The Wunna Nyiyaparli people of Western Australia’s eastern Pilbara region are being shafted by the federal government to placate mining interests. Labor is defying a UN Human Rights Committee (CCPR) order in mid-2023 to provide them with “an effective and enforceable remedy”.
Wunna Nyiyaparli elder Ailsa Roy began the process of challenging the legitimacy of mining operations on Country, via the National Native Title Tribunal in 2012, which led to a Federal Court hearing in 2016. That found that the Wunna Nyiyaparli have no native title claim as they are not a people separate from the broader Nyiyaparli language group, despite evidence to the contrary.
The Wunna Nyiyaparli continue to live largely in accordance with their traditional laws: their culture is inextricably linked to Country. Their ability to live, hunt and fish on Country is essential to their preservation as a people.
Yet, mining corporations have blocked the Wunna Nyiyaparli access to Country; they are being threatened with trespass.
As Wunna Nyiyaparli ways of being have been intimately linked to Wunna Nyiyaparli Country for tens of thousands of years, breaking this relationship threatens the very existence of the Wunna Nyiyaparli people.
Roy is continuing to campaign for her people’s rights, 20 months since the CCPR provided the Australian Attorney General’s Department with 180 days to rectify the situation. She stresses that her people have been “defrauded and denied justice” in respect of their “economic base” and all the chief lawmaker has done is write to the UN to deny the validity of its findings.
Mining interests favoured
“Irrespective of the Australian Attorney General’s response to the United Nations, the Wunna Nyiyaparli people have rights,” Roy said. “We have a history and we remain an oppressed people denied our land base and self-determination.”
“The United Nations complaint did not have any impact on Australia,” Roy added. “Australia cannot change what they don’t acknowledge.”
The CCPR determined on July 10, 2023, that Australia must “provide an effective and enforceable remedy” within 180 days, or it would, as it is now, be in violation of the International Covenant on Civil and Political Rights (ICCPR).
The government was encouraged to disseminate the news of this decision, which it failed to do.
Gina Rinehart’s Hancock Prospecting runs the Roy Hill mine on Wunna Nyiyaparli Country, while Andrew “Twiggy” Forrest’s Fortescue Metals Group operates the Christmas Creek and Cloudbreak mines on the larger claim of the Nyiyaparli people.
These lands are rich in iron ore and Rinehart’s Roy Hill mine almost tripled its dividends over the 2023-24 financial year.
“Fortescue and Hancock failed to negotiate with certainty the right people for right country, which makes mining on our sovereign land illegal, as it is against the law to profit from stolen property,” Roy said.
The Wunna Nyiyaparli native title claim was lodged with the NNTT in 2012. It sits within the broader 1998 native title claim of the Nyiyaparli people.
Roy made the claim to prevent further mining on her people’s land and it successfully passed the registration test, as it was recognised to be in accordance with Western Desert traditional laws and custom.
Yet, two Indigenous land use agreements (ILUAs) lodged with the NNTT six months after the Wunna Nyiyaparli claim was lodged, disputed the latter’s legitimacy. The Federal Court determined in 2015 it would consider the two claims alongside each other.
The court also decided it would deliberate on a second question: whether the Wunna Nyiyaparli are really Nyiyaparli people.
The Wunna Nyiyaparli did not give consent and told their legal representative. But not long afterwards, the Wunna Nyiyaparli’s original lawyer withdrew their services.
Three unrepresented Wunna Nyiyaparli people then showed up to Federal Court on July 11, 2016, expecting to argue their native title claim, even though the court was set to consider the heritage question as the court’s communications with the Wunna Nyiyaparli had broken down.
The Wunna Nyiyaparli representatives mistakenly turned up prepared to argue their claim and not the question of heritage, which the court was determining.
Justice Richard White decided to proceed, finding the question in the negative. This voided the Wunna Nyiyaparli native title claim as their three representatives looked on, denied the right participate.
“The Wunna Nyiyaparli people are denied justice. Our mob are denied compensation for loss and damages,” Roy said.
“Under section 10 of the Racial Discrimination Act 1975, it is illegal to sign for someone else’s property and it is also embedded in Aboriginal culture.”
Justice denied
Roy said their lawyer Scott Calnan is seeking support to make this matter an international concern.
“As an occupying government, Australia is in denial of their own human right failings and genocide.
“We are still fighting for our recognition and our rights,” Roy said. “We are putting our case together to prove our grandfather’s legacy and history remains intact. We will be seeking justice, in light of the recent landmark victory of the Gumatj people,” a reference to the Traditional owners, who were recently successful in seeking compensation over bauxite mining of their land in the Gove peninsula.
Roy points to the Wunna Nyiyaparli link to Country, prior to colonisation and through William Coffin’s lineage. She has legal and anthropological documentation setting out her people’s connection and ability to “speak for” the land, via her grandfather William Coffin.
However, this was all excluded from court proceedings because the Wunna Nyiyaparli were left unrepresented, unprepared and unable to have their day in court.
The UN Human Rights Committee’s July 10, 2023 determination in response to the April 2, 2019 Wunna Nyiyaparli complaint gave the Australian government 180 days to provide a remedy. It should have allowed the Wunna Nyiyaparli their rightful day in court, where they could be represented and prepared to argue their rightful claim to their own land.
Fight for Country continues
“The Wunna Nyiyaparli people were recognised as having exclusive rights over the Roy Hill area and never signed away those rights,” Roy said. “We have been prevented from accessing Country … while watching others get rich from our land.”
“We have been subjected to an exhaustive and humiliating legal process. Our sovereign rights predate Native Title, but the Wunna Nyiyaparli are unable to camp, fish and carry out cultural business on Country, nor can we grant leases, licenses or borrow any money against our lands.”
Roy said the inconsistencies between the state-based Torrens title land tenure systems and the national native title system is a key reason why the Wunna Nyiyaparli are being blocked from being able to develop their own Country. She said the relative weakness of the Native Title Act 1993 meant that her people’s position had been “severely diminished”.
“We feel cheated, defrauded, disappointed, disgusted, denied, disrespected, demoralised, disenfranchised and discarded,” Roy said.
[Paul Gregoire writes for Sydney Criminal Lawyers where this article was first published.]