The UN Human Rights Committee has found that Australia violated the rights of Torres Strait Islanders by failing to adequately protect them from the impacts of climate change, in a major decision with implications for climate justice and the protection of Indigenous Peoples’ rights in the face of climate change, as reported by Kristen Lyons in the Law Society of New South Wales Journal. The Committee concluded that Australia’s insufficient climate action constituted a violation of the Islanders rights to enjoy their culture and “be free from arbitrary interferences with their private life, family, and home,” as the UN High Commissioner for Rights press release states.
The initial complaint was brought forward by eight Australian nationals and their six children in 2019, all of whom are Torres Strait Islanders, the Indigenous Melanesian people of the Torres Strait Islands. The region, under the jurisdiction of Australia, is located in between the Australian mainland and the island of New Guinea, and is commonly known as Zenadh Kes to those who live there.
The complainants claimed that their rights had been violated by the Australian state in its failure to adapt to climate change, namely through the timely construction of seawalls and reduction of Australia’s emissions. The Islanders also highlighted how shifts in weather patterns had direct and harmful impacts on culture, livelihoods, and traditions, such as the inundation of ancestral burial sites, a decreasing ability to perform site-specific ceremonies and rites, and a reduction in agricultural productivity due to saltwater encroachment.
The complaint was grounded in the foundational International Covenant on Civil and Political Rights, and the Committee agreed that Australia had indeed violated Articles 17 and 27. These articles respectively protect against arbitrary interference with one’s privacy, family, and home, and lay out the right of members of a minority group to enjoy their culture. In support of their claim, the Islanders also cited the recently released IPCC report, which specifically called for action to protect the Torres Strait region.
In reaching its decision, the Committee considered the important links between the Islanders and their ancestral homeland, as well as their dependence upon the health of the ecosystem when it comes to cultural and traditional practices. As Lyons explains, this marks a major departure from the status-quo, which often sees Indigenous culture and knowledge marginalized or altogether forgotten.
In addition to finding that Australia’s inadequate climate action violated the rights of Torres Strait Islanders, the Committee called for Australia to compensate Islanders for the harm caused, to engage in meaningful consultations to assess local needs, and to take measures that secure their safe existence in their ancestral homelands in the long term. While the newly elected Australian government considers its next steps, the Committee’s decision will surely help bolster calls for action on loss & damage as a result of climate change, a major priority at the upcoming COP27.
Beyond the obvious win for the people of the Torres Strait Islands, the decision is significant in the broader arena of climate litigation, climate justice, and the rights of Indigenous Peoples. According to Lyons, it is a major “breakthrough” in that it offers vulnerable groups, in particular Indigenous communities with special and culturally-significant ties to their land, a pathway to defend their rights and seek remedy when those rights are violated. In particular, the Committee has clearly established that national governments’ failure to take adequate climate action can constitute a violation of 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”
-Professor Hélène Tigroudja, member of the UN Human Rights Committee
The decision is also bound to set precedent in the rapidly expanding climate litigation world, as Lyons details. According to lawyer Sophie Marjanac, who acted on behalf of the Islanders, the decision marks the first time a country has violated human rights law through inadequate climate policy, the first time a nation-state has been found responsible for its emissions under international human rights law, and the first time a peoples’ right to culture is acknowledged as being at risk from climate change. It is therefore expected that future cases will use the Torres Islanders finding in support of a human rights-centered approach to climate policy, law, and practice.
As Torres Strait Islanders process this monumental decision and await the Australian government’s response, vulnerable groups around the world have an important glimmer of hope that, in the face of climate change, human rights institutions and documents can provide a way forward in the fight for climate justice, enjoyment of cultural rights, and an approach to climate policy that is inclusive and grounded in the rights so many of us take for granted.