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Wave of Climate-Related Actions by First Nations Peoples Considered Precedent-Setting

Three recent actions highlight an emerging trend of First Nations peoples bringing climate-related claims. Recent decisions in two of these actions have set significant precedents both in Australia and internationally. The third matter is a class action that is scheduled for hearing before the Federal Court of Australia in the second half of 2023, which also has the potential to set a significant precedent going forward. The matters demonstrate a high degree of sophistication and collaboration among interest groups globally in invoking court processes and public international law mechanisms to agitate climate-related issues. 

Torres Strait Islanders' Complaint Upheld by the United Nations Human Rights Committee

First, in September 2022, the United Nations Human Rights Committee ("UNHRC" or the "Committee") upheld a joint complaint filed by several Australian nationals and their children, who are all indigenous inhabitants of islands in Australia's Torres Strait. The Committee found that Australia's failure to adequately protect against climate-related impacts violated the Torres Strait Islanders' rights to enjoy their culture and to be free from arbitrary interference with privacy, family, and home under Articles 27 and 17, respectively, of the International Covenant on Civil and Political Rights. The Committee also concluded that Australia's prior commitment to construct protective infrastructure in the region, which is comprised of low-lying islands, was inadequate.

As remedies, the Committee asked Australia, among other things, to compensate the complainants for the harm suffered; engage in meaningful consultation with the affected communities to assess needs; implement all necessary measures to secure the communities' safe existence on their islands; and take steps to prevent similar violations in the future. While the decision is non-binding under Australian law, the Committee has asked Australia to report to the UNHRC, in six months' time, the measures it has taken to give effect to the Committee's views. 

This is a landmark decision as it comprises the first instance of an international body finding that a nation state has violated international human rights law through inadequate climate-related adaptation measures. The decision also marks the first time that First Nations peoples' right to culture has been found to be at risk from climate impacts. The decision is likely to pave the way for other similar human rights complaints and actions globally and in Australia. (It is notable in this regard that the complainants were represented by ClientEarth, a global environmental organization). In particular, the decision is likely to be of Torres Strait Islanders' significance in jurisdictions where human rights legislation is in force (in Australia this includes Queensland, Victoria, and the Australian Capital Territory). It may also influence the manner in which stakeholders, including activist investors and regulators, assess corporate performance against voluntary commitments to comply with human rights principles such as those set out in the United Nations Guiding Principles on Business and Human Rights.

Federal Court Sets Aside Approval of an Offshore Gas Field Due to Insufficient Evidence of Consultation with Traditional Owners 

The second matter involves a recent decision of the Federal Court of Australia in which a leader of the Munupi clan of the Tiwi Islands, Dennis Tipakalippa, succeeded in a judicial review application, to set aside a decision of the National Offshore Petroleum Safety and Environmental Management Authority ("NOPSEMA") to accept the environment plan of an Australian oil and gas company to drill eight offshore wells in the Barossa gas field.

Under the Offshore Petroleum and Greenhouse Gas Storage (Environment) Regulations 2009 (Cth) (the "Regulations"), NOPSEMA's acceptance of an environment plan is contingent upon it being reasonably satisfied that the environment plan meets certain criteria. Such criteria includes that the titleholder has carried out consultations with each relevant person whose functions, interests, or activities may be affected by the activities to be carried out under the plan.

The Munupi clan are the traditional owners of land situated closest to the offshore gas field. Mr. Tipakalippa claimed that the clan has "sea country" in and around the proposed drilling site based on traditional hunting activities and spiritual connections; and further, that the project would damage the well-being of the clan and the surrounding environment. Mr. Tipakalippa challenged NOPSEMA's decision on the basis that Santos NA Barossa Pty Ltd ("Santos") had failed to adequately consult Munupi clan members. 

Federal Court Justice Mordecai Bromberg accepted that the Munupi clan, as the traditional owners of land proximate to the offshore operation, were relevant people for the purpose of the consultation requirement. The court concluded that Santos provided insufficient evidence to demonstrate that it had consulted with the clan or that NOPSEMA had understood that consultation had occurred.

In the circumstances, the court found that NOPSEMA was not lawfully satisfied that the environmental plan met the necessary criteria for acceptance set forth in the regulations and held that the approval was legally invalid and must be set aside.

Santos' appeal against the decision (Tipakalippa v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2022] FCA 1121) before the full court of the federal court has been expedited. Mr. Tipakalippa is represented by the Environmental Defenders Office.

Interestingly, Mr. Tipakalippa's claim followed an action that was commenced in the Seoul Central District Court by other leaders of indigenous Tiwi Islander and Larrakia peoples (one of whom is a Korean citizen) seeking to injunct Korea's export credit agencies, Korea Trade Insurance Corporation ("K-SURE") and the Export-Import Bank of Korea ("KEXIM"), from financing Santos' joint venture partner, SK E&S's, investment in the Barossa gas field project. The claim invoked the environmental protections set forth in Article 35 of the Korean Constitution, along with Article 100 of the National Finance Act, which permits citizens to demand corrective measures against unlawful spending of public funds.

While the action was rejected by the court in May 2022, it reportedly led to KEXIM delaying its decision to fund a US $330M credit facility for the project. The action was supported by Solutions for our Climate ("SFOC"), a South Korean-based non-government organization. SFOC, together with Australian-based non-government organizations ("NGO"s), Environment Centre NT and Jubilee Australia Research Centre, formed the Stop Barossa Gas Campaign, which has worked with Tiwi Islands and the Larrakia people in bringing their claims.

Torres Strait Islander Class Action 

Lastly, the impacts of climate change on the environment and indigenous way of life are also before the federal court in a class action bought by traditional owners from Guda Maluyligal on behalf of all people of Torres Strait Islander descent against the Australian government: Pabai Pabai & Anor v Commonwealth of Australia.

The specific question to be considered by the court is whether the government owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their culture and traditional way of life, and their environment from climate-related harms. The applicants allege the government breached this duty by, among other things, negligently failing to commit to an emissions reduction target consistent with the "best available science" and to implement measures to reduce emissions consistent with that target; and failing to provide adequate infrastructure to ameliorate physical climate-related impacts in the Torres Straits. 

The matter is scheduled for hearing in mid-to-late 2023. The case has been developed with the Urgenda Foundation, which in 2015 brought the landmark case of Urgenda v State of the Netherlands, which mandated that the Netherlands government set more ambitious greenhouse gas emissions targets.

The class action follows a decision of the full court of the federal court in Minister for the Environment v Sharma [2022] FCAFC 35 in March 2022 which held that the Commonwealth Minister for the Environment does not owe a duty of care to children in Australia to protect them from the physical harms of climate change when assessing environmental approvals for fossil fuel projects. However, the Torres Strait Islanders' argument for a duty of care can be distinguished from that raised in Sharma in a number of ways, including that it arises under the Torres Strait Treaty which came into force in 1985. 

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