UN Human Rights Committee finds Australia violated Torres Strait Islanders' human rights over climate inaction
Views adopted by the Human Rights Committee under article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights (CCPR), concerning communication No. 3624/2019
Summary
The United Nations Human Rights Committee (UNHRC) concluded in September 2022 that Australia breached the rights of Torres Strait Islanders to enjoy their culture, and be free from arbitrary interferences with their private life, family, and home under (as enshrined in articles 27 and 17 of the International Covenant on Civil and Political Rights (ICCPR)). Australia's failure to adequately address the impacts of climate change in the region was the reason for this finding. The UNHRC noted how Torres Strait Islanders' close spiritual connection to, and dependence on, the land was affected.
Facts
Eight Torres Strait Islanders, and six of their children (together, the Authors) complained to the UNHRC that Australia had violated:
Article 2 (which defines the scope of legal obligations State Parties accept under the ICCPR);
Article 6 (the right to life);
Article 17 (the right to be free from arbitrary interferences with private life, family, and home);
Article 24 (the rights of children to protection); and
Article 27 (the right to enjoy culture) (together, the Identified Human Rights).
The complaint noted that Torres Strait Islander residents of the low-lying islands of Boigu, Poruma, Warraber and Masig (including the Authors) – "are among the most vulnerable populations to the impact of climate change".
The Authors submitted that changing weather patterns as a consequence of Australia's inaction would damage their livelihood, culture, and traditional way of life. They further argued that Australia had failed to implement mitigation measures, including an adaptation programme (including seawall upgrades) to ensure the long-term habitability of the islands, and reductions in Australia's greenhouse gas emissions were provided as examples of mitigation measures.
The Authors also identified that the Identified Human Rights are not protected in Australian legislation. In particular, they cited Graham Barclay Oysters v. Ryan [2002] HCA 54 in which the High Court of Australia ruled that state organs do not owe a duty of care for failing to regulate environmental harm. As a result, there are currently no effective domestic remedies to enforce the Identified Human Rights. The Authors approached the UNHRC for this reason.
Australia challenged the alleged violations of the Identified Human Rights. It argued that the Authors' submission was inadmissible, and without merit, and that the Authors had failed to establish that they were victims of the violations. Australia also contested the existence of causal links between its contribution to climate change, the country's efforts to address climate change, and alleged violations of the Identified Human Rights.
Decision
The UNHRC decided that Australia had violated the Authors' rights under Articles 17 and 27, and therefore did not consider the Author's claim regarding Article 24. However, Australian was not found to have breached Article 6, because affirmative measures to protect and relocate the Authors in order to protect their right to life could be implemented over the next 10-15 years. The UNHRC recognised that the Authors' complaint regarding Article 2 was effectively identical to the allegations around Articles 6, 17, 24, and 27. Therefore, it was not considered necessary to examine Australia's alleged violation of Article 2.
Article 17 - Right to be free from arbitrary interferences with private life, family and home
The UNHRC determined that environmental degradation may adversely affect the wellbeing of individuals, and cause foreseeable and serious violations of private life, family life, and the home. The Authors' descriptions of how climate change had affected them influenced the UNHRC's conclusion. The Authors had outlined how flooding destroyed family graves and scattered human remains across the island, and severe storms destroyed food sources, compromising their traditional diet. The Authors also indicated that their most important ceremonies (such as coming-of-age, and initiation, ceremonies) were only culturally meaningful if performed on the community's native lands.
The UNHRC observed that Australia had not explained the delay in seawall construction, or contested allegations concerning the impacts of climate change on the Authors' home life, private life, and family. Furthermore, Australia also failed to provide alternative explanations for the reduction of marine resources used for food, and the loss of crops and fruit trees on the relevant land.
Article 27 - Right to enjoy culture
The UNHRC emphasised the relationship between First Nations Peoples' cultural identity, and the integrity of their traditional lands, seas, and natural resources. The Author's argued that their culture could not be practiced on the mainland. Australia did not contest this assertion.
The UNHRC concluded that Australia could reasonably have foreseen the impacts of climate change on the Authors, and had failed to adopt measures that would have protected the Authors' ability to maintain their traditional way of life, and transmit their culture and traditions to future generations.
Commentary
Does Australia have an obligation to respond pursuant to treaties or international law?
Australia is a party to the ICCPR, and the relevant complaints mechanism (the Optional Protocol). This means that Australia has agreed to comply with the provisions of the ICCPR in good faith, and has accepted the jurisdiction of the UNHRC. The UNHRC's views are not legally binding on Australia because the ICCPR has not been ratified under Australian domestic law. However, they are influential factors to which Australian courts may have regard.
The Australian Government is obligated under Article 2(3)(a) of the ICCPR to provide the complainants with an effective remedy, including full reparation to individuals whose rights have been violated. In this case, the UNHRC has requested that Australia compensate Torres Strait Islanders for the harm suffered, engage in consultations with their communities, take action to secure the safety of Torres Strait Islander communities on their islands, monitor and review the effectiveness of the measures implemented, and resolve any deficiencies as soon as possible.
The UNHRC has also requested the Australian Government publish, present, and disseminate information about measures taken within 180 days of the decision. The Australian Government is reportedly considering the UNHRC's decision, and will respond in due course.
Broader implications
The UNHRC's decision may be noted in climate change litigation in Australia. Pabai Pabai & Guy Paul Kabai v. Commonwealth of Australia is currently before the Federal Court. In this case, native title holders are alleging that the Australian Government has a duty of care to protect Torres Strait Islanders, and their traditions, from the impacts of climate change. The Committee's views may be taken into account in such a case.
The decision could also have implications for international climate change litigation. Committee member Hélène Tigroudja stated that:
This decision marks a significant development as the Committee has created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable to the negative impacts of climate change on the enjoyment of their human rights… States that fail to protect individuals under their jurisdiction from the adverse effects of climate change may be violating their human rights under international law.
The full decision can be read here.