Creek and Cloudbreak mines and Gina Rinehart runs the Roy Hill mine, one of the largest iron ore mines globally.
The CCPR found that Australia had violated the Wunna Nyiyaparli’s rights under the International Covenant on Civil and Political Rights (ICCPR). It requested information on how Australia will provide “an effective and enforceable remedy” within 180 days.
Erased by the court
“Essentially, what the Human Rights Committee is saying is that the Wunna Nyiyaparli never got a fair go in the procedure that was used and never properly had their day in court,” human rights lawyer Scott Calnan told Sydney Criminal Lawyers.
“The significance of this in a year when we are having a vote on an Indigenous Voice is that it’s about the inclusion of Indigenous people,” he continued.
“They should be properly included, like other people who go before the courts. They should have rights to legal representation and a fair day.”
The land it covers also sits within the region of the wider 1998 Nyiyaparli native title claim that was lodged by five people.
Some of the Nyiyaparli people involved in negotiating two Indigenous Land Use Agreements (ILUAs) with mining corporations under the 1998 claim, disputed the new claim by the Wunna Nyiyaparli as it would jeopardise the ILUAs that were filed in July 2012.
The Federal Court determined in 2015 that the dispute due to the two native title claims needed to be examined in court and, on top of that, it needed to deliberate on whether the Wunna Nyiyaparli were really Nyiyaparli people, despite having passed the native title test.
Lawyers representing the Wunna Nyiyaparli dropped the case in March 2016, and as they could not afford new legal representation and were living on Country, communication with the Federal Court became difficult.
The court then determined that initial proceedings would take place solely on the question of the Wunna Nyiyaparli people’s heritage.
But the Wunna Nyiyaparli people, on reading the notification about these proceedings, understood the message to mean that the heritage question had been resolved in their favour and that the proceedings about to take place related to the two native title claims.
Three Wunna Nyiyaparli people went to court on July 11 2016. But because they were prepared to argue their claim and not their heritage, Justice Richard White decided to proceed without their input: he went on to rule that they were not Nyiyaparli, which cancelled out their native title claim.
“The result,” Calnan said, “was that the Wunna Nyiyaparli had their claim dismissed without being able to put any submissions, without being able to put on the evidence they had for native title or being able to get together any evidence for” the question regarding their heritage.
In filing their native title claim, the Wunna Nyiyaparli were trying to prevent mining expansion on Country. They had found that, under the 1998 Nyiyaparli native title claim, they were being denied their ability to “speak for” that territory.
Wunna Nyiyaparli elder Ailsa Roy lodged the CCPR complaint on behalf of her people, and she shared its decision with Sydney Criminal Lawyers.
Despite local silence on a finding with global implications, Roy noted that London-based Minority Rights Group International would soon comment on the determination.
Calnan said the CCPR had found that the Wunna Nyiyaparli people’s basic human rights had been violated, principally under article 27 of the ICCPR, which seeks to protect the cultural rights of minority groups, including Indigenous peoples.
The CCPR decision outlined that the Wunna Nyiyaparli argued that the state has violated its cultural rights “due to the lack of effective participation in the judicial proceedings of determination of their lands rights, with a direct consequence in the loss of their traditional territory”.
Further, this violation occurred as the state had attributed their land to another Indigenous group interested in mining concessions “which would lead to the dissolution of their own culture” based on “their laws and customs” and would ultimately see “the destruction of the Wunna Nyiyaparli”.
Advancing First Nations justice
Calnan said the CCPR decision is of global significance. It “breaks new ground, internationally, on the question of fair procedure in regard to Indigenous peoples’ rights to land”.
“There has never been a decision on an Australian native title issue,” the Sydney-based lawyer said, adding, “there has never been a decision on what the proper human rights complaint procedure is for determining legal rights of Indigenous people to their traditional lands”.
The advanced and unedited copy of the CCPR decision is available online. The Australian government has been presented with it and has 180 days to find “an effective and enforceable remedy”.
While Australia is not bound to follow the directions of the UN Human Rights Committee, made up of independent experts, its decisions are influential on the international stage.
The remedy sought by the Wunna Nyiyaparli people, which the CCPR agrees with, is for Australia to provide them with the opportunity to go back to court, with legal representation, to prove their native title and to be compensated for any destruction to land in the interim.
“The government goes on continuously about how it favours an internationally rules-based order and, in relation to the Voice, how it favours justice for Indigenous communities in Australia,” Calnan said.
He said this decision is “an opportunity” to “in addition to the Voice make another step forward in the rights of Indigenous people”.
[This article was first published at Sydney Criminal Lawyers.]