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Australia has refused the United Nations Human Rights Committee’s (CCPR) order to  to the Wunna Nyiyaparli people of Western Australia’s eastern Pilbara region.

The Wunna Nyiyaparli people had lodged a complaint about being barred from the court process in which they are seeking to establish their native title rights over Country in July last year.

They lodged  in 2012, over land within a broader 1998 native title claim of the Nyiyaparli, the language group they are a part of.

The land of the Wunna Nyiyaparli sits within the Nyiyaparli claim. However, under that agreement, the Wunna Nyiyaparli were not able to “speak for” or exercise their rights over their own Country.

Nyiyaparli and Wunna Nyiyaparli land is rich in iron ore: Andrew Forrest’s Fortescue Metals operates Christmas Creek and Cloudbreak mines on their land and Gina Rinehart runs the gigantic Roy Hill mine nearby.

The Wunna Nyiyaparli claim sought to curb mining expansion on Country, as under the pre-existing 1998 Nyiyaparli native title claim, further developments were threatening it.

Wunna Nyiyaparli elder Ailsa Roy lodged the CCPR complaint on April 2, 2019, following a July 2016 Federal Court hearing on Wunna Nyiyaparli heritage. That case and communicated to the unrepresented Wunna Nyiyaparli people that three representatives who attended the court ended up being locked out.

After being ordered by the CCPR to provide a remedy to the Wunna Nyiyaparli people within 180 days, Australia dragged its feet for 15 months before responding that it would not.

“Australia has a pattern of refusing to enforce decisions of the Human Rights Committee,” human rights lawyer Scott Calnan, who has been representing the Wunna Nyiyaparli, told Sydney Criminal Lawyers.

“It’s very disappointing that [Labor] don’t consider preventing an Indigenous people from being wiped out, completely destroyed, as an important issue that the UN committee had alerted it to and it can take action on,” he said.

The Wunna Nyiyaparli’s 2012 claim passed the initial registration test, as it accorded with the Western Desert traditional laws and customs, a test contained in 91������̳ �����Ի��� of the Native Title Act 1993.

However, two Indigenous land use agreements under the Nyiyaparli claim, lodged in July 2012, disputed the Wunna Nyiyaparli claim.

The Federal Court, in late 2015, ordered that the 2012 Wunna Nyiyaparli claim should be examined alongside the 1998 Nyiyaparli claim.

It also decided to consider a second and related question: whether the Wunna Nyiyaparli were really Nyiyaparli, despite having already passed the registration test allowing them to lodge a native title claim.

The Wunna Nyiyaparli were confused about how this separate question had become a part of proceedings. As their original lawyers dropped the case, in March 2016, they were left with no legal representation and they were unable to afford another.

Communications with the court became confused, which led to three Wunna Nyiyaparli people attending court that year to argue for native title when the heritage issue was being discussed. They were not prepared for that, even though they’d previously presented the court with documentation supporting their Nyiyaparli origin.

Justice Richard White, however, was determined to proceed, and by late 2016 found the Wunna Nyiyaparli are not Nyiyaparli, which made their native title claim void.

The CCPR determined, in July last year, this whole process had violated the cultural rights of the Wunna Nyiyaparli. Article 27 of the  protects the cultural rights of minority groups, including Indigenous peoples. Further, the CCPR found their right to fair procedure, under article 14, had been infringed.

Colonial mindset

The remedy sought by the Wunna Nyiyaparli, and agreed to by the CCPR, was that Australia should provide them with the opportunity to go back to court and prove their native title claim.

They also sought legal representation and compensation for any destruction to land in the interim. The CCPR gave Australia 180 days to resolve the matter.

The Attorney General (AG) requested two extensions, and it took him 15 months to respond to the CCPR. He responded on October 24 saying he disagreed with the CCPR’s view that Australia had failed to ensure the Wunna Nyiyaparli understood the proceedings and could participate.

“Australia submits that … Wunna Nyiyaparli were legally represented”, the AG told the CCPR. “It is reasonable to assume that, as represented litigants, they understood the nature and implications of the proceedings and, through their representing counsel, were thereby able to effectively participate in the proceedings.”

“The response doesn’t wash,” Calnan said. “The Wunna Nyiyaparli never had a chance to put on any submissions or any evidence.

“They did not understand what was going on. They thought it was an entirely different matter. They were thrown into some of the most complicated proceedings under … the Native Title Act without any representation.”

“I defy anybody to read the transcript of what went on and to think that the Wunna Nyiyaparli were fully informed and were able to effectively participate in the proceedings,” Calnan said. “It defies belief.”

Cultural genocide

Calnan said Labor’s response threatens to completely destroy the Wunna Nyiyaparli.

The CCPR assessment underscores that the identity of Indigenous people in general is intimately entwined with their land. Australia’s response to the CCPR facilitates the destruction of the Wunna Nyiyaparli.

“Wunna Nyiyaparli culture is inscribed on their land,” Calnan said. “Without the ability of the Wunna Nyiyaparli elders to take young people to their traditional Country, they can’t pass on their culture, without their ability to speak for the land, control it and look after it. This will destroy their culture outright.

“The Wunna Nyiyaparli people can’t go and visit their Country,” he continued. “My client was taken to court for .

“The West Australian police are apprehending Wunna Nyiyaparli, even if they go onto their Country for a short-term visit. The effect of not being able to transmit their culture to future generations means that culture will die, and they will cease to exist as a people.”

Calnan said last year’s CCPR findings were significant, also coming just before the Voice referendum. Its decision reinforced the right of Indigenous peoples to fair procedure on land rights. Although the committee had never deliberated on native title before, its decision had paved the way for future such complaints.

He said the government’s stonewalling on the CCPR advice is not an act of genocide, as defined in the 1948 Genocide Convention, but represents “cultural genocide”, which is not a standalone criminal offence.

Because Forrest and Rhinehart have mines on Wunna Nyiyaparli land, he said it appears the Australian government is prioritising “these millionaires making extra millions”.

“The ridiculous thing is, under native title, the Wunna Nyiyaparli couldn’t veto the mining anyway.”

Australia has a history of ignoring the CCPR. It declined to act on raising the , or to prohibit the detention of children in immigration centres, after the CCPR’s recommendations to do so.

The key difference in the Wunna Nyiyaparli case, Calnan pointed out, is that they are not going to accept Australia’s denial of the CCPR ruling.

Their very existence relies on being able to put their case to the Federal Court, Calnan said. “The mining on that land is getting worse. The destruction of the sacred sites of their people, the graves of their ancestors, the land that marks out their songlines, is accelerating and getting worse.”

[Paul Gregoire writes for Sydney Criminal Lawyers, where this article .]