When the complaint was lodged in May 2019, there was a sense of the audacious about it. Eight Torres Strait Islanders had taken the trouble to petition the Geneva-based UN Human Rights Committee, citing climate change and Australian violations as their main concern. Australia, they claimed, had violated their fundamental rights under the International Covenant on Civil and Political Rights.
Representing a group of islands between the tip of the Australian mainland at Cape York and Papua New Guinea, the complainants allege that Australia’s inadequate steps on combating climate change had violated Article 27 (the right to culture); Article 17 (the right to be free from arbitrary interference with privacy, family and home) and Article 6 (the right to life). Australia had also failed to boost the islands’ coastal defences and implement “resilience measures”. But most troubling of all, Canberra had failed to adopt a sufficient greenhouse gas mitigation strategy.
As a summary from Client Earth documents, legal representatives for the islanders “allege that the catastrophic nature of the predicted future impacts of climate change on the Torres Strait Islands, including the total submergence of ancestral homelands, is a sufficiently severe impact as to constitute a violation of the rights to culture, family and life.”
Sixth-generation Warraber man Kabay Tamu, one of the authors behind the complaint, saw a disturbing aspect of colonialism redux, a nightmare in the making. “If climate change means we’re forced away and become climate change refugees in our country, I fear this will be colonisation all over again. Because when you are colonised, you’re taken away from your land and you’re forced to stop using your language and stop practising your culture and traditions.” Such reasoning is hard to fault.
Various calls are directed against Canberra, including greater funding for coastal defences against rising sea levels after consultation while also addressing Australia’s share of greenhouse gas emissions. A reduction of at least 65% below 2005 levels by 2030 is demanded; and a promise to achieve net zero levels by 2050. Thermal coal for both domestic and export markets is also to be phased out.
To date, the Australian government remains distinctly blasé about its commitments to reduce emissions in what is already a modest target: 26-28% by 2030. Indeed, Australia has proven itself to be an enthusiastic saboteur of international efforts to decarbonise the global economy. When the Islanders extended a personal invitation to Prime Minister Scott Morrison last September to visit the islands and see the relevant claims of damage, it was not taken up. A promise of $25 million was made instead, ostensibly to beef up emergency coastal defences.
The petitioners have ample evidence to draw upon. A 2014 report from the Climate Council, self-advertised as “an independent crowd-funded organisation providing quality information on climate change to the Australian public” does not mince its words. Australia, a continent marked by coastal cities, had the sort of infrastructure that had been designed in a vacuum of harmonious stability, “designed and built for a stable climate and known ranges of variability.” Rising sea levels had dashed that vision. The report makes specific reference to the vulnerability of the Torres Strait Island communities, located “on extremely low-lying areas” that “already experience flooding during high tides.” Sea level data gathered by satellite from a location in Torres Strait between 1993-2010 notes a rise of 6 mm per annum – “more than twice the global average”. (The authors are careful to qualify this “single, relatively short dataset” and possible influences.)
The response from the Australian government is much in keeping with the earth digging vigilantes that make up the fossil-fuel lobby. Do not speculate about what will happen; worry about the pressing immediacy of the now. To that end, the Morrison government argues that the complaint should be dismissed. As it concerns “future risks”, human rights impacts supposedly felt now cannot be proved. They remain in the realm of the hypothetical.
The second ground for rejection, argue Australia’s lawyers, centres on the issue of greenhouse gas contributions. As Australia is neither the main or only contributor to global warming, it cannot be held responsible for the effects of climate change on its citizens.
There is, to be sure, much on the climate change litigation plate, piling up with various actions seeking to compel a change in policy. But no Australian case has yet made the link between human rights violations and climate change policies in the way done in the Dutch case of Urgenda Foundation v. Netherlands. The Dutch Supreme Court accepted the argument that inadequate action in addressing climate change by the government posed a “risk of irreversible changes to the worldwide ecosystems and liveability our planet”; with that also came a “serious risk that the current generation of citizens will be confronted with loss of life and/or a disruption to family life… that the State has a duty to protect against.” The European Convention of Human Rights proved to be the lynch pin in the case in stressing that the State’s obligation “to protect the life and the right to private and family life of its residents”.
The Federal Court lawsuit launched by university student Katta O’Donnell last July on sovereign bonds has less to do with human rights than a green commercial sensibility: when investors lend money to the government, they are entitled to be appraised of climate change risks. A failure to disclose such risks, her lawyers argue, amount to misrepresentation and deception.
The arguments of the Torres Strait Islanders is far more on the theme of Urgenda Foundation. “States like Australia,” claims Sophie Marjanac, lawyer acting for the complainants, “have legal duties to protect the human rights of their citizens.” To date, these duties remain spectral, at least to the Canberra set mired in denial and complicity.