CCPR/C/137/D/3585/2019 Consideration of the merits 8.1 The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol. 8.2 The Committee notes the author’s argument that the facts of the present case constitute a violation of article 27 of the Covenant because, due to a lack of effective participation in complicated judicial proceedings on the determination of their land rights, the Wunna Nyiyaparli lost their traditional lands, which were titled to another Indigenous People. The Committee also notes that, according to the author, this would lead to the dissolution of the Wunna Nyiyaparli culture, which is based on their laws and the customs held specifically in relation to their traditional territory, and to the destruction of the Wunna Nyiyaparli people as such. The Committee further notes the author’s argument that the scope of article 27 of the Covenant contemplates, according to the evolution of Indigenous Peoples’ rights, effective participation in decisions affecting them (including free, prior and informed consent). The native title determination procedure was a decision affecting them but they could not effectively participate in it. The Committee notes the State party’s argument that there was no breach of article 27 because that article does not provide the right to free, prior and informed consent for Indigenous Peoples and because Australia has established a system to determine claims for native titles. 8.3 The Committee recalls that, in the case of Indigenous Peoples, the enjoyment of culture may relate to a way of life that is closely associated with their traditional lands, territories and resources, and that the protection of this right “is directed towards ensuring the survival and continued development of … cultural identity”. 26 Therefore, Indigenous Peoples’ cultural values and rights associated with their ancestral lands and their relationship with nature should be regarded with respect and protected, in order to prevent the degradation of their particular way of life.27 Furthermore, the Committee notes that the Committee on the Elimination of Racial Discrimination has stated, citing regional jurisprudence, that the close ties of Indigenous Peoples to the land must be recognized and understood as the fundamental basis of their cultures, spiritual life, integrity and economic survival; their relations to the land are a material and spiritual element that they must fully enjoy to preserve their cultural legacy and transmit it to future generations and are, therefore, a prerequisite to prevent their extinction as a people.28 The Committee notes that ownership of and control over ancestral territories are essential to Indigenous Peoples’ survival as peoples, with the preservation of their distinct culture; indeed, any denial of the exercise of their territorial rights is detrimental to values that are very representative for members of Indigenous Peoples who are at risk of losing their cultural identity and the heritage to be passed on to future generations. 29 As a consequence, the recovery, recognition, demarcation and registration of lands represent essential rights for cultural survival.30 26 27 28 29 30 12 Human Rights Committee, general comment No. 23 (1994), para. 9. See also Oliveira Pereira et al. v. Paraguay (CCPR/C/132/D/2552/2015), para. 8.6; and Poma Poma v. Peru, para. 7.2. Committee on Economic, Social and Cultural Rights, general comment No. 21 (2009), para. 36; Oliveira Pereira et al. v. Paraguay, para. 8.6; and United Nations Declaration on the Rights of Indigenous Peoples, arts. 20, 26 (1) and 33. CERD/C/102/D/54/2013, para. 6.6. The Committee was citing Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment, 31 August 2001, para. 149, and Saramaka People v. Suriname, para. 121. The same principles were recognized in the African human rights system: see African Commission on Human and People’s Rights, Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, No. 276/03, Decision, 2009. Inter-American Court of Human Rights, Yakye Axa Indigenous community v. Paraguay, Judgment, 17 June 2005, para. 203. See also African Commission on Human and People’s Rights, Centre for Minority Rights Development and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, paras. 158 and 227; and African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/2012, Judgment, 26 May 2017, para. 109. Inter-American Commission on Human Rights, Indigenous and Tribal People’s Rights over their Ancestral Lands and Natural Resources (OEA/Ser.L/V/LL), para. 95. GE.23-13390