Torres Strait Islanders at the U.N.
In a decision handed down last week, the U.N. Human Rights Committee found that Australia’s failure to adequately protect indigenous Torres Strait Islanders against adverse impacts of climate change, particularly caused by rising seas, violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home.
Eight indigenous Torres Strait Islanders from Boigu, Poruma, Warraber and Masig filed a joint compliant alleging that Australia had violated their rights by failing to implement adequate adaptation measures to respond to climate change on these low-lying islands.
Australia did not contest the facts as to climate change impacts on their home, private life and families.[1] These allegations of fact included that the islands were susceptible to sea level rise, higher temperatures and ocean acidification and that sea level rise had already caused flooding and erosion on the claimant’s islands.
In holding that the islanders’ rights under article 27 of the International Covenant on Civil and Political Rights (ICCPR) had been violated, the Committee found that the delay in initiating seawall construction projects on the islands was an inadequate response to the threat faced by the claimants, and that the failure to adopt:
‘timely adequate adaptation measures to protect the [islanders’] collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources’
was
‘a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture.’[2]
Tiwi Islanders sue Santos
In the Tiwi Islands, north of Darwin, a separate group of Indigenous custodians commenced judicial review proceedings in 2022 concerning the Barossa Offshore Gas Project and the validity of a decision of the National Offshore Petroleum Safety and Environmental Management Authority (Authority) to accept a Drilling Environment Plan (Plan) submitted by Santos NA Barossa Pty Ltd made under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg. 9,[3] requiring it to be ‘reasonably satisfied’ that preparation of the Plan included the required statutory consultations, including with relevant Indigenous bodies and traditional owners.[4]
On 21 September 2022, Federal Court Justice Bromberg handed down judgment setting aside the decision. He found that the Authoritys’ decision implied that it had been ‘reasonably satisfied’, that Santos carried out the required consultations. However, His Honour held that the Authority could not have been reasonably satisfied that ‘the [Tiwi Land Council] and the traditional owners of the Tiwi Islands were consulted’,[5] and with ‘each person that it was required by the Regulations to consult with’.[6] If found that, with respect to the applicant, ‘proper consideration’ of the way in which he was consulted was precluded[7].
KELLEHERS AUSTRALIA
Cameron Algie, LLB (Hons)
30 September 2022
Copyright © Kellehers Australia 2022.
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This fact sheet is intended only to provide a summary and general overview on matters of interest. It does not constitute legal advice. You should always seek legal and other professional advice which takes account of your individual circumstances.
[1] Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019, para. [8.12].
[2] Ibid, para. [8.14].
[3] Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121 (21 September 2022).
[4] Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth), reg. 11A.
[5] Ibid.
[6] Ibid, [15], [126], [261].
[7] Ibid, [261].
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