Daniel Billy & Ors. v. Australia, CCPR/C/135/D/3624/2019 (Sept. 22, 2022)
UN Human Rights Committee
Eight members of an indigenous minority group from the Torres Strait Islands petitioned the Human Rights Committee of the United Nations (HRC or Committee) claiming violations of their rights under the International Covenant on Civil and Political Rights (Covenant) by Australia. The petitioners acted in their own names and on behalf of six children.
The Torres Strait Islands are clustered between the northern tip of Australia and New Guinea. The residents of these islands are almost entirely indigenous Torres Straight Island peoples. They are Australian citizens, and the islands are administered in part by the Torres Strait Regional Authority (TSRA), which has the responsibility to conduct programs with the aim of improving the Islanders’ quality of life and wellbeing. The Torres Strait Islands are low-lying and small, making them uniquely susceptible to the impacts of climate change through sea-level rise and weather events, which has resulted in saltwater intrusion on traditional gardens, poisoning of coconut trees, destruction of houses and burial sites, and degradation of fishing grounds. All of these effects have had a severe impact on the culture and livelihood of Torres Strait Islander communities. Daniel Billy & Ors. v. Australia, CCPR/C/135/D/3624/2019, 2 (Sept. 22, 2022), available at: https://ccprcentre.org/files/decisions/CCPR_C_135_D_3624_2019_34335_E.pdf. The petitioners claimed that Australia failed to implement adaptation programs to ensure the long-term habitability of the islands, and that Australia disproportionately emits greenhouse gases that contribute to sea-level rise and degradation of the physical environment that the Torres Strait communities rely on for their social, economic, and cultural survival. Id. at 3.
Before reaching the Islanders’ claims, the Committee first addressed whether the communication was admissible. The Committee agreed with the Torres Strait Islanders that no effective domestic remedies exist to enforce their rights under the Australian Constitution or other legislation, and the High Court of Australia ruled that state bodies do not owe a duty of care for failing to regulate environmental harm. See Graham Barclay Oysters v. Ryan  HCA 54, available at: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2002/54.html. The Committee, however, ruled that claims invoking article 2 of the Convention would not be admissible. Id. at 10.
The Committee rejected Australia’s argument that the communication was inadmissible because it alleged violations of other international treaties, including the Paris Agreement, which lie outside the scope of the Covenant. The Committee declared that international treaties and agreements can be taken into account when interpreting the extent of a state’s obligations under the Covenant. Id. at 10-11.
Australia also questioned whether it could be held responsible for violating the Islanders’ rights under the Covenant when climate change is a global phenomenon attributable to the actions of many states and private entities. Id. at 5. The Committee disagreed, explaining that the Covenant imposes positive obligations on states to ensure the protection of individuals under their jurisdiction against violations of the Covenant. Id. at 11. Responsibility for climate mitigation and adaptation measures falls within a state’s jurisdiction, especially for those states like Australia that are major greenhouse gas emitters that rank highly on world economic and human development indicators. Id. Accordingly, it is within the Committee’s purview to consider whether a state’s actions or omissions with respect to implementing such measures have impaired individual rights. Id.
The Islanders alleged that Australia’s failure to implement timely and effective climate mitigation and adaptation measures violated articles 6, 17, 24(1), and 27 of the Covenant. Invoking article 6, the Islanders claimed that Australia’s actions constituted a violation by act and omission of the right to life with dignity. The Committee found that though the Islanders face degradation of their land and food sources, they had not shown that there is a real and reasonably foreseeable risk of physical endangerment great enough to threaten their lives. Id. at 13. Further, given that the islands are not predicted to be uninhabitable until 10 or 15 years from writing, and that Australia has implemented initial efforts to construct sea walls and other climate adaptation infrastructure, there is enough intervening time that Australia can take further affirmative measures to protect and relocate victims. Id. at 13-14.
Article 17 protects the right to be free from arbitrary or unlawful interference with privacy, family, or home. The Committee explained that States parties must prevent interference with privacy, family, or home that arises from conduct not attributable to the state if the interference is foreseeable and serious. Id. at 14. The Committee continued: “[W]hen 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.” Id. The Committee found that Australia therefore has a positive obligation to implement adaptation measures to protect the homes, private lives, and families of the Islanders. Id. at 15. By not timely and adequately responding to the Islanders’ requests for adaptation measures, and because climate change directly impacts the subsistence way of life of the indigenous communities, the Committee found that Australia violated the Islanders’ rights under article 17. Id.
Article 27 protects the rights of minority indigenous groups to enjoy their own culture, religion, and language. The Committee found that the Islanders have already experienced an erosion of traditional lands, natural resources, and cultural sites from climate change, and that they would be unable to practice their culture anywhere but on the islands. Id. at 16. The Islanders would also be unable to transmit their way of life to future generations if their lands are further degraded. Id. The Committee found that Australia’s failure to adopt timely climate change adaptation measures to protect the Islanders’ collective ability to enjoy and maintain their culture violated article 27 of the Covenant. Id.
The Committee did not examine the Islanders’ claims under article 24(1) (right of the child to protective measures) on the ground that it had already found a violation of articles 17 and 27. Id. at 16.
The Committee held that Australia must provide full reparations to the individuals harmed. This includes adequate compensation, meaningful consultations with the Torres Strait Islander communities to understand their needs, continued implementation of efforts to keep the Islanders safe, and monitoring and review of the effectiveness of the measures implemented. Id. The State is also required to prevent similar violations in the future. Id.