A group of eight Torres Strait Islanders and six of their children have succeeded in a claim against the Commonwealth of Australia, with the United Nations Human Rights Committee (UNHRC) finding that Australia has breached the claimants’ rights under the International Convention on Civil and Political Rights (ICCPR) to enjoy their minority culture and be free from arbitrary interference with their private life, family and home. Generally speaking in Australia, international law obligations must be enshrined in legislation to be enforceable and Australia has not taken this step in respect of UNHRC decisions ie. they are not binding. They may, nonetheless, be politically and judicially significant particularly for those states who have enacted human rights legislation being Queensland, Victoria and the ACT. While the right to a healthy environment isn't currently recognised in these laws (like it is in the European human rights legislation), international decisions are relevant when determining how legislation affects the human rights of their citizens.
The impacts of climate change on the Torres Strait Islands are also currently before an Australian court in a Federal Court class action brought by Pabai Pabai and Guy Paul Kabai on behalf of all persons of Torres Strait Islander descent.
Australia’s contravention according to the UNHRC
The complaint to the UNHRC was brought by Torres Strait Islanders from the islands of Boigu, Poruma, Warrabar and Masig who claimed that changes in weather patterns have direct harmful consequences on their livelihood, culture and traditional way of life. In particular, severe flooding caused by tidal surges has destroyed ancestral graves and exposed scattered human remains across the islands. They also claimed that additional rainfall and storms have degraded the natural environment, leading to shortages from traditional food sources.
Noting that Australia has taken some steps to address the impacts of climate change on the Torres Strait Islands, the UNHRC found these steps were inadequate. Australia has therefore violated the Torres Strait Islanders’ rights to enjoy their minority culture and to be free from arbitrary interference with their private life, family and home.
The UNHRC found Australia must compensate the claimants, meaningfully consult with the community to assess needs and continue implementing measures to secure the communities’ safe existence. Attorney-General Mark Dreyfus is reportedly considering the UNHRC’s views and will respond in due course.
Sharma, but different: the Federal Court class action
In this case, the Torres Strait Islander applicants sought to impose a duty of care on the Commonwealth “to act and protect against the harm that climate change has caused and will likely cause to Torres Strait Islanders’ health and safety, their lands and seas, and their way of life.” They alleged this duty based on the special relationship between the Commonwealth and Torres Strait Islanders arising from (among other things) the Torres Strait Treaty (1985), the Native Title Act 1993 (Cth) and the unique vulnerability and degree of hazard posed to Torres Strait Islanders from climate change. Under the Treaty, a protected zone was established to acknowledge and protect the traditional way of life and livelihood of the traditional inhabitants including their traditional fishing and free movement.
In response, the Commonwealth says it does not owe the novel duty of care alleged. In particular, it “is framed at too high a level of abstraction” and would involve the court in questions of policymaking unsuited to judicial determination.
In March this year, the Full Federal Court unanimously held that the Commonwealth Environment Minister does not owe the children-applicants a novel duty of care not to cause them personal injury when exercising her power to approve the proposed Vickery Coal Mine extension project pursuant to sections 130 and 133 of the Environment Protection and Biodiversity Conservation Act 1999 in the decision known as Sharma. This overturned an earlier decision of the Federal Court that a duty of care existed.
The class action applicants’ argument for a duty of care based on the Treaty presents the potential for a different outcome to Sharma despite the similar subject-matter. It is not yet clear how influential the UNHRC’s decision may be on the class action. In the well-known Mabo No 2 decision, Justice Brennan acknowledged the “powerful influence” of the ICCPR when he said, “[t]he common law does not necessarily conform with international law, but international law is a legitimate and important influence on the development of the common law”.
Separately, this class action has particular regional significance given the growing international support for the proposed vote by Vanuatu in the United Nations expected later this month. If successful, the UN will support a climate change advisory opinion from the UN's highest court, the International Court of Justice, on the responsibilities for climate change under international law. Although an advisory opinion won’t be legally binding on this Australian class action (and is unlikely to be delivered before the hearing), such an opinion will add to the growing international legal and moral authority likely to be considered in these types of “climate justice” actions in the future.
What’s next for climate justice cases?
We will have to wait some time for an outcome in the class action. Based on recent court orders, a trial isn’t expected until at least mid-2023.
Although a right to a healthy environment is not enshrined in Australian human rights law or any common law duty of care, this type of “climate justice” action is likely to continue to be advanced by vulnerable island nations who are already seeing the tangible impacts of climate change.