BY EBONY BACK AND REBECCA LUCAS

Introduction

There has been a spate of legal actions (both domestic and international) around the world in the past few years attempting to hold governments accountable for their inaction on climate change and the resultant human rights consequences. The Australian government is now no exception. In May 2019, a formal complaint was lodged to the United Nations Human Rights Committee (‘the Committee’) against the Australian government by of a group of Torres Strait Islanders affected by climate change with the support of ClientEarth, Europe’s first public interest environmental law organisation.

This post will summarise the case that is being brought to the Committee and other recent developments around the use of human rights litigation to combat climate change, but also the hurdles that are likely to be faced by the claimants. While it is expected that several years may elapse before the Committee makes a decision on the complaint, it is important to consider the ramifications it may have in Australia.

The Case

The first Optional Protocol to the International Covenant on Civil and Political Rights (‘the ICCPR’) allows individuals who claim their rights under the ICCPR have been violated to submit written communications to the Committee. The claimants are eight Torres Strait Islanders from four different Torres Strait Islands situated north of Queensland between mainland Australia and Papua New Guinea.

The complaint relates to alleged breaches by the Australian government of the ICCPR, specifically the right to culture (Article 27), the right to be free of arbitrary interference with privacy, family and home (Article 17) and the right to life (Article 6), arising from the Australian government’s failure to adopt adequate measures to reduce greenhouse gas emissions or to build proper adaptation measures such as sea walls on the islands. The most notable effects of climate change observed in the Torres Strait include rising sea levels and increasingly frequent extreme weather events, damaging infrastructure and the environment.

Such a claim based on human rights may once have been thought of as a radical idea, with climate change issues typically being approached through an environmental or economic lens. However, a small number of pivotal decisions which have succeeded in holding governments to account are starting to build an influential body of precedent that suggest this human rights claim may not be as fanciful as once might have been thought.

The Complaint under Article 27

Article 27 of the ICCPR provides:

In those States in which ethnic, religious or linguistic minorities exist persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 27 has been held to impose positive obligations on states to protect Indigenous cultures.

While some restrictions on cultural, religious or language practice will not amount to a breach, the Committee observed in Mavlonov and Sa’Di v Uzbekistan:

[T]he question of whether Article 27 has been violated is whether the challenged restriction has an ‘impact […] [so] substantial that it does effectively deny to the [complainants] the right to enjoy their cultural rights[.]’

The complaint will focus scrutiny on whether Australia has denied Torres Strait Islanders their cultural rights by failing to respond to the threats posed by climate change. The crux of this claim is that the claimants’ culture is unique to the region of the Torres Strait and, if they are dispossessed of their land as a result of climate change, they will be denied their cultural practices and traditions. These include threats to biodiversity (such as turtles and dugongs, which have important status as totems), subsistence farming and the destruction of monuments and sacred sites. Connection to the land and Island custom of the Torres Strait has been legally recognised under the Torres Strait Islander Land Act 1991 (Qld). The islands of the claimants – Masig (Yorke Island), Boigu, Poruma (Coconut Island) and Warraber (Sue Island) – have also been the subjects of successful Native Title determinations.

The Committee has previously acknowledged that Indigenous peoples’ cultural rights may pertain to protection of a way of life which is closely associated with territory and use of its resources. Displacement or damage to land can therefore deny the right to enjoy one’s culture. This focus on connection to land is likely to play a key role in the decision in light of findings that islands and low-lying states particularly suffer from the extreme environmental consequences of climate change and have a limited capacity to respond.

The approaches of regional human rights decision-making bodies (under different treaty regimes) have greatly varied in their consideration of environment and climate-related cases where impact on culture is claimed. The Inter-American Commission on Human Rights declined to rule on the Inuit Climate Change Petition, which claimed that greenhouse gas emissions from the United States had violated the Inuit’s lives, health, land rights, property and livelihood. The Inter-American Commission stated that there was insufficient information or evidence of harm to make a determination. However, the European Court of Human Rights’ decision in Tatar v Roumanie affirmed that pollution can interfere with a person’s rights and causation may not necessarily need to be made out to prove that a government’s actions have been inadequate to preclude harm. It was noted that ‘even in the absence of scientific probability about a causal link, the existence of a serious and substantial risk to health and well-being’ of the applicants imposed a positive obligation on the State to adopt adequate measures to protect their rights. It remains to be seen what approach the Committee will adopt in light of the evidence put forth by the claimants.

The Complaint under Article 17

Article 17 of the ICCPR confers the right not to be subjected to interference with one’s privacy, family or home. The Committee will need to consider whether the action of the Australian government in allegedly failing to adopt mitigation or adaptation measures in response to climate change, particularly rising sea levels and extreme weather events, constitutes ‘interference’. How the claimants are characterising the interference is unknown, however it is likely that the complaint will include damage to home and displacement.

The right conferred by Article 17 has been held to protect against construction projects which would have disrupted ancient ancestral burial grounds. It has also been accepted that it extends to the right to enjoy a home peacefully, away from pollution.

In other analogous circumstances, such rights have been violated where a government’s response to tackling environmental problems, such as pollution, was delayed and inconsistently enforced, with the effect that there was no functioning policy in place to protect people’s homes from environmental risks. However, the question is whether Australia’s alleged inaction, in situations where the Indigenous claimants may face displacement, is a violation of the ICCPR.

The Complaint under Article 6

Article 6 of the ICCPR recognises that ‘every human being has the inherent right to life’ and that no person shall be ‘arbitrarily deprived of life’.

General Comment 36 on the right to life, adopted by the Committee in October 2018, has arguably broadened the scope of what may violate Article 6. The General Comment notes that:

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 the loss of life. States parties may be in violation of article 6 even if such threats and situations do not result in the loss of life.

The Committee has stated that the right to life should not be interpreted narrowly and requires States to adopt positive measures. States parties are required to take special measures of protection toward persons in situations of vulnerability (including Indigenous peoples) whose lives have been placed at particular risk because of specific threats.

Previously the right has covered obligations to take preventative measures to disband armed groups.  It has also encompassed obligations to reduce the proliferation of potentially lethal weapons. The Committee would be expanding into new territory by finding that an obligation exists to take preventative measures in respect of rising sea levels, extreme weather events and, potentially, resultant illnesses such as malaria.

There is some case law from regional human rights decision-making bodies which suggests the right to life can be breached in circumstances where a state does not exercise its positive obligation to protect individuals against foreseeable threats to human rights in an environmental harm and climate change context.

In Budeayeva and Others v Russia, the European Court of Human Rights held that Russia had violated the right to life by not implementing land planning and emergency relief policies in response to a mud-slide which killed eight people. In an advisory opinion, the Inter-American Court of Human Rights acknowledged the adverse effects of climate change on human rights, which are dependent on the existence of a healthy environment, and ruled that states must prevent significant environmental harm.

Further, a number of cases have been considered or commenced in states’ domestic courts. Cases have been brought against governments for violations of human rights including the right to life based on responses to climate change in the United States, Canada, Colombia, Pakistan, Switzerland, Norway, Belgium, Germany, France, the United Kingdom and most recently in Ireland, where it is claimed that the rights to life and family under the European Convention on Human Rights have been breached by the government’s poor emissions record. While many of these claims are still ongoing, the claims brought against the Colombian and Pakistani governments have been determined in the claimants’ favour.

Additionally, the landmark Dutch case of Urgenda Foundation v Kingdom of the Netherlands (‘Urgenda’) set a new standard for government accountability in the Netherlands when the District Court of The Hague considered the duty of care the Dutch government must exercise to protect citizens from climate-related harm. The Court found that the government had a positive obligation to adequately reduce greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The decision was upheld on appeal.

Hurdles to Success

As noted at the outset of this post, climate change has traditionally not been considered from a human rights perspective, but as has been outlined in considering the Torres Strait Islands communication, domestic and international decision-makers are increasingly being asked to consider it from precisely this perspective. However, the Australian Indigenous claimants still face significant hurdles in bringing their claim to fruition.

Before even turning to an assessment of the possible merits of the complaint, the claimants will need to satisfy the Committee that it is ‘admissible’. It is a ‘cardinal principle’ governing admissibility of communications under the First Optional Protocol to the ICCPR that the claimants must have exhausted all domestic avenues for relief. There is no suggestion in this communication that the claimants have sought to pursue their complaint in Australia through domestic processes such as the Australian Human Rights Commission. While there are exceptions to the requirement to exhaust domestic remedies, it is unclear whether the claimants will be able to satisfy the Committee that Australia’s domestic processes would be plainly ineffective.

The subject of the complaint raises additional difficulties. Cases such as the Inuit Climate Change Petition demonstrate that there are significant impediments to holding a state responsible for greenhouse gas emissions due to the need to establish causation and attribute responsibility. It will be difficult for the claimants to establish a sufficient causal connection between the activities (or omissions) of Australia and the human rights impacts to which they point, given other contributing and intervening factors that can be identified as contributing to climate change phenomena. While the claimants’ characterisation of Australia’s conduct, specifically the failure to adopt mitigation measures, may assist them in substantiating their claim, they will encounter the difficulty the Office of the High Commissioner for Human Rights has highlighted:

The physical impacts of global warming cannot easily be classified as human rights violations, not least because climate change-related harm often cannot clearly be attributed to acts or omissions of specific States.

Australia in the Spotlight

Regardless of the outcome, the complaint against Australia will be the first of its kind to be considered by the Committee and will be significant in informing the Australian government, and governments around the world, as to how their environmental and climate change policies interact with their obligations under the ICCPR.

On the international stage, Australia’s position on climate policies has already come under scrutiny. Australia’s target under the Paris Agreement was to reduce 2005 emission levels by 26-28 per cent by 2030. According to the United Nations 2018 Emissions Gap Report, Australia is not on track to meet its unconditional carbon emissions reduction targets, with ‘no improvement on Australia’s climate policy since 2017’ and emission levels for 2030 expected to be ‘well-above’ target.

Domestically, if the claim proceeds to be determined on the merits, several ramifications may be seen. Australia is likely to see a renewed focus on methods of prohibiting acts that increase greenhouse gas emissions, both through the development of existing bodies of law (principally through challenges to administrative decision-making under planning and environmental legislation) and in novel cases which seek to hold government and corporate players directly to account. Although running a test case like Urgenda in the Australian domestic context is likely to be more difficult under Australia’s common law system due to the necessity of establishing both a duty of care and a breach of that duty, it has been suggested that such a case could succeed. Additionally, litigation against governments or actions under human rights charters in the Australian Capital Territory and Victoria may be attempted as Australia enters a new era of judicial consideration of climate change.

The recent decision in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 represents the beginning of this new era. In refusing approval for a coal mine, the Court broke new ground by accepting scientific evidence of a global budget of greenhouse gas emissions, agreed that the mine’s approval would not assist the rapid reductions in emissions needed to meet Australia’s Paris Agreement targets and considered that the mine would significantly impact Indigenous people and cultural heritage sites. Such an action is unlikely to be the last.

The claimants’ action before the Committee may also precipitate policy changes to provide greater avenues domestically to pursue claims of this nature. While a hurdle likely to face the claimants is their failure to exhaust domestic avenues of redress, it is far from clear whether bodies like the Australian Human Rights Commission presently have the mandate or resources to consider such claims. Finally, it remains to be seen whether the claimants’ broader campaign, ‘Our Islands, Our Home’, that includes a petition calling on the Australian Government to take domestic action to protect the Torres Strait Islands, will be successful.

Ebony Back is a solicitor in Western Australia and Rebecca Lucas is an associate at the Federal Court of Australia.

The information contained in this article is of a general nature only and is based on the law at the time of publication. It is not, nor is it intended to be, legal advice. The views are solely those of the authors and not in conjunction or association with any law firm.

Suggested citation: Ebony Back and Rebecca Lucas, ‘Climate change and human rights to collide before the United Nations Human Rights Committee ’ on AUSPUBLAW (17 July 2019) <https://auspublaw.org/2019/07/climate-change-and-human-rights-to-collide-before-the-united-nations-human-rights-committee/(opens in a new tab)>