Native Title Report 2008 - Case Study 1

Native Title Report 2008

Case study 1

Climate change and the human rights of Torres Strait Islanders

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• 1 Potential effects of climate change on the Torres Strait Islands
  
• 2 Climate change and the human rights of Torres Strait Islanders
  
  • 2.1 The right to life
  • 2.2 The right to water
  • 2.3 The right to food
  • 2.4 The right to health
  • 2.5 The right to a healthy environment
  • 2.6 The right to culture
• 3 What is already being done?
  
  • 3.1 The Torres Strait Coastal Management Committee
    
  • 3.2 A federal study: climate change for northern Indigenous communities
• 4 What next?
  
  • 4.1 Information, knowledge, data
  • 4.2 Governance, planning and strategies
  • 4.3 Evaluation and monitoring
  • 4.4 Awareness and capacity building
• 5 If things continue as they are? Torres Strait Islanders rights of action
  
  • 5.1 Environmental Protection Act 1994 (Qld)
  • 5.2 Negligence
  • 5.3 Public nuisance
  • 5.4 Human Rights Remedies
• 6 Conclusion

Imagine the sea rising around you as your country literally disappears
beneath your feet, where the food you grow and the water you drink is being
destroyed by salt, and your last chance is to seek refuge in other
lands...^[1]

This is a reality that a group of Indigenous Australians – the Torres
Strait Islanders – are facing. If urgent action is not taken, the region
and its Indigenous peoples face an uncertain future, and possibly a human rights
crisis.

The Torres Strait Islands are a group of over 100 islands spread over
48,000km², between the Cape York Peninsula at the tip of Queensland,
and the coast of Papua New Guinea.

It is a unique region, geographically and physically, and it is home to a
strong, diverse Indigenous population. Approximately 7,105 Torres Strait
Islanders live in the Torres Strait region, in 19 communities across 16 of the
islands.^[2] Each community is a
distinct peoples – with unique histories, traditions, laws and customs.
Although the communities are diverse, the islands are often grouped by
location^[3], and together they form a
strong region whose considerable influence is evidenced by the very existence of
native title law today.

The Torres Strait is home to the group of Islanders from Mer who first won
recognition of native title, with Eddie (Koiki) Mabo triggering the land rights
case which recognised Aboriginal peoples and Torres Strait Islanders’
native title to the land and affirmed that Australia was not terra nullius (belonging to no one) when the British arrived. It is also home to a group
of Aboriginal people, known as the Kaurareg of the Kaiwalagal (inner) group of
islands.

The Islanders were also successful in forming their own governance
structure:

In 1994, in response to local demands for greater autonomy, the Torres Strait
Regional Authority (TSRA) was established to allow Torres Strait [I]slanders to
manage their own affairs according to their own ailan kastom (island
custom) and to develop a stronger economic base for the
region.^[4]

Additionally, the region has its own flag symbolising the unity and identity
of all Torres Strait Islanders^[5], and
the area is subject to a bilateral treaty with Papua New Guinea which recognises
and guarantees their traditional fishing rights and traditional customary
rights.^[6]

Map 1: The Torres Strait region

^[7]

Despite these strengths, many Australians would be hard pushed to locate the
region on a map, and the Torres Strait Islands and its Indigenous peoples are
often overlooked in policy, research and Indigenous’ affairs discourse in
Australia. This is also true for many issues on the islands related to the
environment. As one researcher has put it, the Torres Strait Islands have
effectively been ‘left off the map in research on biophysical change in
Australia’.^[8]

Yet the Islanders’ cultures, societies and economies rely heavily on
the ecosystem and significant changes to the region’s environment are
already occurring. For example, in mid 2005 and in early
2006^[9], a number of the islands were
subject to king tides which were so high that the life of one young girl was
threatened, and significant damage was
caused.^[10] Although there is no
proof that these were attributable to climate change, Islanders believe that it
is climate change that is threatening their existence.

Anecdotally, Islanders have voiced their concerns to me about the impact of
climate change and the visible changes that are already occurring, such as
increased erosion, strong winds, land accretion, increasing storm frequency and
rougher seas of a sort that elders have never seen or heard of before. They have
seen the impact these events have had on the number of turtles nesting, their
bird life and sea grass. They feel that their lives are threatened both
physically and culturally.^[11]

The potential impacts of climate change are severe. Ultimately, if
predictions of climate change impacts occur, it poses such great threats to the
very existence of the Islands that the government must seriously consider what
the impact will be on the Islanders’ lives, and provide leadership so that
cultural destruction is avoided. As the United Nations Permanent Forum on
Indigenous Issues recognised ‘Indigenous peoples, who have the smallest
ecological footprints, should not be asked to carry the heavier burden of
adjusting to climate
change:’^[13]

It is ironic that Torres Strait Islanders have been able to weather 400 years
of European colonisation as a distinct Indigenous entity, only to have to face
the problem of cultural annihilation as a result of rising sea level due to the
greenhouse effect.^[14]

Because of its geography, with many of the Islands being low-lying coral cays
with little elevation, the Torres Strait Islands will be the inadvertent litmus
test for how the Australian and Queensland governments distribute the costs and
burden of climate change:

Socially, climate change raises profound questions of justice and equity:
between generations, between the developing and developed worlds; between rich
and poor within each country. The challenge is to find an equitable distribution
of responsibilities and
rights.^[15]

The lessons learned will have wide application. FaHCSIA states that there are
‘329 discrete Indigenous communities across Australia located within 10
kilometres of the coast. The majority of these communities are located in remote
locations.’^[16]

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1 Potential effects of climate change on the Torres
Strait Islands

Both domestic and international research on climate change impacts identify
the difficult situation that the Torres Strait Islanders face in order to
survive:

Torres Strait [I]slanders and remote [I]ndigenous communities have the
highest risks and the lowest adaptive capacity of any in our community because
of their relative isolation and limited access to support facilities. In some
cases the Torres Strait islands are already at risk from
inundation.^[17]

Primarily there will be three major impacts with considerable flow on effects
which overlap and form a cycle of destruction:

1. A temperature rise is predicted. ‘By 2070, average temperatures are
   projected to increase by up to
   6◦C.’^[18]
2. A rise in sea level is predicted. ‘While global average sea level rise
   is projected between 9 and 88cm by 2100, sea level rise around some areas of the
   Australian coast and the Pacific region has recently shown short term
   larger-than-average
   variation.’^[19] Some of the
   Islands in the Torres Strait are barely a metre above sea level. However, the
   impact that sea level rise will have on the Islands could vary. It could include
   loss of land, sediment supply and possibly island growth, or increased
   inundation events.
3. An increase in severe weather events is predicted. ‘Rainfall patterns
   are also likely to become more extreme, with projected changes of between +17 to
   -35 per cent (in the wet and dry seasons respectively compared to 1990 levels)
   in the region. This suggests the potential for heavier downpours during the
   monsoon as well as more extended dry
   spells.’^[20]

These three primary impacts will flow on to potentially effect every aspect
of society, including:^[22]

• reduced freshwater availability
• greater risk of disease from flooded rubbish tips and changing mosquito
  habitats
• erosion and inundation of roads, airstrips and buildings near the shoreline
• degradation of significant cultural sites, such as graveyards near the
  shoreline
• change in the location or abundance of plants and animals (and their
  habitat), such as turtles, dugongs and mangroves. This could extend to a
  complete loss of some plants and animals
• change in coral growth or coral bleaching
• inundation or destruction of essential infrastructure such as housing,
  sewerage, water supply, power
• inability to travel between islands
• movement of disease borne/ pest insects from the tropical north
• loss of land, accretion or creation of
  land.

The consequences of these impacts will be greater because the Islanders are
Indigenous. It is widely recognised that Indigenous communities are much more
vulnerable to climate change because of the social and economic disadvantage
Indigenous communities already
face:^[24]

Vulnerability to climate change can be exacerbated by the presence of other
stresses... vulnerable regions face multiple stresses that affect their exposure
and sensitivity as well as their capacity to adapt. These stresses arise from,
for example, current climate hazards, poverty and unequal access to resources,
food insecurity, trends in economic globalisation, conflict, and incidence of
diseases such as HIV/AIDS.^[25]

Many of these stresses are found in the Torres Strait Islands’
communities. The Islands are remote, the Islanders do not have access to the
same services and infrastructure as other Australians and the health and other
social statistics of the Islanders are similar to other Indigenous Australians,
that is, they are significantly worse than non-indigenous Australians:

Social and economic disadvantage further reduces the capacity to adapt to
rapid environmental change, and so this problem is compounded on many of the
Islands which lack adequate infrastructure, health services and employment
opportunities.^[26]

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2 Climate change and the human rights of Torres
Strait Islanders

The predicted impact of climate change on the islands is severe. It threatens
the land itself and the existence of the Islands. The impacts predicted above
threaten the Islanders lives and their culture. If the serious predictions are
not headed, and no action is taken, the Torres Strait Islands will face a human
rights crisis.

In September 2007, the Interagency Support Group on Indigenous Issues pointed
out that:

the most advanced scientific research has concluded that changes in climate
will gravely harm the health of indigenous peoples’ traditional lands and
waters and that many of plants and animals upon which they depend for survival
will be threatened by the immediate impacts of climate
change.^[27]

Yet to date, action on climate change has focused on environment and
conservation, and there has been little recognition of the need to protect
Indigenous peoples’ rights in the response to climate change. This must
change.

By ratifying various human rights instruments, Australia has agreed to respect, protect and fulfil the rights contained
within it.^[28]

• The obligation to respect means Australia must refrain from
  interfering with or curtailing the enjoyment of human rights.
• The obligation to protect requires Australia to protect individuals
  and groups against human rights abuses – whether by private or government
  actors.
• The obligation to fulfil means that Australia must take positive
  action to facilitate the enjoyment of basic human
  rights.^[29]

Thus,
irrespective of the cause of a threat to human rights, Australia still
has positive obligations to use all the means within its disposal to uphold the
human rights affected.^[30]

Chapter 4 of this Report outlines some of the threats that climate change
impacts pose to human rights generally. Some of the impacts that will be felt in
the Torres Strait Islands are discussed here.

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2.1 The right to
life^[31]

The right to life is protected in the Universal Declaration of Human
Rights (UDHR)^[32] and the International Covenant on Civil and Political
Rights^[33] (ICCPR). Article 3 of
the UDHR provides ‘everyone has the right to life, liberty and security of
person’. Article 6(1) of the ICCPR provides ‘every human being has
the inherent right to life. This right shall be protected by law. No one shall
be arbitrarily deprived of his life’. The Declaration on the Rights of
Indigenous Peoples^[34] also
includes a right to life and security.

In its General Comment on the right to life, the United Nations Human Rights
Committee warned against interpreting the right to life in a narrow or
restrictive manner. It stated that protection of this right requires the State
to take positive measures and that ‘it would be desirable for state
parties to take all possible measures to reduce infant mortality and to increase
life expectancy...’^[35]

As articulated by the Deputy High Commissioner for Human Rights, climate
change can have both direct and indirect impacts on human life. This is true for
the Torres Strait region, where the effect may be immediate; that is, as a
result of a climate-change induced extreme weather, a threat that has already
been felt when a young girl’s life was at risk in the 2006 king tides; or
it may occur gradually, through deterioration in health, diminished access to
safe drinking water and increased susceptibility to disease.

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2.2 The right to
water^[36]

The right to water is intricately related to the preservation of a number of
rights protected through the International Covenant on Economic, Social and
Cultural Rights^[37] (ICESCR). It underpins the right to health in article 12 and the right to
food in article 11. The right to water is also specifically articulated in
article 24 of the Convention on the Rights of the
Child^[38] (CRC), and article
14(2)(h) of the Convention on the Elimination of Discrimination against
Women^[39] (CEDAW). Various
articles of the Declaration on the Rights of Indigenous Peoples refer to
rights to water for both cultural and economic uses.

In 2002, the UN Committee on Economic, Social and Cultural Rights recognised
that water itself is an independent
right.^[40] Drawing on a range of international treaties and declarations it stated,
‘the right to water clearly falls within the category of guarantees
essential for securing an adequate standard of living, particularly since it is
one of the most fundamental conditions for
survival’.^[41] The same
General Comment refers specifically to the rights of Indigenous peoples to
water:

Whereas the right to water applies to everyone, States parties should give
special attention to those individuals and groups who have traditionally faced
difficulties in exercising this right...In particular, States parties should
take steps to ensure that:...

(d) Aboriginal peoples’ access to water resources on their ancestral
lands is protected from encroachment and unlawful pollution. States should
provide resources for Aboriginal peoples to design, deliver and control their
access to water;’^[42]

In the Torres Strait region, the right to water will be threatened by a
number of factors.

Both surface and ground water resources are likely to be impacted by climate
change making resource management in the dry season difficult. In the past, many
islands depended on fresh water lenses to provide drinking water, but
overexploitation of this resource has caused problems and created the need for
water desalination plants on many of the islands. Rainwater tanks and large
lined dams are now used to trap and store water for use in dry season. Many of
the islands have already reached the limits of drinking water supply and must
rely on mobile or permanent desalination plants to meet demand. Other problems
are likely to include an increase in extreme weather events such as droughts and
floods, and an increase in salt-water intrusion into fresh water
supplies.^[43]

In addition, the rights that the right to water underpin, such as the right
to food and the right to life, will also be
threatened.^[44]

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2.3 The right to
food^[45]

The right to adequate food is recognised in several international
instruments, most comprehensively in the ICESCR. Pursuant to article 11(1),
state parties recognise ‘the right of everyone to an adequate standard of
living for himself and his family, including adequate food, clothing and
housing, and to the continuous improvement of living conditions’, while
article 11(2) recognises that more immediate and urgent steps may be needed to
ensure ‘the fundamental right to freedom from hunger and
malnutrition’. Article 20 of the Declaration on the Rights of
Indigenous Peoples protects the right of Indigenous peoples to secure their
subsistence.

The UN Special Rapporteur on the Right to Food has defined the right as
follows:

The right to adequate food is a human right, inherent in all people, to have
regular, permanent and unrestricted access, either directly or by means of
financial purchases, to quantitatively and qualitatively adequate and sufficient
food corresponding to the cultural traditions of people to which the consumer
belongs, and which ensures a physical and mental, individual and collective
fulfilling and dignified life free of
fear.^[46]

There is little doubt that climate change will detrimentally affect the right
to food in a significant way. In the Torres Strait, it is predicted that food
production will be severely affected because of increased temperatures, changing
rainfall patterns, salinity which will turn previously productive land
infertile, and erosion. Fishing, a major source of food for the region, will
also be affected by rising sea levels, making coastal land unusable, causing
fish species to migrate, and an increase in the frequency of extreme weather
events disrupting
agriculture.^[47] Islanders have already identified a change a fish stocks, dugongs and turtles,
affecting their right to food that corresponds with their cultural traditions.

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2.4 The right to
health^[48]

Article 25 of the UDHR states that ‘everyone has the right to a
standard adequate for the health and well-being of himself and his
family’. Article 12(a) of the ICESCR recognises the right of everyone to
‘the enjoyment of the highest standard of physical and mental
health’. The right to health is also referred to in a number of articles
in the CRC. Article 24 stipulates that state parties must ensure that every
child enjoys the ‘highest attainable standard of health’. It
stipulates that every child has the right to facilities for the treatment of
illness and rehabilitation of health. Article 12 of the CEDAW contains similar
provisions.^[49] Article 24 of the Declaration on the Rights of Indigenous Peoples protects the right of
Indigenous peoples to health, their cultural health practices, and equality of
health services.

Many of these impacts are predicted to occur in the Torres Strait region.

Climate change will have many impacts on human health, and this threat is
even more prevalent for Indigenous peoples, who commonly don’t have access
to the same standard of health care that non-Indigenous Australians enjoy.
Additionally, the dietary health of [Indigenous] communities is predicted to
suffer as the plants and animals that make up our traditional diets could be at
risk of extinction through climate
change.^[50]

Climate change may affect the intensity of a wide range of diseases –
vector-borne, water-borne and
respiratory.^[51] Changes in
temperature and rainfall will make it harder to control dengue fever and other
diseases carried by mosquitoes, and there is a risk that the range and spread of
tropical diseases and pests will
increase.^[52]

Increasing temperatures may lead to heat stress, while rising sea levels and
extreme weather events increases the potential for malnutrition and
impoverishment. This is particularly true for communities such as those in the
Torres Strait which rely on traditional harvest from the land and oceans, and
small crops.

However, in addition to the direct physical impacts on health, there are
health implications from disturbing Indigenous peoples’ connection to
country and their land and water management responsibilities:

Many Indigenous people living in remote areas have a heightened sensitivity
to ecosystem change due to the close connections that exist for them between the
health of their ‘country’, their physical and mental well-being and
the maintenance of their cultural practices. A biophysical change manifested in
a changing ecosystem has, for example, the potential to affect their mental
health in a way not usually considered in non-Indigenous
societies.^[53]

The impact of climate change on the mental well-being of Torres Strait
Islanders has already been predicted:

The mental well-being of Islanders who feel that they can no longer predict
seasonal change is another factor that needs to be considered in any assessment
of Islander health. Given the close cultural connection between the natural
environment and Islander culture, habitat change that impacts significant fauna
(for example, reduction in turtle nesting beaches, migratory bird foraging or
sea grass bed decline) is likely to affect Islanders’ mental
well-being.^[54]

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2.5 The right to a healthy
environment^[55]

In Australia, and elsewhere, there have been discussions about the existence
of an internationally recognised human right to an environment of a particular
quality. The Advisory Council of Jurists of the Asia-Pacific Forum on National
Human Rights Institutions endorsed the idea that the protection of the
environment is ‘a vital part of contemporary human rights doctrine and a sine qua non for numerous human rights, such as
the right to health and the right to
life’.^[56]

The link between the environment and human rights has been the subject of
many ‘soft law’ instruments of international environmental
law.^[57] This includes the first
international law instrument to recognise the right to a healthy environment,
the 1972 Stockholm Declaration on the Human
Environment.^[58] Others
followed, including the 1992 Rio
Declaration^[59] and the 1994
draft Declaration of Principles on Human Rights and the Environment which
‘demonstrates that accepted environmental and human rights principles
embody the right of everyone to a secure, healthy and ecologically sound
environment, and it articulates the environmental dimension of a wide range of
human rights.’^[60]

Article 29 of the Declaration on the Rights of Indigenous Peoples protects the right of Indigenous peoples to the conservation and protection of
the environment.

There are domestic laws in Australia that are related to the protection of a
healthy environment. Chapters 4 and 5 of this report, outline some of these
mechanisms.

Relevant to the Torres Strait region is the Environmental Protection and
Biodiversity Conservation Act 1999 (Cth) (EPBCA) which was passed in
response to the International Convention on Biodiversity. The EPBCA provides a
legal framework to protect and manage matters of national and international
environmental significance and it aims to balance the protection of these
crucial environmental and cultural values with our society’s economic and
social needs.

There are significant concerns about the threats to biodiversity in the
Torres Strait. The Intergovernmental Panel on Climate Change has predicted a
significant loss of biodiversity in surrounding
regions.^[61] Already, turtle nesting
failures and other impacts on biodiversity have been identified by Islanders.
Acting on this concern, the Torres Strait Regional Authority has recommended to
the government:

that there are further studies of island processes and projected climate
change impacts on island environments, including uninhabited islands with
problems such as turtle nesting
failures.^[62]

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2.6 The right to
culture^[63]

While the focus of media and political debates in Australia presently rests
with the environmental and economic impacts of climate change, inextricably
linked to environmental damage is damage to Indigenous peoples cultural heritage
and identity. The devastation of sacred sites, burial places and hunting and
gathering spaces, not to mention a changing and eroding landscape, cause great
distress to Indigenous
peoples.^[64]

Indigenous peoples across the world have a right to practice, protect and
revitalise their culture without interference from the state. Governments have
an obligation to promote and conserve cultural activities and
artefacts.^[65] The right to culture
is entrenched in a number of international law instruments. Article 27 of the
ICCPR protects the rights of minorities to their own culture. The Human Rights
Committee’s General Comment 23 makes it clear that this right applies to
Indigenous peoples. The Committee also confirmed that this may require the
states to take positive legal measures to protect this
right.^[66]

The right to culture is also found in a number of other instruments including
article 15 of the ICESCR which upholds the right of everyone to ‘take part
in cultural life’, the Convention on the Elimination of All Forms of
Racial Discrimination^[67] (ICERD), commits all states to ‘ensure that indigenous communities can
exercise their rights to practise and revitalize their cultural traditions and
customs and to preserve and to practise their
languages.’^[68] The General
Comment to the ICERD also provides that ‘no decisions directly relating to
[Indigenous communities’] rights and interests are taken without their
informed consent.’^[69]

Article 30 of the CRC protects the rights of children to their culture.
Article 8 of International Labour Organisation Convention 169 provides a
specific protection for indigenous peoples stating that: ‘[Indigenous
peoples] shall have the right to retain their own customs and institutions,
where these are not incompatible with fundamental rights defined by the national
legal system and with internationally recognized human
rights.’^[70]

Importantly, under the Declaration on the Rights of Indigenous
Peoples, Indigenous peoples have a number of rights related to the right to
practice and revitalisation of their cultural practices, customs and
institutions.^[71]

In 2000, the United Nations Human Rights Committee expressed concern about
Australia’s recognition of the cultural rights of its Indigenous
population:

The Committee expresses its concern that securing continuation and
sustainability of traditional forms of economy of indigenous minorities
(hunting, fishing, gathering), and protection of sites of religious or cultural
significance for such minorities, which must be protected under article 27, are
not always a major factor in determining land
use.^[72]

This recognition could become even more limited with climate change, as there
is expected to be a significant threat to cultural rights as a result. One way
this will occur is through damage to the land, which in turn can damage cultural
integrity:

Indigenous people don't see the land as distinct from themselves in the same
way as maybe society in the south-east (of Australia) would. If they feel that
the ecosystem has changed it’s a mental anxiety to them. They feel like
they've lost control of their ‘country’ ― they're responsible
for looking after
it.^[73]

In the Torres Strait Islands, the threats to culture from climate change are
already being felt; for example graveyard sites have already been threatened and
damaged by recent king tides, and the nesting behaviour of turtles has already
become unpredictable because of changing weather patterns and erosion. Many
aspects of Ailan Kastom are threatened if the predicted impacts of
climate change eventuate:

Islander culture, or Ailan Kastom, refers to a distinctive Torres
Strait Islander culture and way of life, incorporating traditional elements of
Islander belief and combining them with Christianity. This unique culture
permeates all aspects of island life...Ailan Kastom governs how Islanders
take responsibility for and manage particular areas of their land and sea
country; how and by whom natural resources are harvested, and allocation of
seasonal and age-specific restrictions on catching particular species. The
strong cultural, spiritual and social links between the people and the natural
resources of the sea reinforces the significance of the marine environment to
Islander culture. One major component of Ailan Kastom relates to the role
of turtle and dugong, which have great significance as totemic animals for many
Islanders.^[74]

(a) Dispossession and relocation

The land and waters are such an integral part of Ailan Kastom, that
before native title law, one author wrote:

The Strait does not have to worry about custom; the society of Islanders
there remains axiomatic as long as they are in occupation of their ancestral
islands and are living off resources which, whatever the legality, are theirs by
customary right.^[75]

Yet, if climate change predictions are accurate, some Islands in the region
may disappear completely, and others may lose large tracts of land (see page 302
of this Report for photos of sea level predictions for Masig Island). Because of
this, some Islanders will be dispossessed of their lands and be forced to
relocate, threatening the existence of Ailan Kastom.

An Islander from Saibai has said ‘But we will lose our identity as
Saibai people if we scatter. If we separate, there will be no more
Saibai’.^[76] Another, the TSRA
chairman John Toshie Kris, has been quoted as saying that relocation has been
discussed as a last resort; however, he believes it can be avoided with the help
of government, but ‘at the moment, you cannot move these people, because
they are connected by blood and bone to their traditional
homes.’^[77]

This outcome would be in breach of Australia’s international human
rights obligations that protect a right to culture. General comment 23 to the
ICERD explicitly deals with returning lands to Indigenous peoples:

The Committee especially calls upon State parties to recognise and protect
the rights of indigenous peoples to own, develop, control and use their communal
lands, territories and resources and, where they have been deprived of their
lands and territories traditionally owned or otherwise inhabited or used without
their free and informed consent, to take steps to return these lands and
territories. Only when this is for factual reasons not possible, the right to
restitution should be substituted by the right to just, fair and prompt
compensation. Such compensation should as far as possible take the form of lands
and territories.^[78]

Article 10 of the Declaration on the Rights of Indigenous Peoples also
confirms that Indigenous peoples cannot be moved from their lands without having
given their free, prior and informed consent.

The history of dispossession of the Indigenous peoples of Australia has
resulted in various state, territory and federal laws being passed in recent
years with an intention of making reparation for
dispossession.^[79] However, if any
Islanders are relocated and dispossessed of their lands, it will not only affect
their culture, but it will impact on their existing legal rights to the land,
and potentially the legal rights of other Indigenous people. All of these
impacts must be considered by government.

(b) Native Title

As I noted at the beginning of this chapter, the Torres Strait Islands are
the birthplace of native title law. All inhabited islands in the region, and
some uninhabited islands have native title rights determined over them. Other
uninhabited islands and the surrounding sea have native title claims over them,
but are yet to be determined. However, with the impacts of climate change
predicted above, those hard won native title rights may be lost.

Erosion and the threat of extreme weather events including king tides have
already damaged and ruined sites that have native title rights and interests
determined over them. It has also already forced some to move off the lands that
they have native title determined over, onto higher ground.

The possibility of native title being extinguished by climate change raises
questions about what remedies the Islanders might be able to seek if this
occurs. This is discussed later in this chapter.

(c) Relocation

The Council of Australian Governments’ (COAG) adopted National Climate
Change Adaptation Framework (the Framework) states that a potential area of
action is to ‘identify vulnerable coastal areas and apply appropriate
planning policies, including ensuring the availability of land, where possible,
for migration of coastal
ecosystems.’^[80] The Framework
discusses the expected need for Islanders to migrate to the mainland or urban
centres.

Currently, the discussion about intra-Australia relocation has focused on
relocation as a predominantly economic issue with social implications,
particularly the resulting strain on infrastructure.

However, culture and cultural practices will have implications on the social
and economic dimensions of relocation, something which has not been acknowledged
by the federal government. But ‘[s]ocial conflicts stemming from
ecological changes are not easily
resolved’.^[81]

For Torres Strait Islanders, there are two possible relocations that may
occur, depending on what impacts of climate change eventuate.

Firstly, some Islanders may be forced to move onto higher land on their
island or another Torres Strait Island. Some have already started to negotiate
such a move, and some families have already made agreements with another family
that when the impact of erosion gets too bad, they can move onto the
other’s land.^[82] However this
is not guaranteed.

Well on Murray Island what we’ll do is go up the hill a bit further.
The only thing we’ll have to do is every Island community is owned by a
particular family or clan; so for argument’s sake, if I need to move
because I live down the bottom, I’d have to start negotiating with another
family or clan to move into their area. If they refuse, I’d have to go
back down.^[83]

Secondly, Islanders may be forced to move onto the mainland. This would
probably mean moving to the Cape York region – closest to their homes and
where some of their relatives may now
reside.^[84] However, this is land
that traditionally belongs to the Aboriginal people of that area, and some of
that land has in fact been handed back to the Traditional Owners by the
Queensland government. Some has also had native title determined over it.

Relocation to the mainland occurred in the 1940s, when in response to a
flood, some Islanders decided to move. However:

This relocation, however, did not take account of the potential cultural
sensitivities of moving Islander people on to what is now recognised as
Aboriginal land. These concerns would need to be at the forefront of any
relocation negotiations in the future (Jensen Warusam pers. comm.
2006).^[85]

The impacts of such a move on the land rights and cultural rights of
Aboriginal people and Torres Strait Islanders, is a serious issue that the
government must factor in to its decision making on climate change adaptation.
It is a complicating factor, as one Islander put it:

...if there’s an influx of a thousand people settling in Cairns or
somewhere, it’s going to cause a lot of major
problems.^[86]

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3 What is already being done?

Recognising the impacts of climate change that are already being felt in the
region, and the vulnerable position that the Islanders are in, a number of
initiatives have begun. However, many of these projects are in their initial
stages and need to be supported, improved and complemented so that the potential
human rights crisis in the Torres Strait is averted. The primary state, regional
and federal responses to climate change in the Torres Strait are listed below.

3.1 The Torres Strait Coastal Management
Committee^[87]

The Torres Strait Coastal Management Committee (the Committee) was
established by TSRA in 2006 to enable a whole-of-government coordinated response
to coastal issues in the Torres Strait. It consists of representatives from the
Queensland government, the islands, and recently it has included a federal
government representative. It coordinates and oversees a range of projects that
were initially developed to deal solely with coastal care. However, in
recognition of the link between coast care and the predicted significant impacts
of climate change, the Committee’s work has recently expanded to include
projects dealing with climate change. Some projects include:

• Investigation of sea erosion affecting communities and solution
  development
• Sea level survey and land datum corrections
• Sustainable land use planning
• Climate impacts in the Torres Strait, and incorporation of traditional
  environmental knowledge
• Development of a climate change strategy for the Torres Strait
• A survey to develop high level resolution digital evaluation model for low
  lying areas to assist in planning for sea level rise and storm tide
  inundation.^[88]

The
Committee actively involves island communities in decision making and project
activities^[89] and considers
community support for any action to be vital.

One of the projects the committee has established is the Coastal Erosion
Project. It too has been developed and expanded to deal with climate change
impacts on erosion through inundation and extreme weather events.

(a) Coastal Erosion Project: Masig, Warraber,
Poruma, Iama

In December 2005, the Natural Heritage Trust approved funding for a Coastal
Erosion Impacts Project in the Torres Strait to be undertaken by James Cook
University with the communities of Warraber, Masig and Poruma Islands. The
project, which commenced in April 2006, was extended to include lama Island, and
is due to be finalised in very near future. ^[90]

The long term outcome that the project is seeking is management of erosion on
the cay islands, which are the lowest lying islands in the Torres
Strait.^[91] In order to achieve
this, the project aims to:^[92]

1. Work with communities to identify and prioritise threats. The project has a
   strong focus on community participation and decision making and it
   ‘engage[s] the community to understand the cultural and social aspects of
   the problem and determine what it most important to the
   community’.^[93]
2. Identify the underlying causes of coastal erosion on Torres Strait reef
   islands, and to develop long-term, sustainable solutions that work with, rather
   than against, the natural processes.
3. To provide real data about the processes involved and the way in which
   solutions may address these, these can be used to develop strong funding
   applications for appropriate works.

At the conclusion of the
project, the community is to decide a suitable long-term response to the
problem.

(i) Masig’s
response^[94]

To date, the only island that has made a decision about how they will adapt
to erosion is Masig Island. Masig will be severely affected by climate change if
the Intergovernmental Panel on Climate Change sea level rise predictions occurs.
This will include inundation of most of the inhabited areas of the island (see
photos of Masig Island on page 301 of this Report).

With the assistance of the coastal erosion project, the Masig community has
made some decisions about their future and how they want to progress an
adaptation strategy.

The people of Masig reaffirm that they wish to continue to live on Masig into
the future. The people of Masig understand that much of the island (and in
particular the area around the village) is low, and that flooding events may
become more regular and more significant in the future due to climate change.
However, it is also understood that flooding will only happen occasionally, on
the highest tides and when weather conditions are unfavourable, at least for the
foreseeable future.

- The people of Masig are prepared to participate in a process of adaptation
to environmental and climate change which may include things such as:

• As houses or other infrastructure reaches the end of its usable life, not
  rebuilding in the same place if that place may be subjected to erosion or
  inundation due to rising sea levels
• Not building new infrastructure in hazardous locations unless absolutely
  essential.
• Over time, moving the focus of the island village towards higher parts of
  the island
• Managing boeywadh (berms) with the intention of building them higher and
  wider, and managing access tracks through them to ensure that water cannot enter
  the island interior
• Allowing some parts of the island to erode, where that erosion is not
  causing harm to people, infrastructure or important cultural sites, while
  monitoring the situation.

- The Masig community recognises that adaptation will raise issues that must
be addressed within the community, such as land ownership and traditional
rights, and the community is willing to work through these issues.

- The community wants to further explore the possibility of dredging
off-reef sand to renourish the island beaches.

- The community is willing to be involved in the testing of innovative
solutions to coastal erosion, where appropriate.

- The community will do the important things that they can, such as
implementing management plans for the buoywadh and coastal vegetation.

- The community is willing to work with government at all levels,
researchers and infrastructure providers to make a case to obtain funds to
progress these measures, and to make decisions when options are put before the
community.^[95]

The
project must continue to be supported so that it can be implemented in its
entirety. In addition, further strategies will be needed to complement these
activities which primarily deal with only one aspect of climate change.

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3.2 A federal study: climate change for northern
Indigenous communities

The Australian Government is funding a study on ‘how climate change
will impact on Indigenous communities in northern Australia’. For the
purpose of the study, northern Australia includes the Torres Strait region. In
announcing the initiative, the Minister for Climate Change and Water recognised
that the Government has ‘limited understanding of how climate change will
affect Indigenous communities, their resilience and their capacity to
adapt.’ Positively, the study will take a more holistic approach than most
climate change policy to date, and will examine the impacts on health, the
environment, infrastructure, education, employment and opportunities that may
arise from climate change. The study, which should be completed by April 2009,
will enable the Government to determine what action needs to be taken to reduce
the impact of climate change in the
region.^[96]

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4 What next?

The Australian Human Rights Commission has outlined what a human rights based
response to climate change must involve:

[A] human rights-based approach...should focus on poverty-reduction,
strengthening communities from the bottom up, building on their own coping
strategies to live with climate change and empowering them to participate in the
development of climate change policies. It needs to be locally grounded and
culturally appropriate...the human rights-based approach...emphasises the
importance of local knowledge and seeks the active participation and
consultation of local communities in working out how best to adapt to climate
change. This could mean, for example, incorporating the traditional cultural
practices of indigenous communities into climate change
responses.^[97]

Such an approach is being followed by the Coastal Erosion Project, where the
ultimate decision makers are the communities. If the power to make decisions is
taken away from communities, the project would lose legitimacy and run the risk
of failure:

Decisions made without consultation of Indigenous communities can force
unwelcome lifestyle changes for them. Westerners don’t listen to worries
about land—but we want natural protection from climate change that
doesn’t conflict with traditional ways of
life.^[98]

A human rights based approach to climate change can easily be integrated into
the various stages of ‘adaption as a process’ identified by the
Intergovernmental Panel on Climate Change. The adaptation process
includes:^[99]

• knowledge, data, tools
• risk assessments
• mainstreaming adaptation in to plans, policies, strategist
• evaluation and monitoring for feedback and change
• awareness and capacity building

All of these areas have been
identified as lacking in the Torres Strait where improving knowledge,
information, risk assessment, planning, and capacity building, have all been
identified as urgent priorities.

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4.1 Information, knowledge, data

The lack of data and information on climate change impacts in the Torres
Strait region has been acknowledged by many parties.

The TSRA, CSIRO and Queensland government submissions to House of
Representatives Standing Committee Inquiry into climate change and environmental
impacts on coastal communities both identified a lack of data as an issue. In
response, the Queensland government is undertaking some projects in the Torres
Strait Islands such as the Tide Gauge Project:

Tidal data for the Torres Strait Islands region is insufficiently accurate to
manage and respond to events such as storm surge and projected sea level rise.
The project will provide accurate data to inform such activities as storm surge
and sea-level rise mapping for the
Islands.^[100]

This lack of information is not unique to the Torres Strait. The COAG adopted
National Climate Change Adaptation Framework identifies the lack of information
and knowledge gaps as integral to the two priority areas for potential action.
However, the timeframe for implementing the framework is up to seven years.

It is an urgent priority in the Torres Strait. The TSRA, in its submission,
has identified the lack of local data and science as a major impediment to their
planning and projects to deal with climate change. It has proposed that the
Australian Government fund long term monitoring of sea levels through the
installation of gauges and mapping, which could contribute to an inundation
warning system. It has also proposed that the Government undertake specific
regional scale modelling of changes to climate, which hasn’t been
undertaken in the Torres Strait to
date.^[101]

One aspect of remedying this problem, which is consistent with a human rights
based response to climate change, is recognising and utilising traditional
environmental knowledge, which has already been identified by natural scientists
as an under-used resource for climate impact and adaptation assessment.
Recognition is slowly beginning to grow of the untapped resource of Indigenous
knowledge about past climate change in Australian and internationally, which
could be used to inform adaptation
options.^[102] However, as chapter
7 highlights, it is important that the legal ownership of this knowledge remains
with its true owners.

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4.2 Governance, planning and strategies

It is integral that agencies’ roles, responsibilities and
accountability for governance of climate change issues in the Torres Strait
Islands is clear.

There are unique characteristics of the Torres Strait region that make this
particularly important. There are complex international border issues with Papua
New Guinea, and the area is governed by an international treaty. The Torres
Strait Regional Authority, the Torres Strait Regional Islands Council, the
Queensland Government and the Commonwealth all have some jurisdiction over the
governance of the region. Within each of these there are additional layers of
complexity about which portfolio is responsible for what. For example, there are
22 Queensland government agencies responsible for carrying out the actions
outlined in the State’s ClimateSmart Adaptation plan over the next
5 years.^[103] Further, there are
numerous Non-Government Organisations (NGOs) operating in the region, who are
eager to play a role in supporting the Islanders to mitigate and adapt to
climate change impacts

The CSIRO has highlighted the need for clear governance responsibilities in
order for climate change responses to be effective:

Coastal governance should seek to maintain a flow of multiple values from
multiple natural and built assets, across several scales, to diverse
stakeholders, including future generations... each coastal region faces
different challenges and opportunities from climate change. Meanwhile,
overlapping, unclear or juxtaposed jurisdictions across local, state and
Commonwealth governments do hamper integrated and coordinated
responses.^[104]

In its submission to the House of Representatives Committee, the CSIRO noted
the need for governance and decisions to be made at the right
scale.^[105] Consistent with the
human rights based approach outlined above, the governance of climate change
issues should primarily involve clear decision making responsibilities and
powers that rest with the community.

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4.3 Evaluation and monitoring

At the moment there are only a small number of projects being undertaken in
the Torres Strait, but it is important to ensure that all projects that are
undertaken include evaluation and monitoring in their design. Consistent with
the human rights based approach, this monitoring and evaluation should be done
with particular emphasis on the Islanders themselves identifying the impacts
that climate change, and the projects undertaken, are having on their lives. The
United Nations Permanent Forum on Indigenous Issues recommends:

Monitor and report on impacts of climate change on indigenous peoples,
mindful of their socio-economic limitations as well as their spiritual and
cultural attachment to lands and
waters.^[106]

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4.4 Awareness and capacity building

Any information or data that is available must be distributed to the
communities so that they can engage in the decision making process.

Our duty as Indigenous peoples to Mother Earth impels us to demand that we be
provided adequate opportunity to participate fully and actively at all levels of
local, national, regional and international decision-making processes and
mechanisms in climate
change.^[107]

The CSIRO considers that successful adaptation requires investment in
leadership, skills, knowledge, and adaptable infrastructure so that communities
can self organise and respond quickly and
effectively.^[108]

To ensure this can occur, the United Nations Permanent Forum on Indigenous
Issues recommended that all states ensure Indigenous peoples are well resourced
and supported to make those decisions including through providing policy
support, technical assistance, funding and
capacity-building.^[109]

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5 If things continue as they are? Torres Strait
Islanders rights of action

Less than twenty years ago Australian law did not recognise Torres Strait
Islanders’ rights to their land. But the Islanders fought for their rights
through the courts and won. However, ‘[t]oday it is the sea, not the law,
that is taking their
land’^[112], and the
Islanders may once again want to consider how the law can be used to enforce
their rights if government action is inadequate.

Internationally, communities are testing domestic and international legal
frameworks in an attempt to protect themselves from the impacts of climate
change.

Climate-related litigation is a reality, particularly in the United States
where action has been taken against private companies, administrative decisions
and government agencies...In relation to the impacts on Indigenous peoples, in
February 2008 the Alaskan native village of Kivalina filed a lawsuit against a
number of oil, coal and power companies for their contribution to global warming
and the impacts on homes and country disappearing into the Chukchi Sea. The
village is facing relocation due to sea erosion and deteriorating coast. The
Kivalina seek monetary damages for the defendants. Past and ongoing
contributions to global warming, public nuisance and damages caused by certain
defendants, acts in conspiring to suppress the awareness of the link between
their emissions and global warming...Based on examples from the United States,
there may be scope for litigation outside administrative review in Australia.
Other possible climate related legal action may exist in negligence or nuisance.
Indigenous people do and will continue to suffer loss, damage and substantial
interference with their use or enjoyment of country as a result of climate
change.^[113]

There are currently no laws in Australia that deal specifically with
protecting people from climate change
impacts^[114] but there may be
other laws the Islanders can use to seek a remedy. Some of those possibilities
are explored here.

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5.1 Environmental Protection Act 1994
(Qld)

In Queensland, the principal law dealing with environment protection is the Environment Protection Act 1994 (Qld) (EPA). The object of the EPA is to
‘protect Queensland’s environment while allowing for development
that improves the total quality of life, both now and in the future, in a way
that maintains the ecological processes on which life depends’, that is,
‘ecologically sustainable
development’.^[115] It
includes an offence of causing serious or material environmental harm.

The notion of ‘environmental harm’ is widely defined, with people
and culture being recognised as an integral part of ‘environment’
under the legislation and, although it has not been judicially tested, could
foreseeably encompass the emission of greenhouse gases and consequential climate
change.

One of the benefits of the Environmental Protection Act 1994 (Qld) is
that it does not require a particular power station to be the sole cause
of climate change, which is caused by many contributing factors. The benefit of
this type of action is that a court could potentially order the power station to
pay for the cost of repairs to infrastructure caused by storms or even the costs
of relocating homes and people. One of the difficulties in bringing such an
action is that the power station might present a number of arguments in
response, including that it had all the necessary
approvals.^[116]

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5.2 Negligence

The tort of negligence essentially considers whether there has been a failure
to take reasonable care to prevent injury to others. There is some potential to
argue that various local, state and commonwealth authorities have failed in
their duty of care to protect Torres Strait Islander communities from the
impacts of climate change and are therefore liable for the damage to those
communities.^[117] It may be
difficult for the Islanders to prove a duty of care, but if one could be
established, it may be possible to apply such an argument to large emitters of
greenhouse gas emissions. However, the greatest obstacle will be proving who has
caused the injury.

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5.3 Public
nuisance^[118]

The tort of public nuisance focuses on an interference with the right to use
and enjoy land. Public nuisance is defined as an unlawful act, the effect of
which is to endanger the life, health, property, or comfort of the public.
Public nuisance must affect the public at large.

It is not a defence to a nuisance action based on pollution for the polluter
to prove that the environment was already polluted from another source or that
the polluter’s individual actions were not the sole cause of the
nuisance.^[119] This may mean that
public nuisance is better suited to climate change actions than negligence
because causation issues are likely to be less complex. However, if all
polluters were acting legally, then the action may fail.

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5.4 Human Rights Remedies

Although the Australian Government may have no obligations to Pacific and
Indian islanders and other non-Australians under human rights law, because it
has ratified and implemented all the major human rights treaties it does already
have human rights obligations towards its own citizens...^[120]

This chapter has laid out a number of the human rights implications of
climate change on the lives of Torres Strait Islanders. It threatens their
lives, health, food, water and culture among others. Without a federal or
Queensland charter of human rights, there are only a few human rights mechanisms
that the Islanders could pursue. However, in summary ‘Australia’s
current human rights laws do not provide adequate protection to Torres Strait
Islanders faced with damage to their culture and possible relocation as a result
of climate change’.^[121]

(a) Native title

The Native Title Act is intended to protect and recognise native
title.^[122] As I’ve already
stated, all the inhabited islands in the Torres Strait have had native title
rights and interests determined over them, and under the Act, those native title
rights cannot be extinguished contrary to
it.^[123]

Yet, one of the real risks posed by climate change is that those native
rights and interests will be lost as a result of climate change – through
damage or complete loss of particular sites and land. So how can the NTA protect
the native title rights and interests of the Torres Strait Islanders’? Is
sea level rise an ‘act’ in the sense contemplated by and protected
under the Act?^[124]

Section 226 of the NTA defines ‘acts that affect native title’ to
include not only positive acts such as the making of legislation or granting of
a licence, but the ‘creation, variation, extension, renewal or
extinguishment of any interest in relation to land or waters’. Sea level
rises will extinguish certain rights and interests over land because they will
disappear. The question will be whether the flooding of land will be interpreted
as an ‘act’ despite the fact that the cause of that rise is
essentially inaction on the part of governments to protect native title
interests by taking steps to prevent climate change. Under section 227, such an
act will ‘affect’ native title as it is wholly or partly
inconsistent with the continued existence, enjoyment or exercise of native title
rights and interests.

The NTA regulates activities or developments that may ‘affect’
native title rights. These acts are known as ‘future acts’.
Government inaction to prevent the impact of climate change on the Torres Strait
Islands could constitute a ‘future act’. In addition, those persons
or companies who are taking actions that contribute to global warming and hence
impacts on sea levels and native title rights in due course may also be
undertaking ‘future acts’ which require different procedures in the
NTA to be complied with. At present, the requirements of the future acts
provisions in the NTA, such as notifying Traditional Owners, are not being
undertaken by any of these parties. If this line of argument can be proven, the
acts would be invalid under s 24OA of the NTA.

The NTA provides various circumstances in which native title holders may be
eligible to receive compensation for acts which have impaired their native title
rights or would have otherwise been
invalid.^[125] It could be argued
that the failure to take steps to mitigate climate change means that the
Commonwealth and Queensland governments in particular have contributed to the
extinguishment of native title rights and they are liable to pay compensation.

As I reported in my Native Title Report 2007, there have been no
successful claims for compensation under the
NTA.^[126] This is partly because
native title must be proved before an application for compensation can be
successful, and as my native title reports show, native title is extraordinarily
difficult to prove. However, native title has already been proven and determined
in much of the Torres Strait. The compensation they could claim would be based
on market value plus any amount to reflect the cultural value of the land, and
could be of significant value. It won’t, however, keep their land above
water.

(b) International human rights law

In 2005, the Inuit (the Indigenous inhabitants of the Arctic region of North
America and Greenland) brought a petition to the Inter American Commission of
Human Rights^[127] requesting its
assistance in obtaining relief from human rights violations resulting from the
impacts of climate change caused by the acts and omissions of the United States.
In particular, the petition argued that the US had violated a number of rights
set out in the American Declaration of the Rights and Duties of Man, the
ICCPR, and the ICESCR.

Similar to the impacts expected in the Torres Strait, climate change is, and
will continue to, impact on the Inuit people’s rights under international
human rights law.

However, unlike the Americas, Australia does not have a regional human rights
body. Nonetheless, it is possible that Torres Strait Islanders could bring their
complaints to United Nations bodies. In particular, the United Nations Human
Rights Committee can receive individual complaints of violation of rights under
the ICCPR, and actively investigate and rule upon
them.^[128] While the Human Rights
Committee cannot make binding decisions, its recommendations can highlight the
problem and put pressure on the government to act.

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6 Conclusion

I have written this brief chapter to highlight the breadth and seriousness of
the potential consequences of climate change on the human rights of one of
Australia’s Indigenous populations – the Torres Strait Islanders.
The possible challenges the Islanders will face in the coming years are
overwhelming and potentially devastating.

In order to avoid a human rights crisis, the Australian Government must
respond immediately.

It’s been said to me by some Islanders that they’re very happy
that the Australian government is investing in the Pacific, to help their
brothers and sisters deal with the impact of climate change. But they wonder why
they government is not more strongly investing in similar communities in
Australia, and they feel a bit
overlooked.^[129]

The Islanders are seeking attention and support from government, and are
committed to working with all layers of government to protect and ensure their
future. In one of my discussions, James Akee, an islander from Mer, invited
Senator the Hon Penny Wong, Minister for Climate Change and Water, and The Hon
Kevin Rudd MP, Prime Minister to the island to see for themselves the difficult
situation they face.^[130] However,
if that assistance, guidance and support is not forthcoming, then the
consequences for the Islanders, and the rest of Australia could be very grim.

It is hoped that the progress toward a carbon-constrained future involves
collaboration and opportunity as opposed to litigation. However the pathway will
no doubt be shaped by the action or inaction of government and the private
sector...The alternative, if this relationship further deteriorates, lies in
litigation for loss and damage of lifestyle, identity, sacred places, cultural
heritage and impairment of human rights and native title rights and interests.
Investment in relationships is, in effect, an investment in mitigating the
ecological, economic and human risks associated with climate
change.^[131]

Climate change and the human rights of Torres Strait Islanders

Iama Island after the king tide in February
2006^[132]

Masig Island

Masig Island: highest tides
now^[133]

Masig Island: IPCC high tide estimate for
2100^[134]

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^[1] Avaaz, ‘Avaaz
petition’, Email to the Australian Human Rights Commission, 3
September 2008.

^[2] Australian
Bureau of Statistics, Population Distribution, Aboriginal and Torres Strait
Islander Australians 2006, 4705.0. At: http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4705.02006?OpenDocument (viewed September 2008).

^[3] See www.tsra.gov.au. There are also two large
Torres Strait communities on the mainland in Bamaga and Seisia. The Islands are
grouped as: Northern Division (Boigu Island, Dauan Island, Saibai Island);
Eastern Islands (Erub/Darnley Island, Mer/Murray Island, Ugar/Stephen Island);
Western Division (Moa [which includes the Kubin and St Pauls communities], Badu
Island, Mabuiag Island); Central Division (Masig/Yorke Island, Poruma/Coconut
Island, Warraber/Sue Island, Iama/Yam Island); Southern Division
(Waiben/Thursday Island [which includes the TRAWQ and Port Kennedy communities],
and the Inner Islands of Hammond Island, Muralug/Prince of Wales Island,
Ngurupai/Horn Island). There are a total of over 47,000 Torres Strait Islander
people living throughout Australia. See Australian Bureau of Statistics, Population Distribution, Aboriginal and Torres Strait Islander Australians
2006, 4705.0. At:

http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4705.02006?OpenDocument (viewed September 2008).

^[4] Australian Broadcasting Corporation Radio Australia, Places: Torres Strait
Islands, http://www.abc.net.au/ra/pacific/places/country/torres_strait_islands.htm (viewed August 2008).

^[5] Torres
Strait Regional Authority, Torres Strait Flag, http://www.tsra.gov.au/the-torres-strait/torres-strait-flag.aspx (viewed September 2008). In July 1995, the flag was officially recognised as a
‘flag of Australia’. The flag was designed by the late Mr. Bernard
Namok.

^[6] Treaty between
Australia and the Independent State of Papua New Guinea concerning Sovereignty
and Maritime Boundaries in the area between the two Countries, including the
area known as Torres Strait, and Related Matters, Australian Treaty Series
1985, No 4. Article 11 provides for the free movement and traditional activities
including traditional fishing and Article 12 provides for the exercise of
traditional customary rights. At: http://www.austlii.edu.au/au/other/dfat/treaties/1985/4.html (viewed September 2008). For more information on the treaty see http://www.dfat.gov.au/geo/torres_strait/index.html (viewed September 2008).

^[7] Torres Strait Regional Authority, Regional map, http://www.tsra.gov.au/the-torres-strait/regional-map.aspx (viewed September 2008).

^[8] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO Marine and Atmospheric Research Paper 011, p
1. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[9] There
were a number of different incidences of king tides in the region. In 2005, king
tides were experienced on the Island of Mer. In 2006, the islands of Boigu and
Saibai, Poruma, Iama, Masig and Warraber were all subject to king tides. For
further information see Queensland Government Environmental Protection Agency, 2006 King Tides in Torres Strait, Fact Sheet 2006-1. At: http://www.epa.qld.gov.au/publications?id=1864 (viewed September 2008).

^[10] L
Minchin, ‘Not waving but drowning at our back door’, The Age, 12 August 2006. At: http://universal-salvage.org.uk/pdf/AustraliaTidesRising.pdf (viewed September 2008).

^[11] See for example, D Billy, Kulkalgal (Torres Strait Islanders) Corporation, Telephone interview with the Native Title Unit of the Australian Human Rights
Commission for the Native Title Report 2008, 18 September 2008; J Akee, Mer
Gedkem Le (Torres Strait Islanders) Corporation, Telephone interview with the
Native Title Unit of the Australian Human Rights Commission for the Native Title
Report 2008, 29 September
2008.

^[12] The Independent,
‘Sinking without a trace: Australia’s climate change victims’, The Independent, 5 May 2008. At: http://www.independent.co.uk/environment/climate-change/sinking-without-trace-australias-climate-change-victims-821136.html (viewed September 2008).

^[13] Economic and Social Council Permanent Forum on Indigenous Issues, Recommendations on the special theme, ‘climate change, biocultural
diversity and livelihoods: the stewardship role of indigenous peoples and new
challenges’, UN Doc E/C.19/2008/L.2 (2008). At: http://daccessdds.un.org/doc/UNDOC/LTD/N08/317/04/PDF/N0831704.pdf?OpenElement (viewed September 2008).

^[14] J
Toscano, ‘Torres Strait Islanders facing annihilation from rising sea
levels’, Melbourne Independent Media Centre, 17 August 2006, citing
L Minchin. At: http://melbourne.indymedia.org/news/2006/08/119708.php (viewed September 2008).

^[15] Australian Human Rights Commission, Background paper: Human rights and
climate change (2008) p 1, citing the Rt Hon David Miliband MP. At: http://www.humanrights.gov.au/pdf/about/media/papers/hrandclimate_change.pdf (viewed September 2008).

^[16] Department of Families, Housing, Community Services and Indigenous Affairs, Submission to the House of Representatives Standing Committee on Climate
Change, Water, Environment and the Arts inquiry into climate change and
environmental impacts on coastal communities (5 August 2008) p 5. At: http://www.aph.gov.au/HOUSE/committee/ccwea/coastalzone/subs/sub099.pdf (viewed September 2008).

^[17] PMSEIC Independent Working Group, Climate change in Australia: regional
impacts and adaptation – managing the risk for Australia, Report
prepared for the Prime Minister’s Science, Engineering and Innovation
Council (2007) p 28. At: http://www.dest.gov.au/NR/rdonlyres/CE5D024E-8F58-499F-9EEB-D2D638E7A345/17397/ClimateChangeinAustraliareport.pdf (viewed September 2008).

^[18] Sharing Knowledge, UNSW, Climate change in the Torres Strait, Australia:
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^[19] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO Marine and Atmospheric Research Paper 011, p
1. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[20] Sharing Knowledge, UNSW, Climate change in the Torres Strait, Australia:
summary of climate impacts (2007). At: http://www.ciel.org/Publications/Climate/CaseStudy_TorresStraitAus_Dec07.pdf (viewed September 2008).

^[21] The
Independent, ‘Sinking without a trace: Australia’s climate change
victims’, The Independent, 5 May 2008, citing Ron Day, a Murray
Island elder and community leader. At: http://www.independent.co.uk/environment/climate-change/sinking-without-trace-australias-climate-change-victims-821136.html (viewed September 2008).

^[22] See
Sharing Knowledge, UNSW, Climate change in the Torres Strait, Australia:
summary of climate impacts (2007). At: http://www.ciel.org/Publications/Climate/CaseStudy_TorresStraitAus_Dec07.pdf (viewed September 2008). See also Torres Strait Regional Authority, Submission No 2 to the House of Representatives Standing Committee on Climate
Change, Water, Environment and the Arts Inquiry into climate change and
environmental impacts on coastal communities (27 November 2008). At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub007b.pdf (viewed December 2008). For more information on climate change impacts, see
Council of Australian Governments, National Climate Change Adaptation
Framework (2007). At:

http://www.coag.gov.au/coag_meeting_outcomes/2007-04-13/ (viewed September 2008).

^[23] Intergovernmental Panel on Climate Change, 2007: M.L. Parry, O.F. Canziani, J.P.
Palutikof, P.J. van der Linden and C.E. Hanson, (eds), ‘Summary for Policy
Makers’ in Climate Change 2007: Impacts, Adaptation and
Vulnerability. Contribution of Working Group II to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change, 7, p 15. At: http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-intro.pdf (viewed September 2008).

^[24] Secretariat of the United Nations Permanent Forum on Indigenous Issues, Climate change: an overview, United Nations Department of Economic and
Social Affairs (2007), p 4. At:

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^[25] Intergovernmental Panel on Climate Change, 2007: M.L. Parry, O.F. Canziani, J.P.
Palutikof, P.J. van der Linden and C.E. Hanson, (eds), ‘Summary for Policy
Makers’ in Climate Change 2007: Impacts, Adaptation and
Vulnerability. Contribution of Working Group II to the Fourth Assessment
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^[26] D
Green & K Ruddock, ‘What are the legal dimensions to climate change in
the Torres Strait?’ (2007) 70 University of New South Wales Faculty of
Law Research Series, p 48. At: http://law.bepress.com/cgi/viewcontent.cgi?article=1072&context=unswwps (viewed September 2008).

^[27] Economic and Social Council Permanent Forum on Indigenous Issues, Interagency
Support Group on Indigenous Peoples Issues, UN Doc E/C.19/2008/CRP.2 (2008),
p 1. At: http://www.un.org/esa/socdev/unpfii/documents/E_C19_2008_8.pdf (viewed September 2008).

^[28] United Nations Office of the High Commissioner for Human Rights, What are
Human Rights? (2008). At:

http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx (viewed September 2008).

^[29] Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), p 9. See UN Committee on the Rights of the Child, General comment No 5 – General Measures of Implementation of the
Convention on the Rights of the Child (2003), UN Doc CRC/GC/2003/5. At: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CRC.GC.2003.5.En (viewed September 2008); UN Committee on Economic, Social and Cultural Rights, General comment No 9 – the Domestic Application of the Covenant (1998), UN Doc E/C.12/1998/24. At: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/E.C.12.1998.24,+CESCR+General+comment+9.En?Opendocument (viewed September 2008); UN Human Rights Committee, General comment 31
– Nature of the General Legal Obligation imposed
on State Parties to the Covenant (2004), UN Doc
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^[30] Australian Human Rights Commission, Background paper: Human rights and
climate change (2008) p 9; United Nations Committee on Economic, Social and
Cultural Rights, General comment No. 3 - On the Nature of State Parties'
Obligations (1990), UN Doc, E/1991/23, annex III. At: http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+comment+3.En?OpenDocument (viewed September 2008).

^[31] See Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), pp
3-4.

^[32] Universal
Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 at 71
(1948). At: http://un.org/Overview/rights.html (viewed September 2008).

^[33] International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976,
Australia ratified the convention on 13 August 1980). At: http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed September 2008).

^[34] See Chapter 1 for more information on the Declaration on the Rights of
Indigenous Peoples.

^[35] UN
Human Rights Committee, General comment No. 6 - the Right to Life (1982),
UN Doc HRI/Gen/1/Rev.7 at 128, paras 1 and 5. At: http://www.unhchr.ch/tbs/doc.nsf/0/84ab9690ccd81fc7c12563ed0046fae3 (viewed September 2008).

^[36] See Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), pp
5-6.

^[37] International
Covenant on Economic, Social and Cultural Rights, opened for signature 16
December 1966, 993 UNTS 3 (entered into force 3 January 1976, Australia ratified
the convention on 10 December 1975). At: http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed September 2008).

^[38] Convention on the Rights of the Child, opened for signature 20 November
1989, 1577 UNTS 3 (entered into force 2 September 1990. Australia ratified the
convention on 17 December 1990). At: http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed September 2008).

^[39] Convention on the Elimination of Discrimination against Women, opened for
signature 18 December 1979, 1249 UNTS 13 (entered into force 3 August 1981.
Australia ratified the convention on 28 July 1983). At:
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^[40] UN Committee on Economic,
Social and Cultural Rights, General comment No. 15 - the Right to Water,
UN Doc E/C.12/2002/11 (2002). At: http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument (viewed September 2008).

^[41] UN
Committee on Economic, Social and Cultural Rights, General comment No. 15 -
the Right to Water, UN Doc E/C.12/2002/11 (2002). http://www.unhchr.ch/tbs/doc.nsf/0/a5458d1d1bbd713fc1256cc400389e94?Opendocument (viewed September 2008).

^[42] See
T McAvoy, ‘The human right to water and Aboriginal water rights in New
South Wales’ (2008) 17(1) Human Rights Defender, p 6. At: http://www.ahrcentre.org/documents/Publications/HRD_Vol17_1_webextract.pdf (viewed September 2008).

^[43] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO Marine and Atmospheric Research Paper 011, p
7. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[44] See T McAvoy, ‘The human right to water and Aboriginal water rights in New
South Wales’ (2008) 17(1) Human Rights Defender, p 6 At: http://www.ahrcentre.org/documents/Publications/HRD_Vol17_1_webextract.pdf (viewed September 2008); D Green, ‘How Might Climate Change Affect Island
Culture in the Torres Strait?’ (2006) CSIRO Marine and Atmospheric
Research Paper 011, p 1. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[45] See Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), pp
4-5.

^[46] J Ziegler, The Right
to Food, Report by the Special Rapporteur on the right to food to the
Commission on Human Rights 57^th session, UN Doc E/CN.4/2001/53 (2001)
p 2. At: http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/f45ea4df67ecca98c1256a0300340453?Opendocument (viewed September 2008).

^[47] D
Green, A Dupont and G Pearman, Heating up the Planet: climate change and
security Lowy Institute Paper 12 (2006) pp 30-31. At: http://www.lowyinstitute.org/Publication.asp?pid=391 (viewed September 2008).

^[48] See
Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), p
6.

^[49] Article 12 of the CEDAW
states ‘(1) States parties shall take all appropriate measures to
eliminate discrimination against women in the field of health care in order to
ensure, on a basis of equality of men and women, access to health care services,
including those related to family planning. (2) Notwithstanding the provisions
of paragraph I of this article, States Parties shall ensure to women appropriate
services in connection with pregnancy, confinement and the post-natal period,
granting free services where necessary, as well as adequate nutrition during
pregnancy and
lactation.’

^[50] Indigenous
Peoples Organisations Network, Response to Agenda Item 3: Climate Change
Biological Diversity and Livelihoods: The Stewardship Role of Indigenous
People’s and New Challenges, Seventh Session of the United Nations
Permanent Forum, New York 21 April – 2 May 2008.

^[51] Working Group on Climate
Change and Development, Up in Smoke? Asia and the Pacific Report No 5 (2007), p 6. At: http://www.oxfam.org.au/campaigns/climate-change/docs/Up-in-Smoke-ASIA-EMBARGO-19-11-07.pdf (viewed September 2008).

^[52] D
Green, ‘Climate change and health: Impacts on remote Indigenous
communities in Northern Australia’ (2006) CSIRO Marine and Atmospheric
Research Paper 012, p 1. At: http://www.cmar.csiro.au/e-print/open/greendl_2006.pdf (viewed September 2008).

^[53] D
Green, ‘Climate change and health: Impacts on remote Indigenous
communities in Northern Australia’ (2006) CSIRO Marine and Atmospheric
Research Paper 012, p 1. At: http://www.cmar.csiro.au/e-print/open/greendl_2006.pdf (viewed September 2008).

^[54] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO Marine and Atmospheric Research Paper 011, p
7. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[55] See Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), pp
3-4.

^[56] Per C G
Weeramantry J, in his separate opinion in the International Court of
Justice’s decision in Gabcikovo-Nagymaros Project (Hungary v Slovakia) 1997 ICJ 97, 110; 37 ILM 162, 206
(1998).

^[57] M Byrne and M
Iljadica, ‘There goes the neighbourhood’ (2007) 12 Uniya
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^[58] Declaration of the United Nations Conference on the Human Environment, 1972. At:

http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=97&ArticleID=1503 (viewed September 2008).

^[59] Rio Declaration on environment and development, 1992. At:

http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163 (viewed September 2008).

^[60] 1994 draft Declaration of Principles on Human Rights and the Environment.
At:

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^[61] Intergovernmental Panel on Climate Change, 2007: M.L. Parry, O.F. Canziani, J.P.
Palutikof, P.J. van der Linden and C.E. Hanson, (eds), ‘Summary for Policy
Makers’ in Climate Change 2007: Impacts, Adaptation and
Vulnerability. Contribution of Working Group II to the Fourth Assessment
Report of the Intergovernmental Panel on Climate Change, 7, p 13. At: http://www.ipcc.ch/pdf/assessment-report/ar4/wg2/ar4-wg2-intro.pdf (viewed September 2008).

^[62] Torres Strait Regional Authority, Submission to the House of Representatives
Standing Committee on climate change, water, environment and the arts inquiry
into climate change and environmental impacts on coastal communities (15
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^[63] See
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^[64] E Gerrard, ‘Impacts
and opportunities of climate change: indigenous participation in environmental
markets’ (2008) 3(13) Australian Institute of Aboriginal and Torres
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^[65] See
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^[66] United Nations Office of the High Commissioner for Human Rights, General
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CCPR/C/21/Rev.1/Add.5 (1994). At: http://www.unhchr.ch/tbs/doc.nsf/0/fb7fb12c2fb8bb21c12563ed004df111?Opendocument (viewed September 2008).

^[67] Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4
January 1969. Australia ratified the convention on 30 September 1975). At: http://www.unhchr.ch/html/menu3/b/d_icerd.htm (viewed September 2008).

^[68] Committee on the Elimination of Racial Discrimination, General Comment No.
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^[69] Committee on the Elimination of Racial Discrimination, General Comment No.
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^[70] Convention (No. 169) concerning Indigenous and Tribal peoples in Independent
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^[71] See United Nations Declaration on the Rights of
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5, 8, 11, 12 and 25 among others. At: http://www.un.org/esa/socdev/unpfii/en/declaration.html (viewed September 2008).

^[72] Human Rights Committee, Concluding observations of the Human Rights
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^[73] Friends of the Earth International, Climate change: voices from communities
affected by climate change (2007), p 6. At: http://www.foei.org/en/publications/pdfs/climate-testimonies (viewed September 2008).

^[74] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO Marine and Atmospheric Research Paper 011, p
4. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[75] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO Marine and Atmospheric Research Paper 011, p
3 citing Jeremy Beckett, Torres Strait Islanders: Custom and colonialism (1987). At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[76] L
Minchin, ‘Sea wall no match for tide’s fury’, Sydney
Morning Herald, 12 August 2006. At: http://www.smh.com.au/news/national/sea-wall-no-match-for-tides-fury/2006/08/11/1154803102257.html (viewed September 2008).

^[77] L
Minchin, ‘Not waving but drowning at our back door’, The Age, 12 August 2006. At: http://universal-salvage.org.uk/pdf/AustraliaTidesRising.pdf (viewed September 2008).

^[78] Committee on the Elimination of Racial Discrimination, General Comment No.
23: Indigenous peoples (1997), para 5. http://www.unhchr.ch/tbs/doc.nsf/0/73984290dfea022b802565160056fe1c?Opendocument (viewed September 2008).

^[79] This includes the Native Title Act 1993 (Cth), and various state and
territory land rights regimes.

^[80] Council of Australian
Governments, National climate change adaptation framework (2007).
At:

http://www.coag.gov.au/coag_meeting_outcomes/2007-04-13/ (viewed September 2008).

^[81] R
White, Climate change, social conflict and environmental criminology (2008), p 13.

^[82] See for
example, D Billy, Kulkalgal (Torres Strait Islanders) Corporation, Telephone
interview with the Native Title Unit of the Australian Human Rights Commission
for the Native Title Report 2008, 18 September
2008.

^[83] J Akee, Mer Gedkem Le
(Torres Strait Islanders) Corporation, Telephone interview with the Native
Title Unit of the Australian Human Rights Commission for the Native Title Report
2008, 29 September 2008.

^[84] Some of the communities in Cape York are predominantly Torres Strait Islander
communities, for example Bamaga. See Australian Bureau of Statistics, Population Distribution, Aboriginal and Torres Strait Islander Australians, 4705.0. At:

http://www.abs.gov.au/AUSSTATS/abs@.nsf/DetailsPage/4705.02006?OpenDocument (viewed September 2008).

^[85] D
Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO marine and atmospheric research paper 011, p
10. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[86] J
Akee, Mer Gedkem Le (Torres Strait Islanders) Corporation, Telephone
interview with the Native Title Unit of the Australian Human Rights Commission
for the Native Title Report 2008, 29 September
2008.

^[87] For additional
information on this section, see Torres Strait Regional Authority, Submission
No 2 to the House of Representatives Standing Committee on Climate Change,
Water, Environment and the Arts: Inquiry into climate change and environmental
impacts on coastal communities (27 November 2008). At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub007b.pdf (viewed December 2008).

^[88] J
McNamara, Executive Director, Indigenous Services, QLD Department of Natural
Resources and Water, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 18
September 2008.

^[89] D Shankey,
Senior Policy Adviser, Office of the QLD Minister for Sustainability, Climate
Change and Innovation, Correspondence to T Calma, Aboriginal and Torres Strait
Islander Social Justice Commissioner, Australian Human Rights Commission, 10
September 2008.

^[90] K Parnell
and S Smithers, Coastal erosion project: Masig, Warraber, Poruma, Iama (Presentation to the board of the Torres Strait Regional Authority,
2008).

^[91] K Parnell, Management of coastal erosion and inundation (Presentation at Sharing
Knowledge: A Workshop on Climate Change Impacts and Adaptation Strategies for
Northern Australian Indigenous Communities, Darwin, March 30-31, 2006). At: http://pandora.nla.gov.au/pan/77805/20071019-0751/www.dar.csiro.au/sharingknowledge/files/parnell_darwin2006.pdf (viewed November 2008).

^[92] K
Parnell and S Smithers, Coastal erosion project: Masig, Warraber, Poruma,
Iama, (Presentation to the board of the Torres Strait Regional Authority,
2008).

^[93] K Parnell, Management of coastal erosion and inundation (Presentation at Sharing
Knowledge: A Workshop on Climate Change Impacts and Adaptation Strategies for
Northern Australian Indigenous Communities, Darwin, March 30-31, 2006.). At: http://pandora.nla.gov.au/pan/77805/20071019-0751/www.dar.csiro.au/sharingknowledge/files/parnell_darwin2006.pdf (viewed.November 2008).

^[94] K
Parnell and S Smithers, Coastal erosion project: Masig, Warraber, Poruma,
Iama, (Presentation to the board of the Torres Strait Regional Authority,
2008).

^[95] Masig Island also
made site specific decisions (relating to the problem sites) as well as the
broader decisions listed
here.

^[96] Minister for Climate
Change and Water, ‘New climate change study for northern Indigenous
communities’, (Media Release, 8 September 2008). At: http://www.environment.gov.au/minister/wong/2008/mr20080908a.html (viewed September 2008).

^[97] Australian Human Rights Commission, Background paper: Human rights and
climate change (2008), p
17.

^[98] Traditional Owner, cited
in D Green, ‘How Might Climate Change Affect Island Culture in the Torres
Strait?’ (2006) CSIRO marine and atmospheric research paper 011, p
11. At: http://www.cmar.csiro.au/e-print/open/greendl_2006a.pdf (viewed September 2008).

^[99] K
Hennessy, B. Fitzharris, B.C. Bates, N. Harvey, S.M. Howden, L. Hughes, J.
Salinger and R. Warrick, ‘2007: Australia and New Zealand’ in
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Palutikof, P.J. van der Linden and C.E. Hanson, (eds), ‘Summary for Policy
Makers’ in Climate Change 2007: Impacts, Adaptation and
Vulnerability. Contribution of Working Group II to the Fourth Assessment
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^[100] Queensland
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^[101] Torres Strait Regional Authority, Submission No 2 to the House of
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arts inquiry into climate change and environmental impacts on coastal
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^[102] D
Green, Submission to the Garnaut climate change review (February 2008), p
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^[103] Queensland
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impacts of climate change (2007), p 18. At: http://www.climatechange.qld.gov.au/response/adaptation_plan.html (viewed September 2008).

^[104] CSIRO, Submission to the House of Representatives Standing Committee on
Climate Change, Water, Environment and the Arts: Inquiry into climate change and
environmental impacts on coastal communities (May 2008), p 21. At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub102.pdf (viewed September 2008).

^[105] CSIRO, Submission to the House of Representatives Standing Committee on
Climate Change, Water, Environment and the Arts: Inquiry into climate change and
environmental impacts on coastal communities (May 2008), p 29. At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub102.pdf (viewed September 2008).

^[106] Economic and Social Council Permanent Forum on Indigenous Issues, Recommendations on the special theme, ‘climate change, biocultural
diversity and livelihoods: the stewardship role of indigenous peoples and new
challenges’, UN Doc E/C.19/2008/L.2 (2008), para 22. At: http://daccessdds.un.org/doc/UNDOC/LTD/N08/317/04/PDF/N0831704.pdf?OpenElement (viewed September 2008).

^[107] Economic and Social Council Permanent Forum on Indigenous Issues, Impact on
climate change migration measures on Indigenous peoples and on their territories
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^[108] CSIRO, Submission to the House of Representatives Standing Committee on
Climate Change, Water, Environment and the Arts: Inquiry into climate change and
environmental impacts on coastal communities (May 2008), p 29. At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub102.pdf (viewed September 2008).

^[109] Economic and Social Council Permanent Forum on Indigenous Issues, Recommendations on the special theme, ‘climate change, biocultural
diversity and livelihoods: the stewardship role of indigenous peoples and new
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^[110] Torres Strait Regional Authority, Submission to the House of Representatives
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into climate change and environmental impacts on coastal communities (15
September 2008). At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub007a.pdf (viewed November 2008).

^[111] Torres Strait Regional Authority, Submission No 2 to the House of
Representatives Standing Committee on Climate Change, Water, Environment and the
Arts: Inquiry into climate change and environmental impacts on coastal
communities (27 November 2008). At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub007b.pdf (viewed December 2008).

^[112] L
Minchin, ‘Torres Strait: going under’, Sydney Morning Herald, 12 August 2006. At: http://www.smh.com.au/news/national/going-under/2006/08/11/1154803102254.html (viewed September 2008).

^[113] E Gerrard, ‘Impacts and opportunities of climate change: indigenous
participation in environmental markets’ (2008) 3(13) Australian
Institute of Aboriginal and Torres Strait Islander Studies, pp 12-13 citing Native Village of Kivalina and City of Kivalina v ExxonMobil Corporation and
others Complaint for Damages and Demand for Jury Trial, (US District Court,
Northern District of California, 28 U.S.C. §§ 1331, 2201) and Hargrave v Goldman (1963) 110 CLR 40. At: http://ntru.aiatsis.gov.au/publications/2008pdfs/Issues%20Paper%20Vol%203%20No%2013.pdf (viewed September 2008).

^[114] D Green & K Ruddock, ‘Climate change impacts in the Torres Strait,
Australia’ (2008) 7(8) Indigenous Law Bulletin.

^[115] Environmental
Protection Act 1994 (Qld) s
3.

^[116] D Green & K
Ruddock, ‘Climate change impacts in the Torres Strait, Australia’
(2008) 7(8) Indigenous Law
Bulletin.

^[117] D Green
& K Ruddock, ‘Climate change impacts in the Torres Strait,
Australia’ (2008) 7(8) Indigenous Law
Bulletin.

^[118] D Green
& K Ruddock, ‘Climate change impacts in the Torres Strait,
Australia’ (2008) 7(8) Indigenous Law
Bulletin.

^[119] D Green
& K Ruddock ‘Climate change impacts in the Torres Strait,
Australia’, unpublished.

^[120] M
Byrne and M Iljadica, ‘There goes the neighbourhood’ (2007) 12 Uniya Occasional Paper. At: http://www.uniya.org/talks/byrne_may07-op1.html (viewed September 2008).

^[121] M Byrne and M Iljadica, ‘There goes the neighbourhood’ (2007) 12 Uniya Occasional Paper. At: http://www.uniya.org/talks/byrne_may07-op1.html (viewed September 2008).

^[122] Native Title Act 1993 (Cth) s
3.

^[123] Native Title Act
1993 (Cth) s 11.

^[124] The Native Title Act 1993 (Cth) refers to ‘acts’ which affect or
extinguish native title. See section 11 and s 226.

^[125] See for example, Native Title Act 1993 (Cth) ss 17, 20, 22G, 22L, 23J, 50, 51, 51A.

^[126] See chapter 7 and 8 of T
Calma, Aboriginal and Torres Strait Islander Social Justice Commissioner, Native Title Report 2007, Australian Human Rights Commission (2008).

^[127] Inuit Circumpolar
Conference, Petition to the Inter American Commission on Human Rights Seeking
Relief from Violations Resulting from Global Warming Caused by Acts and
Omissions of the United States, 7 December 2005 (“Inuit
Petition”). At: http://www.earthjustice.org/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf>
(1 November 2007)?. (viewed September 2008).

^[128] Australia acceded to the
Optional Protocol to the ICCPR on 25 September
1991.

^[129] The Independent, 5
May 2008, Sinking without a trace: Australia’s climate change victims, citing Donna Green. At: http://www.independent.co.uk/environment/climate-change/sinking-without-trace-australias-climate-change-victims-821136.html (viewed September 2008).

^[130] J Akee, Mer Gedkem Le (Torres Strait Islanders) Corporation, Telephone
interview with the Native Title Unit of the Australian Human Rights Commission
for the Native Title Report 2008, 29 September
2008.

^[131] E Gerrard,
‘Impacts and opportunities of climate change: indigenous participation in
environmental markets’ (2008) 3(13) Australian Institute of
Aboriginal and Torres Strait Islander Studies, p 14. At: http://ntru.aiatsis.gov.au/publications/2008pdfs/Issues%20Paper%20Vol%203%20No%2013.pdf (viewed November 2008).

^[132] Torres Strait Regional Authority, Supplementary Submission to the House of Representatives Standing Committee on Climate Change, Water, Environment and the Arts: Inquiry into climate change and environmental impacts on coastal communities (15 September 2008). At: http://www.aph.gov.au/house/committee/ccwea/coastalzone/subs/sub007a.pdf (viewed November 2008).

^[133] K Parnell and S Smithers, Coastal erosion project: Masig, Warraber, Poruma,
Iama, (Presentation to the board of the Torres Strait Regional Authority,
2008).

^[134] K Parnell and S
Smithers, Coastal erosion project: Masig, Warraber, Poruma, Iama,
(Presentation to the board of the Torres Strait Regional Authority, 2008). Note,
these are predicted maximum high tides (without storm surge) for a few hours
over the highest of the high tides.