UN landmark decision on compensation for climate change

Head of Pro Bono Leanne Collingburn, Solicitor Jessica Mark and Legal Assistant Tom Kelman outline the United Nations Human Rights Committee’s findings that Australia failed to adequately protect a group of Torres Strait Islander claimants and the obligations now on the Australian Government to address these violations and similar ones in the future.

The UN decision

On 23 September 2022, the United Nations Human Rights Committee (the Committee) found that Australia’s failure to adequately protect a group of Torres Strait Islander claimants against adverse impacts of climate change were in violation of their rights to enjoy their culture (Article 27) and their right to be free from arbitrary interferences with their private life, family, and home (Article 17) of the International Covenant on Civil and Political Rights (the Covenant). 

The landmark decision obliges the Australian Government to, among other things, adequately compensate the claimants in response to these violations and take steps to avoid similar violations within its territory.

The decision comes more than three years after eight adults and six children from four low-lying islands off the northern coast of Australia lodged a complaint against the Australian Government, claiming it had failed to take adequate action to cut emissions or pursue proper adaptation measures.

Though made under international law, this decision joins a growing number of international and domestic decisions obliging Governments, proponents and decision-makers to take more notice of climate impacts and impacts on Indigenous rights. You can read the decision in full, including the individual opinions of the Committee Members.  

About the Claimants

The eight claimants, otherwise known as the Torres Strait 8, are Daniel Billy, Ted Billy, Nazareth Fauid, Stanley Marama, Yessie Mosby, Keith Pabai, Kabay Tamu and Nazareth Warria (together, the Authors). 

The Authors are nationals of Australia and residents of the Torres Strait region. They brought their claim in their own names and on behalf of five children of Yessie Mosby and the son of Kabay Tamu.  

Claims alleged under the Covenant 

The Authors claimed their rights had been violated as Australia failed to adapt to climate change, including by failing to adequately upgrade seawalls to combat rising sea levels on the islands and by failing to reduce greenhouse gas emissions.

In their complaint, the Authors claimed that changes in weather patterns have had direct harmful consequences on their livelihood, their culture and traditional way of life. The Authors indicated that severe flooding caused by the tidal surge in recent years has destroyed family graves and left human remains scattered across their islands, impacting their ability to maintain ancestral graveyards and visit and communicate with deceased relatives. The Authors claimed the most important ceremonies, such as coming-of-age and initiation ceremonies, are only culturally meaningful if performed in the community's native lands and climate impacts to their ancestral land put these practices in jeopardy.

The Authors also alleged that changes in climate with heavy rainfall and storms have degraded the land and trees on their ancestral islands, reducing the amount of food available from traditional fishing and farming.

The Authors claimed that the Australian Government violated their rights under Articles 2 (which defines the scope of legal obligations undertaken by State parties to the Covenant), read alone and in conjunction with Articles 6 (right to life), 17 and 27. They also claim violations of the rights of the named children under Article 24 (1) (rights of children to protection), read alone and in conjunction with Articles 6, 17 and 27 of the Covenant.  

The Committees’ findings 

Article 6 

Based on the information made available to it, the Committee did not find the Australian Government in violation of the Authors’ rights to a life with dignity under Article 6. 

In its decision the Committee acknowledged the following important points:

1. The right to life cannot be properly understood if it is interpreted in a restrictive manner, and that the protection of that right requires State parties to adopt positive measures to protect the right to life¹.
2. Recalling the Committee’s general comment No. 36 (2018), the right to life also includes the right of individuals to enjoy a life with dignity and to be free from acts or omissions that would cause their unnatural or premature death (para. 3).²
3. The obligation of States parties to respect and ensure the right to life extends to reasonably foreseeable threats and life-threatening situations that can result in loss of life.³ 
4. States parties may be in violation of Article 6 of the Covenant even if such threats and situations do not result in the loss of life.⁴ Such threats may include adverse climate change impacts. Environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.⁵
5. 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.⁶

The Committee rejected the Australian Government’s position that the extension of Article 6(1) (right to life with dignity) of the Covenant through general comment no. 36, stating it is unsupported by the rules of treaty interpretation.⁷

On this point, the Committee said that a treaty should be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. In this regard, the Committee noted that under Article 31 of the Covenant, the context for interpretation of a treaty includes in the first place the text of the treaty – including its preamble and annexes. In the present Covenant, the text recognises that the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice, and peace in the world. It further recognises that those rights derive from the inherent dignity of the human person. The Committee observed, in this instance, the preamble of the Covenant recognises that the ideal of free human beings, enjoying freedom from fear and want, can only be achieved if conditions are created whereby everyone may enjoy their civil and political rights, as well as their economic, social, and cultural rights. 

The Committee observed that both it and regional human rights tribunals have established that environmental degradation can compromise effective enjoyment of the right to life. It also observed that severe environmental degradation can adversely affect an individual’s well-being and lead to a violation of the right to life.⁸ In the present case, the Committee notes that the Torres Strait Regional Authority (TSRA), recognised in its report entitled “Torres Strait Climate Change Strategy 2014-18”, the vulnerability of the Torres Strait Islands (the Islands) to significant and adverse climate change impacts that affect ecosystems and livelihoods of the Islands’ inhabitants.⁹ The Committee also noted the Authors’ claims that the Islands are facing flood-related damage, seawall breaches, coral bleaching, increasing temperatures, erosion, reduction of the number of coconut trees and marine life used for food and cultural purposes, and a lack of rain and its effect on crop cultivation.

It was noted that in certain places, the lack of alternatives to subsistence livelihoods may place individuals at a heightened risk of vulnerability to the adverse effects of climate change.¹⁰ The Committee took account of the Authors’ argument that the health of the Islands is closely tied to their own lives. The Committee noted that while the Authors evoke feelings of insecurity caused by a loss of predictability of seasonal weather patterns, seasonal timing, tides and availability of traditional and culturally important food sources. However, they did not indicate that they have faced or presently face adverse impacts to their own health or a real and reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could threaten their right to life, including their right to a life with dignity. 

Regarding the Authors’ assertion that the Islands will become uninhabitable in 10 years (Boigu and Masig) or 10 to 15 years (Poruma and Warraber) in the absence of urgent action, the Committee acknowledged the following:

1. That without robust national and international efforts, the effects of climate change may expose individuals to a violation of their rights under Article 6 of the Covenant.¹¹  
2. Given that the risk of an entire country becoming submerged under water is such an extreme risk, the conditions of life in such a country may become incompatible with the right to life with dignity before the risk is realised.¹²  
3. Under the Torres Strait Seawalls Program (the Program), infrastructures will be constructed and upgraded to address ongoing coastal erosion and storm surge impacts at Poruma, Warraber, Masig, Boigu and Iama. 
4. By 2022, several coastal mitigation works had been completed on Boigu with funding of $15 million: the construction of a 1,022-metre-long wave return wall, the raising and extension of an existing bund wall to 450 metres, and the upgrading of stormwater drainage infrastructure. Coastal mitigation works on Poruma, Warraber and Masig were scheduled to begin in 2021 or 2022 and be completed by 2023 under the Program, alongside other adaptation and mitigation measures planned by the  Australian Government . 

The Committee considered that the time frame of 10 to 15 years could allow for intervening acts by the Australian Government to take affirmative measures to protect and, where necessary, relocate the alleged victims. 

The Committee found the Australian Government is taking adaptive measures to reduce existing vulnerabilities and build resilience to climate change-related harms in the Islands. It was not able to conclude that the adaptation measures taken by the Australian Government would be insufficient to represent a direct threat to the Authors’ rights to life with dignity under Article 6(1).  

Article 17

The Committee found that by failing to discharge its positive obligation to implement adequate adaptation measures to protect the Authors’ home, private life and family, the Australian Government had violated the Authors’ rights under Article 17 of the Covenant. 

In applying and interpreting Article 17, the Committee made the following observations:

1. Article 17 creates an obligation on State parties to prevent interference with a person’s privacy, family or home that arises from conduct not attributable to the State, at least where such interference is foreseeable and serious.¹³ Thus, when environmental damage threatens disruption to privacy, family and the home, States parties must prevent serious interference with the privacy, family and home of individuals under their jurisdiction.
2. Article 17 should not be understood as being limited to the act of refraining from arbitrary interference, but rather as obliging States parties to adopt positive measures that are needed to ensure the effective exercise of the rights under Article 17 in the presence of interference by the State authorities and physical or legal persons.¹⁴  
3. When climate change impacts – including environmental degradation on traditional Indigenous lands in communities where subsistence is highly dependent on available natural resources and where alternative means of subsistence and humanitarian aid are unavailable – have direct repercussions on the right to one’s home, and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, then the degradation of the environment may adversely affect the wellbeing of individuals and constitute foreseeable and serious violations of private and family life and the home.¹⁵  

In making its finding, the Committee noted the Authors’ claims that climate change already affects their private, family and home life, as they face the prospect of having to abandon their homes. The Committee acknowledged that the erosion of the Islands caused and is causing the Authors significant distress, and that flooding occurs on the Islands and that the home of Stanley Marama is alleged to have been destroyed due to flooding in 2010. 

The Committee acknowledged the Authors’ dependence on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing. The Committee further acknowledged that these elements constitute components of the traditional Indigenous way of life of the Authors, who enjoy a special relationship with their territory, and that these elements can be considered to fall under the scope of protection of Article 17 of the Covenant.¹⁶ 

The Committee noted the Authors’ specific descriptions of the ways in which their lives have been adversely affected by flooding and inundation of their villages and ancestral burial lands; destruction or withering of their traditional gardens through salinification caused by flooding or seawater ingress; decline of nutritionally and culturally important marine species, and associated coral bleaching and ocean acidification. The Committee also noted the Authors’ allegations that they experience anxiety and distress owing to erosion that is approaching some homes in their communities, and that the upkeep and visiting of ancestral graveyards relates to the heart of their culture, which requires feeling communion with deceased relatives. 

The Committee further noted the Authors’ statement that their most important cultural ceremonies are only meaningful if performed on native community lands. 

Despite putting forward detailed information to support its contention that it had taken numerous actions to address adverse impacts caused by climate change and carbon emissions generated within its territory, the Committee noted that the Australian Government did not specifically comment on the Authors’ allegations that they attempted to request the construction of adaptation measures, in particular upgraded seawalls, at various points over the last decades. While welcoming the new construction of seawalls on the Islands, the Committee observed that the Australian Government did not explain the delay in seawall construction with respect to the Islands. 

Importantly, the Australian Government did not contest the factual allegations set forth by the Authors concerning the concrete climate change impacts on their home, private life and family, nor did it provide alternative explanations concerning the reduction of marine resources used for food, and the loss of crops and fruit trees on the land on which the Authors live and grow crops, elements that constitute components of the Authors’ private life, family and home. 

The Committee found that, despite being made aware of climate impacts on the Islands in the 1990s, the Australian Government failed to adopt timely adequate adaptation measures to protect the Authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture, traditions, use of land and sea resources. As a result, the Australian Government violated its positive obligation to protect the Authors’ right to enjoy their minority culture under Article 27 of the Covenant.

In considering Article 27, the Committee noted the following:

1. Article 27 establishes a right which is conferred on individuals belonging to minority Indigenous groups and which is distinct from, and additional to, the other rights which all persons are entitled to enjoy under the Covenant.¹⁷  
2. In the case of Indigenous Peoples, the enjoyment of culture may relate to a way of life which is closely associated with territory and the use of its resources, including such traditional activities as fishing or hunting.¹⁸ Thus, the protection of this right is directed towards ensuring the survival and continued development of the cultural identity.  
3. Interpreted in the light of the United Nations Declaration on the Rights of Indigenous Peoples, Article 27 enshrines the inalienable right of Indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity.¹⁹ 
4. Although the rights protected under Article 27 are individual rights, they depend in turn on the ability of the minority group to maintain its culture, language, or religion.²⁰ 

In the context of the evidence put forward by the Authors, the Committee noted the Authors’ assertions that:

1. their ability to maintain their culture has already been impaired by the reduced viability of their islands and the surrounding seas, owing to climate change impacts. 
2. those impacts have eroded their traditional lands and natural resources that they use for traditional fishing and farming and for cultural ceremonies that can only be performed on the islands. 
3. the health of their land and the surrounding seas are closely linked to their cultural integrity. 

The Australian Government did not refute the Authors’ arguments that they could not practice their culture on mainland Australia, where they would not have land that would allow them to maintain their traditional way of life. 

The Committee found that the Australian Government could have reasonably foreseen the climate impacts mentioned by the Authors given community members began raising the issue in the 1990s. The delay in initiating the seawall construction on the Islands indicates an inadequate response by the Australian Government to the threat faced by the Authors. 

Article 24(1)

Given the Committee’s findings of a violation of the Author’s rights under Articles 17 and 27, the Committee did not deem it necessary to examine the Authors’ remaining claims under Article 24 (1) of the Covenant. 

What’s next?

Pursuant to Article 2(3)(a) of the Covenant, the Australian Government holds an obligation to provide the Authors with an effective remedy. This requires it to make full reparation to individuals whose Covenant rights have been violated. 

Accordingly, the Australian Government is obligated to, among other things:

1. provide adequate compensation, to the Authors for the harm that they have suffered;
2. engage in meaningful consultations with the Authors’ communities in order to conduct needs assessments; 
3. continue its implementation of measures necessary to secure the communities’ continued safe existence on their respective islands; and 
4. monitor and review the effectiveness of the measures implemented and resolve any deficiencies as soon as practicable.

The Australian Government is also under an obligation to take steps to prevent similar violations in the future. 

The Committee has specifically requested the Australian Government provide it, within 180 days, information about the measures taken to give effect to the Committee’s views, and to publish and present the Committee’s views and disseminate them widely in the official languages of the Australian Government. 

Australian Prime Minister Anthony Albanese, together with Australia’s Minister for Indigenous Australians, Linda Burney, and Minister for Climate Change and Energy, Chris Bowen, travelled to the Torres Strait shortly after being elected in May 2022 to talk with Elders and traditional owners about the impact of climate change. The Australian Government is considering its response to the Committee’s findings and will respond in due course.
 

HopgoodGanim Lawyers

HopgoodGanim Lawyers acknowledge the Traditional Custodians of country throughout Australia and their connections to land, sea, and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander peoples. 

HopgoodGanim’s Pro Bono Impact Strategy is focused on working with First Nations communities, mitigating environmental disasters and reducing domestic and family violence. 

For further information contact HopgoodGanim’s Head of Pro Bono, Leanne Collingburn.  

1. Teitiota v. New Zealand (2016) 127 CCPR [9.4]; & Toussaint v. Canada [11.3].
2. Portillo Cáceres et al. v. Paraguay (2016) 126 CCPR [7.3].
3. Toussaint v. Canada (2014) 123 CCPR [11.3]; Portillo Cáceres et al. v. Paraguay (2016) 126 CCPR [7.5].
4. General comment No. 36, para. 7.
5. General comment No. 36, para. 62. 
6. General comment No. 36, para. 26.
7. Article 31 of the 1969 Vienna Convention on the Law of Treaties.
8. Portillo Cáceres et al. v. Paraguay (2016) 126 CCPR [7.4].
9. Portillo Cáceres et al. v. Paraguay (2016) 126 CCPR [1.2].
10. Teitiota v. New Zealand (2016) 127 CCPR [9.9].
11. Teitiota v. New Zealand (2016) 127 CCPR [9.11].
12. Teitiota v. New Zealand (2016) 127 CCPR [9.11].
13. General comment No. 16 on Article 17 (1988), paras. 1 and 9. 
14. General comment No. 16, para. 1.
15. Benito Oliveira et al. v. Paraguay (2015) 132 CCPR, General comment No. 23 (1994).
16. Benito Oliveira et al. v. Paraguay (2015) 132 CCPR [8.3], Portillo Cáceres et al. v. Paraguay (2016) 126 CCPR [7.8].
17. Portillo Cáceres et al. v. Paraguay (2016) 126 CCPR [7.4].
18. Benito Oliveira et al. v. Paraguay (2015) 132 CCPR [8.6].
19. Benito Oliveira et al. v. Paraguay (2015) 132 CCPR [8.3].
20. Käkkäläjärvi et al. v. Finland (2017) [9.9].