CCPR/C/137/D/3585/2019 trials on the same matter and failure to consider evidence should be examined under article 14 (1). 8.10 The Committee notes the author’s arguments that the facts of the present case constitute a triple violation of article 14 (1) of the Covenant, read alone and in conjunction with article 2 (3), due to: (a) the State party’s failure to provide the Wunna Nyiyaparli with legal aid to better understand the complexity of native title proceedings; (b) the State party’s failure to consider, for the separate question trial, the relevant evidence filed in the first proceeding (the native title determination), which already proved their origin as Nyiyaparli, and to allow an adjournment of the separate question proceeding for them to file the evidence once again; and (c) the State party’s failure to allow the Wunna Nyiyaparli to appeal the consent determination of native title made by the Court in favour of another applicant over their traditional territory. 8.11 The Committee also notes the State party’s argument that the author’s claim under article 14 (1) is without merit, taking into account that: (a) the native title representative body must minimize the number of applications covering overlapping claims and there is no obligation under article 14 (1) to provide legal aid beyond criminal proceedings; (b) the Court provided the Wunna Nyiyaparli with numerous opportunities to submit evidence, their troubles in receiving emails were not the State party’s responsibility, the filing of such evidence would not have made any difference to the outcome of the proceedings and the Court’s decision not to adjourn the proceedings was justified considering the necessity to resolve disputes as quickly, inexpensively and efficiently as possible; and (c) the impossibility to seek the revision of a native title determination is justified because native title determination proceedings need limits to revocation and variation. 8.12 The Committee recalls that the failure of a State party to allow a party the ability to comment on evidence considered by a court in determining Indigenous land rights is a violation of the principles of both equality before the courts and fair trial. 35 The Committee also recalls that tribunals that are not constrained by any prescribed time limit for the submission of evidence exercise arbitrary discretion in failing to accept new evidence close to hearings. 36 The Committee further recalls that, as the availability or absence of legal assistance often determines whether or not a person can participate in relevant proceedings in a meaningful way, States parties are encouraged to provide free legal aid beyond criminal proceedings for individuals who do not have sufficient means to pay for it, and may be obliged to do so in some cases.37 8.13 Specifically in relation to judicial guarantees in cases involving Indigenous Peoples, the Committee observes that, according to various international instruments, States are to take all effective measures to ensure that Indigenous Peoples can understand and be understood in legal proceedings in order to guarantee their right to a fair trial and effective access to justice.38 In particular, it is indispensable to consider their “particularities, social and economic characteristics, as well as the situation of special vulnerability, customary law, values, customs, and traditions”.39 8.14 The Committee considers that, in addition to such standards on accessing justice, generally speaking (see para. 8.12 above, in relation to both non-Indigenous and Indigenous Peoples, and para. 8.13 above in relation to Indigenous Peoples specifically), the present communication should be analysed from the perspective of the specific proceedings created to provide a place for Indigenous Peoples to claim the recovery, recognition, demarcation and registration of their traditional territories. Indeed, applying the established principle that human rights treaties are living instruments that must be interpreted and applied taking into 35 36 37 38 39 14 Äärelä and Näkkäläjärvi v. Finland, para. 7.4. Jansen-Gielen v. Netherlands, para. 8.2. Human Rights Committee, general comment No. 32 (2007), para. 10. United Nations Declaration on the Rights of Indigenous Peoples, arts. 13 (2) and 40. Inter-American Court of Human Rights, Fernández Ortega et al. v. Mexico, Judgment, 30 August 2010, para. 200. See also Inter-American Court of Human Rights, Tiu Tojín v. Guatemala, Judgment, 26 November 2008, para. 100. GE.23-13390