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A group of Torres Strait Islanders is filing a human rights complaint against the Australian Government. They say a lack of action on climate change is washing away their human rights.

When Cyclone Trevor smashed into Queensland and the Northern Territory in March, it tore a trail of destruction that stretched hundreds of kilometres. The effects were felt as far north as the Torres Strait, where a storm surge and huge tides washed away metres of beaches in just a few days.

Lawyer Sophie Marjanac was there at the time, on Masig (also known as Yorke Island), preparing for a human rights complaint to be filed against Australia with the United Nations.

The case, which was announced in May but had until recently escaped the attention of major media, claims that by failing to take “adequate action” to reduce the impact of climate change, the government has failed to meet human rights obligations to the residents under the International Covenant on Civil and Political Rights (ICCPR). The claimants – resident Indigenous Australians – argue that the Australian government has violated their fundamental right to maintain their culture.

Flooding and erosion

Marjanac is an Australian-qualified solicitor who grew up in the Blue Mountains and studied at the University of New South Wales. She’s currently working for a non-profit environmental law organisation called ClientEarth in London and tells LSJ the erosion and flooding she saw on Masig was “alarming”.

“I was quite surprised, having been there many years ago, at how much it’s changed – the shape of the islands themselves has changed,” says Marjanac. “The science is clear, and it’s been clear for a long time. We’re going to see frequent inundation of communities within the next 20 years, it’s really scary.”

The claim will be decided on the papers at the UN’s Human Rights Committee headquarters in Geneva. It will specifically call out provisions in the ICCPR conveying the rights to culture, family and life.

“There is a clear violation of rights. The clients are looking at being forced to move away from their ancestral homelands and, if they do that, they won’t be able to practise their traditional culture. It’s tragic,” she says.

“It’s shameful that Australia is one of the only countries in the world that doesn’t protect the right to a healthy environment. Domestic legal options are limited. Our constitution contains no protections for Indigenous rights, and this case really highlights that.”

Connection to country

Eight people from four different Torres Strait Islands are listed as complainants. Masig man Yessie Mosby tells LSJ he decided to join the action due to fear over his children’s future. He says climate change means his culture is currently “bobbing on the surface of extinction”.

“I’ve got five beautiful kids – four boys and a girl – and every night me and my wife will tell them stories. I’ll talk about the ancestral days, the legends, and stuff like that. We don’t talk about the future,” he says.

Mosby explains that, in his culture, aunties and uncles are treated like parents. Nieces and nephews are sons and daughters to them. As such, he’s not just acting on behalf of his biological children, but for some 900 other children as well. This strong connection to family continues after death. On Masig, when a family member dies, they are buried where they fell, so there are sacred sites all over the island. Talking to their spirits is part of everyday life.

“Every day when we go to catch a fish, we’ll call upon the spirits of my grandmothers in guidance to lead us on a safe walking path out on the reef, so we don’t get stung by stonefish or stingrays,” he says.

“We’ll ask them to lead us to where there is a lot of fish … we put two or three back [as] an offering to them.

“In our belief, once a burial site has been tampered with, whether by nature or by a person, the spirits will wander. They will be angry. We respect our loved ones and that’s why we cannot depart from them. They will look after us in the spiritual realm, but if we move from the island, we’ll break that link.”

Climate change and human rights

This matter, which will be the first time a climate action has been brought under the ICCPR, is just one in a string of recent global actions linking human rights to climate change.

In 2016, the Paris Agreement was adopted by consensus within the United Nations Framework Convention on Climate Change, requiring countries to determine, plan and regularly report on their contributions to mitigating global warming. It was the first international treaty to recognise the impact of climate change on human rights, stating in its preamble that, “Parties should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights”.

In the same year, a group of citizens and rights organisations filed a complaint against a group of corporations in the Philippines. The matter was filed after a series of violent typhoons battered the country, and targeted oil and mining giants including Shell, BP and Chevron. The claimants asked the UN Human Rights Commission to investigate corporate responsibility for alleged breaches of rights like health, water and sanitation linked to climate change.

Momentum in climate law

In February this year, NSW Land and Environment Court Chief Judge Brian Preston quashed plans for an open-cut coal mine in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7. His reasons included concern over the impact of greenhouse gas emissions on climate change.

“The project will have significant and unacceptable planning, visual and social impacts, which cannot be satisfactorily mitigated,” said His Honour in court. He also specifically recognised the impact the proposed mine would have on the traditional owners of the land.

“The project will adversely affect Aboriginal people of the area, by impacting their culture and country. The impacts are not merely to the individual Aboriginal sites that have already been identified, but also there is the risk that other unidentified Aboriginal sites might be affected.”

Experts anticipate more litigation

Martijn Wilder is head of Baker McKenzie’s climate change practice and an adjunct professor of climate change law at the Australian National University. He tells LSJ he expects litigation regarding human rights and climate change will continue to gain momentum.

“There is a clear link between the two, I don’t think there’s any doubt about that from a legal perspective,” he says. “Globally, countries are always developing new laws regarding climate change. There is a lot going on in the shipping and aviation sectors. In the Australian context, the government has committed to a 26-28 per cent reduction in emissions, so there is still quite a lot of work to do.

“The other thing that will drive change is domestic litigation. It’s just going to continue.”

When approached for comment, the Attorney-General’s Department told LSJ it has not yet been formally notified about the complaint. It said in a statement the Government is confident its policies on climate change are consistent with international human rights obligations.

Image: Yorke Islands, Central Group of Torres Strait Islands, Queensland, Australia.  Bottom right: Masig (Yorke) Island.