CCPR/C/137/D/3585/2019 2.4 On 7 May 2011, the community held a meeting and decided to file an application to have native title to its traditional territory recognized under the Native Title Act. The author clarifies that the State party has awarded native title to entire Indigenous Peoples that contain smaller cultural groups. When this occurs, the larger group does not speak for the “country” of the smaller landholding groups, but rather facilitates the obtaining of the native title that secures the ability of such smaller groups to speak for their own “country”. Native title has also been awarded to groups smaller than the whole language group itself; it is this latter course of action that the Wunna Nyiyaparli pursued. 2.5 In the application filed on 27 January 2012 before the Federal Court of Australia, the Wunna Nyiyaparli clarified that, to the extent that any minerals, petroleum or gas within the area of the claim were wholly owned by the Crown in the right of the Commonwealth or the State of Western Australia, they were not claimed by the applicants. The rights and interests claimed by the Wunna Nyiyaparli were the rights to access and live in the area, to make decisions about the use and enjoyment of the area and its resources, to control the access of others to the area, to maintain and protect places of importance under traditional laws, customs and practices, and to manage, conserve and look after the land, waters and resources. Under the laws and customs of the Western Desert Aboriginal People, this right to “speak for” the application area is roughly equivalent to a right of exclusive possession under English land law. Other Nyiyaparli people have standing permission to access and live in the Roy Hill Pastoral Lease and to use and enjoy its resources; however, this standing permission confers on them privileges more than rights, as the Wunna Nyiyaparli maintain the right to withdraw that permission. 2.6 On 30 March 2012, the National Native Title Tribunal placed the claim of the Wunna Nyiyaparli on the Register of Native Title Claims. In its examination of the case, the Tribunal had regard, in addition to the information contained in the claim, to geospatial assessments and to its own searches. A submission from the Yamatji Marlpa Aboriginal Corporation6 opposing the registration, stating that the wider Nyiyaparli people did not consent to the filing of the application, was not given weight by the Tribunal, which considered that the situation of the Wunna Nyiyaparli was different to the situation in another case mentioned by the Corporation, in which the application had been brought by only a few members of the peoples holding rights in the claim area. In the current case, the traditional laws and customs of the Western Desert recognize the Wunna Nyiyaparli as the landholding group of the Nyiyaparli people that, alone, possesses the rights to and interests on the Roy Hill Pastoral Lease. According to the Tribunal, the application included therefore that any person who was part of the Wunna Nyiyaparli was entitled to file, alone, the application. 2.7 According to the author, the registration test decision meant that the Wunna Nyiyaparli had a prima facie valid native title claim with a chance of success if it was fully argued before the Federal Court. Indeed, section 190 B of the Native Title Act sets out conditions that test the particular merits of a claim and section 190 C sets out procedural conditions. In particular, on the merits, the National Native Title Tribunal found that sufficient factual material strongly supported that: (a) in accordance with Western Desert traditional laws and customs, the ancestors of the Wunna Nyiyaparli were Nyiyaparli; (b) the Wunna Nyiyaparli had – as did their predecessors – an association with the claimed lands, on which they continued to live a largely traditional life through their mythology and rituals; (c) traditional Wunna Nyiyaparli laws were acknowledged and customs were observed (recalling that, according to the High Court, a law or custom is traditional when it has been passed from generation to generation, usually by word of mouth and common practice, when the origins of the content of the law or custom concerned can be found in the normative rules of a society that existed before the assertion of sovereignty by the Crown, when the normative system has had a continuous existence and vitality since sovereignty, and when the relevant society’s descendants have acknowledged the laws and observed the customs since sovereignty without substantial interruption); and (d) the Wunna Nyiyaparli had continued to treat the lands claimed in accordance with those traditional laws and customs. 2.8 This registration, according to the Native Title Act, gave to the Wunna Nyiyaparli rights regarding the use of the lands claimed by third parties. As a consequence, the 6 GE.23-13390 See para. 3.8 below. 3