CCPR/C/137/D/3585/2019 5.2 The author contests the State party’s assertion that the claims under articles 26 and 27 are unsubstantiated. On the admissibility of the claim under article 1, as well as on the allegation of violations of articles 14 (1), 26 and 27, read in the light of article 1, the author submits that, based on the definition of the right to self-determination provided by article 3 of the United Nations Declaration on the Rights of Indigenous Peoples, 23 the deprivation of any right for the Wunna Nyiyaparli to “speak for” their traditional territory, and the consequent removal of their ability to freely pursue their economic, social and cultural development by interrupting their relation to such lands, directly implicates the right to selfdetermination in the facts of the case. 5.3 On the merits of the claim under article 27, the author reiterates that, in line with the evolution of Indigenous Peoples’ rights, that article should be read as requiring that Indigenous parties be provided with effective participation (including free, prior and informed consent) in procedural and substantive decisions affecting them, including judicial procedures relating to the determination of their fundamental rights. Therefore, the State party’s obligations under article 27 of the Covenant cannot be fulfilled by simply setting up a native title determination procedure: the State party is required to take positive legal measures to ensure that Indigenous Peoples can effectively participate in that procedure. 5.4 On the merits of the claim under article 26, the author submits that the separate question made the Wunna Nyiyaparli prove their case twice instead of once, even though the State party is required to take positive measures to ensure de facto equality before the law. The failure of the native title representative body to provide legal aid was also disproportionate to the legitimate aims it pursues, as it resulted in the lack of effective participation in the proceedings, having resulted in turn in the extinction of the right of the Wunna Nyiyaparli to their traditional territory. 5.5 On the merits of article 14 (1), the author reiterates that, without legal representation and given the complexity of the proceedings, the Wunna Nyiyaparli were not able to defend their case, even though the Federal Court could have provided them with time to adduce evidence. Furthermore, the State party’s argument that the Court found that, in any case, its earlier decision was “undoubtedly correct” is irrelevant: merely repeating what is asserted by a domestic court in relation to the correctness of its own decisions is an insufficient response to the author’s contentions. 5.6 With specific reference to the obligation to provide legal aid, the author refers to the Committee’s general comment No. 32 (2007) to reject the State party’s submission that this is confined to criminal proceedings. The author contests the State party’s argument that the principle of legal certainty justifies the inability of the Wunna Nyiyaparli to seek the revision of a determination of native title. State party’s additional observations 6.1 On 19 February 2021, the State party maintained that the author’s claim under article 27 of the Covenant lacked substantiation for the purposes of admissibility and that, on the merits, article 27 did not provide for Indigenous Peoples’ right to free, prior and informed consent. 6.2 Regarding the author’s claim under article 26, the State party maintains that it is both inadmissible and without merit as there was no differentiation in treatment between the Wunna Nyiyaparli and the other litigant. 6.3 Regarding the author’s claim under article 14 (1), the State party alleges that the failure of the Wunna Nyiyaparli to respond the steps taken by the Court to notify them by email is not the State party’s responsibility. 23 10 “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. GE.23-13390