• Homepage
  • Blog
  • Climate Change Law
  • Our Islands, Our Home: How Eight Torres Strait Islander Peoples Held the Australian Government Accountable for Climate Inaction

Symposium: Climate Change in an Unequal World: Does International Law Matter?

Our Islands, Our Home: How Eight Torres Strait Islander Peoples Held the Australian Government Accountable for Climate Inaction

by Zoe Nay (University of Melbourne)

Published on 30 September 2022

  1. Introduction

As the adverse impacts of climate change are becoming more frequent and intense, affected countries and peoples are looking outside of the United Nations Framework Convention on Climate Change (UNFCCC) in their efforts to seek climate justice. It is in this context that the United Nations Human Rights Committee (UNHRC) delivered its landmark decision on 22 September 2022—Billy et al v Australia—finding that the Australian Government had violated the rights of several Indigenous Peoples of the Torres Strait Islands by failing to take adequate climate action. This blog post argues that the UNHRC’s approach to remedying climate-related harm may incentivise states to enhance their mitigation and adaptation commitments by demonstrating that they can be held to account for inadequate and unjust climate policies. Moreover, it situates the Committee’s approach to remedying climate-related harm within broader discourse about loss and damage and climate reparations.

  1. Landmark decision

The landmark decision by the UNHRC, delivered more than three years after the Torres Strait Islanders lodged their claim, focused on the Australian Government’s obligations as regards climate adaptation. The case was brought forward by eight adults and six children—all Indigenous Peoples from the Torres Strait Islands—on the grounds that the Australian government had violated their human rights by failing to take adequate action to mitigate greenhouse gases or pursue proper adaptation measures. The applicants outlined a litany of adverse impacts they had already experienced in the context of climate change, including flooding and inundation of low-lying communities, the erosion of traditional lands, loss of critical vegetation, and the reduced ability to practice their traditional culture and pass it on to future generations. The applicants also emphasised that the future impacts of climate change are projected to increase in severity, giving rise to the risk of some low-lying islands in the Torres Strait becoming uninhabitable. On these grounds, the applicants claimed that anthropogenic climate change had directly contributed to harmful consequences to their human rights under the International Convention on Civil and Political Rights (ICCPR): namely, their rights to life (Article 6); rights to private life, family, and home (Article 17); and, the cultural rights of minorities (Article 27).

In brief, the UNHRC found that by failing to implement timely and adequate adaptation measures, the Australian Government has violated the rights of the Torres Strait Islander applicants to enjoy their culture and to be free from arbitrary interferences with their private life, family, and home. This finding underscores that states have a positive legal obligation to protect the rights of individuals in their jurisdiction against the adverse impacts of climate change through adaptation measures of necessary scale and speed. It is also the first recognition by a UN human rights treaty body of the positive obligations of states to protect distinct and additional rights of particularly vulnerable groups against the adverse impacts of climate change. 

Drawing on Article 2(3)(a) of the ICCPR, the Committee held that the Australian Government was under an obligation to provide the applicants with an ‘effective remedy.’ While there is a growing body of climate litigation aimed at implementing or enhancing climate policies, this is the first case from an international human rights body outlining the state duty to compensate and remedy climate-related harms, bringing the case within the scope of emerging ‘loss and damage litigation.’ On what constitutes an ‘effective remedy,’ the UNHRC stated that the Australian Government is required to make full reparation to individuals whose rights have been violated, including: (1) compensation for the Indigenous Peoples from Boigu, Poruma, Warraber and Masig Islands for the harm they have suffered; (2) engaging in meaningful consultations to assess their needs; (3) taking measures to secure their communities’ safe existence into the future; and (4) monitoring and reviewing the effectiveness of the measures implemented, and resolving any deficiencies as soon as practicable.

Compensation for climate change-related loss and damage has been one of the most contentious topics within international climate negotiations. While Article 8 of the Paris Agreement recognises the importance of averting, minimising, and addressing loss and damage, the accompanying Conference of the Parties (COP) decision sought to explicitly exclude liability and compensation. As a result, there has been little substantive action and support to address loss and damage through international climate negotiations. Legal scholars have argued that Article 8 of the Paris Agreement may nonetheless serve as a touchstone for other legal obligations, such as those under human rights law. However, this is the first case to translate those theories into practice.

The UNHRC’s interpretation of states’ obligations to compensate individuals harmed by climate change could set an important precedent for loss and damage finance moving forward. While it does not directly influence the interpretation of Article 8 of the Paris Agreement, it may incentivise states to enhance their climate commitments by demonstrating that they can be held to account for inadequate adaptation action. However, as Olúfhemi O. Táíwò has argued, financial compensation is a necessary but insufficient mechanism to provide ‘full reparations’ for anthropogenic environmental harm. In addition to compensation, Táíwò has emphasised the need to shift power and control over democratic processes to disproportionately impacted communities. This is, in part, reflected in the UNHRC’s second order: that the Australian Government is obliged to engage in meaningful consultations to assess the needs of the Traditional Owners of the Torres Strait Islands. However, the UNHRC does not elaborate on what ‘meaningful consultations’ may look like or what action the Australian Government needs to take in order to fulfil its positive obligation to protect the ICCPR rights into the future. Instead, the Committee closed its decision by calling for the Government to report on the measures it takes within 180 days. Whether and to what extent the Government follows through with the UNHRC’s recommendations will be significant – both for the Peoples of the Torres Strait Islands and for solidifying the role of international human rights bodies in addressing climate change-related human rights violations.

  1. Limitations

The UNHRC’s decision is not without limitations. First, it failed to consider the Australian Government’s human rights commitments in the context of mitigation obligations. The UNHRC went so far as to affirm its jurisdiction to review the human rights implications of states’ fossil fuel emissions and recalled that ‘States parties should take all appropriate measures to address the general conditions in society that may give rise to direct threats to the right to life or prevent individuals from enjoying their right to life with dignity.’ Yet, the majority decision did not expand on how the Australian Government’s inadequate mitigation measures have contributed to the harm suffered by the Torres Strait Islander Peoples. While it is important that the Committee recognised climate change has already caused violations of human rights, particularly for those most vulnerable, the Committee missed an opportunity to illuminate how urgent and scaled-up mitigation action can still do much to prevent these harmful impacts.

The UNHRC’s decision not to address mitigation obligations in Billy et al v Australia stands in contrast to the earlier landmark decision of Urgenda Foundation v State of the Netherlands, heard before Dutch courts. The Urgenda decision established that states have a duty to take climate change mitigation measures due to the ‘severity of the consequences of climate change and the great risk of climate change occurring.’ However, this Urgenda line of reasoning was followed in some of the UNHRC member’s separate decisions. For example, Member Gentian Zyberi recognised a state obligation to take mitigation action, based on national commitments and duties of international cooperation. Moreover, Zyberi contended that ‘a higher standard of due diligence applies in respect of those states with significant total emissions or very high per capita emissions (whether these are past or current emissions).’

The other main limitation of the decision is that the Committee did not find a violation of the right to life (Article 6). Its reasoning for this limitation echoed the earlier 2020 decision of Teitiota v New Zealand. In both cases, the UNHRC has recognised that the possibility of islands becoming uninhabitable in 10-15 years may give rise to a violation of Article 6. However, it has suggested that those 10-15 years allow time for ‘intervening acts’ to protect those rights, including the potential relocation of Torres Strait Islander Peoples. It is important to note that several UNHRC members issued separate opinions which take a broader perspective on the right to life. For example, the Joint Opinion by Members Arif Bulkan, Marcia V.J. Kran and Vaslika Sancin found that there currently exist ‘real and foreseeable risks’ to the applicants’ lives as a result of flooding and loss of food sources, livelihoods and shelter. Likewise, the Individual Opinion by Hernán Quezada held that the Australian Government’s current measures to mitigate and adapt to climate change have been ‘insufficient to guarantee the perpetrators the enjoyment of a dignified life in the islands that inhabit the Torres Strait.’ In the applicants’ submissions to the UNHRC, they argued that upholding the right to life with dignity means preventing ‘the tragedy of uprootedness’ and losses to culture and ways of life that would arise from displacement from their lands and surrounding seas. While not adopted in Billy et al v Australia, this broader approach to the right to life could offer an avenue to protect and ensure peoples diverse ways of life and connections to place.

  1. Implications

The potential implications of Billy et al v Australia may expand beyond the enforcement of the decision itself. The fact the complaint was brought seems to have prompted the Australian Government to start taking adaptation measures, including the Torres Strait Seawalls Program. Additionally, Melanie Davis has suggested that the UNHRC’s decision could inform domestic litigation in Australia, such as the proceedings under the Queensland Human Rights Act against Clive Palmer’s proposed Galilee Coal Project and the climate change class action by Torres Strait Islanders. On an international scale, the Committee’s decision could also influence Vanuatu’s campaign to seek an Advisory Opinion from the International Court of Justice on matters related to climate change.

For the Peoples of the Torres Strait Islands, the case was more personal. While the UNHRC’s decision highlights that First Nations Peoples are particularly vulnerable to climate change, the Peoples of the Torres Strait Islands have also shown that they are climate leaders. In response to the decision, Yessie Mosby – a Kulkalgal man and Traditional Owner on the island of Masig and a claimant in the case – said:

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.