CCPR/C/137/D/3585/2019 8.4 The Committee recalls that ancestral cemeteries, places of religious meaning and importance and ceremonial or ritual sites linked to the occupation and use of physical territories constitute an intrinsic part of the right to cultural identity; therefore, limitations on the right to traditional territories can also affect the right to the exercise of religion, spirituality or beliefs.31 8.5 As a consequence, it is of vital importance that measures that compromise Indigenous Peoples’ culturally significant territories are taken after a process of effective participation and with the free, prior and informed consent of the community concerned, so as not to endanger the very survival of the community and its members. 32 Mechanisms of delimiting, demarcating and granting collective titles can legally affect, modify, reduce or extinguish Indigenous Peoples’ rights with regard to their traditional territories. As a consequence, the Committee considers that such mechanisms require prior consultation of the relevant Indigenous People. 8.6 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 them should be taken with their effective participation. 33 8.7 In the present case, the Committee notes that, beyond indicating that the Federal Court did not consider the Wunna Nyiyaparli to be Nyiyaparli Indigenous Peoples, the State party does not contest their self-identification as Indigenous Peoples. The State party also does not contest that they maintain cultural interests in the territory that they have used and occupied for immemorial time, known as the Roy Hill Pastoral Lease, which holds their sacred sites and is key to their language, culture, religion and preservation as an Indigenous People as such. Nevertheless, the Committee notes that the State party has not demonstrated having taken any steps to protect the right of the Wunna Nyiyaparli to enjoy their culture, having on the contrary attributed their traditional territory to another Indigenous group without having ensured their effective participation in the proceedings for the determination of their fundamental right to traditional territory, a decision affecting their survival as a people. In the light of the foregoing, the Committee concludes that the facts before it disclose a violation of article 27 of the Covenant, read in the light of article 1 of the Covenant and of the United Nations Declaration on the Rights of Indigenous Peoples. 8.8 The Committee notes the author’s argument that the facts of the present case constitute a violation of article 26 of the Covenant based on an alleged discrimination on the ground of property rights because the Wunna Nyiyaparli experienced unjustified differential treatment in the proceedings for the determination of their rights to traditional lands, mainly due to the alleged lack of legal representation, the fact that they were made to take part in two separate trials on the same matter and the Court’s failure to consider their evidence. 8.9 The Committee is aware that non-discrimination is the basis for the understanding that Indigenous Peoples’ right to traditional lands and resources deserves equal protection under human rights treaties than non-Indigenous peoples’ right to property,34 privacy, family and home. Nevertheless, the Committee observes that, in the present case, the alleged discrimination in the enjoyment of the fundamental right to traditional territory is not in comparison with non-Indigenous peoples, but with another Indigenous group, and considers that the alleged lack of legal representation, the request for their participation in two separate 31 32 33 34 GE.23-13390 Ibid., paras. 151 and 160. See also Hopu and Bessert v. France (CCPR/C/60/D/549/1993/Rev.1), para. 10.3. Poma Poma v. Peru, paras. 7.2 and 7.6; Oliveira Pereira et al. v. Paraguay, para. 8.7; Human Rights Committee, general comment No. 23 (1994), para. 7; Ågren et al. v. Sweden (CERD/C/102/D/54/2013), para. 6.7; and United Nations Declaration on the Rights of Indigenous Peoples, art. 32. See also A/HRC/12/34, paras. 62 and 63; and Inter-American Commission on Human Rights, Indigenous and Tribal People’s Rights over their Ancestral Lands and Natural Resources, para. 273. Oliveira Pereira et al. v. Paraguay, para. 8.6. Inter-American Court of Human rights, Sawhoyamaxa Indigenous Community v. Paraguay, Judgment, 29 March 2009, para. 120. See also Mayagna (Sumo) Awas Tingni Community v. Nicaragua, concurring opinion of Sergio García Ramírez, para. 13. 13