CCPR/C/137/D/3585/2019 that the Registrar could not provide legal advice and that it was inappropriate for them to correspond directly with the Registrar. 2.16 On 18 May 2016, the Federal Court decided that the separate question was to be heard without the participation of the Wunna Nyiyaparli because they had not filed a notice regarding their participation. 2.17 On 11 July 2016, the hearing for the trial on the separate question was held. Three members of the Wunna Nyiyaparli attended, thinking that the hearing was related to their native title application. When the judge said that the hearing would proceed on the basis that the only evidence that would be adduced would be that from the Nyiyaparli, the three members of the Wunna Nyiyaparli submitted that they had understood that the separate question had already been answered in their favour. When the judge replied that they must have known about the proceedings on the separate question scheduled for that day, the Wunna Nyiyaparli indicated that they had been unable to effectively participate in the proceedings because they had no stable Internet connection and no legal representation. In response to the judge’s comment that they could have looked for another lawyer in the period since 18 March 2016, they replied that they lacked the funds to do so. Moreover, as the matter was related to their fundamental rights on their traditional lands, they requested to be able to effectively participate in the proceedings, through consultation in all decisions affecting them and through an adjournment of the hearing on the separate question, and for the Court to examine the evidence that they had filed previously – and brought again that day – to support their claim that they were indeed Wunna Nyiyaparli, members of the Nyiyaparli people. 2.18 Nevertheless, according to the judge, the other party had not had the opportunity to prepare for a hearing on the basis that the Wunna Nyiyaparli would be adducing any evidence and the lawyer for the Nyiyaparli submitted that they would suffer prejudice if the Wunna Nyiyaparli were permitted to depart from the position on which they had allowed the parties and the Court to proceed. According to the judge, an adjournment of a hearing of that kind was a very serious matter as they were expensive to organize. There was a public interest in the Court making use of the time that had been set aside for the hearing and making proper use of the public moneys that had been expended in arranging the hearing. Consequently, the judge ruled that the hearing on the separate question would not be adjourned and that the Wunna Nyiyaparli would not be allowed to have any of their evidence considered. As a consequence, the judge listened only to the other party, which was interested in demonstrating that the Wunna Nyiyaparli were not descendants of Nyiyaparli in order to have the claim of the Wunna Nyiyaparli rejected and to be able to freely negotiate with mining companies. 2.19 On 16 December 2016, not considering the evidence filed by the Wunna Nyiyaparli in their native title claim, the Federal Court answered the separate question in the negative, considering that the Wunna Nyiyaparli applicants had not adduced any evidence to support the contention that they were part of the wider Western Desert Society. According to the Court, although it was true that their filed claim included extracts from some anthropological literature that might have supported the contention, that did not become evidence in the separate question. In the judgment, the native title application filed by the Wunna Nyiyaparli was dismissed. 2.20 Despite their limited funds, the Wunna Nyiyaparli managed to hire a new lawyer to draft a notice of appeal against the separate question judgment, submitting that the Court had committed an error by refusing to receive their evidence. 2.21 On 5 September 2017, in its judgment of appeal, the Federal Court admitted that it was possible that the Wunna Nyiyaparli were confused as to some of the procedural orders as a result of a lack of legal representation, but nevertheless dismissed their appeal considering that the first instance decision was “undoubtedly correct”. The Court ordered the Wunna Nyiyaparli to pay court costs of US$ 14,561. 2.22 On 26 September 2018, the Federal Court made a consent determination of native title in favour of the other Nyiyaparli applicant over the traditional territory of the Wunna Nyiyaparli. As a result, another Indigenous People – with no traditional rights to control access to the Wunna Nyiyaparli traditional territory but with interest in mining exploitations on those lands – now has legal control of the Wunna Nyiyaparli lands, to the exclusion of the GE.23-13390 5