Category: Uncategorized

Categories
Climate activists and human rights defenders Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Paris Agreement Right to a healthy environment Right to culture Right to education Right to health Right to life Right to subsistence/food Right to water Self-determination Turkey Uncategorized

A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change

Summary:

On 13 April 2023, Türkiye submitted its updated Nationally Determined Contribution (NDC) to the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC). The NDC states that Türkiye aims to reduce its CO2 emissions by 41% by 2030 compared to the business-as-usual scenario with 2012 as its base year, and plans on peaking emissions by 2038 at the latest. This would increase CO2 emissions by 30% until 2030. Due to this further increase in CO2 emissions, climate activists Atlas Sarrafoğlu, Ela Naz Birdal and Seren Anaçoğlu filed a lawsuit against President Recep Tayyip Erdoğan and the Ministry of Environment, Urbanization and Climate Change before the Council of State (the highest administrative court in Türkiye) on 8 May 2023.

The plaintiffs claimed that Türkiye’s NDC is inadequate under the Paris Agreement and that the resulting increase in CO2 emissions violates their human rights under the country’s constitution, the United Nations Convention on the Rights of the Child, and the European Convention on Human Rights. The rights they claimed had been violated included: the right to life, the right to intergenerational equality, the right to the protection of one’s private life, the right to health, cultural rights, the right to develop one’s material and spiritual existence, the right to live in a healthy and balanced environment, the right to education, the right to work, and the right to healthy food and water. Because of the alleged inadequacy of the NDC under the Paris Agreement, they demanded its annulment and the creation of a more ambitious commitment.

Status of Case:

On 22 December 2023, The Wave reported that the Council of State had dismissed this case without examining it, arguing that the NDC did not constitute an administrative act and was accordingly not open to judicial annulment.

Further reading:

News Article by PAMACC: https://www.pamacc.org/index.php/k2-listing/item/1440-president-recep-erdogan-of-turkey-sued-for-slow-implementiion-of-the-paris-agreement

News Article by the Turkish human rights press agency “Bianet”: https://bianet.org/haber/young-climate-activists-file-lawsuit-against-erdogan-over-inadequate-emission-goals-278474

Date last updated:

22 December 2023.

Categories
Argentina Climate activists and human rights defenders Domestic court Paris Agreement Right to a healthy environment Right to health Uncategorized

Hahn et al. v APR Energy S.R.L.

Summary:

The legal action centred on the construction and operation of Matheu II and Matheu III, thermoelectric power plants in Pilar, Argentina. The plaintiffs, comprising a coalition of individuals and non-governmental organizations, argued that these projects lacked the necessary environmental assessments and contended that relying on fossil fuels for power generation ran contrary to international agreements such as the American Convention on Human Rights, the Paris Agreement, the Kyoto Protocol, and the International Covenant on Economic, Social and Cultural Rights, among others. Initially, the Federal Court of Campana granted precautionary measures to halt construction, citing environmental and procedural concerns, safeguarding collective interests, and mitigating potential harm. However, in December 2022, they allowed limited operation of Matheu III, considering global energy challenges. In June 2023, the court denied an extension for Matheu III, citing noise pollution concerns raised by the Municipality of Pilar and emphasizing the need to balance energy production with local environmental well-being.

Claim:

The legal action was undertaken with the primary objective of preventing the construction and operation of the thermoelectric power stations Matheu II and Matheu III. The plaintiffs asserted that these plants had initiated construction without fulfilling the proper environmental assessment. Furthermore, they argued that the use of fossil fuels in power generation was in violation of international human rights treaties, climate agreements, and domestic regulations. They asserted that the operation of these power plants posed a significant threat to the environment, public health, and the fundamental human right to enjoy a healthy and balanced environment.

Decision:

Initially, the Federal Court of Campana ruled in favor of the plaintiffs by issuing precautionary measures that temporarily halted the construction and operation of the power plants. These measures were based on environmental and procedural considerations, as well as protecting collective interests and preventing potential harm, as stipulated in domestic law. However, the court’s decisions did not explicitly address the issue of climate impact.

Subsequently, Araucaria, one of the plant operators, secured a partial adjustment to the precautionary measures in December 2022. This modification permitted the temporary and limited operation of Matheu III, partially due to concerns stemming from the global energy crisis and the resultant surge in energy prices, driven in part by geopolitical events like the Russian invasion of Ukraine.

However, in June 2023, the Federal Court of Campana chose not to extend the authorization for the partial operation of Matheu III. The decision was prompted by concerns raised by the Municipality of Pilar regarding noise pollution. This ruling reflects the court’s consideration of local environmental and public health concerns, highlighting the importance of balancing energy production with environmental and societal well-being.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

The case is currently pending before the Federal Court of Campana.

Suggested citation:

Hahn et al. v. APR Energy S.R.L (Juvevir Asociación Civil v. APR Energy and Araucaria Energy) (Federal Court of Campagna, Argentina), Case No: FSM 116712/2017

Last updated:

03 November 2023.

Categories
Australia Children and young people Climate activists and human rights defenders Emissions reductions/mitigation Indigenous peoples rights Right to a healthy environment Right to culture Right to education Right to health Right to life Right to subsistence/food Uncategorized

Environmental Justice Australia (EJA) v. Australia

Summary:

In October 2021, Environmental Justice Australia (EJA) filed a complaint with three Special Rapporteurs of the United Nations High Commissioner for Human Rights. This complaint was made on behalf of five young individuals residing in Australia and pertains to the ‘human rights harms’ caused by the Australian government’s Nationally Determined Contribution (NDC) and its perceived inaction regarding climate change. EJA alleges that the Australian government is breaching international agreements, such as the Paris Agreement, and various United Nations instruments, including the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the UN Declaration on the Rights of Indigenous Peoples.

Claim:

The claim in this case asserts that the Australian government’s actions, particularly its NDC and its inaction on climate change, violate international agreements and human rights obligations. The complaint argues that these actions infringe upon several United Nations instruments, including the Paris Agreement, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the UN Declaration on the Rights of Indigenous Peoples. The complainants contend that the government’s contributions to climate change potentially violate fundamental rights, including the right to health, life, family relations, an adequate standard of living, education, freedom from violence or exploitation, and the right to a clean, healthy, and sustainable environment. They also assert that these actions disproportionately impact young people, First Nations peoples, and individuals with disabilities, thus violating their rights as recognized in international law. The claim in the petition urges the Special Rapporteurs to intervene by seeking clarification from the Australian government regarding the alignment of its NDC with its human rights obligations and its consistency with a 1.5-degree climate pathway. It also requests an explanation of how the government’s NDC decision-making process has engaged young people in Australia. The claim further calls on Australia to establish a 2030 emissions reduction target that complies with its human rights obligations, especially regarding the rights of young people and the complainants.

Links:

The complaint is accessible for download here and below.

20211025_14762_complaintDownload

Status of the case:

Pending.

Suggested citation:

Environmental Justice Australia (EJA) v. Australia, United Nations Special Rapporteurs, 25 October 2021 (United Nations).

Last updated:

03 November 2023.

Categories
2017 Children and young people Domestic court Emissions reductions/mitigation Non-discrimination Right to a healthy environment Right to health Right to life Right to property Right to subsistence/food Right to water Rights at stake The Philippines Uncategorized

Segovia et al. v. Climate Change Commission

Summary:

In 2017, a group of petitioners, including Children of the Future, filed a complaint with the Supreme Court of the Philippines, alleging that the government’s failure to fulfil its environmental responsibilities and violations of environmental laws had caused significant environmental damage, endangering the well-being, health, and property of all Filipinos. The petitioners claimed that the government’s lack of enforcement of environmental laws contributed to deteriorating air quality in Metro Manila, infringing upon their constitutional rights to a balanced and healthy environment and life. They also raised concerns about the unequal application of laws, especially in favour of car owners. The petitioners proposed measures to reduce fossil fuel consumption and sought writs of kalikasan, a legal remedy under the Philippines Constitution to protect environmental rights. The Court dismissed the application on the ground that the applicants failed to demonstrate how the authorities breached the relevant environmental law.

Claim:

The petitioners requested that the Supreme Court review and consider their complaint against the government’s environmental practices. They asserted that the government’s actions violated their constitutional rights to a healthy environment and life. They claim that the government’s lack of enforcement of environmental laws and its prioritization of car owners have caused substantial harm to the environment and their well-being. They seek the issuance of writs of kalikasan to safeguard their environmental rights and request the Court’s intervention in compelling the government to implement measures to promote sustainability. The key question at hand is whether the Philippine government’s Climate Change Commission breached the constitution by not implementing ambitious climate-related transportation policies.

Decision:

After a thorough review, the Supreme Court acknowledged the concerns of the petitioners and the significance of environmental protection. The court acknowledged that the Rule of Procedure for Environmental Cases provides leeway in terms of standing, making petitions like this permissible. However, in this specific case, the court found that the petitioners had not presented sufficient evidence to prove that the government has engaged in unlawful activities or infringed upon specific environmental laws, thereby violating their environmental rights. A petition for the writ of kalikasan must convincingly establish a clear violation of environmental statutes and regulations, rather than solely relying on the repeated assertion of constitutional rights and unsubstantiated allegations of misconduct.

The Court also took note of the government’s diligent efforts to enforce environmental laws and prioritize initiatives aimed at addressing and mitigating the effects of climate change. As a result, the petition was dismissed.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

Judgment

Suggested citation:

Supreme Court of the Philippines, Segovia et al. v. Climate Change Commission, G.R. No. 211010, 7 March 2017.

Last updated:

20 October 2023.

Categories
2023 Colombia Domestic court Emissions reductions/mitigation Indigenous peoples rights Indigenous peoples' rights Just transition litigation Participation rights Right to culture Self-determination Uncategorized

Pirá Paraná Indigenous Council and Another v. Ministry of Environment and Others (Pirá Paraná Case)

Summary:

On July 15th, 2022, the Pirá Paraná Indigenous Council, in collaboration with the Association of Indigenous Traditional Authorities of the River Pirá Paraná, initiated a ‘tutela’ proceeding against private corporations and Colombian authorities. This expedited legal procedure is only available when regular mechanisms are deemed inadequate to ensure the protection of the plaintiffs’ rights. The legal action arises from concerns related to the Baka Rokarire project, particularly its carbon credit initiatives, within the Indigenous territory situated in the heart of the Amazon rainforest, located in the Vaupés region. The central issue at hand is the potential violation of Indigenous fundamental human rights, including self-determination, self-governance, and the preservation of cultural diversity and integrity. The claimants argue that the individual who represented the Indigenous community in the project lacked proper legitimacy, while public authorities allegedly failed to safeguard Indigenous rights throughout the project’s registration and development. Private companies are accused of neglecting human rights due diligence standards and deliberately excluding Indigenous authorities from the decision-making process.

Claim:

The plaintiffs argue that the Baka Rokarire project, especially its carbon credit initiatives, violate their fundamental human rights as Indigenous people. Importantly, the lawsuit filed by the Pirá Paraná community does not contest land ownership rights but instead focuses on preserving the integrity of the territory, which holds great cultural and ancestral significance for Indigenous populations. Their primary concern centers around the absence of genuine Indigenous representation in the project’s agreement. Furthermore, they accuse public authorities of failing to fulfill their responsibilities in safeguarding Indigenous rights during the project’s registration and execution. Private companies involved are accused of neglecting human rights due diligence standards and intentionally excluding Indigenous authorities from the project’s development. The main argument is that the potential negative impact on Indigenous rights justifies legal intervention.

Decision:

Initially, based on the subsidiarity of the tutela mechanism, the Judicial Court deemed the case inadmissible, citing that the plaintiffs could have pursued other available legal avenues. The court’s rationale was that the tutela mechanism was not the suitable course of action in this instance, as there was no clear evidence indicating the presence of irreparable damage in the case. The Administrative Tribunal upheld this decision. However, in April 2023, a significant development occurred when Colombia’s Constitutional Court took the unprecedented step of reviewing the case. This marks the first-ever evaluation of a case involving the voluntary carbon market, potentially setting a legal precedent that will delineate the boundaries of activities permitted within territories inhabited by Indigenous communities in carbon credit projects. The Constitutional Court’s review will also encompass an examination of whether the tutela mechanism is the appropriate means for challenging these projects, especially concerning Indigenous rights. This decision to review represents a noteworthy opportunity to provide clarity regarding Indigenous rights and cultural preservation within the context of carbon offset initiatives.

Links:

The case documents are accessible via Climate Case Chart: Click here.

Status of the case:

The case is currently pending before the Constitutional Court of Colombia.

Last updated:

05 October 2023.

Categories
Children and young people Climate activists and human rights defenders Domestic court European Convention on Human Rights Fossil fuel extraction Private and family life Right to life Standing/admissibility Sweden Uncategorized

PUSH Sweden, Nature and Youth Sweden and Others v. Government of Sweden (Magnolia Case)

Summary:
In June 2016, the Swedish government approved the request from state-owned energy company Vattenfall to sell its lignite assets to the German subsidiary of a Czech holding company. The deal included some of Germany’s largest coal mines, whose annual emissions total around 60 million tonnes of greenhouse gases. In September 2016, two youth environmental NGOs, PUSH Sweden and Nature and Youth Sweden (Fältbiologerna), together with 176 individuals, filed a claim against the Government of Sweden. According to the Plaintiffs, the sale of the lignite assets would enable the expanded exploitation of lignite coal assets and contribute to an increase in the emission of greenhouse gases into the atmosphere. The sale would give the Czech holding company the opportunity to expand the lignite operations, which in turn would lead to increased emissions which, although the emissions were generated in Germany, would affect Swedish territory.

Claims made:
The Plainiffs argued that the State’s sale of coal-fired power plants violated the sustainability statement in Chapter 1, Section 2, paragraph 3 of the Swedish Constitution, as well as the right to life and the right to respect for private and family life under Articles 2 and 8 of the European Convention on Human Rights. They requested the Stockholm District Court to find that the Swedish State has breached its duty of care with the sale of Vattenfall’s lignite operations, and that the sale is illegal.

Judgement:
The Stockholm District Court found that the Plaintiffs had not suffered any damage from the Swedish government’s decisions to permit Vattenfall to sell its lignite assets. It held that the mere risk of damage cannot be a basis for liability for damages and that the ECHR did not apply because the Plaintiffs could not prove damage correlating to the sale of Vattenfall’s lignite assets. Therefore, the Stockholm District Court dismissed the Plaintiffs’ requests.

Date filed:
15 September 2016

Date of Judgement:
30 June 2017

More information:
An unofficial translation of the application is available via Climate Case Chart.

Suggested citation:
Stockholm District Court, PUSH Sweden, Nature and Youth Sweden and Others v. Government of Sweden, case T 11594-16, Judgment of 30 June 2017.

Categories
2022 Children and young people Domestic court Emissions reductions/mitigation European Convention on Human Rights Non-discrimination Private and family life Right to life Right to property Sweden Uncategorized

Anton Foley and others v. Sweden (Aurora Case)

Summary:
On 25 November 2022, a group of over 600 young people born between 1996 and 2015 filed a class action lawsuit against the Swedish State in the Nacka District Court (Nacka tingsrätt). According to the Plaintiffs, the Swedish State is failing to do its fair share to reduce the greenhouse gas (GHG) concentration in the atmosphere to keep warming below 1.5°C as compared to pre-industrial levels, by not undertaking immediate and adequate procedural and substantive measures to continuously reduce GHG emissions and enhance GHG sinks, thus failing to adequately protect the plaintiffs from adverse impacts of anthropogenic climate change. Therefore, the Plaintiffs claim that this constitutes a violation of their rights to life, private and family life, and non-discrimination under Articles 2, 8, and 14 of the ECHR, and their right to property under Article 1, Protocol 1 of the ECHR.

The Plaintiffs request the Nacka District Court to order the Swedish State to do its fair share in reducing GHG emissions to keep global warming below 1.5°C. The Swedish State should be required to take sufficient and adequate measures to ensure that emissions are continuously reduced and that GHG are absorbed through natural carbon sinks to limit the risk of adverse impacts of climate change on them.

On 31 March 2023, the Nacka District Court invited the Swedish State to file its response to the Plaintiffs’ application. On 21 June 2023, the Swedish State filed its response with the Nacka District Court, requesting that the case be dismissed. The Court then invited the Plaintiffs to submit their comments on the request for dismissal no later than 28 August 2023.

Date filed:
25 November 2022

Status of case:
Pending

More information:
The Plaintiffs’ summons application is available via the Climate Case Chart.

Suggested citations:
Nacka District Court, Anton Foley and others v. Sweden, case T 8304-22.

Last updated:
16 August 2023

Categories
2022 Children and young people Deciding Body Emissions reductions/mitigation European Convention on Human Rights European Court of Human Rights Germany Keywords Paris Agreement Private and family life Right to life Rights at stake State concerned Uncategorized Year

Engels, Steinmetz and Others v. Germany (1 BvR 188/22)

Summary:

Following the Neubauer v. Germany case, nine teenagers and young adults brought an application to the European Court of Human Rights complaining that the new objectives of the German Climate Protection Act, as amended after the judgement of the the German Federal Constitutional Court and entered into force on 31 August 2021, are insufficient to reduce greenhouse gas emissions to the level necessary for meeting the Paris Agreement temperature goals (well below 2 degrees Celsius above pre-industrial levels) and that this would violate Articles 2 (right to life) and 8 (right to respect for private and family life) of the European Convention of Human Rights.

Domestic proceedings:

On 24 June 2022 it was announced that the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) had refused to hear a case following up on its groundbreaking Neubauer judgment of 24 March 2021. This follow-up litigation was brought by nine young people, who sought a further strengthening of German climate protection policy with the support of the NGO Deutsche Umwelthilfe. The applicants, who were aged 13 to 26 at the time of filing, were previously involved in the Neubauer case, where the BVerfG found that German climate policy posed a threat to the fundamental freedoms of future generations. In this follow-up case, they sought a judgment from the BVerfG demanding faster and more effective climate protection measures.

After the Neubauer judgment, the German government changed the German Federal Climate Change Act of 12 December 2019 (Bundes-Klimaschutzgesetz – KSG) governing national climate targets and the emissions allowed annually to provide for higher levels of mitigation action.In this case, the applicants argue that the new version of the KSG still does not guarantee that Germany will meet its Nationally Determined Contributions (NDCs) under the Paris Agreement, and that it therefore does not ensure the limitation of anthropogenic climate change to the Paris Agreement’s target of 1.5 degrees. The applicants argue that the revised KSG reduces emissions by only about 6.5 percent by 2030, and draw on IPCC reports showing that the 1.5-degree target could be exceeded in around ten years’ time.The legal argumentation brought forward here was similar to that in Neubauer. The applicants argued that their fundamental freedoms are under threat, and invoked Article 20a of the German Basic Law (Grundgesetz).

Decision:
In an unreasoned decision, the BVerfG refused to accept this case for decision on 25 May 2022.

Application to the ECtHR:
Counsel in the case, together with the NGO Deutsche Umwelthilfe, announced that they would take this case the European Court of Human Rights (ECtHR) in Strasbourg. A corresponding application was lodged before the Court in September 2022 and received application number 46906/22. The Court then adjourned the case pending the outcome of the three climate cases pending before its Grand Chamber (Verein Klimaseniorinnen Schweiz and Others v. Switzerland (no. 53600/20), Carême v. France (no. 7189/21) and Duarte Agostinho and Others v. Portugal and 32 Others (no. 39371/20)).

More information:
The decision by the German Bundesverfassungsgericht has not yet been published. For reporting on the case, see LTO.

Part of the application made to the ECtHR has been made public by the NGO Deutsche Umwelthilfe, which is supporting the applicants, here (in German). This document contains the supplementary argumentation appended to the standardized application form.

Suggested citation:
German Bundesverfassungsgericht, Judgment of the First Senate of 25 May 2022 – 1 BvR 188/22.

European Court of Human Rights, Engels v. Germany (no. 46906/22), filed in September 2022 (not yet communicated).

Last updated:

1 August 2023

Categories
2022 Children and young people Deciding Body Domestic court Emissions reductions/mitigation Germany Keywords Paris Agreement State concerned Uncategorized

Otis Hoffman et al. v. Mecklenburg-Vorpommern

Summary:
This case is one of ten separate constitutional complaints and one subsidiary popular complaint supported by the NGO Deutsche Umwelthilfe against ten German States (“Bundesländer”). It was brought by three young people and two children against the German State of Mecklenburg-Vorpommern in the wake of the Neubauer v. Germany judgment of the German Bundesverfassungsgericht. They contest the State’s failure to chart a course towards greenhouse gas emissions reductions by adopting legislation on climate protection. Like in the eleven related cases, the plaintiffs here argue that the Bundesländer share responsibility for protecting their lives and civil liberties, along with those of future generations, within their respective spheres of competence. According to the plaintiffs, the lack of legislation on climate action on the state level violates the German Constitution and the reductions regime under the Paris Agreement. They also submit that they have a fundamental right to defend themselves against future rights impacts caused by the lack of climate measures.

On 18 January 2022, the First Senate of the Federal Constitutional Court dismissed all eleven complaints for lack of adequate prospects of success. In alignment with its argumentation in Neubauer v. Germany, the First Senate recognized that the burden of CO2 emissions reductions must not be unilaterally offloaded onto future generations. However, the First Senate stated the individual legislators of the Bundesländer have not been been given an overall reduction target to comply with, even at the expense of freedom protected by fundamental rights. Thus, according to the First Senate’s decision, a violation of the obligations to protect the complainants from the dangers of climate change cannot be established. As regards to the Bundesländer, the First Senate clarified that they still have a responsibility to protect the climate, particularly by virtue of Article 20a of the German Constitution.

Rights invoked:
The applicants invoked violations of freedoms guaranteed under the domestic Constitution, especially those in Art. 2(2) of the German Constitution (right to life and physical integrity and freedom of the person), in combination with Article 20a of the Constitution (protection of the natural foundations of life and of animals). They invoked these rights in their ‘intertemporal dimension’, i.e. taking on the framing of the Neubauer case, which considered that failure to act now on climate change means excessively impacting future freedoms.

Date of decision:

18 January 2022

Suggested citation:
German Bundesverfassungsgericht, Otis Hoffman et al. v. Mecklenburg-Vorpommern, Decision of the First Senate of 18 January 2022 – 1 BvR 1565/21 et al.

Related proceedings:
For the other related cases see:

Luca Salis et al. v. Sachsen-Anhalt

Lemme et al. v. Bayern

Emma Johanna Kiehm et al. v. Brandenburg

Alena Hochstadt et al. v. Hessen

Leonie Frank et al. v. Saarland

Tristan Runge et al. v. Sachsen

Jannis Krüssmann et al. Nordrhein-Westfalen (NWR)

Cosima Rade et al. v. Baden-Württemberg

Matteo Feind et al. v. Niedersachsen

Links:

For the decision in German, see here.

Categories
Adaptation Australia Domestic court Imminent risk Indigenous peoples' rights Sea-level rise Uncategorized Vulnerability

Pabai Pabai & Another v. Australia (Torres Strait Islander case)

Summary:
In a case modelled on the Dutch Urgenda case, a group of indigenous Torres Strait Islanders living on islands off Australia’s coast initiated domestic class action proceedings before the Federal court of Australia to claim that the Australian government has failed to protect them from climate change, leading to the progressive destruction of their ancestral islands.

This case was brought by two Torres Straits Islanders on behalf of the residents of Torres Strait Islands who have suffered loss and damage due to Australia’s conduct from about 1985. The claim categorically frames the harms allegedly suffered by the group and the risks they face as being caused by Australia’s failure to exercise due care in protecting them from climate-related harms. Apart from sea level rise, extreme weather events, harm to marine ecosystems and increased disease risks, the plaintiffs allege that Australia’s conduct threatens the loss of their distinctive customary culture- Ailan Kastom, which entails a spiritual connection with their land and the practice of marine hunting and fishing.

Context:
In another, separate climate claim, a group of eight Torres Strait islanders took a Communication to the United Nations Human Rights Committee in 2019, alleging that Australia had violated the human rights of low-lying islanders because of its failure to take climate action. On 21 July 2022, the Human Rights Committee adopted its Views in this case, known as the Billy and Others v. Australia case.

Petitioners:
This case was brought by two First Nations leaders on behalf of the remote Torres Strait islands of Boigu and Saibai. They brought the case on their own behalf and “on behalf of all persons who at any time during the period from about 1985 and continuing, are of Torres Strait Islander descent and suffered loss and damage as a result of the conduct of the Respondent”.

Arguments made:
While their claim is essentially based on the Torres Strait Islanders native title rights under the Native Title Act 1993, the plaintiffs also draw upon a wider body of norms regarding the Torres Strait Islanders as well as the environment in and around the Torres Strait Islands, emanating from international law, domestic law and policy commitments.  

Based on scientific evidence, the plaintiffs argue that climate change is already threatening their native title rights and distinctive customary culture. They allege that, due to the progression of climate change and the increasing storms and rising sea levels that result from this, they face an increasing threat of floods and of rising salt concentrations in their soil. Some islands, they argue, could become uninhabitable if the global temperature rises to levels more than 1.5°C above pre-industrial levels. One of the plaintiffs noted that that his people have lived on the islands in question for over 65,000 years.

The plaintiffs allege that the Australian government owes a duty of care to Torres Strait Islanders. It must, in other words, take reasonable measures to protect them, their environment, their culture and their traditional way of life from the harms caused by climate change. Because current climate action and targets are not consistent with the best available climate science, they argue, this duty of care has been breached. They invoke the Torres Strait Treaty, which requires the Australian government to protect and preserve the marine environment in the region.

Relief sought:
The plaintiffs seek declarations that Australia owes a duty of care to the Torres Strait Islanders which requires reasonable protective measures aimed at the Islanders, their traditional way of life and the marine environment; and that Australia has breached this duty. They further request the court to order an injunction requiring Australia to implement both climate adaptation and mitigation measures that are consistent with best available science and the payment of compensation for loss and damage.

The plaintiffs seek both mitigation and adaptation measures and rely on the duty of care recognized in the Sharma case.

Fact-finding:
In 2023, representatives of the Federal Court traveled to the Torres Strait to collect evidence from members of the community.

A hearing of expert evidence is set to be held in this case on the premises of the Federal Court in Melbourne starting in late October 2023.  

Full text of the petition:
The case is pending before the Federal Court of Australia and all documents related to the proceedings can be found on the court’s website (click here).

Last updated:
1 August 2023