Torres Strait Islanders ask UN to hold Australia to account on climate ‘human rights abuses’


Kristen Lyons, The University of Queensland

Climate change threatens Australia in many different ways, and can devastate rural and urban communities alike. For Torres Strait Islanders, it’s a crisis that’s washing away their homes, infrastructure and even cemeteries.

The failure to take action on this crisis has led a group of Torres Strait Islanders to lodge a climate change case with the United Nations Human Rights Committee against the Australian federal government.

It’s the first time the Australian government has been taken to the UN for their failure to take action on climate change. And its the first time people living on a low lying island have taken action against any government.

This case – and other parallel cases – demonstrate that climate change is “fundamentally a human rights issue”, with First Nations most vulnerable to the brunt of a changing climate.

The group of Torres Strait Islanders lodging this appeal argue that the Australian government has failed to take adequate action on climate change. They allege that the re-elected Coalition government has not only steered Australia off track in meeting globally agreed emissions reductions, but has set us on course for climate catastrophe.

In doing so, Torres Strait Islanders argue that the government has failed to uphold human rights obligations and violated their rights to culture, family and life.

This case is a show of defiance in the face of Australia’s years of political inertia and turmoil over climate change.

It is the first time people living on a low-lying island – acutely vulnerable in the face of rising sea levels – have brought action against a government. But it may also be a sign of things to come, as more small island nations face impending climate change threats.

Breaching multiple human rights obligations

Driving this case is an alliance of eight Torres Strait Islanders, represented by the Torres Strait land and sea council, Gur A Baradharaw Kod, along with a legal team from ClientEarth and 350.org. They argue that their way of life has come under immediate and irreversible threat.

On this basis, they accuse the Australian government of breaching multiple articles of the UN Human Rights Declaration, including the right to culture, the right to be free from arbitrary interference with privacy, family and home, and the right to life.

In the early 1990s, the Torres Strait Islands were at the centre of struggles to secure Aboriginal and Torres Strait Islander land rights in Australia.

Securing these rights were made possible through the historic Mabo Decision, and these rights remain central to land and human rights debates today as Torres Strait Islanders’ land and seas are threatened by climate change.

Torres Straight Islanders are on the frontlines

Some Torres Strait Islands are less than one metre above sea level and are already affected by climate change.

Rising tides have delivered devastating effects for local communities, including flooding homes, land and cultural sites, with dire flooding in 2018 breaking a sea wall built to protect local communities.

Thursday Island in the Torres Strait. The ancestral lands of these islands are being washed away by sea level rise from climate change.
Shutterstock

Increasing sea temperatures have also affected marine environments, driving coral bleaching and ocean acidification, and disrupting habitat for dugong, salt water crocodiles, and multiple species of turtle.

In the same way settler colonial violence dispossessed First Nations people from their ancestral homelands, climate change presents a real threat of further forced removal of people from their land and seas, alongside destruction of places where deep cultural and spiritual meaning is derived.

Parallel threats across the Pacific

While the Torres Strait appeal to the UN is groundbreaking, the challenges facing Torres Strait Islanders are not unique.

Delegates at the Pacific Islands Forum in Fiji last week described climate change as the “single greatest threat” to the region, with sea level rise occurring up to four times the global average in some countries in the Pacific.

Climate change is already causing migration across parts of the Pacific, including relocation of families from the Carteret Islands to Bougainville with support from local grassroots organisation Tulele Peisa.

The Alliance of Small Island States, an intergovernmental organisation, has demanded that signatories to the Paris Agreement, including through the Green Climate Fund, recognise fundamental loss and damages communities are facing, and compensate those affected.

The growing wave of climate litigation

Across the Torres Strait, the Pacific, and other regions on the frontline of climate change, there are a diversity of responses in defence of land and seas. These are often grounded in local and Indigenous knowledge.

They show the resolve of First Nations and local communities, as captured in a message from the Pacific Climate Warriors:

We are not drowning. We are fighting.

There are parallel appeals to the Torres Strait Islanders’ case. Around the world, First Nations people are calling on the UN to hold national governments to account on human rights obligations, including in the context of mining and other developments that drive greenhouse gas emissions.

In Australia, Wangan and Jagalingou Traditional Owners have submitted multiple appeals, including last year alleging government violations of six international human rights obligations in their effort to advance Adani’s proposed Carmichael mine.

There is an array of other climate litigation underway. This includes citizens suing their governments for failing to take action on climate, such as in the Netherlands, where a judge ordered the government to take hefty action to reduce national emissions.

Similarly, a group of 21 children in the United States are pursuing a lawsuit to demand the right to a safe climate.

Given the parlous state of climate politics in Australia, further litigation can be expected. The significance of the current appeal by a group of Torres Strait Islanders lies in its potential to lay bare the adequacy or otherwise of Australia’s response to climate change as a human rights issue.

First Nations people already have a moral authority in defending their human rights in the era of climate change. Over time, they and others, including children, will also test the grounds on which they might have the legal authority to do so.The Conversation

Kristen Lyons, Professor Environment and Development Sociology, The University of Queensland

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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Should Australia recognise the human right to a healthy environment?



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Australia is one of very few countries that does not recognise the right to a healthy environment.
Jordan Davis, Author provided

Meg Good, University of Tasmania

Australia is one of only 15 nations (a list that also includes Canada and the United States) that does not recognise the human right to a healthy environment at the federal level.

Last year, the Australian Panel of Experts on Environmental Law recommended that environmental democracy in Australia “must have as a foundation, respect for fundamental human rights and, in particular, an enforceable right to a clean and healthy environment”.




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Suggestions have also been made by various academics and environmental protection organisations to recognise the right in existing and proposed state human rights charters, including the soon-to-be-developed Queensland Human Rights Act.

So should Australia heed these calls and recognise the right? The global experience with environmental rights recognition suggests that it could be beneficial.

Environmental protection

In 2012, Canadian environmental lawyer David Boyd published The Environmental Rights Revolution, an analysis of the dozens of nations which have already recognised the human right to a healthy environment in their constitutions.

Although there is no internationally accepted definition of the right, Boyd cites the Stockholm Declaration as its first formal recognition:

Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations.

His research found that across Latin America, Europe and Asia, the right to a healthy environment has helped to strengthen existing environmental protection laws and policies and encouraged the introduction of new stronger legislation. Significantly, it has also prevented governments from “rolling back” effective laws created by their predecessors.

Lawsuits utilising the right have been successful in achieving better protection for the environment, safeguarding crucial natural resources for current and future generations.

Whether Australia would enjoy similar benefits would significantly depend on the expression of the right and the form of legal recognition adopted.




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In Latvia, the right is expressed as a right to live in a “benevolent environment”, whereas in Brazil citizens are granted a right to an “ecologically balanced environment”. Exactly how the right would be expressed in Australia would be a question for parliament.

It’s highly unlikely the Australian Constitution would be changed to incorporate the right (since 1906, constitutional reform has succeeded only eight times), so it’s probable that Australia would recognise the right through legislation.

Although Australia has so far resisted introducing comprehensive national human rights legislation, the right could be recognised within a statutory bill of human rights based on the “dialogue model”.

The dialogue model of recognition

Recommended by the National Human Rights Consultation Committee, the dialogue model involves all three arms of government engaging in a “dialogue” about human rights protection. It requires public authorities to act in line with protected rights, and courts to (if possible) interpret legislation in a compatible manner.

However, one of the most powerful consequences of recognising the right within this model is that all future legislation would be scrutinised for consistency with the right.

Australia already has a Parliamentary Joint Committee on Human Rights, which examines the compatibility of proposed legislation with specified international human rights standards. Presumably, if the right was recognised in a federal bill of rights, the Committee’s mandate would alter to include consideration of all rights recognised under the legislation.

At present, the Committee is not required to consider the compatibility of proposed legislation with the human right to a healthy environment.

This was highlighted in 2016, when the federal government controversially proposed amending the nation’s key environmental protection legislation to limit standing for environmental protection groups to challenge decisions made under the Act.

Due to the Minister stating that there is “no standalone right to a healthy environment”, the Committee only considered the legislation’s impact on environmental protection indirectly through consideration of its impact on the right to health (which includes the “underlying determinants of health”, such as a healthy environment).




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Ideally, the Committee would be empowered to consider the impacts of proposed legislation on the right to a healthy environment directly. This scrutiny process would help to ensure that proposals which jeopardise the government’s ability to protect, respect and fulfil the right could be identified and challenged before they pass into law.

A limited but useful tool

Under the dialogue model, the parliament retains the final say, meaning it would still be possible for the legislature to pass legislation manifestly incompatible with the right. The “safety net” of protection offered by this form of recognition would not suffice to address all potential and actual breaches of the right, or even guarantee its fulfilment.




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However, it would ensure that the right enters the legal and policy discourse around natural resources management and sustainable development.

In a time of unprecedented climate change, the right invites another way of thinking about our relationship with the natural world, and offers a useful tool for improving environmental protection in Australia.


The ConversationThis article is based on the author’s 2016 PhD thesis which proposed legal recognition of the human right to a healthy environment in Australia under a statutory bill of rights.

Meg Good, Adjunct Lecturer, Faculty of Law, University of Tasmania

This article was originally published on The Conversation. Read the original article.