CCPR/C/137/D/3585/2019 participate in decisions affecting them and that the article applies to proceedings before courts in which it is decided whether Indigenous claimants have interests in lands that they have traditionally occupied and to which they have cultural and religious connections. 3.6 The author contends that the scope of article 27 of the Covenant should also be interpreted in line with article 27 of the United Nations Declaration on the Rights of Indigenous Peoples,11 in order to require that any process adjudicating Indigenous land rights must be established and implemented in conjunction with the Indigenous Peoples concerned, and must be fair and open. An indication of what such fairness might require is given by the Inter-American Commission on Human Rights: The insufficiency of this process was augmented by the fact that … the issue of extinguishment was not litigated before … the Indian Claims Commission [which] did not conduct an independent review of historical and other evidence. … In light of the contentions by the Danns that they have continued to occupy and use [their] ancestral lands …, it cannot be said that the Danns’ claims to property rights in the Western Shoshone ancestral lands were determined through an effective and fair process.12 3.7 The author claims that the State party violated the rights of the Wunna Nyiyaparli under article 26 of the Covenant, recalling that this article is not limited to the nondiscriminatory provision of rights contained in the Covenant but applies to prohibiting discrimination in any field regulated and protected by public authorities. 13 She claims discrimination on the ground of property rights, recalling that the inter-American human rights system has found that lands possessed by Indigenous Peoples pursuant to their traditional customs are property within the meaning of the American Convention on Human Rights. In particular, in Mary and Carrie Dann v. United States, the Inter-American Commission on Human Rights found that the victims had “not been afforded equal treatment under the law respecting the determination of their property” because “any property rights that the Danns may have asserted to the Western Shoshone ancestral lands were held by the [Indian Claims Commission] to have been ‘extinguished’ through proceedings in which the Danns were not effectively represented and where the circumstances of this alleged extinguishment were never actually litigated”.14 3.8 In particular, the author submits that the Wunna Nyiyaparli experienced unjustified differential treatment in the determination of their rights to traditional lands on the following grounds: (a) by having had to litigate in two separate trials on the same matter (their native title claim and the separate question), contrary to the other Nyiyaparli applicant, the proceedings on the separate question having subjected them to a higher standard of proof compared with the other applicant; (b) by the Court’s failure to allow the consideration of their evidence in the separate question trial; and (c) by having failed to provide them with legal representation, contrary to the other party. On this last point, the author clarifies that Indigenous Peoples claiming land rights are not eligible for legal aid funding through the Western Australian legal aid system, unlike parties in other types of legal actions. Instead, funding for native title litigation is provided by representatives from representative Aboriginal/Torres Strait Islander bodies (a national network of organizations).15 In carrying out their functions, such bodies, in matters of competing claims over same lands, have funded only one claimant because they are required to minimize overlapping applications. The Wunna Nyiyaparli sought funding from the representative body in their region (Yamatji Marlpa Aboriginal Corporation) twice, in 2010 and in 2012, to no avail, as that body had funded the opposing party. 11 12 13 14 15 GE.23-13390 “States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources”. Inter-American Commission on Human Rights, Mary and Carrie Dann v. United States, para. 142. Human Rights Committee, Broeks. v. Netherlands, communication No. 172/1984, para. 12.3. Paras. 144 and 145. Recognized under section 203 AD of the Native Title Act. 7