Australia is facing criticism for its refusal to accept a ruling by the UN Human Rights Committee (UNHRC). The UN body of independent experts found that a legal judgment in an Australian native rights land title case had violated parts of the International Covenant on Civil and Political Rights (ICCPR). However, in autumn 2024 the Australian federal government rejected the UNHRC’s ruling, saying it doesn’t believe violations of the treaty have occurred.

The Court ultimately decided the separate question in the negative and dismissed the Wunna Nyiyaparli people’s native title claim. However, in 2018 the Court positively determined the broader Nyiyaparli native title claim, which effectively eliminated any future opportunity for the Wunna Nyiyaparli people to claim native title rights and interests in the Roy Hill Pastoral Lease area. 

Since legal options had been exhausted in Australian domestic law, in 2019 the Wunna Nyiyaparli people filed a complaint to the UNHRC, arguing that the Court had, in its ruling, violated the rights of the complainant by not affording them the opportunity to effectively participate in proceedings and by consequently making a ruling in the broader Nyiyaparli native title proceeding that deprived them of the enjoyment of rights and interests to their traditional territory. The Wunna Nyiyaparli people argued that, due to the lack of resources for legal advice and reliable access to information, they weren’t able to understand the nature and implications of the court proceedings and were further denied the opportunity to give evidence on their rights to country.

Without legal recognition, there’s no official avenue for the Wunna Nyiyaparli to engage with the government or mining companies and they can’t, therefore, be part of decision making when it comes to the land’s significant mining tenements or receive any royalties from such activity. The lack of legal recognition may also make it more difficult for them to access the territory due to the mining operations.

The UNHRC ruled in 2023 that Australia had violated Article 14(1) and Article 27 of the ICCPR, provisions that focus on appropriate access to justice and legal remedy, and on the rights of minority groups respectively. It found that the Federal Court should reconsider the Wunna Nyiyaparli’s claim. 

A spokesperson for the Australian Attorney-General’s Department says the government ‘takes its obligations under the ICCPR very seriously’ and gives ‘careful consideration, in good faith, to the Committee’s Views.’ It says on this occasion that it doesn’t agree that any violations of the ICCPR occurred, and that the native title process ‘adequately accounts for the obligations’ under Article 14(1) and Article 27. 

It further argues that the Wunna Nyiyaparli had a total of six opportunities to participate in their native title proceedings, five of which were not taken up. The response adds that ‘during the time when [the Wunna Nyiyaparli] were unrepresented, legal assistance would have been available […] through Australian Government funding to support native title claimants’ and that ‘the Australian Government funds a network of representative bodies able to assist and represent native title holders and persons who may hold native title.’

The spokesperson from the Attorney-General’s Department adds that the Australian government continually assesses whether the native title process is operating effectively, efficiently and fairly.

Scott Calnan, Counsel for the Wunna Nyiyaparli, says the government’s response was ‘without basis in international law.’ He says that much of Australia’s reply ‘was either illogical – in that it dealt with matters that were irrelevant – or simply contradicted findings of the UNHRC as to the facts or the law.’

Calnan says the Attorney General’s decision to effectively disregard the UNHCR’s findings and recommendations ‘has a global impact on the rights of Indigenous people around the world. It sends a message that if a country like Australia can ignore a body like the UN, international law and the ICCPR, then others can too.’ 

David Paterson KC, a former Chair of the IBA Indigenous Peoples Committee, says the Australian government’s decision to reject the UNHRC’s findings is ‘a missed opportunity for Australia to move forward in reconciliation with its Indigenous Peoples’. 
 
Paterson – who’s a practising lawyer in Vancouver representing Indigenous Nations – believes Australia could have taken inspiration from a similar situation in Canadian legal history. In Sandra Lovelace v Canada, a Maliseet woman was deprived of her legal status as an Indian after marrying a non-Indian person. She proceeded through the Canadian courts without success and finally turned to the UNHRC, which ruled that Canada was in breach of its ICCPR obligations to prevent discrimination on the basis of gender. Though the UNHCR’s decision wasn’t domestically binding in Canada, the government took the advice seriously, engaged in widespread consultation and enacted legislation reversing the discrimination previously found lawful by the courts, says Paterson.
 
‘The UNHRC decision in the Wunna Nyiyaparli case provided just such an opportunity to Australia to consult and consider whether the strict letter of the procedural law met the interests of Indigenous justice and reconciliation,’ he adds. ‘It has sadly failed to undertake such an examination and chosen to hide behind legal findings that, by international standards, are lacking.’ However, Paterson believes it’s not too late for Australia to ‘reconsider and to find a way of making its justice system more accessible to its First Peoples.’

Image credit:Yarr65 /AdobeStock.com