United Nations Human Rights Committee finds that Australia is violating human rights obligations towards Torres Strait Islanders for climate inaction
By Maria Antonia Tigre
On September 23, 2022, the United Nations Human Rights Committee (UNHRC) delivered a landmark decision in Daniel Billy and others v Australia (Torres Strait Islanders Petition) finding that the Australian Government is violating its human rights obligations to the indigenous Torres Strait Islanders through climate change inaction. The eight Torres Strait Islanders are indigenous inhabitants of Boigu, Poruma, Warraber and Masig, four small, low-lying islands in Australia. The decision represents a historical win for indigenous communities worldwide, who have the smallest ecological footprints, yet are significantly and disproportionally impacted by the adverse effects of climate change.
The Torres Strait Islands are a group of over 100 islands off the northern tip of Queensland, between Australia and Papua New Guinea. It is home to a diverse indigenous population comprised of over seven thousand people in 19 communities across 16 of the islands. Each community is distinct, with their own traditions, laws, and customs. Their cultures, societies, and economies rely heavily on their ecosystem. Yet climate change is severely impacting these low-lying island communities. Tides are rising every year, flooding homes, lands, and important cultural sites. Rising sea temperatures are impairing the health of marine environments around the islands, by coral bleaching and ocean acidification. The indigenous people of the Torres Strait Islands are among the most vulnerable populations to the impact of climate change.
In May 2019, a group of eight Torres Strait Islanders and six of their children submitted a complaint against the Australian government to the UNHRC. The was the first legal action grounded in human rights brought by climate-vulnerable inhabitants of low-lying islands against a nation state and alleges that Australia’s insufficient climate action has violated their fundamental human rights under the International Covenant on Civil and Political Rights (ICCPR), specifically Article 6 (the right to life), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 27 (the right to culture). They also claim violations of the rights of the six children under Article 24(1) (right of the child to protective measures).
The Islanders claimed that changes in weather patterns have negatively impacted their livelihood, culture, and traditional way of life. Their minority culture depends on the continued existence and habitability of their islands, as well as the ecological health of surrounding seas. Recent severe flooding caused by tidal surges has destroyed family graves and left human remains scattered across their islands. For these communities, maintaining ancestral graveyards and visiting and communicating with deceased relatives are at the heart of their cultures. In addition, the most important ceremonies, such as coming-of-age and initiation ceremonies, are only culturally meaningful if performed in the community’s native lands. The Islanders also argued that changes in climate with heavy rainfall and storms have degraded the land and trees and consequently reduced the amount of food available from traditional fishing and farming. Sea level rise has caused saltwater to intrude into the islands’ soil, such that areas previously used for traditional gardening can no longer be cultivated. Precipitation, temperature, and monsoon seasons have changed, making it harder for them to pass on their traditional ecological knowledge. The Torres Strait Regional Authority (TSRA), a government body, has stated that even small increases in sea level due to climate change will have an immense impact on Torres Strait communities, potentially threatening their viability, and “large increases would result in several Torres Strait islands being completely inundated and uninhabitable.”
The complaint argues these violations stem from insufficient climate mitigation targets, as well as a general failure to cease to promote fossil fuel extraction and use. Australia has one of the world’s highest per capita GHG emissions and has failed to commit to increased emissions reductions in recent years. Furthermore, the Islanders argue that the State has failed to adopt adaptation measures, despite numerous requests for assistance and funding by or on behalf of the islanders.
Developments of the case (see a detailed timeline here)
In February 2020, the Government committed $25 million in climate adaptation measures for the region, including the construction of seawalls, repairing and maintain jetties and re-establish ferry services. However, Australia generally maintained that the communication is inadmissible and lacks merit. Australia argued that the international legal framework of climate change law is immaterial to the interpretation of the ICCPR because they are outside of its scope. Moreover, the authors have not shown any meaningful causation or connection between the alleged violations of their rights and the State party’s measures or alleged failure to take measures. Relying on the Committee’s position in Teitiota v. New Zealand, the State asserted that the authors invoke a risk that has not yet materialized. It argued that the Government was already doing enough on climate change and that future climate impacts were too uncertain to require further action. The Government further denied the human rights impacts of climate change on the Torres Strait Islander people and claimed that the complaint concerned future rather than present risks. Australia further argued that because their country is not the main or only contributor to global warming, the effects of climate change on its citizens are not its legal responsibility under human rights law.
In analyzing the admissibility of the case, the UNHRC ruled that due to the lack of domestic human rights law in Australia, there was no reasonable prospect of redress available to the authors. The High Court of Australia had previously ruled that state organs do not owe a duty of care for failing to regulate environmental harm (Graham Barclay Oysters v. Ryan  HCA 54). Earlier this year, the Federal Court of Australia found in Sharma and Others v. Minister for the Environment that the Minister for the Environment did not have a duty of care to young people to mitigate climate harm (see here). Australia had argued that the Committee was not competent to determine compliance with international climate law. However, the Committee found that it was appropriate to consider violations of the Paris Agreement and other international treaties under the ICCPR. This provides people worldwide with an important avenue for redress of violations of human rights related to climate change.
Human Rights Violations
In analyzing the complaint, the Committee contemplated whether Australia committed a violation of human rights, where the harm to the individual allegedly resulted from its failure to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory. The Committee found that Australia’s failure to adequately protect indigenous Torres Islanders against adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family, and home. As such, the Committee noted, with respect to current predicaments, that “the authors – as members of peoples who are the longstanding inhabitants of traditional lands consisting of small, low-lying islands that presumably offer scant opportunities for safe internal relocation – are highly exposed to adverse climate change impacts. It is uncontested that the authors’ lives and cultures are highly dependent on the availability of the limited natural resources to which they have access, and on the predictability of the natural phenomena that surround them.”
Right to a life with dignity
First, the Committee assessed whether there was a violation of the islanders’ right to a life with dignity (art. 6), owing to Australia’s failure to perform its duty to provide adaptation and mitigation measures to address climate change impacts that adversely affect their lives, including their way of life. The right requires positive obligations from States to protect citizens from threats that prevent the ability of present and future generations to enjoy the right to life, including adverse climate change impacts, environmental degradation, and unsustainable development. The Committee recalled that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change. With respect to the argument that the island will become inhabitable, the Committee noted how it may expose individuals to a violation of article 6. If the country becomes submerged, conditions of life will be incompatible with the right to life with dignity. However, due to a series of adaptation and mitigation measures already in place, it did not find a violation of article 6 of the Covenant. Furthermore, there was no “real and foreseeable risk” (the standard applied in Teitiota) as of yet. Several Committee Members wrote dissents on the majority’s decision that there was no violation of the right to life. For example, Committee Members Arif Bulkan, Marcia V. J. Kran, and Vasilka Sancin found that there is sufficient evidence of a “reasonable foreseeable threat” constituting a violation of article 6 based on impacts already felt by the islanders. Committee Member Duncan Laki Muhumuza also interpreted there to be a violation of the right to life since the State party has failed to prevent a foreseeable loss of life from the impact of climate change by not reducing GHG emissions and continuing to promote fossil fuel extraction and use. He further noted that any further delays or non-action in mitigation measures by the State Party will continue to risk the lives of the citizens.
Right to private, family, and home life
In assessing a violation of their right to privacy, family, and home life (art. 17), the Committee considered the erosion and flooding of the islands. The Committee recalled that “when environmental damage threatens disruption to privacy, family and the home, States parties must prevent serious interference with the privacy, family, and home of individuals under their jurisdiction.” The islanders’ dependence on fish and other marine resources, land crops, trees, and the overall health of the surrounding ecosystem, which are essential to the traditional indigenous way of life, requires States to adopt positive measures to ensure their rights are protected. Despite Australia’s extensive measures regarding the Torres Strait Islands, the State has failed to construct a series of adaptation measures requested by the islanders or address the concerns over lack of food. The Committee considered the Islanders’ spiritual connection with their traditional lands and the dependence of their cultural integrity on the health of their surrounding ecosystems. It, therefore, found that Australia’s failure to take timely and adequate measures to protect the indigenous Islanders against adverse climate change impacts and secure the communities’ safe existence on their islands led to the violation of their rights to private life, family, and home.
Right of minorities to enjoy their own culture and to be free from arbitrary interference
With respect to the protection of the indigenous traditional way of life (art. 27), which is closely associated with territory and the use of its resources, the Committee assessed the assertion that the islanders’ ability to maintain their culture has already been impaired by climate change. For example, climate change has impacted traditional fishing and farming, and cultural ceremonies. The Committee found that the State party’s failure to adopt timely and adequate adaptation measures to protect the islanders’ collective ability to maintain their traditional way of life, transmit to their children and future generations their culture and traditions, and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. The Committee further recalled that “article 27 of the Covenant, interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples, enshrines the inalienable right of indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity. Although the rights protected under article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language or religion.”
In a concurring opinion, Committee Member Gentian Zyberi noted that States have an individual responsibility to act with due diligence in taking mitigation and adaptation action, based on the best available science, relative to the risk at stake and their capacity to address it, despite the shared responsibility of States to address climate change. A higher standard of due diligence applies in respect of those States with significant total emissions or very high per capita emissions (whether past or current emissions), such as Australia, given the greater burden that their emissions place on the global climate system, as well as to States with higher capacities to take high ambitious mitigation action. The obligation to mitigate GHG emissions is, in the Committee Member’s opinion, clearly linked to the right of the islanders to enjoy their minority culture, since, if no effective mitigation actions are undertaken in a timely manner, adaptation will eventually become impossible.
The Committee asked Australia to compensate the indigenous Islanders for the harm suffered, engage in meaningful consultations with their communities to assess their needs, and take all necessary measures to continue to secure the communities’ safe existence on their respective islands.
Significance of the Decision for International Law
The decision has set several ground-breaking precedents for international human rights law and is significant for pending and future rights-based climate litigation cases. First, it represents the first time that a U.N. body has found a country has violated international human rights law through inadequate climate policy, adding strong support to the idea that human rights law applies to climate harm. Second, it is the first time that indigenous peoples’ right to culture has been found to be at risk from climate impacts. The protection of vulnerable groups is significant, and the case opens the door for further legal actions and compensation claims by other climate-affected people. Third, the Committee recognized that climate change was currently impacting the claimants’ daily lives and that, to the extent that their rights are being violated, and that Australia’s poor climate record is a violation of their right to family life and right to culture under the ICCPR. The recognition of Australia’s responsibility further indicates – as several decisions at the national level have also – that States can no longer hide behind the drop in the ocean argument and fail to take charge of their own responsibility for climate mitigation. The decision also specifically called on Australia to adopt significant climate adaptation measures. While the majority found no violation of the right to life, the arguments raised in the dissent are worth paying attention to, as these can be further developed in future cases, where the facts might be more settled for the establishment of a violation of the right to life. For Australia, the government must now take decisive steps to protect the human rights of the Torres Strait islanders, investing in adaptation measures and drastically reducing overall emissions. The Australian government can no longer ignore the fact that climate change is a human rights issue that is taking effect now. The Committee’s request for compensation of the claimants further develops the concept of loss and damage, something that is often neglected in Australian – and Global North countries in general – climate discourse.