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

The Torres Strait Islanders going to the UN Human Rights Committee. Photo supplied by ClientEarth.

Rising sea levels, frequent flooding, land erosion, and uprooted trees washing up on the shores.

This is life for Australia’s Torres Strait Islanders right now.

Climate change has deeply affected Torres Strait Traditional Owners and residents, and now they have had enough.

For the first time, a group of Torres Strait Islanders are taking their complaint all the way to the top.

The group is going over the Government’s head to the United Nations to make a human rights complaint on the Morrison Government’s failure to act on climate change.

Supported by Torres Strait native title representative body Gur A Baradharaw Kod (GBK), environmental law firm ClientEarth and barristers from London’s 20 Essex Street Chambers are arguing that by failing to act on climate change, the Government is impinging on the human rights outlined in the International Covenant on Civil and Political Rights: rights to culture, family and life.

The United Nations Human Rights Committee in Geneva, Switzerland will receive the complaint from the group of eight from four different islands:

  • Yessie Mosby and Nazareth Warria of Masig (Yorke Island)
  • Keith Pabai and Stanley Marama of Boigu
  • Nazareth Fauid of Poruma (Coconut Island)
  • Ted Billy, Daniel Billy and Kabay Tamu of Warraber (Sue Island).

A statement from ClientEarth said this will be the first instance of a climate change lawsuit brought against Australia’s Federal Government, and the first global instance of legal action brought by residents of low-lying islands against a nation state.

Complainant Kabay Tamu said in the statement that climate change is not only affecting the land, but the social and emotional well-being of communities practising traditions and culture, too.

“If climate change means we’re forced to move away and become climate refugees in our own country, I fear this will be colonisation all over again,” Mr Tamu said.

“When you’re colonised, you’re taken away from your land and you’re forced to stop using your language and stop practising your culture and traditions.”

ClientEarth’s lead lawyer on the case, Sophie Marjanac, said climate change is a fundamental human rights issue and that instances of lawsuits like this will only increase.

“Over the past three years, there has been a wave of climate change litigation around the world. Citizens are turning to the courts where politicians have failed to act, seeking protection of their fundamental rights,” Ms Marjanac said.

“The predicted impacts of climate change in the Torres Strait, including the inundation of ancestral homelands, would be catastrophic for its people.”

Ms Marjanac became involved in the case due to her connections to people in the Torres Strait – she used to live in the region working on native title cases.

“The action of these eight Islander claimants takes courage and conviction, and their resolve is based on the respect of their communities and cultural traditions. But these communities shouldn’t be forced to take legal action in order to protect the future of their culture,” Ms Marjanac said.

“As Australian citizens and stewards of Indigenous heritage, these communities should be protected from catastrophic climate change by a proactive government. That simply hasn’t happened which is why they are seeking relief from the United Nations.”

The group of Torres Strait Islanders have also launched a petition campaign nationwide to outline their requests of the Federal Government.

Some of these demands include phasing out coal, committing a minimum of $20 million for climate emergency measures and reducing Australia’s emissions by at least 65% below its 2005 levels by 2030.

“The claim by these eight Islanders is truly unique … [it’s] the first time Australia’s national greenhouse gas emissions reductions targets have been the subject of a legal challenge,” Ms Marjanac said.

A beach threatened by climate change on one of the Torres Strait Islands. Photo supplied by ClientEarth.

Backed by big-time barrister
Monica Feria-Tinta is one of the barristers on the case from 20 Essex Street who specialises in public international law; including international human rights, international environmental law and law of the sea.

With over 20-years’ experience, the Peruvian barrister has previously been leading counsel on UN litigation before the Human Rights Committee and has published reports on human rights violations in relation to Indigenous peoples in Myanmar and Guatemala.

In 2007, Ms Feria-Tinta was awarded the Gruber Prize for Justice for her work on securing children’s rights during wartime and winning $6 million in reparations for crimes against humanity victims.

Ms Feria-Tinta described her experience with treaty law, conventions and international dispute resolution as her “bread and butter” – it’s what she does daily.

“I have also developed particular expertise in Indigenous peoples’ rights – my roots indeed are Indigenous, from Latin America,” Ms Feria-Tinta said.

Ms Feria-Tinta said she was moved by the compelling testimonies from the Torres Strait Islanders.

“This case is bringing climate change as a human rights issue to the fore. It encapsulates the manner [in which] human rights are adversely affected by the degradation of the environment,” Ms Feria-Tinta said.

What drew Ms Feria-Tinta to the case was her concern with climate change and the enforcement of the Paris Agreement through international dispute resolution.

“In this case, the Torres Strait Islanders are under a threat of displacement – their way of life, their culture, their homes, the rights of their future generations (their children) are being put into jeopardy,” Ms Feria-Tinta said.

The barrister said this is the first opportunity a United Nations body has had to establish its voice on State climate change obligations under human rights treaty.

“The precedent that the Torres Strait Islanders’ case will set will be truly ground-breaking,” Ms Feria-Tinta said.

Ms Feria-Tinta said she has seen a rise in environmental law litigation all over the world, including the Netherlands, Peru, the United States and Colombia.

She said the Torres Strait case is unique, however, as it’s about State responsibility and directly invokes the Paris Agreement.

“It is is a lawsuit taking place purely at the international level whereby should the Committee find the State responsible, there will be legal consequences of a wide impact,” Ms Feria-Tinta said.

“The precedent will be relevant for all State parties to the International Covenant on Civil and Political Rights.”

Ms Feria-Tinta also said finding a way to redress the wrongs of climate change inaction is the only possibility for the Torres Strait Islanders to protect their community as it is a “matter of survival” for them.

“That is the power of the law. I believe in the power of action, of the law, to provide a remedy,” Ms Feria-Tinta said.

“Our time is witnessing unprecedented challenges. I am glad that with my work, I am contributing to help resolving some of the most compelling issues our times are facing.”

By Hannah Cross

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