|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Precedent (Australian Lawyers Alliance) |
THE IMPACTS OF CLIMATE CHANGE ON THE HUMAN RIGHTS OF FIRST NATIONS AUSTRALIANS
By Professor Rosemary Lyster
The author acknowledges that the University of Sydney Law School is situated on the lands of the Gadigal People of the Eora Nation. This article was written on Dharug country and the author pays her respects to all Elders past, present and emerging.
In recent times, Australia has experienced several catastrophic extreme weather events, including bushfires, heat waves, floods and cyclones, while also experiencing the slow-onset impacts of climate change such as drought, sea-level rise and the loss of biodiversity. Both of these have impacted, and will continue to impact, on all Australians, including First Nations Australians.
This is clear from the Intergovernmental Panel on Climate Change’s (IPCC) Sixth Assessment Report Climate Change 2021 (AR6)[1] which was released in August 2021. The AR6 Summary for Policymakers [2] states that the scale of recent changes across the whole of the climate system is unprecedented over many centuries, to many thousands of years. Furthermore, many changes due to past and future greenhouse gas (GHG) emissions ‘are irreversible for centuries to millennia, especially changes in the ocean, ice sheets and global sea level’.[3] The AR6 reports that land areas across Australia warmed by around 1.4°C between 1910–2020 and heat extremes have increased while cold extremes have decreased. This is higher than the global average of 0.99°C.[4]
These trends are expected to continue. In recent decades, sea level also rose at a higher rate in Australia than the global average rate of increase and sandy shorelines have retreated in many locations. This is projected to continue in the 21st century and beyond, contributing to increased coastal flooding and shoreline retreat throughout Australasia. Since 1950, the frequency of extreme fire weather days has increased, with the fire season becoming longer at many locations, while the intensity, frequency and duration of fire weather events are projected to increase throughout Australia. Heavy rainfall and river floods are also projected to increase. An increase in marine heatwaves and ocean acidity has already been observed and is projected to continue along with enhanced warming in the East Australian Current region of the Tasman Sea. Finally, sand and dust storms are projected to increase throughout Australia.[5]
VULNERABILITY AND EXPOSURE OF FIRST NATIONS AUSTRALIANS TO CLIMATE CHANGE
While the impacts of climate change will be experienced by all Australians, many First Nations communities will experience greater impacts because of pre-existing vulnerabilities and exposure. Here, vulnerability is defined as ‘the propensity or predisposition to be adversely affected’ and exposure as ‘the presence of people; livelihoods; environmental services and resources; infrastructure; or economic, social, or cultural assets in places that could be adversely affected.’[6] The IPCC states that differences in exposure and vulnerability are expressed through levels of wealth and education, disability, and health status, as well as gender, age, class, and other social and cultural characteristics. As is well-known, First Nations Australians have been marginalised through historical processes of colonialism, dispossession, segregation and assimilation policies which have exacerbated their vulnerability.[7]
With regard to exposure, Nursey-Bray[8] has recently documented the many specific ways in which First Nations Australians are being, and will be, impacted by climate change. For example, sea-level rise is impacting heavily on communities in the Torres Strait while more intense cyclones in North Queensland are affecting fishing sites and other significant sites. Storm surges and floods in low-lying tropical areas are impacting on First Nations people’s cultural spaces, such as the Arafura Swamp. Climate impacts in tropical savannas, such as Kakadu, include saltwater incursions into freshwater ecosystems, changing fire seasons, and the generation of more intense storm activity. Where there are changes in fire frequency and weather events, damage to rock art sites may occur. The Uluru region is predicted to face increased hot weather, drought, fire and flash floods, which will alter this iconic cultural landscape. The food security of First Nations Australians, including traditional harvests and hunting and gathering, may also be affected. For example, the reproductive cycle of the green turtle is heat sensitive, and the dugong’s seagrass habitats are affected. It is acknowledged that water availability, in the Murray-Darling Basin for example, will be significantly impacted by changes in global and regional climate patterns.[9] Given that around 80 per cent of First Nations Australians live in cities and non-remote regional areas, they are also exposed to the risks of heatwaves, communicable diseases, and dengue fever in tropical urban areas.[10] Clearly, the vulnerability and exposure of First Nations Australians to climate change is a complex web across time and space.
CLIMATE CHANGE AND THE HUMAN RIGHTS OF FIRST NATIONS AUSTRALIANS
Concern for the impacts of climate change on the human rights of First Nations Australians, and in particular Torres Strait Islanders, is nothing new. In 2008, the Australian Human Rights Commission (AHRC) set out the specific rights that might be impacted in the Native Title Report.[11] These include the rights to life,[12] water,[13] food,[14] health,[15] a healthy environment[16] and culture[17] (which is especially affected by dispossession and relocation).[18] These rights are derived variously from:
• the Universal Declaration of Human Rights;[19]
• the International Covenant on Civil and Political Rights;[20]
• the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP);[21]
• the International Covenant on Economic, Social and Cultural Rights;[22]
• the Convention on the Elimination of Discrimination against Women;[23]
• the Stockholm Declaration on the Human Environment;[24]
• the Rio Declaration;[25]
• the International Convention on the Elimination of All Forms of Racial Discrimination;[26] and
• the Indigenous and Tribal Peoples Convention.[27]
Torres Strait 8 v Australia
The obligations of the Australian Government to protect the human rights of Torres Strait Islander people from climate change is a live issue, as a decision from the United Nations Human Rights Committee (UNHRC) on this is imminent. In 2019, a complaint was brought against the Australian Government by people living on Boigu, Coconut, Yorke and Sue Islands, known as Torres Strait 8 v Australia.[28] The complainants allege that the Australian Government is infringing their human rights to culture, family and life by failing to mitigate climate change and adapt to it. [29] This is the first climate change complaint in the world brought by residents of low-lying islands against a nation State.[30] Evidence tendered by the Torres Strait 8 to the Committee includes the washing of their ancestors’ bones into the sea due to sea-level rise. The Torres Strait 8’s complaint has been supported by the current and former UN Special Rapporteurs for Human Rights and the Environment, which has submitted an independent amicus brief to the UNHCR,[31] and has previously reported on the impacts of climate change on human rights.[32] Meanwhile, the Australian Government has rejected the complaint, arguing that the case should be dismissed ‘because it concerns future risks, rather than impacts being felt now, and is therefore inadmissible’.[33] The Government’s other contention is that because Australia is not the main or only contributor to global warming, it is not responsible under human rights law to take action on climate change to protect the Torres Strait.[34]
The Paris Agreement and the Sendai Framework
The Australian Government’s defence is problematic in several respects. Firstly, as confirmed by the AR6, climate change is currently impacting on Australia and in some instances impacting more intensely than the global average. Also, without wanting to pre-empt the decision of the Committee, given that Australia has ratified both the Paris Agreement[35] (the Agreement) and the Sendai Framework on Disaster Risk Reduction,[36] citing the fact that Australia is not the main contributor to global warming is disingenuous. In the Paris Agreement, the Preamble requires Parties, when taking action to address climate change, to: ‘respect, promote and consider their respective obligations on human rights, the right to health, the rights of indigenous peoples ... people in vulnerable situations and the right to development, as well as ... intergenerational equity.’ While the Preamble is not a legally binding part of the Agreement, it nevertheless reflects the ethos of its proceeding provisions. The legally binding provisions require the Australian Government to reduce emissions[37] and engage in adaptation planning.[38] The Sendai Framework requires the Government to invest in disaster risk reduction for resilience and enhance disaster preparedness.[39]
Emissions reduction targets
With regard to emissions reduction, Australia has signed up to global efforts to ‘hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels, to significantly reduce the risks and impacts of climate change’.[40] In accordance with the Agreement, countries must regularly update and improve upon their targets and each successive commitment must reflect their highest possible ambition.[41] The Australian Government’s target is to reduce greenhouse gas (GHG) emissions by 26–28 per cent based on 2005 levels by 2030. However, an eminent panel has found that Australia’s emissions should in fact be reduced by 50 per cent (for 2°C) and 74 per cent (for 1.5°C) by 2030.[42] The Government has recently made a commitment to net zero emissions by 2050.[43]
However, to focus only on Australia’s Paris Agreement targets misses the point that in 2020 Australia was the top coal exporter in the world, responsible for 39.5 per cent of total coal exports valued at US $32.7 billion.[44] Second was Indonesia, which exported 17.6 per cent, worth US $14.5 billion.[45] Australia does not have to include the GHGs emitted by burning this coal in its domestic National Greenhouse Gas Inventory[46] because it is burnt in other countries (scope 3 emissions). However, as the AR6 warns, ‘every tonne of CO₂ emissions adds to global warming’.[47] While coal continues to be burnt across the world, Australians, and particularly First Nations Australians, will suffer the impacts of climate change.
Requirement of National Adaptation Plan
With regard to adaptation, the Agreement establishes a global adaptation goal which aims to: enhance adaptive capacity; strengthen resilience; and reduce vulnerability to climate change.[48] All Parties must prepare a National Adaptation Plan and implement the agreed upon adaptation actions.[49] The Commonwealth Department of Agriculture, Water and the Environment is currently developing a new National Climate Resilience and Adaptation Strategy[50] (Strategy) to be released later this year. The 2015 Strategy[51] contains numerous references to First Nations knowledge, and ecosystem and land management. It is hoped that the new Strategy will take on the call of the Royal Commission into National Natural Disaster Arrangements[52] to make Australia more resilient through ‘big country thinking’ and national strategic leadership. The Royal Commission’s report stated that making Australia resilient requires the attention of the Prime Minister and state and territory Premiers and Chief Ministers, including through a forum such as the National Cabinet.[53] Nevertheless, it is the responsibility of all levels of government in Australia to implement these strategies and build resilience in First Nations communities.
Risk of dispossession and relocation
A major concern for First Nations Australians living in areas exposed to climate change is the question of displacement.[54] The issue of climate-displaced persons has been extensively dealt with at the international level with the establishment of the UN Task Force on Displacement.[55] The 2015 Strategy and the National Resilience Taskforce[56] both identify the risk of climate displacement generally, but there needs to be a more specific focus on whether First Nations Australians can only continue to enjoy their human rights through planned resettlement and relocation. It goes without saying that this must not breach the human rights protected in the UNDRIP. Article 2 of the UNDRIP prohibits any action which will deprive First Nations Australians of their cultural values or dispossess them of their lands, territories or resources. Furthermore, no relocation can take place without ‘the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.’[57]
LOOKING TO OTHER JURISDICTIONS
The decision of the UNHCR on the Torres Strait 8 complaint will no doubt set out specifically what the Australian Government needs to do to protect the human rights of Torres Strait Islanders, and thereby all First Nations Australians, wherever they reside. Until then, it is noteworthy that there is precedent elsewhere outlining that the failure of a government to set adequate emissions reduction targets and implement climate adaptation policies infringes constitutionally protected human rights.
In State of Netherlands v Urgenda Foundation,[58] the Supreme Court of the Netherlands ordered the Dutch Government to limit GHG emissions to 25 per cent (instead of 17 per cent) below 1990 levels by 2020. The Court referred, among other things, to the right to life under Article 2 of the European Convention on Human Rights[59] and found that the Dutch Government has an obligation to protect citizens from the real threat of climate change. The Court held that the global nature of the problem does not excuse the Dutch Government from action.
In Leghari v Federation of Pakistan,[60] the Lahore High Court found that the failure to implement climate adaptation policies breached Mr Leghari’s right to life (art 9 of the Pakistan Constitution), which includes the right to a healthy and clean environment, and right to human dignity (art 14 of the Pakistan Constitution). Also, in PSB et al. v. Brazil (on deforestation and human rights),[61] the plaintiffs allege that the Brazilian federal Government has violated the fundamental rights of indigenous peoples and present and future generations by failing to implement Brazil's Action Plan for Prevention and Control of the Legal Amazon Deforestation. The case is pending in the Federal Supreme Court of Lahore.
THE WAY FORWARD: PARTICIPATION OF FIRST NATIONS AUSTRALIANS
The protection of First Nations Australians’ human rights in the face of climate change is not entirely dependent on government strategies and litigation. As Nursey-Bray shows, First Nations Australians are already assertive agents in responding to climate change and have instituted ‘a diverse array of initiatives to combat climate impacts.’[62] However, in continuing to develop strategies and mechanisms to reduce emissions, adapt to climate change and engage in disaster risk reduction, the participation of First Nations Australians is crucial. Article 18 of the UNDRIP requires respect for Indigenous peoples’ rights ‘to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.’ Furthermore, Australian governments must:
‘consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them’.[63]
A positive step is the CSIRO and Earth Systems and Climate Change Hub’s organisation of the National First Peoples Gathering on Climate Change in 2021. The purpose of the Gathering was to celebrate, learn from and add to First Peoples-led climate action, as well as strengthen kinships, cultural identity and well-being. An additional purpose was to rely on both Indigenous and scientific knowledge to augment caring for Country.[64]
CONCLUSION
In the meantime, the world is waiting with bated breath for the Human Rights Committee’s decision on the Torres Strait 8 complaint. Even without this decision, Australia’s obligations under the Paris Agreement and the Sendai Framework require the Australian Government to engage in positive actions that will protect the human rights of First Nations Australians.
Rosemary Lyster is Professor of Climate and Environmental Law at the University of Sydney Law School.
[1] IPCC, Climate Change 2021: The Physical Science Basis, Cambridge University Press, 2021.
[2] IPCC, Climate Change 2021: The Physical Science Basis, Summary for Policy Makers (Report, 2021), (IPCC Summary Report) <https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM.pdf>.
[3] Ibid, 28.
[4] See IPCC, AR6 Regional Fact Sheet – Australasia, <https://www.ipcc.ch/report/ar6/wg1/downloads/factsheets/IPCC_AR6_WGI_Regional_Fact_Sheet_Australasia.pdf>.
[5] IPCC, Regional Fact Sheet – Australasia (Fact sheet, 2021) <https://www.ipcc.ch/report/ar6/wg1/downloads/factsheets/IPCC_AR6_WGI_Regional_Fact_Sheet_Australasia.pdf>.
[6] IPCC, Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaptation (Report, 2012) 3 <https://www.ipcc.ch/site/assets/uploads/2018/03/SREX_FD_SPM_final-2.pdf>.
[9] See <https://www.mdba.gov.au/basin-plan-roll-out/climate-change>.
[10] Nursey-Bray, above note 8.
[11] AHRC, Native Title Report 2008 (Report, 2008) (Native Title Report) ch 5 <https://humanrights.gov.au/our-work/native-title-report-2008-chapter-5>. See also O Cordes-Holland, ‘The sinking of the Strait: The implications of climate change for the Torres Strait Islanders’ human rights protected by the ICCPR’, Melbourne Journal of International Law, Vol. 9, 2008 <https://law.unimelb.edu.au/__data/assets/pdf_file/0011/1683218/Cordes-Holland.pdf>; and <https://www.climatecouncil.org.au/uploads/coastalflooding.pdf>.
[12] Native Title Report, above note 11, 236.
[13] Ibid, 237.
[14] Ibid, 238.
[15] Ibid, 239.
[16] Ibid, 240.
[17] Ibid, 242.
[18] Ibid, 245.
[19] Entered into force 10 December 1948.
[20] Opened for signature 16 December 1966 (entered into force 23 March 1976).
[21] Entered into force 13 September 2007.
[22] Opened for signature 16 December 1966 (entered into force 3 January 1976).
[23] Opened for signature 18 December 1979 (entered into force 3 September 1981).
[24] Report of the UN Conference on the Human Environment: Stockholm, 5–16 June 1972, A/CONF.48/14/Rev.1 <https://undocs.org/en/A/CONF.48/14/Rev.1>.
[25] Report of the UN Conference on the Human Environment: Rio de Janeiro, 3–14 June 1992, A/CONF.151/26 (Vol. I) <https://www.un.org/en/development/desa/population/migration/generalassembly/docs/globalcompact/A_CONF.151_26_Vol.I_Declaration.pdf>.
[26] Opened for signature 21 December 1965 (entered into force 4 January 1969).
[27] Convention Concerning Indigenous and Tribal Persons in Independent Countries, opened for signature 27 June 1989 (entered into force 5 September 1991).
[28] See <https://ourislandsourhome.com.au/>.
[29] K Murphy, 'Australia asks UN to dismiss Torres Strait Islanders' claim climate change affects their human rights’, The Guardian (14 August 2020) <https://www.theguardian.com/australia-news/2020/aug/14/australia-asks-un-to-dismiss-torres-strait-islanders-claim-climate-change-affects-their-human-rights accessed 10 September 2021>.
[30] H Cross, ‘It’s a national first. A global first. Torres Strait Islanders are taking legal action over the Federal government’s failure to act on climate change’, National Indigenous Times (29 May 2019) <https://nit.com.au/its-a-national-first-a-global-first-torres-strait-islanders-are-taking-legal-action-over-the-federal-governments-failure-to-act-on-climate-change/>.
[31] UN Special Rapporteur on Human Rights and the Environment, Newsletter #7 (December 2020) <http://srenvironment.org/newsletter/newsletter-7-december-2020> .
[32] See UNGA, Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (Report A/HRC/31/52, 2016) <https://undocs.org/A/HRC/31/52>; UNGA, Human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment (Report A/74/161, 2019) <https://undocs.org/A/74/161>.
<https://nit.com.au/government-denies-responsibility-for-climate-change-in-reply-to-torres-strait-eight/#:~:text=Government%20denies%20responsibility%20for%20climate%20change%20in%20reply%20to%20Torres%20Strait%20Eight,-By&text=The%20Australian%20Government%20has%20issued,Torres%20Strait%20%2F%20Zenadh%20Kes%20people>.
[34] D Ingram, ‘Torres Strait 8 backed by UN human rights experts’, National Indigenous Times (18 December 2020) <https://nit.com.au/torres-strait-eight-backed-by-un-human-rights-experts/>.
[35] Paris Agreement, opened for signature 12 December 2015 (entered into force 4 November 2016)<https://unfccc.int/sites/default/files/english_paris_agreement.pdf>.
[36] Sendai Framework for Disaster Risk Reduction 2015–2030 (entered into force 3 June 2015) <https://www.preventionweb.net/files/resolutions/N1516716.pdf>.
[37] Paris Agreement, above note 35, art 10.
[38] Ibid, art 10.
[39] Sendai Framework, above note 36, Priority 3.
[40] Paris Agreement, above note 35, para 2(a).
[41] Ibid, art 14(2).
[42] Climate Targets Panel, Shifting the Burden: Australia’s Emissions Reduction Tasks over Coming Decades (Report, 2021) <https://www.climatecollege.unimelb.edu.au/australias-paris-agreement-pathways>.
[43] See <https://www.industry.gov.au/sites/default/files/October%202021/document/australias-long-term-emissions-reduction-plan.pdf>.
[44] See <https://www.worldstopexports.com/coal-exports-country/>.
[45] Ibid.
[46] See <https://www.industry.gov.au/policies-and-initiatives/australias-climate-change-strategies/tracking-and-reporting-greenhouse-gas-emissions>.
[47] IPCC, above note 2, 37.
[48] Paris Agreement, above note 35, para 7(1).
[49] Ibid, para 7(14).
[50] See <https://www.environment.gov.au/climate-change/adaptation/strategy>.
[51] Australian Government, National Climate Resilience and Adaptation Strategy 2015 (Strategy, 2015) <https://webarchive.nla.gov.au/awa/20191108101148/https://www.environment.gov.au/climate-change/adaptation/publications/national-climate-resilience-and-adaptation-strategy>.
[52] Royal Commission into National Natural Disaster Arrangements (Report, 2020) <https://naturaldisaster.royalcommission.gov.au/publications/royal-commission-national-natural-disaster-arrangements-report>.
[53] Ibid, 25.
[54] See R Lyster and M Burkett, ‘Climate-induced displacement and climate disaster law: Barriers and opportunities’ in R Lyster and RM Verchick (eds), Climate Disaster Law: Barriers and Opportunities, Edward Elgar, 2018.
[55] See <https://unfccc.int/process/bodies/constituted-bodies/WIMExCom/TFD>.
[56] See Department of Home Affairs, Profiling Australia’s Vulnerability: The Interconnected Causes and Cascading Effects of Systemic Disaster Risk (Report, 2018) <https://knowledge.aidr.org.au/media/6682/national-resilience-taskforce-profiling-australias-vulnerability.pdf>.
[57] Paris Agreement, above note 35, art 10.
[58] [2018] C/09/456689/HA ZA 13–1396 (Hague Court of Appeal) <https://elaw.org/system/files/attachments/publicresource/Urgenda_2018_Appeal_Decision_Eng.pdf>.
[59] European Convention of Human Rights.
[60] W.P. No. 25501/2015 (Lahore High Court) <http://climatecasechart.com/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2015/20150404_2015-W.P.-No.-25501201_decision.pdf> .
[61] For an English translation of the filing see <http://blogs2.law.columbia.edu/climate-change-litigation/wp-content/uploads/sites/16/non-us-case-documents/2020/20201111_12697_application-1.pdf> .
[62] Nursey-Bray, above note 8.
[63] UNDRIP, art 19.
[64] For a Fact Sheet on this Gathering see Earth Systems and Climate Change Hub, National First Peoples Gathering on Climate Change: Summary Fact Sheet, 2021, <https://nespclimate.com.au/wp-content/uploads/2021/10/National-First-Peoples-Gathering-on-Climate-Change-summary-fact-sheet.pdf>.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2021/63.html