Billy v. Australia
| Date of Application: | Mon, 13 May 2019 |
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| Date of Decision: | Thu, 22 Sep 2022 |
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| Decision Making Body: | OHCHR - Human Rights Committee |
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| Law Applied: | Communication under the Optional Protocol to the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights (ICCPR) |
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| Keywords: | Arbitrary, unlawful interference, Children rights, Effective remedy, Family rights and home, Indigenous peoples, minorities, right to enjoy culture, Right to privacy, Right to life |
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Daniel Billy et. al., v. Australia
United Nations Human Rights Committee, Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 3624/2019, UN Doc CCPR/C/135/D/3624/2019 (23 September 2022).
At Issue: Whether Australia violated the human rights of low-lying islanders through failure to act on climate change.
Summary: A group of eight Torres Strait Islanders, Australian nationals, and six of their children submitted a petition against the Australian government to the United Nations Human Rights Committee. They are all indigenous inhabitants of Boigu, Poruma, Warraber and Masig, four small, low-lying islands in Australia’s Torres Strait region. The Islanders claimed that changes in weather patterns have direct harmful consequences on their livelihood, their culture and traditional way of life. The Islanders indicated that severe flooding caused by the tidal surge in recent years has destroyed family graves and left human remains scattered across their islands. They argued that maintaining ancestral graveyards and visiting and communicating with deceased relatives are at the heart of their cultures. In addition, the most important ceremonies, such as coming-of-age and initiation ceremonies, are only culturally meaningful if performed in the community's native lands. The Islanders also argued that changes in climate with heavy rainfall and storms have degraded the land and trees and have consequently reduced the amount of food available from traditional fishing and farming. On Masig Island, for example, the rising sea level has caused saltwater to seep into the soil and coconut trees to become diseased, subsequently killing off the fruit, and its coconut water, which are part of the Islanders’ traditional diet.
The Islanders claimed their rights had been violated as Australia failed to adapt to climate change by, inter alia, upgrading seawalls on the islands and reducing greenhouse gas emissions. The petition alleges that Australia is violating the plaintiffs’ fundamental human rights under the International Covenant on Civil and Political Rights (ICCPR) due to the government’s failure to address climate change. This petition represents the first climate change legal action in Australia that makes an argument based on a violation of human rights. It also constitutes the first legal action filed with a UN body by inhabitants of low-lying islands against a national government for inaction on climate change.
The plaintiffs inhabit a group of islands off the northern tip of Queensland, Australia, between the Australian mainland and Papua New Guinea. These low-lying island communities are highly vulnerable to climate change impacts including sea level rise, storm surge, coral bleaching, and ocean acidification. According to materials released by the plaintiffs, the complaint alleges that Australia’s insufficient action on climate change has violated the following rights under the ICCPR: Article 27 (the right to culture), Article 17 (the right to be free from arbitrary interference with privacy, family and home), and Article 6 (the right to life). The complaint further argues these violations stem from both insufficient targets and plans to mitigate greenhouse gas emissions and inadequate funding for coastal defense and resilience measures on the islands, such as seawalls.
On August 13, 2020, Australia asked the Committee to dismiss the petition.
On September 23, 2022, the U.N. Human Rights Committee found that Australia’s failure to adequately protect indigenous Torres Islanders against adverse impacts of climate change violated their rights to enjoy their culture and be free from arbitrary interferences with their private life, family and home. The Committee took into account the Islanders’ spiritual connection with their traditional lands, and the dependence of their cultural integrity on the health of their surrounding ecosystems. It therefore found that Australia’s failure to take timely and adequate measures to protect the indigenous Islanders against adverse climate change impacts led to the violation of their rights to enjoy their own culture and to be free from arbitrary interferences with their private life, family and home. The Committee indicated that despite Australia’s series of actions, such as the construction of new seawalls on the four islands that are expected to be completed by 2023, additional timely and appropriate measures were required to avert a risk to the Islanders’ lives, since without robust national and international efforts, the effects of climate change may expose individuals to a violation of their right to life under the Covenant. As remedies, the Committee asked Australia to compensate the indigenous Islanders for the harm suffered, engage in meaningful consultations with their communities to assess their needs, and take measures to continue to secure the communities’ safe existence on their respective islands.
Related CRC articles
- 4. States will take measures for the implementation of the CRC (CRC Article 4)
- 6. Right to life, survival and development (CRC Article 6)
- 16. Right to privacy, family, home, communications and reputation (CRC Article 16)
- 24. Right to health, healthcare, and a healthy environment (CRC Article 24)
- 30. Right to minority culture, language, religion (CRC Article 30)
The applicants rely on and allege violations of the following articles in the ICCPR: Arts 2 (adopt laws / other measures to give effect to rights), 6 (right to life), 27 (right to enjoy culture), 17 (right to privacy, family, home), 24 (the state’s obligation to ensure rights are protected).
The Committee finds violations of arts 17 (right to privacy, family, home) and 27 (right to enjoy culture). They are equivalent to arts 16 and 30 of the CRC.
There is reference to the right to a healthy environment.
Involvement of children in hearings
The children are represented by their parents who are also complainants in the matter.
The complainants submitted witness statements, and a video of them being interviewed. These documents are not available. It is unclear whether the children also submitted witness statements.
Intergenerational rights
Both the complaint and the decision refer to intergenerational rights.
Par 6.12 of the decision:
“As a matter of international law, article 27 of the Covenant does not involve any positive obligation to prevent slow-onset risks that might arise in future. A breach of article 27 of the Covenant only arises at the time of any denial – it does not convert a risk of future denial into a present breach. Even if the Committee were to admit an intergenerational element of cultural transmission, nothing suggests that the State party has directly interfered in or failed to protect the authors’ ability to transmit their culture across generations.”
Future generations
Both the complaint and the decision refer to future generations.
Application para 205
“205. In the same vein, Yessie Mosby and Kabay Tamu submit that by violating the rights above examined, Australia is failing to protect the most vulnerable and affected of all, the future generations of their community, and in particular their children, named above.”
Decision para 8.14
“With reference to its findings in para. 8.14, the Committee considers that the information made available to it indicates that the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ 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 discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. Accordingly, the Committee considers that the facts before it amount to a violation of the authors’ rights under article 27 of the Covenant.”
Outcome of decision for the applicants
- Relief sought by applicants PARTIALLY granted
The Committee found in favour of the complainants in relations to 2 of the 5 rights they alleged were being violated.
Did outcome of decision develop the law
"This petition represents the first climate change legal action in Australia that makes an argument based on a violation of human rights.
It also constitutes the first legal action filed with a UN body by inhabitants of low-lying islands against a national government for inaction on climate change."
Involvement of NGO/law firm in application
Legal representatives:
ClientEarth
Available information on how children got involved in the litigation
No
Age range of litigants
Number of children or youth involved
6
