CCPR/C/137/D/3585/2019 3.9 The author claims that the failure of the State party to provide the Wunna Nyiyaparli with legal aid to better understand the complexity of native title proceedings, a complexity already noticed by the Committee,16 amounted to a violation of article 14 (1) of the Covenant, read alone and in conjunction with article 2 (3). As unrepresented litigants, the Wunna Nyiyaparli: (a) were not able to obtain proper guidance from the Court as to the nature of the separate question proceedings; (b) could not take actions, because of misunderstandings of laws and facts, that might have prevented the Court from reaching its decision to declare the Wunna Nyiyaparli traditional territory as pertaining to another applicant; and (c) were not given the resources or the time to properly test the evidence advanced by the other party. On this last point, the author recalls that, according to the Committee, the failure of a State party to allow parties 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.17 3.10 The author claims that the violation of article 14 (1) of the Covenant arises from the failure of the State party to even consider, for the separate question trial, the evidence filed in the other trial (the native title determination), which proved the origin of the Wunna Nyiyaparli as Nyiyaparli, as well as the failure to allow an adjournment in the separate question trial for the Wunna Nyiyaparli to properly file the evidence, once again, the Court having established that it was necessary to file it twice (see para. 2.19 above). Such decision was arbitrary, regardless of the lateness of their request, in the light of the Committee’s jurisprudence that tribunals that are not constrained by any prescribed time limit for the submission of evidence violate article 14 (1) by failing to accept new evidence close to hearings.18 The author recalls that, according to the European Court of Human Rights, “each party must be afforded a reasonable opportunity to present his case”.19 3.11 Recalling the Committee’s jurisprudence that failure to allow access to courts can amount to a violation of article 14 (1) of the Covenant,20 the author claims that the rights of the Wunna Nyiyaparli were also violated due to the State party’s failure to allow them to appeal the consent determination of native title made in favour of another applicant. 3.12 The author also claims that the State party’s failure to provide the Wunna Nyiyaparli with an effective remedy and the absence of a forum in which they can request an examination of all the violations are constitutive of a violation of article 2 (3) of the Covenant. 3.13 The author alleges that the right to self-determination, in part related in the context of Indigenous Peoples to their close connection to their traditional territories, should be taken into consideration when examining their claims. She refers to the Committee’s jurisprudence21 that the provisions of article 1 may be relevant to a determination of whether other rights contained in the Covenant have been violated. The author notes that the InterAmerican Court of Human Rights has found that substantive Indigenous rights are underpinned by the right to self-determination, as set out in article 1 of the Covenant.22 3.14 The author seeks the removal of all legal effects of the native title determination made in favour of another Indigenous group. She requests the Court to continue the proceedings on the native title claim of the Wunna Nyiyaparli, ensuring their effective participation. 3.15 The author submits that, should a national court decide in favour of the claim of the Wunna Nyiyaparli, the State party must provide just, full and timely reparations, including 16 17 18 19 20 21 22 8 See CCPR/C/AUS/CO/5 and CCPR/C/AUS/CO/6. Äärelä and Näkkäläjärvi v. Finland (CCPR/C/73/D/779/1997), para. 7.4. Jansen-Gielen v. Netherlands (CCPR/C/71/D/846/1999), para. 8.2; and Vojnović et al. v. Croatia (CCPR/C/95/D/1510/2006), para. 8.3. Andrejeva v. Latvia, Application No. 55707/00, Judgment, 18 February 2009, para. 96. Oló Bahamonde v. Equatorial Guinea, communication No. 486/1991, para. 10; and Sankara et al. v. Burkina Faso (CCPR/C/86/D/1159/2003), para. 13. Mahuika et al. v. New Zealand (CCPR/C/70/D/547/1993), para. 9.2; and Gillot et al. v. France (CCPR/C/75/D/932/2000), para. 13.4. Inter-American Court of Human Rights, Saramaka People v. Suriname, Judgment, 28 November 2007, para. 93. GE.23-13390