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ClientEarth Communications

23 September 2022

Climate accountability
Australia

Torres Strait climate claimants win their historic human rights fight against the Australian Government

The UN’s Human Rights Committee have agreed that the Australian Government has breached its human rights obligations to a group of eight Torres Strait Islander people, through inaction on climate change. This win has made international legal history.

What did the human rights committee decide?

This landmark decision was delivered by the UN’s Human Rights Committee on 23 September 2022. A majority of the Committee agreed with the claimants, who originally filed the complaint against the Australian Government in 2019, stating that Australia’s climate inaction was a violation of their right to family life and right to culture.

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The Committee overall agreed with the complaint, finding that climate change is currently impacting the claimant’s daily lives to the extent that their rights are being violated, and that Australia is failing to take sufficient steps to secure the communities’ safe existence on their islands. The Committee also asked Australia to compensate the claimants for the harm suffered, and to do whatever needed to secure the communities’ safe existence. This climate inaction is resulting in sea level rise and extreme erosion, effectively washing away the ancestral homeland of those inhabiting islands in Zenadh Kes / Torres Strait, as well as destroying the natural sea and land environments on which they depend.

This was the very first legal action brought by climate-vulnerable inhabitants of low-lying islands against a nation state. It’s also the first time that an international tribunal has found a country has violated human rights law through inadequate climate policy, the first time a nation state has been found responsible for their greenhouse gas emissions under international human rights law, and the first time that Indigenous peoples’ right to culture has been found to be at risk from climate impacts.

Yessie Mosby, a Kulkalgal man, Traditional Owner on the island of Masig and a claimant in the case, said:

This morning when I woke up on Masig, I saw that the sky was full of frigate birds. In my culture, we take this as a sign from my ancestors that we would be hearing good news very soon about this case.

I know that our ancestors are rejoicing knowing that Torres Strait Islander voices are being heard throughout the world through this landmark case. Climate change affects our way of life everyday. This win gives us hope that we can protect our island homes, culture and traditions for our kids and future generations to come.

ClientEarth lawyer, Sophie Marjanac, who has been supporting the claimants in their complaint, said:

This is an historic victory for climate justice. It is a victory for all peoples who are the most vulnerable to runaway climate change and opens the door to further legal action and compensation claims in international and domestic law. The Australian Government must act on this decision and take decisive steps to protect the islands of Zenadh Kes / Torres Strait. Anything less will be both illegal and a huge moral failing.
What complaint did the Torres Strait claimants make against the Australian Government?

In 2019, a group of eight Torres Strait Islander people made a ground-breaking complaint, alleging that Australia’s failure to act on climate change is violating their fundamental human rights.

The Torres Strait Islands lie off the northern tip of Queensland, between Australia and Papua New Guinea. For thousands of years they have been home to the claimants’ ancestors and families, but the effects of climate change are hitting the islands hard. Tides are rising every year, flooding homes, lands and important cultural sites. Rising sea temperatures are blighting the health of the marine environments around the islands, by bleaching the coral and acidifying the ocean.

The complaint alleges that the effects of Australia’s insufficient plans to reduce greenhouse gas emissions and its failure to fund coastal defences constitutes a violation of their right to life, right to a family and right to culture under the UN’s first global treaty, the International Covenant on Civil and Political Rights.

What’s happened since the complaint was made?

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In September 2019, in a bid to get members of the Australian Government to see the devastating effects that climate change is having first-hand, the claimants formally requested then-Prime Minister Scott Morrison to visit their low-lying islands.

Representative of the claimants and Warraberalgal man from the Kulkalgal nation, Kabay Tamu, personally delivered the invitation to Australia’s Ambassador and Permanent Representative to the UN, Her Excellency Gillian Bird, in New York.

In their invitation, the claimants pointed to a study showing that not only does Australia have one of the world’s highest carbon footprints per capita, but when fossil fuel exports were taken into account, the country’s total greenhouse gas emissions amounted to approximately five percent of total global emissions – the equivalent of Russia’s total emissions. The study estimated that Australia’s emissions could then rise to 17% of the world’s total by 2030.

Although Scott Morrison and then Minister for Emissions Reduction Angus Taylor refused the invitation to visit the Torres Strait islands, at the start of 2020 the claimants won a key ask, as the Federal Government promised $25 million in climate adaptation spending for the Torres Strait. The money was earmarked to construct seawalls, repair and maintain jetties and re-establish ferry services.

Although an important win for the claimants and people of Zenadh Kes, this was only the start of what needs to be done.

The claimants continued to call for Australia to increase its emission reduction target from the current target of 26-28% to at least 65% below 2005 levels by 2030, going net zero by 2050 and phasing out coal.

In August 2020, the then Australian Government submitted an official reply to the complaint to the UN, and argued that the case should be dismissed.

Denying that climate change is currently impacting the human rights of Torres Strait Islander people, the Government claimed that the complaint concerned future risks, rather than impacts being felt in the present. Australia’s lawyers also stated that because their country is not the main or only contributor to global warming, the effects of climate change on its citizens is not its legal responsibility under human rights law.

Denying that climate change is currently impacting the human rights of Torres Strait Islander people, the Government claimed that the complaint concerned future risks, rather than impacts being felt in the present. Australia’s lawyers also stated that because the country is not the main or only contributor to global warming, the effects of climate change on its citizens is not its legal responsibility under human rights law.

Sophie Marjanac, ClientEarth lawyer said at the time:

It’s shameful that Indigenous communities on Australia’s climate frontline are being told that the risk of climate change to their human rights is merely a ‘future hypothetical’ issue, when scientists are clear these impacts will happen in coming years. My clients are watching as their traditional lands, their homes, their sacred sites and burial grounds are being eroded by the steadily encroaching waves.

In September 2020, the claimants submitted a response to the then Government’s claims, expressing disappointment that Australia’s position failed to recognise the basic human rights obligations it has to its people. They said it also failed to recognise the environmental impacts climate change has already had on their Islands – impacts they witness and have deep knowledge of as Traditional Owners.

Later than year, legal experts appointed by the UN the current Special Rapporteur on human rights and the environment, Professor David Boyd, and esteemed Professors John Knox and Martin Scheinin supported the complaint by submitting ‘amicus curiae’ briefs (independent submissions based on expert knowledge). The briefs stated that the complaint could set a global precedent in finding that human rights are violated by climate change impacts.

It took until August 2021 for the then Australian Government to submit its official reply to the claimants’ most recent response, in which it doubled down on its position, saying it was already doing enough on climate change, and that the future climate impacts were too uncertain to require it to act. This was the last procedural step in the complaint.

Just under a year later, following a change in government, Australia’s new Climate Change Minister, Chris Bowen, did what his predecessors hadn’t, and met with some of the claimants during a visit to the Torres Strait Islands. The minister concluded that climate change poses a ‘real and substantial’ threat to the people of the Torres Strait/Zenadh Kes.

What happens now?

The committee's decision marks the final stage of the case. But whatever the decision from the UN, the ‘Torres Strait Eight' have vowed to continue their campaign. As climate change continues to threaten their islands, they will continue to push for the Australian Government to do more to fight climate change and protect those on the climate frontline.

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