CCPR/C/137/D/3585/2019 account contemporary circumstances,40 States are bound to adopt measures to guarantee and give legal certainty to Indigenous Peoples’ rights in relation to ownership of their traditional territories through the establishment of such mechanisms and procedures for delimitation, demarcation and titling in accordance with their customary law, values and customs. 41 8.15 Accordingly, such administrative or judicial procedures must respond to the requirements of judicial guarantees and effectiveness, be accessible and simple, be conducted with respect for the right to a fair trial, be free of unnecessary formalisms or requirements that undermine their prompt development, be free from excessive legal rigours or high costs, imply a substantial independent review of the historical or other evidence that can allow for a decision on territorial claims over ancestral lands in a substantive manner and not on other grounds such as arbitrary stipulations or negotiation, and provide for the decisions to be subject to judicial review.42 8.16 The Committee considers that these provisions on the evolution of Indigenous Peoples’ rights, in combination with article 14 (1) of the Covenant, place the State party under the obligation to provide due process guarantees to the Wunna Nyiyaparli in their claim for traditional territory. The Committee observes that the State party provided only two weeks to the Wunna Nyiyaparli to prepare a hearing on the separate question (see para. 2.14 above), not respecting Indigenous Peoples’ timelines to meet among themselves to prepare the trial. The Committee also observes that, contrary to the other party, the Wunna Nyiyaparli were not legally represented, after having been denied funding for legal aid, and had difficulties in accessing the Internet to allow access to information about the Court’s orders (see paras. 2.17 and 5.1 above), which the State party considers not its responsibility (see para. 6.3 above). The Committee further observes that the Federal Court, in its appeal decision, recognized that the Wunna Nyiyaparli might have been confused as to the procedural orders. The Committee considers that, in the absence of a response from the Wunna Nyiyaparli to the Court’s emails, given their difficulty in accessing the Internet, the fact that they were without legal representation and as they were confused regarding the proceedings, the State party failed to take measures to ensure that they understood the implications of the proceedings and could effectively participate in such proceedings. The Committee considers, moreover, that, in the circumstances, owing to the absence of legal counselling and the important implications of the separate question proceedings for the exercise of their fundamental rights to traditional territories, the Court’s decision not to allow the Wunna Nyiyaparli to adduce evidence and no to adjourn the proceedings was arbitrary and violated the principles of fair trial and equality of arms. In the light of all the above, the Committee considers that the facts before it amount to a violation of article 14 (1), read alone and in conjunction with article 2 (3) of the Covenant. 9. Acting under article 5 (4) of the Optional Protocol, the Committee is of the view that the information before it discloses a violation by the State party of articles 14 (1), read alone and in conjunction with article 2 (3), and 27 of the Covenant, read in the light of article 1. 10. Pursuant to article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to provide full reparation to persons whose rights have been violated. Accordingly, the State party should, inter alia: (a) reconsider the Wunna Nyiyaparli’s native title claim and ensure their effective participation in the proceedings in order to carry out the delimitation, demarcation and titling of their 40 41 42 GE.23-13390 Judge v. Canada (CCPR/C/78/D/829/1998), para 10.3; European Court of Human Rights, Tyrer v. The United Kingdom, Application No. 5856/72, Judgment, 25 April 1978, para. 31; and Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, para. 146. United Nations Declaration on the Rights of Indigenous Peoples, arts. 27 and 40; Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua, para. 164; African Human Rights Commission, Centre for Minority Rights Development and Minority Rights Group International (on behalf of Endorois Welfare Council) v. Kenya; and African Court on Human and Peoples’ Rights, African Commission on Human and Peoples’ Rights v. Republic of Kenya. Inter-American Court of Human Rights, Yakye Axa Indigenous Community v. Paraguay, para. 102. See also Sawhoyamaxa Indigenous Community v. Paraguay, paras. 82 and 109; and Inter-American Commission on Human Rights, Indigenous and Tribal People’s Rights over their Ancestral Lands and Natural Resources, paras. 335, 341, 346, 350 and 359 and footnote 277. 15