Case Overview: Torres Strait Islanders and Climate Change
Jane Fallis-Cooper, 3L, Senior Forum Editor
On September 22, 2022, the United Nations Human Rights Committee (UNHCR) released CCPR/C/135/D/3624/2019, a landmark judgement in climate change law. The UNHCR found that the Government of Australia’s inaction on climate change violated the rights of Torres Strait Islanders to (1) enjoy their culture and (2) be free from arbitrary interferences with their private and family life under the International Covenant on Civil and Political Rights (ICCPR). The UNHCR is the expert body that monitors the implementation of the ICCPR, to which Australia is a party. This is the first UNHCR decision that has found a violation of the ICCPR on the basis of climate change inaction, and many advocates and Committee members have lauded this decision, saying that it has “created a pathway for individuals to assert claims where national systems have failed to take appropriate measures to protect those most vulnerable.” The decision opens an international pathway for redress, which is especially relevant in jurisdictions, such as Australia and Canada, that do not recognize an explicit right to a healthy environment.
Torres Strait Islanders living on the four islands of Boigu, Masig, Warraber, and Poruma brought the case. Torres Strait Islanders are Indigenous Melanesian people, who have a distinct culture and identity rooted in their lands. Their land is in the Australian state of Queensland, and the Islanders are governed by the Torres Strait Regional Authority but have recognized “Native Title” to their lands. The Torres Strait Islanders contribute little to climate change, yet they face the brunt of the ensuing climate catastrophe. Their traditional ways of life, which include governance according to a totemic clan system and “Ailan Kastom” (island customs), face an existential threat from increasing sea levels. For instance, claimant Yessie Mosby alleged that the rising sea level had disturbed his great-grandmother’s remains. Local fisherman and plaintiff Joseph Billy said, “Last five year[s], every year, I have moved my shed back from the beach another few metres. We used to have a road that went all around the island but now it is broken. We will lose our land eventually.” The island of Boigu lies barely a metre above sea level, with a maximum elevation of three metres.
The Torres Strait Islanders first brought the case against Australia to the UNHCR in 2019, after decades of Australian inaction. Client Earth, a non-profit legal firm, supported the litigation. The UNHCR considered the claims based on Articles 2, 6, 17, 24(1), and 27 of the ICCPR.
United Nations Human Rights Committee: Deliberations and Remedy
(1) The UNHCR found that Australia violated Articles 17 and 27 of the ICCPR.
The Committee found a violation of Article 17, which protects against arbitrary interference with privacy, family, home, or correspondence, and attacks on honour and reputation. The Islanders claimed that Australia’s failure to protect the Islanders against the impact of climate change interfered with their private and family life. The Islanders pointed to the “prospect of having to abandon their homes within the lifetimes of the community members currently alive” due to rising sea levels. The Committee found that Australia violated the claimants’ rights under this article by “failing to discharge its positive obligation to implement adequate adaptation measures to protect the [claimants’] home, private life and family.” The UNHCR considered the Islanders’ cultural dependence on marine and land resources, the impact of flooding on villages and ancestral burial lands (such as Yessie Mosby’s experiences), and the seriousness of the situation as evidenced by physical and mental harms.
The Committee also found a violation based on Article 27, which protects the rights of ethnic, religious, and linguistic minorities to enjoy their own culture, practice their own religion, and use their own language. In this case, the claimants successfully tied their rights to culture to the necessity of having their land base. The UNHCR specified that “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.” Thus, the Committee found that climate change has impaired the ability of the Torres Strait Islanders to maintain their culture.
(2) The UNHCR found that Australia did not violate articles 2(1), 6, and 24(1)
The UNHCR dismissed the claim regarding Article 2(1), which includes the duty of the state to ensure that all individuals have access to the rights laid out in the convention without discrimination. The claim was found to be inadmissible for two separate reasons. First, Article 2 only gives rise to a “general obligation,” but not a distinct claim in law. Additionally, as Article 2 concerns a procedural right (and is intrinsically tied to the substantive rights in the convention), the Committee decided that “access to rights” were better addressed by assessing the substantive articles on their merits.
The Committee also dismissed the claim based on Article 6, the right to life. While the Torres Strait Islanders asserted that Australia “failed to prevent a foreseeable loss of life from the impacts of climate change, and protect the [claimants’] right to life with dignity,” this allegation was rejected on the basis that Australia was engaged in efforts to combat climate-related degradation. These efforts included coastal mitigation works, the construction of a 1,022-metre-long wave return wall, and the upgrading of stormwater drainage infrastructure. As per the UNHCR, “the Committee is not in a position to conclude that the adaptation measures taken by the State party would be insufficient so as to represent a direct threat to the [claimants’] right to life with dignity.”
Finally, Article 24(1), which protects the rights of children, was not considered. The Committee found that there was no need to fully assess this right, as they had already found rights violations based on related articles 17 and 27.
(3) Remedy
As the UNHCR found violations based on articles 17 and 27, Australia is obliged to provide an effective remedy, which includes: (1) full reparations to individuals whose ICCPR rights have been violated; (2) adequate compensation to the claimants for harm suffered; (3) engagement in meaningful consultations with the claimants’ communities in order to conduct needs assessment; (4) implementation of measures necessary to secure the communities’ continued safe existence on their respective islands; (5) a review of the effectiveness of the measures implemented and resolution of any deficiencies as soon as practicable; and (6) taking steps to prevent similar violations in the future.
The UNHCR has asked for information about Australia’s plan to satisfy these conditions within 180 days. While the decision cannot be considered binding, it has significant persuasive force and sets a strong international precedent. It remains to be seen how Australia will respond to the decision.
Where do we go from here?
Rights-based litigation, which centres around claims based on the right to a healthy environment, has been an increasingly important strategy in climate advocacy. Since the landmark Paris Agreement in 2015, the proportion of rights-based climate change cases have been increasing rapidly, and now represent about 91 per cent of climate cases outside of the United States. This increase has been instrumental both in increasing climate movement visibility and prompting changes at the state level. For example, such cases have been cited as incentivizing discussions around climate compensation, which was affirmed for the first time at the 2022 United Nations Climate Change Conference in the form of a loss and damages fund.
Rights-based cases have had particular significance due to their success not only in jurisdictions with a constitutional or legislative right to a healthy environment, but also in jurisdictions without it, as in this case. For example, in Urgenda Foundation v State of the Netherlands, [2015] HAZA C/09/00456689, the Dutch Supreme Court found that the Netherlands had violated two articles of the European Convention on Human Rights based on climate inaction: the right to private life, family life, home, and correspondence, and the right to life. Other cases have similarly been successful in jurisdictions that previously lacked a right, such as India and Uganda.
However, the case of the Torres Strait Islanders marks the first time that the UNHCR, an international body, found a violation of rights based on climate inaction. This not only builds upon the rich litigation history of similar domestic actions in states across the globe, but also opens an international avenue for redress. This may prove particularly important in regions without adequate internal legal mechanisms. For example, in Canada, no rights-based climate change case has succeeded yet. However, recent cases suggest progress. For example, Mathur v Ontario, 2020 ONSC 6916 is the first domestic case of its kind to reach a full hearing on the merits. The plaintiffs in Mathur allege that Ontario’s greenhouse gas reduction target is too conservative, violating the rights of Ontario youth and future generations under sections 7 and 15 of the Charter of Rights and Freedoms.
Should the plaintiffs in Mathur be unsuccessful, they could explore international avenues, building on the UNHCR decision. Like Australia, Canada is a party to the ICCPR, and Indigenous Nations facing current harm from climate change may similarly have a successful argument based on the Canadian government’s inaction on climate change. For instance, like the Torres Strait Islanders, the Inuit and other peoples Indigenous to the Arctic region have already reported “vanishing historical sites, gravesite erosions, and community disruption and relocation.” This may give rise to an Article 17 claim based on arbitrary interference with privacy, family, and home. Likewise, an Article 27 claim may be viable, as longer sea ice–free seasons continue to change the ability to live on traditional lands.
While there is far more to do to combat climate change, the UNHCR decision is an important recognition of the power of human rights arguments and international legal pathways for redress. To quote claimant Yessie Mosby, “I know that our ancestors are rejoicing knowing that Torres Strait Islander voices are being heard throughout the world through this landmark case. […] This win gives us hope that we can protect our island homes, culture and traditions for our kids and future generations to come.”