Despite a UN Order, Australia Is Continuing to Deny the Wunna Nyiyaparli Their Existence

The Wunna Nyiyaparli people of Western Australia’s eastern Pilbara region are currently being shafted by the Australian government to placate mining interests in the region, and despite the UN Human Rights Committee (CCPR) having ordered the Australian government in mid-2023 to provide them with “an effective and enforceable remedy”, Canberra has simply resisted the higher authority.

Wunna Nyiyaparli elder Ailsa Roy began the process of challenging the legitimacy of mining operations on Country, via the National Native Title Tribunal in 2012, which led to a Federal Court hearing that found in 2016, that the Wunna Nyiyaparli have no native title claim, as they’re not a people separate from the broader Nyiyaparli language group, despite evidence to the contrary.

The Wunna Nyiyaparli continue to live largely in accordance with their traditional laws and customs, with their culture inextricably linked to Country. Their ability to live, hunt and fish on Country is essential to their preservation of them as a people.

Yet, mining interests and plans to expand them now block access to Country, and the Wunna Nyiyaparli are threatened with a charge of trespass if they attempt to access it, and this poses an existential threat to the Wunna Nyiyaparli.

As Wunna Nyiyaparli ways of being have been intimately linked to Wunna Nyiyaparli Country for tens of thousands of years, breaking this relationship threatens the very existence of the Wunna Nyiyaparli people.

Roy is continuing to raise the plight of her people, 20 months since the CCPR provided the Australian Attorney General’s Department with 180 days to rectify the situation, and the elder stresses that her people have been “defrauded and denied justice” in respect of their “economic base”, and all the chief lawmaker has done is write to the UN to deny the validity of its findings.

Determinations favouring mining interests

“Irrespective of the Australian attorney general’s response to the United Nations, the Wunna Nyiyaparli people have rights,” Roy told Sydney Criminal Lawyers. “We have a history, and we remain an oppressed people denied our land base and self-determination.”

“The United Nations complaint did not have any impact on Australia,” the Wunna Nyiyaparli elder added. “Australia cannot change what they don’t acknowledge.”

The CCPR determined on 10 July 2023, that Australia must “provide an effective and enforceable remedy” within 180 days, or it would, as it is now, be in violation of the International Covenant on Civil and Political Rights (ICCPR), which this nation ratified in 1980. The government was also encouraged to widely disseminate the news of this decision, of which it did not.

Gina Rinehart’s Hancock Prospecting runs the Roy Hill mine on Wunna Nyiyaparli Country, while Andrew ‘Twiggy’ Forrest’s Fortescue Metals Group operates the Christmas Creek and Cloudbreak mines on the larger claim of the Nyiyaparli people. These lands are rich in iron ore, and Rinehart’s Roy Hill mine almost tripled its dividends over the financial year 2023-24.

“Fortescue and Hancock failed to negotiate with certainty the right people for right country, which makes mining on our sovereign land illegal, as it is against the law to profit from stolen property,” Roy explained.

The Wunna Nyiyaparli native title claim was lodged with the NNTT in 2012. It sits within the broader 1998 native title claim of the Nyiyaparli people. Roy made the claim to prevent further mining incursions onto her people’s land. And this claim successfully passed the registration test, as it was recognised to be in accordance with Western Desert traditional laws and custom.

Yet, two Indigenous land use agreements (ILUAs) lodged with the NNTT six months after the Wunna Nyiyaparli claim was lodged, disputed the legitimacy of it. So, the Federal Court determined in 2015 to consider both the two native title claims alongside each other.

But the court also decided it would deliberate upon a second question, whether the Wunna Nyiyaparli are really Nyiyaparli people. The Wunna Nyiyaparli did not give consent to this addition, and they told their legal representative of this. But not long afterwards, the Wunna Nyiyaparli’s original lawyer withdrew their services.

Three unrepresented Wunna Nyiyaparli people then showed up to Federal Court on 11 July 2016, expecting to argue their native title claim, even though the court was set to consider the heritage question, as by this stage, the court’s communications with the Wunna Nyiyaparli had broken down, as they had no access to the internet at the time.

So, the Wunna Nyiyaparli representatives mistakenly turned up prepared to argue their claim and not the question of heritage, of which the court had decided to determine that day.

Justice Richard White then determined to proceed regardless, finding the question in the negative, which served to void the Wunna Nyiyaparli native title claim, as their three representatives looked on, as they’d been denied the right participate in the proceedings.

“The Wunna Nyiyaparli people are denied justice. Our mob are denied compensation for loss and damages,” Roy underscored.

“Under section 10 of the Racial Discrimination Act 1975 (Cth), it is illegal to sign for someone else’s property and it is also embedded in Aboriginal culture.”

Justice denied

“Our human rights lawyer, Scott Calnan, is seeking support to bring attention to this matter on an international level,” advised Roy, which follows a concerted effort to raise the matter in the local media, which failed to result in any change in government stance. “As an occupying government, Australia is in denial of their own human right failings and genocide.”

“We are still fighting for our recognition and our rights,” the Wunna Nyiyaparli elder continued. “We are putting our case together to prove our grandfather’s legacy and history remains intact. We will be seeking justice, in light of the recent landmark victory of the Gumatj people.”

Roy is further highlighting that the owners of the Roy Hill mine have no contract with the Wunna Nyiyaparli, that desecration of land has occurred with no compensation, while mining interests are intending to expand their activities.

The Wunna Nyiyaparli draw their link to Country through the lineage of William Coffin, who was linked to the parcel of land prior to the onset of colonisation.

Roy also points to both legal and anthropological documentation that sets out her people’s connection and ability to “speak for” the land via her grandfather William Coffin. However, this was excluded from court proceedings because the Wunna Nyiyaparli were left unrepresented, unprepared and unable to have their day in court to prove their heritage.

The UN Human Rights Committee’s 10 July 2023 determination in response to the 2 April 2019 Wunna Nyiyaparli complaint gave the Australian government 180 days to provide remedy, which should have consisted of allowing the Wunna Nyiyaparli to have their rightful day in court, where they could be represented and prepared to argue their rightful claim to their own land.

The fight for Country continues

“The Wunna Nyiyaparli people were recognised as having exclusive rights over the Roy Hill area and never signed away those rights,” Roy added earlier this week. “We have been prevented from accessing Country, given no land tenure and no economic development rights, while watching others get rich from our land.”

“We have been subjected to an exhaustive and humiliating legal process,” she continued. “Whilst our sovereign rights predate Native Title, the Wunna Nyiyaparli are unable to camp, fish and carry out cultural business on Country, nor can we grant leases, licenses or borrow any money against our lands.”

Roy pointed to the inconsistencies between the state-based Torrens title land tenure systems and the national native title system as a key reason why peoples, such as the Wunna Nyiyaparli, are being blocked from the ability to develop economically on their own Country, and due to the relative weakness of the Native Title Act 1993 (Cth), her people’s position has been “severely diminished”.

The CCPR determined in mid-2023 that the court process had violated the cultural rights of the Wunna Nyiyaparli, under article 27 of the ICCPR, which protects the cultural rights of minority groups, including Indigenous peoples. The body further found the Wunna Nyiyaparli people’s right to fair procedure, under article 14, has too been infringed.

In terms of how the Attorney General’s Department dealt with the CCPR order for a remedy, it requested two extensions prior to responding 9 months late, and when its 24 October 2024 response was published, it turned out that AG Mark Dreyfus had told the respected UN body that he disagrees with it, and that it had failed to grasp the adequacy in dealings with the Wunna Nyiyaparli.

“We feel cheated, defrauded, disappointed, disgusted, denied, disrespected, demoralised, disenfranchised and discarded,” Roy made certain.

“I feel sick to my stomach at the desecration and loss of land that belongs to us. The authorities need to consider our pre-native title sovereign rights and consider how the law and legislation have been corrupted,” the Wunna Nyiyaparli elder said in ending.

Main image: Wunna Nyiyaparli Country and Wunna Nyiyaparli spokesperson Ailsa Roy