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UN finds Australia in breach of human rights covenant

Rudi Maxwell -

A decision by the United Nations Human Rights Committee has criticised the Federal Court for breaching the rights of an Aboriginal native title claim group.

While the UN committee's decision is non-binding, it puts pressure on the Australian government, particularly if criticising other countries on human rights. And, potentially, raises questions about the native title system.

A spokesperson from the Attorney-General's department said the Australian government takes seriously its human rights obligations under the International Covenant on Civil and Political Rights, and is considering the committee's views, with a response expected in the next month.

The Human Rights Committee found that Australia should reconsider the Wunna Nyiyaparli's native title claim and ensure that they have effective participation in those proceedings.

Until then Australia should: refrain from activities which might adversely impact the interests of the Wunna Nyiyaparli in their traditional lands; review any mining concessions granted over the traditional lands without the consent of the Wunna Nyiyaparli; and pay the Wunna Nyiyaparli adequate compensation for the harm they have suffered as well as reviewing legal aid funding to native title matters.

The claim in question covers the Roy Hill pastoral lease in the Pilbara and includes three iron ore mines controlled by Australia's richest people: Roy Hill (80 per cent owned by billionaire Gina Rinehart's Hancock Prospecting); Fortescue Metals Group's (the company founded by billionaire Andrew Forrest) Cloud Break; and Christmas Creek.

The companies have agreements with the native title group over the area in question recognised by the Federal Court.

If the mining companies breach their agreements with the recognised native title holders, they're in breach of the requirements of the Native Title Act.

But the world's foremost human rights organisation has advised that these agreements should be reconsidered.

The lawyer who ran the case, Charles Sturt University legal academic Scott Calnan, told AAP the Wunna Nyiyaparli people claimed: a breach of cultural rights as an Indigenous people when interpreted in the light of the right to self-determination; a breach of the right to due process, and; a breach of the right of equality before the law.

It is the first UN Human Rights Committee decision both on a native title issue in Australia and, internationally, on the required procedure when governments determine the interests of Indigenous people to their land.

In 2012 the Wunna Nyiyaparli lodged a native title claim in the Federal Court.

"However, shortly thereafter they dismissed their lawyers and did not have funds to engage new lawyers so that they were self-represented," Dr Calnan explained.

"The Federal Court thereafter instituted a 'separate question' procedure that the Wunna Nyiyaparli did not understand, did not prepare for, or follow court directions in relation to because they did not understand those directions.

"Because of this, when the separate question was heard, the court decided that the Wunna Nyiyaparli were prohibited from making their own submissions or putting on any evidence of their own and the court struck out their native title claim."

The Wunna Nyiyaparli unsuccessfully appealed.

The Federal Court then granted the Nyiyaparli people's (a broader language group) native title claim, which encompassed the land the Wunna Nyiyaparli had lodged their 2012 claim over.

Pilbara lands hosting iron ore operations were subject to a native title claim. (Kim Christian/AAP PHOTOS)

"This meant that the Wunna Nyiyaparli were no longer entitled even to go to court again to challenge the decisions made about their traditional land," Dr Calnan said.

In 2019 the Wunna Nyiyaparli took their grievance to the UN, and the case was determined in mid-2023.

"The Human Rights Committee in its decision found in favour of the Wunna Nyiyaparli and against Australia, finding that Australia had breached the cultural rights of the Wunna Nyiyaparli when read with the right to self-determination and the right to due process," Dr Calnan said.

"Our clients should have been given an opportunity to put on anthropological and other evidence.

"My clients say that they speak for that country, they say that their ancestors are buried on that country, that their elders know the songlines and they have a duty to protect the sacred sites.

"They're actually really upset that mining operations on the land are destroying sacred sites, including marshes."

Dr Calnan said the decision opens an important new avenue for Indigenous people to complain to the UN about their treatment over country rights.

"There are lots of Indigenous people who want to know their claims to native title are being dealt with fairly by a fair procedure," he said.

"That's all the UN decision, basically, is about: that, if you go to an Australian court claiming native title, you should have a fair procedure, you should be able to get enough legal aid so you can put your case."

The Australian Government has 180 days to consider its response to the decision and a response is expected by February.

Rudi Maxwell - AAP

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