Daniel Billy and others v Australia (Torres Strait Islanders Petition)
Jurisdiction: United Nations (Australia)
Type of claim: Petition to the UN Human Rights Committee
Summary of result: Violation of human rights confirmed
Judgment final: Yes
Court instances:
| Adjudicating body | Type of Decision | Summary of Decision |
|
United Nations Human Rights Committee Decision of 23 Sept 2022 CCPR/C/135?D/3624/2019 |
Human Rights Violation | Australian government guilty of human rights violations due to inaction addressing climate change. |
Source of claims: Human Rights Law (The International Covenant on Civil and Political Rights, and the Optional Protocol)
Summary of Decision
Introduction
his petition involves the first legal complaint against the Australian government alleging it violated human rights of the Torres Strait Islanders by failing to address climate change. In particular, the claim focused on the effects of rising tides on the islands of the Torres Strait and the risk of unprecedented flooding, as well as the risks of increasingly severe storms, ocean acidification and related marine life devastations.[1] As identified in the claim, these events would have devastating effects on the Islanders’ lands, homes and culturally significant sites, many of which are coastally located.[2]
The petition was submitted to the United Nations Human Rights Committee (UNHRC), based in Geneva Switzerland, whose purpose is to ensure abidance with the International Covenant on Civil and Political Rights (ICCPR).[3] Optional Protocols are sister treaties to human rights treaties, which are also open to state signatures. They generally lay out procedures, such as how and whether individuals can submit claims of rights violations to the UNHRC. Since Australia has signed both the ICCPR and the Optional Protocol, the UNHRC has jurisdiction to hear this case. The claim drew on four articles from the above Covenant (ICCPR) – Article 27: right to culture, Article 17: right to be free from arbitrary interference with privacy, family and home, Article 6: right to life, and Article 24: rights of children. The complainants claimed that Australia’s greenhouse gas emissions and failure to reach stated mitigation targets were causal in the above climate-related issues.
Exhausting Domestic Remedies
In order to bring a case before an international body, the complainants must either demonstrate efforts to pursue a legal outcome domestically, and to have exhausted these domestic avenues, or satisfy the international body that those avenues cannot provide a reasonable outcome or resolution. In this case, although Australia signed the ICCPR, it has not implemented it through its own domestic statutes. This means that a complainant cannot bring a claim under the ICCPR to an Australian court because the rights and obligations contained therein are not part of Australian law. The Human Rights Committee accepted that a domestic remedy would have been insufficient under these circumstances to address the Islanders’ claims.[4]
In addition, the Australian Human Rights Committee’s previous decisions in similar cases resulted in non-binding remedies, which is evidence in support of the Islanders’ claim that the remedies available domestically were insufficient in their inability to provide a binding resolution.[5] Australia’s Constitution does not provide for any environmental rights, nor does it contain a Bill of Rights. Australia also has not passed any laws that protect the rights guaranteed by the provisions of the ICCPR which the Islanders relied on in this claim.[6] These aspects, among a few others, ultimately led the plaintiffs to bring their case to the United Nations’ international forum.
Facts
The complainants are members of the Indigenous minority group of the Torres Strait Islander.[7]
The complainants filed a complaint against the Australian government with the UNHRC to address the country’s insufficient response towards climate change, and the effects climate change was having on the lives and cultures of the Torres Strait Islanders. They claimed that the threats of climate change, both current and in the future, are severe enough to pose risk of cultural erasure and threaten the lives of their community members. The Torres Strait Islanders believe that climate change threatens to forcibly displace their people.[8]
One of the complainants submitted a statement that describes their cultural connection to the islands:
“The Island makes us who we are. Our whole life comes from the island and the nature here, the environment. It is a spiritual connection. We know how to hunt and fish from this island – to survive here. We get that from generations of knowledge that have been passed down to us. I know every species of plant, animal, wind on this island, the way the vegetation changes, what to harvest at different times of the year. That is the cultural inheritance we teach our children. It is so important to us, this strong spiritual connection to this island, our homeland.”[9]
The Australian government claimed the allegations were unreasonable and unfounded. They claimed that Australia cannot be held singularly accountable for global warming, which they said left the claim that the Islanders’ right to life being breached was without merit.
The Complainants’ Case
At the heart of the Torres Strait Islanders’ claim against the Australian government is global warming. In particular, the complainants identified that human-caused greenhouse gasses in the earth’s atmosphere have increased the global temperature by “approximately 1 degree above industrial levels.”[10] This increase has significant effects on the earth’s climate and weather, including the increase of extreme weather events, rising sea levels and ocean warming and acidification.[11] The complaints submitted that these impacts pose unique risk to the Torres Strait Islanders, as a coastal nation, whose lives and cultures are literally on the front lines of these changes.
The plaintiffs claimed that under the ICCPR, Australia has a duty to protect them from the impacts of climate change through mitigation (limiting global warming by reducing Australia’s greenhouse gas emissions) and adaptation (measures taken to adapt to and better cope with inevitable climate change).[12] The plaintiffs specifically relied on Article 2 of the ICCPR, read along and in conjunction with Article 27 (Right to culture), Article 17 (Right to be free from arbitrary interference with privacy, family and home), and Article 6 (Right to life).[13]
Articles 2, 27, 17, 6
Article 2 (Duties of the Parties)
Article 2 requires that every State party to the Covenant must undertake to “respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion.” It also ensures that individuals whose rights are found to have been violated will be provided an “effective remedy” and that the State agrees it will enforce that remedy.
Article 27 (Right to Culture)
As members of a minority cultural group, the continued existence of the Torres Strait Islanders’ culture is arguably dependent on the “continued existence and habitability of their islands and on the ecological health of the surrounding seas.”[1] For example, the infiltration of rising sea water into coconut groves has threatened their means of sustenance, along with ocean acidification which threatens other species necessary to their personal and cultural survival. Should these issues not be addressed, “such displacement would result in egregious and irreparable harm to their ability to enjoy their culture.”[2]
Article 17 (Right to be free from arbitrary interference with privacy, family and home)
Under Article 17, the Islanders raise concerns around the effects of climate change on their right to private, family and home life. In particular, on the Torres Islands, the rapidly rising sea levels threaten their homes, forcing some of the Islanders to “face the prospect of having to abandon their homes within the lifetimes of the community members currently alive.”[3]
Article 6 (Right to Life)
Under Article 6, the claim was that Australia “failed to prevent a foreseeable loss of life from the impacts of climate change, and protect the [Islanders’] right to life with dignity.”[4] In relation to this is Australia’s responsibility to protect its citizens’ rights to a healthy environment, which is part of the right to life.[5] Given the effect of Australia’s greenhouse gas emissions on the environment, the complainants argue that the risk climate change has on their lives was both foreseeable and avoidable, and that the government had a responsibility to prevent it.
The complainants submitted that Australia “failed to implement an adaptation programme to ensure the long term habitability of the islands,”[6] and failed to mitigate the impacts of climate change.[7] These failures included Australia’s lack of funding for “coastal defense and resilience measures on the islands, such as seawalls.”[8]
Australian Government’s Response
The Australian government (“Australia”) requested that the Islanders’ claim be dismissed.[22] Australia claimed that the complainants submissions were without merit, on the grounds that there was “no evidence” that the Islanders faced “any current or imminent threat of a violation of any of the rights they invoked.”[23] Furthermore, “none of [Australia’s] alleged failures to take mitigation measures fall within the scope of the Covenant.”[24] In its submissions, Australia relied on a 2009 Report of the Office of the United Nations High Commissioner for Human Rights, which stated that it is “often impossible to establish the extent to which a concrete climate change-related event with implications for human rights is attributable to global warming.”[25] Australia submitted that “[i]t is not possible under international human rights law to attribute climate change to the State party.”[26]
Australia argued that in order to “demonstrate victim status, the [Islanders] must show that an act or omission by the State party has already adversely affected their enjoyment of a Covenant right, or that such an effect is imminent.”[27] As such, Australia submitted that the Islanders are invoking “a risk that has not yet materialized.” Australia then went on to describe, in detail, many of the mitigation efforts it was currently undergoing in response to climate change, including on the Torres Strait Islands.[28] Finally, Australia claimed that the ICCPR only obliges states to provide protection from those risks that they can effectively control. With a myriad of actors responsible for causing climate change, it would be impossible for a single state to fulfill such an obligation.[29]
Remedies Sought
The Islanders requested the UNHRC “deliver a binding decision and provide effective relief” as opposed to providing recommendations.[30] They also specifically requested that the UNHRC find Australia to be in violation of the Islanders’ rights in two ways: failure to take any (or adequate) measures of adaptation against climate change, and failure to take any (or adequate) measures of mitigation through domestic laws, policies and practices.[31] The complainants requested the following remedies from the Australian government to address the root cause of climate change and provide interim infrastructure for the islands:
- Commit a minimum of $20 million for emergency measures such as seawalls, as requested by local authorities – and sustained investment in long-term adaptation measures to ensure the islands can continue to be inhabited;[32]
- Reduce emissions by at least 65% below 2005 levels by 2030 and achieve net zero before 2050;[33]
- Phase out thermal coal, both for domestic electricity generation and export markets.[34]
The Islanders further requested the Committee oblige Australia to make amends on the grounds of adaptation and mitigation.
Further remedies sought
Australia must take all steps necessary to ensure the continued safe existence of the complainants and the communities on their islands, in accordance with Australia’s obligations under the ICCPR, including at a minimum, the following:
- commission a comprehensive and fully-costed study of all coastal defence, resilience and other measures available in respect of each island with the primary objective being to avoid forced retreat of communities and the displacement of people. The study shall be based on the most up-to-date IPCC sea-level rise estimates and future 100-year storm tide levels, and be conducted with full consultation of the local communities, integrating traditional ecological knowledge into that process;
- implement fully and expeditiously the measures necessary to secure the communities’ continued safe existence on their respective islands taking full account of the views of the communities concerned, and integrating traditional ecological knowledge into that process;
- monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable, at all times taking full account of the views of the communities concerned and integrating traditional ecological knowledge into that process; and
- In any event, provide all of the measures identified as ‘Initiative One’ in the most recent Torres Strait Island Regional Council Federal Election Initiatives 2019, including “[r]ealisation of the previously promised bipartisan $20m Commonwealth contribution to rectification works.”
Australia must amend its laws, policies and practices and adopt such other laws, policies, practices and take such other measures of mitigation as are necessary to comply with Australia’s obligations under the ICCPR, including at a minimum the following:
- Australia must remain a party to the UNFCCC and the Paris Agreement and participate in good faith in the processes and mechanisms established under those Agreements, co-operating with other countries in order to achieve the temperature goal in Article 2 of the Paris Agreement.
- Australia’s second and subsequent NDCs must comply with the Paris Agreement and its obligations under the ICCPR:
This includes:
- reflecting Australia’s highest possible ambition;
- representing a genuine effort to limit the global temperature increase to 1.5C;
- reflecting Australia’s “common but differentiated responsibilities and respective capabilities, in the light of different national circumstances”; and
- accounting for and reflecting Australia’s position as one the world’s wealthiest and most developed countries, having amongst the world’s worst existing records for fossil fuel emissions (on a per capita basis).
This also includes conducting a comprehensive and rigorous “bottom up assessment” of all appropriate means available to it applying its maximum available resources, taking into account:
- the impacts on the most vulnerable (in Australia and globally); and
- the best available science.
Further or alternatively, to be consistent with the IPCC’s most recent assessment and the advice of the CCA, Australia’s second and subsequent NDCs should commit it to reducing its emissions by at least 65% by 2030 below 2005 levels and to achieving net zero emissions as soon as possible and by no later than 2050 (without carrying over credits from the Kyoto Protocol regime).
3. Australia must put in place and pursue measures (including laws, policies and practices) that are sufficient to achieve its NDC (without carrying over credits from the Kyoto Protocol regime) and do so forthwith.
4. Australia must cease all policies that support and facilitate the use of thermal coal in electricity generation (both domestically and internationally), and phase out all coal mining as soon as possible (taking into account the need for a just transition for coal mining communities).
Decision
On September 23, 2022 the Human Rights Committee held that the Australian government had violated the Torres Strait Islanders’ fundamental human rights by failing to adequately mitigate and address climate change. The majority found Australia to have violated Articles 17 (Freedom from arbitrary interference) and 27 (Right to culture), while a number of partially dissenting Committee Members would have also found Australia to have violated Article 6 (Right to life).
The UNHRC took into consideration other international treaties, as well as means of interpreting those treaties as evidence. These included the International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the International Convention on the Elimination of all Forms of Racial Discrimination (CERD).[35] Article 31 of the Vienna Convention on the Law of Treaties (VCLT) also provided principles of treaty interpretation including that “any relevant rules of international law” are to be taken into account in addition to a treaty being specifically interpreted.[36] The supplemental treaties and submissions all illustrated that the Committee, along with other UN bodies and institutions, had previously found climate change to be an issue of human rights.[37]
Decision on individual articles
Decision on Article 2
Australia was found to be in violation of Article 2 – which states that every country that signed the ICCPR must “take the necessary steps…to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.” Australia’s track record of being a primary contributor to greenhouse gas emissions and second in the world in coal export were weighed into the decision. As such, Australia was found to have failed to adopt the necessary laws, as required by the ICCPR.
Decision on Article 6
Article 6 – every human being has the inherent right to life, protected by law, was the most contentious within the decision. The majority found that Australia had not infringed the Islanders’ right to life because, while the complainants had alleged feeling insecure, they had not demonstrated current threats to their physical health and life.[38] Although the complainants had alleged that their islands would become uninhabitable in the future, the majority found that Australia had already put in place adaptive measures to reduce the existing vulnerabilities and intended to put in place further measures to build resilience to climate change-related harms to the islands.[39]
The Human Rights Committee is composed of 18 independent experts. Seven committee members wrote comments on the case, and six of them would have found Australia liable under Article 6. Dissenting Committee Member Duncan Laki Muhumuza disagreed with the majority decision and argued in their Individual Opinion that Australia had indeed failed to prevent an imminent loss of life.[40] Committee Members Arif Bulkan, Marcia V. J. Kran and Vasilka Sancin all partially dissented from the majority decision, finding that there had been a violation of Article 6 due to the “real and foreseeable risk” of climate change to the complainants’ health and life. The complainants had shown, for example, that flooding and warming of waters threatened their food sources.[41]
The UNHRC agreed that Australia is not “solely responsible” for the impacts of climate change, but still asked: “has the State party [Australia] violated the Covenant by failing to implement adaptation and/or mitigation measures to combat adverse climate change impacts within its territory, resulting in harms to the [Islanders]?”[42] On this, some members of the Committee felt that Australia’s future projects sufficiently address the Article 6 violations the Islanders put forth, while other members of the Committee felt these measures were insufficient.
Decision on Article 27
Under Article 27, ethnic minorities are afforded the right to enjoy their own culture. The Committee found that the climate impacts constituted a violation of the Islanders’ rights under Article 27 which established that their “enjoyment of culture may relate to a way of life which is closely associated with territory and the use of its resources.”[43] The committee found that climate change introduced disproportionate impacts and risks to the Islanders’ territory and the use of their resources. The UNHRC found that Australia’s “failure to adopt timely adequate adaptation measures to protect the [Islanders’] collective ability to maintain their traditional way of life, to transmit to their children and future generations”[44], constituted a violation of Article 27.
Decision on Article 17
Article 17 affords all people the right not to have arbitrary or unlawful interference with their privacy, family, home or correspondence. Ultimately, the Committee agreed with the complainants’ submissions that Australia’s failure to take adequate measures of adaptation or mitigation unlawfully interfered with the Islanders’ Article 17 rights, given the impacts of climate change on their current and future family lifestyle. The Committee stated that Australia had failed to “discharge its positive obligation to implement adequate adaptation measures.”[45]
Decision on Article 24
Under Article 24 – children are afforded the right to protection, without discrimination. The Committee found that because Australia was already deemed to have violated articles 17 and 27, it was unnecessary to further investigate the violations under Article 24.
Remedies
The Committee identified measures for Australia to make “full reparation to individuals whose Covenant rights have been violated.” The UNHRC directed Australia:
- To provide adequate compensation to the Islanders for the harm that they suffered.
- To engage in meaningful consultations with the Islanders’ communities in order to conduct needs assessments.
- To continue its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands.
- To monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable.
- To take steps to prevent similar violations in the future.
What’s Next?
Decisions under the UNHRC’s Optional Protocol are not binding on states, thus not allowing for repercussions if the state fails to comply with them. Nonetheless, a state’s failure to comply with its obligations under the ICCPR carries a reputational risk.
The findings in this case related to the impacts of climate change on cultural minorities and the obligations of governments to protect them are precedent setting. The case may encourage future similar claims seeking to hold governments accountable for insufficient or lack of action in addressing or preventing the deleterious effects of climate change on their citizens and cultural rights.
[1] See https://www.ohchr.org/en/treaty-bodies/ccpr.
[2] ClientEarth, “Torres Strait FAQ” (2019), online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_press-release.pdf>.
[3] ClientEarth, supra note 1.
[4] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> p. 4.
[5] Ibid.
[6] Ibid.
[7] Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019 | ICCPR | 2019 | C/135 | D/3624 | (2019).
[8] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> p. 7.
[9] Ibid.
[10] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> p. 3.
[11] Ibid.
[12] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> pg. 4.
[13] Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019 | ICCPR | 2019 | C/135 | D/3624 | (2019), para 1.1.
[14] Ibid, para 3.5.
[15] Ibid.
[16] Ibid, para 3.6.
[17] Ibid, para 3.4.
[18] Ibid.
[19] Ibid, para 2.7.
[20] Ibid, para 2.8.
[21] Ibid, para 3.4.
[22] Ibid.
[23] Ibid, para 4.2.
[24] Ibid, para 4.3.
[25] Report of the Office of the United Nations High Commissioner for Human Rights on the relationship between climate change and human rights (A/HRC/10/61) (2009), para. 70.
[26] Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019 | ICCPR | 2019 | C/135 | D/3624 | (2019), para 4.3.
[27] Ibid, para 4.2.
[28] Ibid, para 4.5.
[29] Para 6.7.
[30] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> pg. 2.
[31] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> pg. 47.
[32] Ibid.
[33] Ibid.
[34] Ibid.
[35] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> pg. 29.
[36] Ibid.
[37] Communication Under The Optional Protocol To The International Covenant On Civil And Political Rights. UNHCR, 2019, online: <https://climatecasechart.com/wp-content/uploads/non-us-case-documents/2019/20190513_CCPRC135D36242019_complaint.pdf> pg. 29.
[38] Para 8.6.
[39] Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019 | ICCPR | 2019 | C/135 | D/3624 | (2019), p 19.
[40] Urgenda Foundation v. The State of Netherlands case, C/09/456689/ HA ZA 13-1396, judgement of 9 October 2019.
[41] Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019 | ICCPR | 2019 | C/135 | D/3624 | (2019), p 23.
[42] Ibid, p 24.
[43] Ibid, pg 17.
[44] Ibid.
[45] Ibid.