The case is Ailsa Roy v. Australia. Views of the UN Human Rights Committee dated March 13, 2024. Message No. 3585/2019.
In 2019, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
The author, an elder of the Wunna Nyiyaparli tribe, an indigenous people of Australia, claimed that the State party had failed to provide the community with an adequate judicial procedure to establish its rights to its traditional territory, which had led to numerous violations of its Covenant rights. The Committee considered that the information provided indicated a violation of articles 14 and 27 of the Covenant.
The Committee's legal position is that in the case of indigenous peoples, the enjoyment of culture may refer to a way of life that is closely linked to their traditional lands, territories and resources, and that the protection of this right "aims to ensure the preservation and continuous development of cultural culture... identity". Therefore, the cultural values and rights of indigenous peoples related to their ancestral lands and their relationship with nature should be treated with respect and protected in order to prevent the degradation of the special way of life of these peoples. In addition, the Committee noted that the Committee on the Elimination of Racial Discrimination, referring to regional jurisprudence, stated that it is necessary to recognize and understand the close ties of indigenous peoples with the land as the basis of their culture, spiritual life, integrity and economic survival; their relationship with the land is a material and spiritual element that they must to make full use of it, at least in order to preserve their cultural heritage and pass it on to future generations, and therefore it can also become a prerequisite for preventing their extinction as a people. The Committee pointed out that ownership and control of ancestral territories are of great importance for the survival of indigenous peoples as peoples and the preservation of their distinctive culture; in fact, any denial of the exercise of their territorial rights harms values that are highly symbolic for indigenous peoples at risk of losing their cultural identity and heritage, which should be passed on to future generations. Therefore, the restoration, recognition, demarcation and registration of lands reflect the most important rights for the survival of culture (paragraph 8.3 of the Considerations).
The Committee recalls that ancestral cemeteries, places of religious significance and significance, as well as ceremonial or ritual sites related to the ownership and use of natural territories, form an integral part of the right to cultural identity; therefore, restrictions on the right to traditional territories may also affect the right to practice religious rites, spirituality or beliefs (para. 8.4 Considerations).
It is essential that measures that encroach on culturally significant indigenous territories be taken after a process with effective participation and with the free, prior and informed consent of the community concerned, so as not to jeopardize the very survival of the community and its members. The mechanisms of delimitation, demarcation and granting of collective titles may legally affect, modify, reduce or nullify the rights of indigenous peoples in relation to their traditional territories. The Committee therefore considers that such mechanisms require prior consultation with the indigenous people concerned (paragraph 8.5 of the Views).
In the light of the above, the Committee recalls that article 27 of the Covenant enshrines the inalienable right of indigenous peoples to enjoy their traditional territories and that any decision affecting their interests must be taken with their effective participation (paragraph 8.6 of the Views).
The principle of non-discrimination serves as a basis for understanding that the right of indigenous peoples to traditional lands and resources deserves no less protection under human rights treaties than the right of non-indigenous peoples to property, privacy, family life, and housing (paragraph 8.9 of the Considerations).
The Committee recalls that the State party's refusal to allow the party to submit its observations on the evidence considered by the court in determining the land rights of indigenous peoples is a violation of the principles of equality before the court and fair trial. The Committee also reports that the courts, which are not limited by any set deadlines for the presentation of evidence, act arbitrarily at their discretion, refusing to accept new evidence shortly before the start of the hearing. The Committee points out that, since the presence or absence of legal aid often determines whether a person can fully participate in the relevant proceedings, States parties are encouraged to provide free legal aid outside criminal proceedings to persons who do not have sufficient funds to pay for it, and in some cases they may be required to do so (paragraph 8.12 of the Views).
With regard to judicial guarantees in cases involving indigenous peoples, the Committee notes that, in accordance with various international instruments, States must take all effective measures to ensure that indigenous peoples can understand and be understood during judicial procedures in order to guarantee their right to a fair trial and effective access to justice. In particular, it is necessary to take into account their "special features, social and economic characteristics, as well as the situation of special vulnerability, customary law, values, customs and traditions" (paragraph 8.13 Considerations).
Applying the established principle that human rights treaties are living documents that should be interpreted and applied in the light of current circumstances, States are required to take measures to guarantee the rights of indigenous peoples with respect to ownership of their traditional territories and to give legal certainty to these rights by establishing such mechanisms and procedures for the delimitation, demarcation and registration of land title in in accordance with their customary law, values and customs (paragraph 8.14 of the Considerations).
Consequently, such administrative or judicial procedures must meet the requirements of judicial guarantees and efficiency, be accessible and simple, be conducted in compliance with the right to a fair trial, be free from unnecessary formalities or requirements that undermine their dynamic development, be free from excessive legal rigor or high costs, and provide for a substantive independent analysis of historical or other evidence. allowing to make a decision on territorial claims to ancestral lands in fact, and not on other grounds, such as arbitrary conditions or negotiations, and provide for the possibility of judicial review of decisions (paragraph 8.15 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The provisions on the evolution of indigenous peoples' rights, combined with article 14, paragraph 1, of the Covenant, impose an obligation on the State party to ensure that the Wunna Nyiaparly tribe guarantees due process in relation to their claims to traditional territory. The Committee found that the State party had given the Wunna Nyiyaparli tribe only two weeks to prepare for a hearing on a separate issue, failing to meet the time limits set for indigenous peoples to hold meetings among themselves to prepare for the trial. The Committee also noted that, unlike the other party, the Wunna Nyiyaparli tribal community had no legal representation because it was denied funding for legal aid and had difficulty accessing the Internet to receive information about Court rulings. The Federal Court of Australia, in its decision on appeal, recognized that the Wunna Nyyaparly community could have become entangled in procedural subtleties. The Committee considered that in the absence of a response from Wunna Nyyaparly to the Court's emails, given the difficulties in accessing the Internet, as well as the fact that they had no legal representation and were confused about the proceedings, the State party had not taken appropriate measures to help them understand the consequences of the proceedings and participate effectively in such proceedings. In these circumstances, due to the lack of legal assistance and the important consequences of the proceedings on a particular issue for the exercise of their fundamental rights to their traditional territories, the Court's decision not allowing the Wunna Nyiaparly tribe to present evidence and the refusal to postpone the proceedings were arbitrary and violated the principles of fair trial and equality of the parties (paragraph 8.16 of the Considerations).
The Committee's conclusions: The information provided indicated a violation of articles 14 and 27 of the Covenant (paragraph 9 of the Views).