In a significant decision (the first of its kind) the United Nations Human Rights Committee (the “Committee”) has found that the rights of people living on four islands in the Torres Strait (the “Islands”) (north of the northern tip of Australia and (mostly) under the statutory authority of the Australian federal government) (the “Torres Strait Islanders”) have had their human rights violated by the Australian government by virtue of the Australian government’s failure to protect them from the effects of climate change. 

The Torres Strait Islanders have long claimed that the Australian government failed to take appropriate steps to mitigate the effects climate change has had on the Islands. In short, the Torres Strait Islanders say that rising sea levels have had, and continue to have, a severely detrimental effect on the ecology, economy and culture of the Islands. Salt water encroaching on the Islands not only proves a threat to property and life, but also has a severely deleterious effect on the self-sustainability of the islands; polluting formerly productive land and destroying sites of cultural significant.

After years of raising concerns and inaction from the Australian government, the Torres Strait Islanders made a formal complaint to UN Human Rights Committee, claiming that the Australian government has violated their human rights by failing to implement adaption measures to protect, inter alia: (1) their homes; (2) their private lives; (3) their families; and (4) their right to a life with dignity, as well as their ability to maintain their culture and way of life for future generations.

The Committee agreed (though very much not unanimously), finding claims (1)-(3) above proved; on the information available. The Committee found that “by failing to discharge its positive obligation to implement adequate adaptation measures to protect the [Torres Strait Islanders’] home, private life and family”, the state of Australia had violated the Torres Strait Islanders’ rights under article 17 of the International Covenant on Civil and Political Rights.

The Committee also said that the Torres Strait Islanders were entitled to compensation for the harm suffered as a result of the Australian government’s inaction.

Interestingly, the decision focussed largely on failures of adaption, ignoring failures of mitigation. i.e. The decision focussed on failures by the Australian government to implement relevant strategies to protect the Torres Strait Islanders in the face of the physical effects of climate change. Making a decision on mitigation would have forced the Committee to struggle with the causation of the harms (a tricky area when the answer is, effectively, ‘climate change’). Focussing on failures of adaption led to a successful complaint and the first Committee decision where a claim relating to ‘climate harm’ has been proved. The Torres Strait Islanders could point simply to actual failures to protect people and communities from rising sea levels (e.g. failures to build sea walls) assuming that the harm has occurred and bypassing the question of causation (and mitigation) all together.

While not a binding decision on the Australian government, this is certainly embarrassing and ministers have since stated that they will “work with” the Torres Strait Islanders on climate change adaption measures. The Australian government have 180 days from the date of the decision to respond (should they wish). It remains to be seen what practical steps will be taken to protect the Torres Islands, sat on the front line of climate change.

Strategies, perceptions and science have come a long way since the petition of the Inuit people to the Inter-American Commission on Human Rights in 2005 that kick-started the idea that failures to address climate change and protect people could breach fundamental human rights. Now that a significant decision has effectively linked a breach of duty to a failure to adapt to climate change, this line of argument may well be used by other climate litigants in environmental litigation; both against countries and companies. It seems unlikely that these successful arguments will be confined purely to claims against governments.