Charles Sturt University, Media Release, 14 December 2023

A Charles Sturt University legal academic has successfully represented First Nations people of the Pilbara region of Western Australia before a United Nations tribunal.

Dr Scott Calnan, a sessional academic in the Charles Sturt Centre for Law and Justice, appeared as legal representative of the Wunna Nyiyaparli, and successfully argued their case before the Human Rights Committee of the United Nations.

“The decision concerns the Wunna Nyiyaparli people of the Pilbara region of Western Australia, an area rich in minerals such as iron ore, and basically concerns a miscarriage of justice in the Federal Court in determining their native title rights,” Dr Calnan said.

Dr Calnan explained that in 2012 the Wunna Nyiyaparli lodged a native title claim in the Federal Court of Australia seeking ‘ … the rights to access and live in the area, to make decisions about the use and enjoyment of the area and its resources, to control the access of others to the area, to maintain and protect places of importance under traditional laws, customs and practices, and the right to manage, conserve and look after the land, waters and resources’.

The claim was rejected by the Federal Court and subsequently challenged in the UN where the case was determined earlier this year.

Dr Calnan said 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.

“The Wunna Nyiyaparli lodged their own native title claim over their traditional country which was registered under the Native Title Act 1993 (Cth),” he said.

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

“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.”

Dr Calnan said the Wunna Nyiyaparli tried to appeal this result in the Federal Court but, without any legal representation, were unsuccessful.

“Sometime thereafter the Court found that a larger cultural bloc native title claim included Wunna Nyiyaparli traditional country and made an approved grant of native title over that land,” he said.

“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.”

The Wunna Nyiyaparli then went to the UN Human Rights Committee claiming a breach of their 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.

“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.

The Human Rights Committee found that Australia should:

• Reconsider the Wunna Nyiyaparli’s native title claim and ensure that the Wunna Nyiyaparli have effective participation in those reconsideration 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 Australian Government has 180 days to consider its response to this decision and a response is expected from it in January or February 2024.