5 Climate Change

5.1 Climate Change and Aboriginal and Torres Strait Islander Peoples

Today our ancient relationships of caring for country remain challenged by the forces of colonialism, that, in their contemporary guise, are responsible for climate change and other ecocidal events occurring across the earth.¹

— Irene Watson (Tanganekald and Meintangk)

Climate change is forcing us off of our traditional homelands now and the events that are happening now. Where is my daughter going to go fishing later on when all the creeks dry up? Where is she going to go when she can’t go into the bush because it’s too hot and the rainforest dies off? She can’t then pass those stories down to the next generation.²

— Juritju Fourmile (Gimuy Walabuara Yidninji)

Climate change refers to long-term shifts in temperatures and weather patterns resulting from the increased warming of the planet. Scientists have reached a 100% consensus that climate change is anthropogenic or caused by human activity.³ In other words, such a proposition is no longer in contention.⁴ As the Intergovernmental Panel on Climate Change (‘IPCC’) stated in its 2023 Synthesis Report as part of its Sixth Assessment Report, ‘[h]uman activities, principally through emissions of greenhouse gases, have unequivocally caused global warming, with global surface temperature reaching 1.1 [degrees] C above 1850–1900 in 2011–2020’.⁵

It is ‘unequivocal’ that human-induced climate change has caused ‘widespread and rapid changes in the atmosphere, ocean, cryosphere and biosphere’.⁶ Climate change impacts are already being felt together with ‘losses and damages to nature and people’,⁷ and ‘with every additional increment of global warming, changes in extremes continue to become larger’.⁸ Human-induced climate change now constitutes ‘an extraordinary threat to human rights’⁹ and is already adversely affecting effective access to water, sanitation, food, health, housing and culture, with a worsening outlook without deep, rapid and sustained reduction in greenhouse gas emissions.¹⁰

The principal source of authoritative climate science is the IPCC, which was established in 1988 by the World Meteorological Organization and the United Nations Environment Programme. The IPCC has 195 member countries, including Australia. The IPCC assesses the state of knowledge of climate change. Its reports are subject to review and endorsement by IPCC member countries.

Since its creation, the IPCC has run six assessment cycles (which are now cycles of 5–7 years) and delivered six Assessment Reports, as well as a range of Special Reports. There are three working groups which comprise representative experts from different countries. Different levels of formal endorsement apply to the different types of materials prepared by the IPCC. Each working group produces a Summary for Policymakers and these are adopted by consensus by all member governments after an approval process that entails detailed ‘line by line discussion and agreement’.¹¹ The body of the underlying reports is subject to ‘acceptance’ by the plenary. ‘Acceptance’ means that, while ‘the material has not been subject to line by line discussion and agreement, it nevertheless presents a comprehensive, objective and balanced view of the subject matter’.¹²

Given this periodic cycle and government participation, IPCC Assessment Reports, while authoritative, tend to be conservative and their findings might be superseded during the periodic cycle between the last Assessment Report and the next Assessment Report by up-to-date climate science.

With regard to general impacts of climate change, the IPCC’s Sixth Assessment Report has found:

Human induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability. … The rise in weather and climate extremes has led to some irreversible impacts as natural and human systems are pushed beyond their ability to adapt.¹³

Further:

Climate Change has caused substantial damages and increasingly irreversible losses, in terrestrial, freshwater and coastal and open ocean marine ecosystems (high confidence). The extent of the magnitude of climate impacts are larger than estimated in previous assessments (high confidence). Widespread deterioration of ecosystem structure and function, resilience and natural adaptive capacity, as well as shifts in seasonal timing have occurred due to climate change (high confidence), with adverse socioeconomic consequences (high confidence).¹⁴

Connections drawn by the IPCC between climate change and a limitation on human rights include the following:

Climate change including increases in frequency and intensity of extremes have reduced flood and water security, hindering efforts to meet Sustainable Development Goals (high confidence).¹⁵

Climate change has adversely affected physical health of people globally (very high confidence) and mental health of people in the assessed regions (very high confidence).¹⁶

Climate change is contributing to humanitarian crises where climate hazards interact with high vulnerability (high confidence).¹⁷

Climate and weather extremes are increasingly driving displacement in all regions (high confidence).¹⁸

Indigenous people occupy only 22% of the planet yet their lands contain 80% of the world’s biodiversity.¹⁹ Their relationships to nature also make them particularly vulnerable to the impacts of the degradation of the natural world, including, in particular, climate change and biodiversity. Yet Indigenous peoples possess extraordinary ‘knowledge over thousands of years about their natural rootedness, and they have actively maintained their vast ecosystems through reciprocal relationships’.²⁰ The IPCC has found that the causes and impacts are unevenly distributed with the most vulnerable, including Indigenous peoples, suffering disproportional impacts:

Global greenhouse gas emissions have continued to increase, with unequal historical and ongoing contributions arising from unsustainable energy use, land use and land-use change, lifestyles and patterns of consumption and production across regions, between and within countries, and among individuals.²¹

Vulnerable communities who have historically contributed the least to current climate change are disproportionately affected (high confidence).²²

Across sectors and regions the most vulnerable people and systems are observed to be disproportionally affected.²³

Vulnerability at different spatial levels is exacerbated by inequity and marginalization linked to gender, ethnicity, low income or combinations thereof (high confidence), especially for many Indigenous Peoples and local communities (high confidence).²⁴

Loss of ecosystems and their services has cascading and long-term impacts on people globally, especially for Indigenous Peoples and local communities who are directly dependent on ecosystems, to meet basic needs (high confidence).²⁵

Aboriginal and Torres Strait Islander peoples have spoken powerfully about the disproportionate impact climate change will have on their lives and relationship with Country, and the Commonwealth Government has recognised that such impacts can ‘threaten cultural knowledge, heritage and traditional practices, and potentially further displace First Nations people from their homes and affect their ability to access Country’.²⁶ The loss of ancestral, spiritual, totemic and language connections to lands and associated areas has major implications for the human rights of affected peoples as well as their physical and mental wellbeing. Extreme events are also contributing to the damage of First Nations places and cultural sites.²⁷

The Queensland Land Court has accepted that ‘climate change impacts will have a profound impact on cultural rights and, for some peoples who will be displaced from their country, it risks the survival of their culture’.²⁸ The Court has identified the following impacts upon Indigenous peoples:

disruption of traditional cultural practices, including those which depend on connection to place and ecological systems;

displacement from traditional lands;

impediments to the continuation, preservation and development of culture into the future and for future generations; and

irreversible harm to their traditional lands and waters.²⁹

Torres Strait Islanders will be vulnerable to rises in sea level, coastal erosion, changes in winds and waves the consequent extreme coastal flooding events that will pose ‘an existential threat’.³⁰

First Nations peoples will experience higher health vulnerability³¹ and their ‘mental health may also suffer through disruption to traditional knowledge and cultural practices which depend on connection to country and development for future generations’.³²

The risks inherent in the impacts of climate change on the capacity to practise and transmit culture were also the subject of evidence from Uncle Laurie (Traditional Owner and native title holder of Badu) in the Federal Court recently:

Culture was given to us as a gift, as a gift to pass on. It wasn’t a gift that we take to the grave with us. That’s — culture, I mean, like, language, cultural practice, law protocol. So culture given to us is a gift from Our ancestors, Our fathers, Our uncles. They gave it to us so that we could preserve it and pass it on, so that the generations to come will have the same knowledge that we have. If we’re not doing that, then if I am not doing that, then I am disobeying why culture is there for the first place.

The best place to have been taught culture in detail is home. And the detail is important because we have to pass the cultural details on. The teachings of the details are important because you lose one little description, that’s a puzzle missing from a puzzle. There’s now a space there. So that’s why it’s important to have every puzzle in the right place, and that can only happen on country.³³

A 2017 report by the United Nations Special Rapporteur on the Rights of Indigenous Peoples has also recognised the disproportionate impact of climate change on Indigenous peoples globally, stating that ‘Indigenous peoples are among those who have contributed least to the problem of climate change, yet they are the ones suffering from its worst impacts’.³⁴ The report found that Indigenous peoples are disproportionately vulnerable to climate change due to their dependence on lands and natural resources for their livelihood and cultural connection.³⁵

5.2 Indigenous-Led Climate Change Litigation

Indigenous peoples have sought judicial recognition and remedy for the impacts of climate change upon them in a number of jurisdictions, and the courts will increasingly be called upon to grapple with the intersection of existing areas of settler-colonial law with the ubiquitous impacts of climate change, and the legal and policy responses required. To date, proceedings have been brought in the context of human rights law, native title, planning and environment law and tort law.

Indigenous people have also sought to improve the way courts hear evidence in relation to impacts on country: see 14 Judicial Practice.

The disproportionate impacts of climate change upon Aboriginal and Torres Strait Islanders have been recognised by Australian courts in multiple areas of law, including:

human rights law;
environmental law;
native title;
international law; and
tort law.

5.2.1 Human Rights³⁶

In Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6),³⁷ the Queensland Land Court recommended against the approval of a mining lease in the Galilee Basin, noting that climate change impacts would limit several human rights including cultural rights which were intergenerational and collective. These impacts included risks of displacement, the ability to transmit and learn culture and, in some cases, the survival of culture.

5.2.2 Environmental Law

In Waratah Coal³⁸ the Queensland Land Court adopted a line of authority, developed in the Land and Environment Court of New South Wales (‘NSWLEC’), which requires decision-makers to consider the principle of intergenerational equity where a proposed development might impact the capacity of future Indigenous communities to practise culture into the future.³⁹

This line of authority continues to be developed by courts. In Williams v Minister for Planning (No 2),⁴⁰ the NSWLEC found that the principles of ecologically sustainable development (‘ESD’) under the Environmental Planning and Assessment Act 1979 (NSW) required consideration of Aboriginal artefacts and cultural heritage. The Court has also held that reliance on a survey of New South Wales households for the assessment of the project was too limited because the value of Aboriginal cultural heritage ‘is not restricted to NSW but extends throughout Australia’.⁴¹

In Gloucester Resources Ltd v Minister for Planning,⁴² Preston CJ of the NSWLEC refused development permission for a mine as the adverse impacts of a mine would be particularly inequitable to future generations of Aboriginal people whose sacred connection to the land would be compromised by the project.⁴³ Preston CJ found that while the economic benefits would last the life of the project, the environmental, social and economic burdens would continue long after, and the social impacts on culture and community would be especially adverse for Aboriginal people due to the fact that the sacred cultural land created by their ancestors cannot be recreated by mine rehabilitation.⁴⁴

5.2.3 Native Title Law

In Gomeroi People v Santos NSW Pty Ltd,⁴⁵ the Full Federal Court held that the contributions of a project to greenhouse gas emissions, and future climate change impacts, are relevant matters to be considered in relation to the criteria of the ‘public interest’ in s 39(1) of the Native Title Act 1995 (Cth). The Court rejected an argument to the effect that climate change impacts were ‘world-wide’ and needed to be particular to the native title area.⁴⁶

5.2.4 International Law

In the 2019 communication Billy v Australia,⁴⁷ the United Nations Human Rights Committee held that Australia was in breach of its international law obligations to protect the human rights of the Torres Strait Islander authors by failing to implement adequate adaptation measures to mitigate the impacts of climate change, including sea level rise, higher temperatures and ocean acidification. The Committee found that Australia had violated the authors’ right to enjoy their culture (Article 27) as well as their right to be free from arbitrary interferences with their private life, family and home (Article 17) under the International Covenant on Civil and Political Rights (‘ICCPR’).⁴⁸ With respect to the violation of Article 27, the Committee noted that Australia failed to adopt timely, adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life, to transmit to their children and future generations their culture and traditions and use of land and sea resources. With respect to Article 17, the Committee noted that climate change impacts have direct repercussions on the right to one’s home, and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm they cause.

Australia was found to have failed to discharge its positive duty to implement timely adequate adaption measures to protect the authors’ home, private life and family, which included marine species, coral, fruit trees, crops, gardens and burial grounds.

The Committee observed that the Australian government is obligated under the ICCPR to pay compensation and continue its implementation of measures to adequately address the impacts of climate change.⁴⁹

5.2.5 Tort Law

The first case in Australia to consider tortious compensation for First Nations communities arising from the impacts of climate change is Pabai v Commonwealth.⁵⁰ A number of Torres Strait Islander applicants alleged that the Australian government both owed, and has breached, a duty of care to Torres Strait Islanders to take reasonable steps to protect Torres Strait Islanders and/or their traditional way of life and/or the surrounding marine environment from current and projected impacts of climate change in the Torres Strait Islands.

A particular question for the Court was whether damages could sound in negligence for impact or harm suffered to Ailan Kastom, the ‘distinctive customary culture’ of Torres Strait Islanders.⁵¹ The applicants argued that the law of negligence ‘can and should develop or expand to recognise that such loss constitutes compensable damage’, while the Commonwealth argued

that loss of fulfilment of Ailan Kastom is not a ‘recognised head of damage under the law of negligence’ and that the applicants had not demonstrated a principled basis upon which the common law should be expanded to provide for such a head of loss.⁵²

The applicants, however, made it clear that loss ‘did not include any claim in respect of any loss of or harm to any native title rights held by Torres Strait Islanders’, which the Court characterised as ‘complicating or confounding circumstances’.⁵³

The Court found against the applicants, holding:

the Commonwealth did not owe a duty to Torres Strait Islanders in setting emissions targets;
even if it did, the content of that duty was not determined solely by reference to the best science as argued;
even if wrong about (1) and (2), the applicants could not prove the breach materially contributed to the harm suffered because Australia’s overall emissions are a small percentage of the overall emissions (the ‘drop in the ocean defence’); and
even if wrong about the above, the loss of fulfilment of Ailan Kastom was not recognisable as a head of damage under Australian negligence law, noting that, in those tortious cases where it had formed part of an award for damages, it was recognised as part of the personal injury suffered by an individual.

The applicants had also argued, in the alternative, that the Commonwealth owed Torres Strait Islanders a duty to take reasonable care to avoid causing property damage, loss of fulfilment of Ailan Kastom, and injury arising from a failure to adequately implement adaptation measures to prevent or minimise the current and projected impacts of climate change in the Torres Strait Islands. The Court also rejected that argument, finding:

again, the Commonwealth did not owe such a duty, as funding and implementation of adaptation measures was a non-justiciable issue of policy;
the evidence did not establish a breach of such a duty if established in circumstances where the Commonwealth did fund adaptation measures; and
again, the applicants could not establish any breach caused the harm suffered.

The case has been appealed to the Full Court.⁵⁴

5.3 International Obligations to Promote, Consider and Protect Indigenous Peoples’ Rights in the Context of Climate Change

International treaties and United Nations human rights bodies have established that states have an obligation to promote, consider and protect Indigenous peoples’ rights in respect of the impacts of climate change.⁵⁵ Although the extent to which these obligations are legally enforceable at a domestic level in Australia differs (as where there is state legislative protection of human rights), they nonetheless are indicative of international standard-setting relating to the rights of Indigenous peoples in the context of climate change and should be considered in matters affecting Indigenous peoples.

5.3.1 Special Rapporteur on the Rights of Indigenous Peoples

The 2017 report by the Special Rapporteur on the Rights of Indigenous Peoples provides a thematic study of the impacts of climate change and climate finance on Indigenous peoples’ rights.⁵⁶ The report recognises four matters of particular significance.

First, Indigenous peoples’ contributions are essential to addressing the impact of climate change, and have demonstrated effectiveness, particularly when Indigenous peoples’ rights to land and natural resources are upheld.⁵⁷ Evidence of this includes the correlation between secure Indigenous land tenure and positive conservation outcomes.⁵⁸ These findings highlight the importance of nation states recognising and upholding Indigenous peoples’ rights to land and natural resources as an effective way for governments to meet climate goals.⁵⁹

Second, states’ human rights obligations include a duty to protect rights holders against foreseeable environmental impairment of human rights, whether or not the particular environmental harm violates human rights law, and even when the harm is not directly caused by the state (as in Billy v Australia where the Human Rights Committee found that Australia had positive obligations to protect the Torres Strait Islander authors’ rights to enjoy their culture and to privacy, family and home).⁶⁰

Third, states have an obligation to consult with Indigenous people to ensure that their free, prior and informed consent is obtained for projects that affect them, and Indigenous people have the right to participate in decision-making in matters which affect their rights, in accordance with the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’),⁶¹ and by virtue of art 27 of the ICCPR (the right to culture) and the International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’).⁶²

In particular, where acts or omissions impact the traditional territories of Aboriginal and Torres Strait Islander peoples (regardless of whether domestic law protects these territories through some form of title), the Human Rights Committee in Roy v Australia has made plain that

it is of vital importance that measures that compromise Indigenous Peoples’ culturally significant territories are taken after a process of effective participation and with the free, prior and informed consent of the community concerned, so as not to endanger the very survival of the community and its members.⁶³

Murrawah Johnson, an Aboriginal rights advocate and Wirdi woman from the Birri Gubba Nation, has spoken on the distinct rights of Indigenous peoples in relation to matters that threaten cultural rights:

We have distinct and unique rights enshrined in the United Nations Declaration on the Rights of Indigenous Peoples. Indigenous cultural rights are strongly supported by the Human Rights Act but are not well understood. Our culture is in the law of the land and is the expression of who we are as a First Nation. It is time the courts took that properly into account before approving vast coal mines that further dispossess us and deny us our rights.⁶⁴

Finally, human rights treaty bodies have specifically called on states to develop national plans, policies and programs to address climate change, while fully engaging Indigenous peoples in their design.⁶⁵ The report reaffirms recognition of Indigenous peoples’ long-standing claim in relation to traditional knowledge that

indigenous, local, and traditional knowledge systems and practices, including indigenous peoples’ holistic view of community and environment, are a major resource for adapting to climate change.⁶⁶

5.3.2 International Tribunals Addressing Climate Change

There have been three significant decisions addressing climate change in recent years in international tribunals.

In May 2024, the International Tribunal on the Law of the Sea rendered its advisory opinion on states’ obligations under the United Nations Convention on Law of the Sea.⁶⁷ Relevantly, it held that anthropogenic greenhouse gas emissions constituted pollution of the marine environment.⁶⁸
In May 2025, the Inter-American Court of Human Rights handed down its advisory opinion on human rights obligations and climate change.⁶⁹ The Court unanimously declared a climate emergency.⁷⁰ The Court recognised the right to a healthy climate (and healthy environment) and that the fulfilment of this right is essential to the enjoyment of human rights.⁷¹ The Court set out states’ duties to prevent, reduce and remedy climate harms through the adoption of science-based mitigation and adaptation, regulation of private actors (including reducing greenhouse gas emissions and regulating high-emitting industries), international cooperation, protection of environmental and human rights defenders and ensuring access to information and participation.⁷² Opinions 14 and 20 stress the ‘human right to … the recognition of local, traditional and indigenous knowledge’ and states’ obligations for those of ‘special vulnerability … who suffer differentiated impacts in the context of climate-related disasters’.⁷³
In July 2025, the International Court of Justice handed down its advisory opinion on state responsibility for climate change.⁷⁴ The Court advised that, under environmental treaties and customary law, states have legal obligations to adopt measures to mitigate and adapt to climate change. The breach of a state’s obligations concerning climate change constitutes an internationally wrongful act and may have legal consequences, including the duty to make reparation.

5.4 Just Transitions⁷⁵

Australia, like many countries, is undergoing a clean energy transition, ‘with a target to reach 82% renewable electricity generation by 2030’.⁷⁶ An Indigenous vision of just transition is fundamentally rooted in principles of decolonisation, reparation and respect for Indigenous ways of life.⁷⁷ This vision affirms ‘the need for restoring indigenous life ways of responsibility and respect to the sacred Creation Principles and Natural Laws of Mother Earth and Father Sky, to live in peace with each other and to ensure harmony with nature’.⁷⁸

There is a great concern that a rapid development of renewable energy projects will repeat the impacts of mining on Indigenous Country and communities. In Australia, any transition to a net-zero emission economy will take place on, or affect, a huge proportion of Indigenous land and sea Country.⁷⁹ Indigenous groups have called for a leading role in that transition:

This economic transition offers an opportunity to learn from the mistakes of the resource extraction industry and re-conceptualise the role for First Nations in development, one that is premised on the right to self-determination and ownership of projects on their lands and waters.⁸⁰

There are some areas of law that may intersect with the rights and interests of communities affected by renewable energy projects:

Where a project occurs on land with native title or land rights, the various statutes may require some form of consultation (though it has been argued that the current form of the Native Title Act 1995 (Cth) is not yet clear on its application to renewable energy projects).⁸¹
Where a project occurs in a state with human rights legislation, the right to free, prior and informed consent and impacts on cultural rights will be a legal consideration for the approval of any project.⁸²
It is likely that any renewable energy or extraction project will trigger assessments under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’). The EPBC Act promotes a cooperative approach with Indigenous peoples to the protection and management of the environment⁸³ and recognises that people and communities are constituent parts of ecosystems and the environment.⁸⁴
Obligations to consult may arise under other regulatory frameworks. For example, where a project is to be located offshore, there is an obligation to consult with Indigenous communities whose interests may be affected by the project. In Santos NA Barossa Pty Ltd v Tipakalippa, the Full Federal Court had to interpret the phrase ‘functions, interests or activities’ in relation to a regulation concerning consultation.⁸⁵ The consultation was concerned with the carrying out of offshore petroleum or greenhouse gas storage activity consistent with, among other things, the principles of ecologically sustainable development. The Court considered what ‘interests’ meant in that context. Drawing on the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) and the definition of ‘environment’ in the EPBC Act, the Court held that the ‘interests’ of Mr Tipakalippa and the Munupi clan in the environment that may be affected and the marine resources closer to the Tiwi Islands which arose from traditional cultural connection with the sea and without any proprietary overlay were ‘immediate and direct’ and were ‘interests of a kind well known to contemporary Australian law’.⁸⁶ The Court held:

[T]he law recognises the kind of interests that Mr Tipakalippa contends required Santos to consult with him and the Munupi clan. Reference to the Heritage Protection Act demonstrates that by this Act the federal Parliament has expressly contemplated the protection of areas of the sea from activities harmful to the preservation of Aboriginal tradition. The Parliament has done so without requiring the existence of particular proprietary interests; rather requiring only the existence of a connection by Aboriginal tradition.⁸⁷

5.4.1 Consultation

In Santos NA Barossa Pty Ltd v Tipakalippa, the Federal Court drew upon native title jurisprudence⁸⁸ as ‘illustrative of how a seemingly rigid statutory obligation to consult persons holding a communal interest may operate in a workable manner’.⁸⁹ The following principles might be gleaned from that decision:

Where interests are held communally, or across a group, a different approach to consultation is likely to be required.⁹⁰
The key question will be whether a reasonable opportunity to participate in the decision-making process has been afforded by the notice for a relevant meeting. The usual question is whether the notice was sufficiently clear to enable persons to whom it has been addressed to judge for themselves whether or not to attend a meeting and to vote for or against a proposal.⁹¹
Opportunities may not be afforded equally and universally to every member of a community.⁹²
A proponent required to consult should ‘be in a position to demonstrate that it has explored all feasible options to enable a reasonable opportunity for participation in the authorisation process’.⁹³
A process for decision-making should be ‘agreed to and adopted by a sufficiently representative section of the native title claim group for the purpose of dealing with matters arising in relation to the application’.⁹⁴

Obligations to consult with, and consider the interests of, Indigenous communities are also increasingly a part of the policy environment in Australia. At the Commonwealth level the Australian government has released the First Nations Clean Energy Strategy which embeds the following ‘key guiding principles’ in the development of Australia’s clean energy transition policy:

Aboriginal and Torres Strait Islanders, being the First Nations peoples of Australia, must be enabled to self-determine how they lead, participate in and benefit from the clean energy transition.

First Nations peoples maintain their right to live on their land, with access to reliable and affordable clean energy.

First Nations peoples are stewards and custodians of Country, including the land, waters, skies and seas. This connection is ongoing and enduring.

Access to clean energy and a safe climate benefits all human and non-human life.

First Nations peoples’ cultural heritage must be recognised, protected and celebrated throughout the clean energy transition.

Building genuine partnerships and collaboration is a shared responsibility. Government has a special duty of care to lead these efforts and ensure they are underpinned by robust and transparent data collection, monitoring and reporting.⁹⁵

The First Nations Clean Energy Network has produced a number of best practice guides for First Nations communities in relation to clean energy projects aimed at mechanisms for ensuring free, prior and informed consent in relation to such projects.⁹⁶ It has also developed a set of guiding principles to guide developers on respectful engagement, cultural heritage preservation, economic benefit-sharing and environmental stewardship.

At a state level, New South Wales has embedded consideration of First Nations interests within its Renewable Energy Zones (‘REZs’) framework. These zones are designed to integrate solar, wind, batteries and infrastructure. Renewable energy project proponents within these zones must address local Aboriginal interests by engaging with First Nations Guidelines. These guidelines are in two parts: a General Guideline that is applicable to all of the REZs and that deals with community engagement; and a Region-Specific Guideline for each REZ that is developed by Aboriginal working groups and designed to capture ‘the local needs and aspirations of Aboriginal communities in the regional area’.⁹⁷ In addition, New South Wales runs a ‘renewable energy auction’ for access to necessary infrastructure. The auction criteria include mandatory requirements and incentives to increase employment, training and participation by First Nations businesses. Importantly, New South Wales law prohibits the granting of energy service agreements to renewable energy projects where ‘there is significant opposition from the community in the local area to the proposed infrastructure’.⁹⁸

5.5 Case Summaries

Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’)

Keywords

International law — Human rights — ICCPR — Right to life — Indigenous peoples — Climate change — Arbitrary / unlawful interference — Children’s rights — Effective remedy — Family rights — Home — Minorities’ right to enjoy own culture — Privacy — Right to life.

Summary

A complaint was brought by eight Torres Strait Islanders and six of their children to the United Nations Human Rights Committee alleging Australia had failed to implement climate change adaptation measures or mitigation measures to reduce greenhouse gas emissions and, in so doing, had violated their rights under the International Covenant on Civil and Political Rights (‘ICCPR’) to enjoy their culture and be free from arbitrary interferences with their private life, family and home.⁹⁹

Facts

The authors of the communication with the Committee were eight Torres Strait Islanders and six of their children who live on four low-lying islands of the Torres Strait (Boigu, Masig, Warraber and Poruma). Indigenous peoples of the Torres Strait Islands, especially those who live on low-lying islands, are among the most vulnerable populations to climate change impacts.¹⁰⁰

The authors claimed that Australia had failed to implement climate change adaptation measures or mitigation measures to reduce greenhouse gas emissions.¹⁰¹ In doing so, the authors claimed, Australia had violated their rights under the ICCPR. The articles which the authors alleged had been breached include:

Article 2 — the obligation of the state to give full effect to ICCPR rights, including by ensuring an effective legal remedy without discrimination;
Article 6 — the right to life;
Article 17 — the right to privacy, family and home;
Article 26 — the right to non-discriminatory treatment; and
Article 27 — the right to practise and enjoy one’s culture.

The impacts of climate change on these islands have included sea level rise, higher temperatures and ocean acidification. In the Torres Strait region, sea level has risen at 6 mm per year from 1993 to 2010, compared to the global average of 3.2 mm per year, and this sea level rise has caused flooding and erosion. Higher temperatures and ocean acidification have produced coral bleaching, reef death, and the decline of seagrass beds and other nutritionally and culturally important marine species.¹⁰² Tidal surge has affected and destroyed culturally significant sites including family graves.¹⁰³ Climate change impacts have caused sources of food and income to be depleted. Sea level rise has caused traditional gardening areas to be inundated, affecting the traditional diets of the Torres Strait Islanders.¹⁰⁴

The authors argued they had exhausted domestic remedies in circumstances where the High Court of Australia has ruled that state organs do not owe a duty of care for failing to regulate environmental harm.¹⁰⁵

Held

Admissibility

The Committee held the Article 2 complaint was not admissible in circumstances where it added nothing to the complaints under the other articles,¹⁰⁶ but that the remainder of the complaint was admissible.¹⁰⁷ In so finding, the Committee noted the character of Australia as being ‘in recent decades among the countries in which large amounts of greenhouse gas emissions have been produced’ and its high-ranking ‘world economic and human development indicators’ were relevant to admissibility.¹⁰⁸

The Committee also rejected a challenge to admissibility by Australia on the basis that the authors invoked ‘potential future harms and have not sufficiently substantiated their claim that they are victims of a past or existing violation or imminent threat of a violation of their rights by the State party’, noting that the authors had presented information indicating both:

‘the existence of real predicaments that they have personally and actually experienced owing to disruptive climate events and slow-onset processes such as flooding and erosion’; and
that they were ‘highly exposed to adverse climate change impacts’ with ‘lives and cultures [that] are highly dependent on the availability of the limited natural resources to which they have access, and on the predictability of the natural phenomena that surround them’.¹⁰⁹

The Committee also observed, in this context, the authors’ ‘limited resources and location’ and that they were ‘unlikely to be able to finance adequate adaptation measures themselves, on an individual or community level, to adjust to actual or expected climate and its effects in order to moderate harm’.¹¹⁰ Consequently, the Committee considered that the authors ‘are among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts’ and that, therefore, the risk of impairment of the identified rights ‘is more than a theoretical possibility’:

It is uncontested that the authors’ lives and cultures are highly dependent on the availability of the limited natural resources to which they have access, and on the predictability of the natural phenomena that surround them. The Committee observes that in light of their limited resources and location, the authors would likely be unable to finance adequate adaptation measures themselves, on an individual or community level, to adjust to actual or expected climate and its effects in order to moderate harm. The Committee therefore considers that the authors are among those who are extremely vulnerable to intensely experiencing severely disruptive climate change impacts. The Committee considers, based on the information provided by the authors that the risk of impairment of those rights, owing to alleged serious adverse impacts that have already occurred and are ongoing, is more than a theoretical possibility …¹¹¹

Article 6: The Right to Life

The authors claimed that Australia had failed to prevent a foreseeable loss of life from the impacts of climate change and to protect the authors’ right to life with dignity. They also alleged that Australia had failed to respect the authors’ right to a healthy environment, which is part of the right to life under Article 6 of the ICCPR.¹¹²

The Committee acknowledged that the right to life extends to ‘reasonably foreseeable threats and life-threatening situations that can result in loss of life’ and that this could include adverse climate change impacts and environmental degradation.¹¹³

The Committee found that, while the authors had feelings of insecurity in relation to seasonal weather patterns and availability of traditional and culturally important food sources, they had not indicated that there were adverse impacts to their health or a ‘real and reasonably foreseeable risk of being exposed to a situation of physical endangerment or extreme precarity that could threaten their right to life’.¹¹⁴

The Committee considered the authors’ assertion that their islands would become uninhabitable in 10 to 15 years without urgent action, and found that this timeframe could allow for Australia to protect and relocate persons affected.¹¹⁵ Therefore, it could not be concluded that there was a direct threat to the authors’ right to life, and the Committee found that there was no violation of Article 6.¹¹⁶

Article 17: The Right to Privacy, Family and Home

The Committee held that Australia had failed to discharge its positive obligation to ensure the authors’ rights not to be subject to arbitrary or unlawful interference with their privacy, family or home pursuant to Article 17 of the ICCPR by failing to ‘implement adequate adaptation measures to protect the authors’ home, private life and family’.¹¹⁷

The authors claimed that climate change already affects their private, family and home life as they face the prospect of having to abandon their homes within their lifetimes. They claimed that Australia had failed to take any or adequate adaptation and mitigation measures.¹¹⁸

The Committee recognised the authors’ dependency on natural resources and the health of the ecosystem for their sustenance and wellbeing. These factors were identified as components of Indigenous culture which are protected by Article 17:

The Committee recalls that the authors depend on fish, other marine resources, land crops, and trees for their subsistence and livelihoods, and depend on the health of their surrounding ecosystems for their own wellbeing… The Committee considers that the aforementioned elements constitute components of the traditional Indigenous way of life of the authors, who enjoy a special relationship with their territory, and that these elements can be considered to fall under the scope of protection of article 17 of the Covenant …¹¹⁹

The Committee made note of how ancestral burial lands had been adversely affected by climate change and how visiting ancestral graveyards is ‘associated with the very heart of their [Indigenous] culture’.¹²⁰ The authors’ statement that their most important cultural ceremonies are only meaningful if performed on native community lands was also noted.¹²¹ The Committee found that climate change impacts could constitute violations of private and family life and the home, acknowledging that the dependency of Indigenous peoples on natural resources could have direct repercussions on the right to one’s home:

The Committee considers that when climate change impacts, including environmental degradation on traditional (Indigenous) lands in communities where subsistence is highly dependent on available natural resources and where alternative means of subsistence and humanitarian aid are unavailable, have direct repercussions on the right to one’s home (emphasis added), and the adverse consequences of those impacts are serious because of their intensity or duration and the physical or mental harm that they cause, the degradation of the environment may then adversely affect the well-being of individuals and constitute foreseeable and serious violations of private and family life and the home …¹²²

While Australia made reference to the construction of seawalls in the Torres Strait, which began in 2019 to address the rising sea levels, the Committee noted that the construction did not address the authors’ allegations that they had requested adaptation measures to be constructed multiple times over the last few decades and that Australia did not address the delay in constructing the sea walls where the authors live. The Committee found that Australia failed to implement adequate adaption measures to protect the home, private life and family of the authors, and thus violated Article 17 of the ICCPR.¹²³

Article 27: The Right to Practise and Enjoy One’s Culture

The authors claimed that displacement from land would result in irreparable harm to their ability to enjoy their culture which depends on the continued existence and habitability of their islands.¹²⁴

The Committee recalled that Article 27 confers a right upon minority Indigenous groups which is ‘distinct from, and additional to’ the rights of persons under the ICCPR. For Indigenous peoples, it was acknowledged that enjoyment of culture may involve the use of land and natural resources and includes the traditional activities of fishing and hunting.¹²⁵ The Committee stated that ‘the protection of this right is directed towards ensuring the survival and continued development of … cultural identity’ and acknowledged that Article 27 ‘enshrines the inalienable right of indigenous peoples to enjoy the territories and natural resources that they have traditionally used for their subsistence and cultural identity’.¹²⁶

The Committee considered that the threat of climate change impacts could have reasonably been foreseen by Australia, since the issue was first raised by the authors’ community members in the 1990s.¹²⁷ The Committee found that Australia violated Article 27 because it failed to protect the ability of the Torres Strait Islanders to maintain their traditional way of life:

[T]he Committee considers that the information made available to it indicates that the State party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability to maintain their traditional way of life and to transmit to their children and future generations their culture and traditions and use of land and sea resources discloses a violation of the State party’s positive obligation to protect the authors’ right to enjoy their minority culture. Accordingly, the Committee considers that the facts before it amount to a violation of the authors’ rights under article 27 of the Covenant.¹²⁸

Effective Remedies

In addition to policy actions, the Committee recommended compensation for the complainants. The decision recognises the ‘interdependency’ between the complainants’ ‘unique and vulnerable culture and the surrounding ecosystem of the islands’ and recognises that the right to culture (contained in Article 27 of the Universal Declaration of Human Rights¹²⁹ and construed in the context of Australia’s ratification of UNDRIP) includes the health of the environment that is tied to the practise of the culture. For example, the Committee noted that the authors ‘depend on fish and other marine resource (amongst others) for their subsistence and livelihoods, and depend on the health of surrounding ecosystems for their own wellbeing’, which the Committee considered constituted ‘components of the traditional indigenous way of life of the authors, who enjoy a special relationship with their territory’, with those elements falling within the protection of Article 17 of the Universal Declaration of Human Rights, being the right to own property without being arbitrarily deprived of it.

The Committee affirmed that Australia was under an obligation to provide adequate remedies, which it held included both compensation and the continued implementation of measures to adequately address climate change and conduct reviews of these measures to assess their effectiveness.¹³⁰

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26

Keywords

Native title — Future act — Petroleum production lease applications over registered native title land — Good faith negotiations under s 31 of the Native Title Act 1993 (Cth) (‘NTA’) — Appeal from National Native Title Tribunal — Whether climate change impacts are a mandatory consideration under the public interest factor of s 39(1)(e) of the NTA.

Summary

The Full Court of the Federal Court held that in determining a future act determination application, impacts on climate change must be considered, pursuant to the public interest factor in s 39(1)(e) of the Native Title Act 1993 (Cth) (‘NTA’). The Court also gave guidance on what constitutes ‘good faith negotiations’ concerning a future act under s 31 of the NTA.

Facts

In 2014, the respondents, Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd, lodged four petroleum production lease applications for an area of 92,400 ha which was subject to a registered native title claim of the appellant, the Gomeroi people, in New South Wales.¹³¹ The NTA gives a registered native title claimant group a right to negotiate for the doing of a future act on their native title land,¹³² with both parties under an obligation to negotiate in good faith under s 31(1) of the NTA.¹³³ By 2021, the parties had not reached an agreement and the respondents applied to the National Native Title Tribunal for a determination that the petroleum lease grants be made.¹³⁴

Procedural History

The Tribunal approved the grants, despite the appellant arguing that the respondents did not negotiate in good faith. The Tribunal held that the impact of the future act on climate change was not a matter within the public interest under s 39(1)(e) of the NTA, and that such issues were for government or other bodies to assess.¹³⁵

The appellant appealed to the Full Court of the Federal Court from the decision of the Tribunal on a number of issues, including:

whether the Tribunal incorrectly applied the test for good faith,¹³⁶ which involved determining
- whether the Tribunal only considered the respondents’ knowledge at the time it made its first offer to the appellant rather than considering good faith in the context of the negotiations as a whole;¹³⁷ and
- whether the Tribunal considered whether the respondent responded appropriately to the information available in expert reports;¹³⁸ and
whether in considering the ‘public interest’ of the project under s 39(1)(e) of the NTA, the Tribunal was required to consider the project’s impacts on climate change.¹³⁹

Held

The appeal was allowed on the basis that the Tribunal incorrectly applied the mandatory public interest consideration in s 39(1)(e) of the NTA.¹⁴⁰

Issue 1: Good Faith

Mortimer CJ found that determining whether a party has negotiated in good faith under s 31 of the NTA involves consideration about their conduct as a whole.¹⁴¹ Mortimer CJ expressed the view that ‘the question of good faith is directed to a party’s state of mind, and requires an assessment about whether the party is honestly, legitimately and fairly negotiating towards an agreed outcome’.¹⁴² While this may involve assessing how a party has objectively behaved (as an indicator of the party’s state of mind), the inquiry is directed at whether the party ‘was acting honestly, with an open mind, willing to listen and without any ulterior motive’.¹⁴³

Mortimer CJ endorsed the authorities which held that a negotiating party must not ‘shut its eyes to the obvious’ or fail to make inquiries about information that they may not wish to know:

[S]ee generally, International Alpaca [Alpaca Management Pty Ltd v Ensor (1995) 133 ALR 561] at 596, and also the extract in International Alpaca at 596 from Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 at 389:

‘these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual …

Nor does an honest person … deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless.’¹⁴⁴

It was found that in some circumstances, but not always, the Tribunal may need to assess whether an offer made by a negotiating party was ‘objectively reasonable’.¹⁴⁵ Mortimer CJ supported the following observations of Carr J in Walley v Western Australia:

[I]f a Tribunal, as part of the overall assessment of whether the Government party has negotiated in good faith, finds it useful to consider whether any particular offer (or all offers for that matter) appears (or appear) to be reasonable, then it is open to the Tribunal to engage in that exercise. But that is not to say that it will always be obliged to do so. Much will depend on the circumstances of the particular matter. The Tribunal will be engaged on a factual assessment of the Government party’s conduct and, in some cases, the reasonableness or unreasonableness of its proposals or offers may be relevant. In other cases there may be a difference between making reasonable offers and being reasonable in negotiating in good faith. As the Tribunal noted in Strickland (WF 97/4) the Tribunal is engaged at that stage of its proceedings in deciding a preliminary issue of good faith. In that context, concepts of reasonableness would not exclude the Government party from giving priority to interests of State and not agreeing to proposed concessions.¹⁴⁶

It was found that the Tribunal did assess the respondents’ conduct as a whole, as it considered each stage of the negotiations and did not limit itself to considering the first offer from the respondents.¹⁴⁷ The respondents had considered both of the applicant’s expert reports but rejected the conclusions in them and considered that its offer was within reasonable bounds.¹⁴⁸ It was accepted that the respondents did not have to change their offer in order to act in good faith.¹⁴⁹

The Tribunal did not err in its assessment of good faith as it considered and explained why the respondents’ conduct was not inherently unreasonable as to indicate an ulterior motive, a lack of honesty or an unwillingness to deal fairly and with an open mind with the appellant.¹⁵⁰

Issue 2: Climate Change

There was held to be ample material before the Tribunal to find that the climate change impacts on people and the environment from the Narrabri gas project was a matter of public interest.¹⁵¹

It was held that the Tribunal had misconstrued s 39(1)(e) of the NTA which ‘led it to defer to state assessment processes, and led it to fail to engage with the mandatory consideration in s 39(1)(e) in the way the legislative scheme requires’.¹⁵² It was noted:

The Tribunal’s function is independent of State government and conferred for quite a different purpose; namely to examine the future act from the perspective of the holders (or putative holders) of native title, as well as from the perspective of other members of the community as set out in s 39(1) … it must perform that function in a statutory context where, despite the recognition of native title in the land and waters concerned (or putative recognition through registration), native title holders or claimants do not have any veto over future acts on their country. Rather, Parliament has given the capacity of veto to the Tribunal. It is a specific function, in which similar considerations taken into account by State government and their agencies might be evaluated quite differently, in the performance of a different legislative function, one informed by the objects of the NTA and the values set out in the Preamble. The Preamble informs the content of the ‘public interest’ when that phrase is used in the NTA. The legislative scheme of the NTA requires the Tribunal to form its own views on where the public interest lies both as a separate consideration and as part of a holistic exercise, reflecting on all the factors in s 39(1). In performing that function it is no part of the Tribunal’s role to defer to government, state or federal.¹⁵³

It was also affirmed that the consideration under s 39(1)(e) is not limited to public interest matters that have a direct or indirect effect on native title rights and interests.¹⁵⁴

Mortimer CJ found that the Tribunal’s task was to ‘actively and genuinely’ take into account the matters raised by the appellant as to the contribution of the Narrabri gas project to greenhouse gas emissions and future climate change impacts in deciding where the public interest lay in the doing of the future act.¹⁵⁵ The Tribunal failed to do so, and the Court held that the Tribunal’s decision was affected by legal error.¹⁵⁶

Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025)

Keywords

Climate change — Advisory opinion — Obligations of states in respect of climate change — Mitigation and adaptation measures — Customary international law — Climate change and other environmental treaties — International human rights law — Legal consequences for breaching climate change obligations — State responsibility — Attribution and causation — Duty to make reparation.

Summary

In an advisory opinion, the International Court of Justice found that under both international treaties and customary law, states have legal obligations to adopt measures to both mitigate and adapt to climate change. The breach of a state’s obligations concerning climate change constitutes an internationally wrongful act and may have legal consequences, including the duty to make reparation.

Facts

The United Nations General Assembly requested that the International Court of Justice give an advisory opinion on the following legal questions:

What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases (‘GHG’) for states and for present and future generations?
What are the legal consequences under these obligations for states where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment?

Held

Question (a): Obligations of States in respect of Climate Change

The Court specified that the relevant conduct to be examined in the advisory proceedings was not limited to conduct which directly results in GHG emissions but included all actions or omissions of states, as well as those of non-state actors within their jurisdiction or effective control, which result in the climate system and other parts of the environment being adversely affected by anthropogenic GHG emissions.¹⁵⁷ This includes both consumption and production activities.¹⁵⁸ In determining the obligations of states in respect of climate change, the Court had regard to customary international law, climate change treaties, other environmental treaties, the law of the sea and related issues, and international human rights law.

Customary International Law

The Court noted the existing duty under customary international law to prevent significant harm to the environment, and it advised that this duty applies to the climate system as an ‘integral and vitally important part of the environment’.¹⁵⁹ This requires a state to act with due diligence by using ‘all means at its disposal’ to prevent significant harm to the environment.¹⁶⁰ In fulfilling this duty, states must undertake appropriate measures, including mitigation and adaptation mechanisms, as well as regulating and enforcing the conduct of public and private operators within the state’s jurisdiction.¹⁶¹ There is also a duty to cooperate in good faith, as the climate system is a resource that is shared by states and reaching a collective temperature goal to mitigate climate change requires states to take individual measures in cooperation with other states.¹⁶²

Climate Change and Other Environmental Treaties

The Court found that the United Nations Framework Convention on Climate Change (‘UNFCCC’) creates legally binding obligations for states to adopt measures to mitigate and adapt to climate change.¹⁶³ The UNFCCC sets out different obligations for three main groups including non-Annex parties (comprising primarily developing countries), Annex I parties and Annex II parties.¹⁶⁴ While all parties under the UNFCCC have commitments under Article 4 of the UNFCCC to mitigate and adapt to climate change, certain developed country parties and other parties under Annex I have additional obligations to ‘take the lead’ in addressing climate change by limiting their GHG emissions and enhancing their GHG sinks and reservoirs.¹⁶⁵ Annex II parties (a subset of parties in Annex I) have further obligations to provide financial assistance and technology transfers to developing country parties to help them meet their commitments under the UNFCCC.¹⁶⁶

The Court also found that states parties to the Kyoto Protocol must comply with its provisions, including adhering to the applicable emission reduction commitments.¹⁶⁷

Under the Paris Agreement, states parties must exercise due diligence and employ their best efforts by using all means at their disposal when performing their obligations.¹⁶⁸ The states are obliged to prepare, communicate, and maintain successive Nationally Determined Contributions (‘NDCs’) which must be adjusted to be more demanding every five years and reflect the state’s ‘highest possible ambition’.¹⁶⁹ The Court found the level of ambition was not left entirely to the discretion of the parties. The NDCs must make an adequate contribution to the goal of limiting the global temperature increase to the parties’ agreed-upon threshold of 1.5 degrees Celsius above the pre-industrial average.¹⁷⁰ States must be proactive and pursue domestic mitigation measures which are reasonably capable of achieving the NDCs they set,¹⁷¹ and undertake adaptation planning actions.¹⁷² States have obligations to cooperate, which includes providing financial and technological assistance to developing states.¹⁷³

Other environmental treaties also create legally binding obligations to ensure the protection of the climate system. States parties are to take these into account when implementing their obligations under climate change treaties.¹⁷⁴ The Court identified and discussed a non-exhaustive list of applicable treaties relating to the protection of the ozone layer, biological diversity and desertification.¹⁷⁵

The Law of the Sea and Related Issues

Under the United Nations Convention on the Law of the Sea, states must take measures ‘as far-reaching and efficacious as possible’ to prevent the effects of climate change and ocean acidification on the marine environment.¹⁷⁶ Arising from the customary international law duty of states to cooperate, states must cooperate in addressing sea level rises. This requires working together with a view to achieving equitable solutions (taking into account the rights of affected states and their populations).¹⁷⁷

International Human Rights Law

The Court found that the adverse effects of climate change may significantly impair the enjoyment of certain human rights including, but not limited to, the right to life, right to health, right to an adequate standard of living, as well as the right to privacy, family and home.¹⁷⁸ The Court considered that ‘a State’s failure to implement timely and adequate adaptation measures to address the adverse impacts of climate change may violate the right to privacy, family and home’.¹⁷⁹

It was also found that climate change may impair the rights of women, children and Indigenous peoples.¹⁸⁰ The Court found that a clean, healthy and sustainable environment was essential for the enjoyment of other human rights:

Based on all of the above, the Court is of the view that a clean, healthy and sustainable environment is a precondition for the enjoyment of many human rights, such as the right to life, the right to health and the right to an adequate standard of living, including access to water, food and housing. The right to a clean, healthy and sustainable environment results from the interdependence between human rights and the protection of the environment. Consequently, in so far as States parties to human rights treaties are required to guarantee the effective enjoyment of such rights, it is difficult to see how these obligations can be fulfilled without at the same time ensuring the protection of the right to a clean, healthy and sustainable environment as a human right. The human right to a clean, healthy and sustainable environment is therefore inherent in the enjoyment of other human rights. The Court thus concludes that, under international law, the human right to a clean, healthy and sustainable environment is essential for the enjoyment of other human rights.¹⁸¹

Question (b): Legal Consequences for Breaching Obligations

The legal consequences for states breaching their obligations were determined according to the rules on state responsibility under customary international law.¹⁸²

In relation to attribution of conduct, it was found that while climate change is caused by cumulative GHG emissions, it is scientifically possible to determine the contribution of each state to global GHG emissions.¹⁸³ However, the Court also clarified that the internationally wrongful act which may be attributed to the state is not the emission of GHGs, in of itself, but the failure to take appropriate action:

Failure of a State to take appropriate action to protect the climate system from GHG emissions — including through fossil fuel production, fossil fuel consumption, the granting of fossil fuel exploration licences or the provision of fossil fuel subsidies — may constitute an internationally wrongful act which is attributable to that State. The Court also emphasizes that the internationally wrongful act in question is not the emission of GHGs per se, but the breach of conventional and customary obligations identified under question (a) pertaining to the protection of the climate system from significant harm resulting from anthropogenic emissions of such gases.¹⁸⁴

Regarding causation, there are two elements to be determined: whether a given climatic event or trend can be attributed to climate change; and to what extent damage caused by climate change can be attributed to a certain state or group of states.¹⁸⁵

The Court found that states’ obligations to protect the climate system are obligations erga omnes meaning that ‘all States parties have a legal interest in the protection of the main mitigation obligations set forth in the climate change treaties and may invoke the responsibility of other States for failing to fulfil them’.¹⁸⁶

If a state breaches its obligations, the legal consequences for that state may include:

a duty of cessation requiring the State to employ all means at their disposal to reduce GHG emissions;¹⁸⁷
guarantees of non-repetition;¹⁸⁸ and/or
a duty to make reparation, which may be achieved by restitution, compensation, satisfaction or a combination of these.¹⁸⁹

The Court noted that, where a state breaches its international obligations, there is still a continuing duty to perform the obligation breached.¹⁹⁰

Useful Quotes

International human rights law must inform the implementation of states’ obligations relating to climate change (at [404]):

The Court is of the view that international human rights law, the climate change treaties and other relevant environmental treaties, as well as the relevant obligations under customary international law, inform each other (see paragraphs 309–315 above). States must therefore take their obligations under international human rights law into account when implementing their obligations under the climate change treaties and other relevant environmental treaties and under customary international law, just as they must take their obligations under the climate change treaties and other relevant environmental treaties and under customary international law into account when implementing their human rights obligations.

On intergenerational equity (at [157]):

In the Court’s view, intergenerational equity is a manifestation of equity in the general sense and thus shares its legal significance as a guide for the interpretation of applicable rules. Accordingly, considerations of intergenerational equity must play a role infra legem [within the law], without displacing or exceeding the limits of the applicable law. Due regard for the interests of future generations and the long-term implications of conduct are equitable considerations that need to be taken into account where States contemplate, decide on and implement policies and measures in fulfilment of their obligations under the relevant treaties and customary international law.

On the ability to compensate for damage caused by climate change (at [453]–[454]):

The Court has previously had occasion to confirm that environmental damage is compensable under international law, and that compensation will be due for both damage caused to the environment, ‘in and of itself’ — which may include ‘indemnification for the impairment or loss of environmental goods and services in the period prior to recovery’ — and expenses incurred by injured States as a consequence of such damage (Certain Activities Carried Out by Nicaragua in the Border Area (Costa Rica v. Nicaragua), Compensation, Judgment, I.C.J. Reports 2018 (I), pp. 28–29, paras. 41–43). With respect to the valuation of the damage caused to the environment, the Court has held that

‘the absence of adequate evidence as to the extent of material damage will not, in all situations, preclude an award of compensation for that damage. For example, in the Ahmadou Sadio Diallo case, the Court determined the amount of compensation due on the basis of equitable considerations’ (ibid., pp. 26–27, para. 35).

Therefore, where there is uncertainty with respect to the exact extent of the damage caused, compensation in the form of a global sum, within the range of possibilities indicated by the evidence and taking into account equitable considerations, may be awarded on an exceptional basis (see Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Reparations, Judgment, I.C.J. Reports 2022 (I), p. 52, para. 106). In the climate change context, reparations in the form of compensation may be difficult to calculate, as there is usually a degree of uncertainty with respect to the exact extent of the damage caused’.

Pabai v Commonwealth (No 2) [2025] FCA 796

Keywords

Negligence — Climate change — Representative proceeding on behalf of Torres Strait Islanders against the Commonwealth — Whether there is a duty of care to protect Torres Strait Islanders from climate change impacts — Whether greenhouse gas emissions target must align with best available science — Loss of cultural fulfillment — Issues of core government policy— Whether a material contribution to harm suffered.

Summary

The Federal Court held that the Commonwealth of Australia did not owe a common law duty of care to Torres Strait Islanders to take reasonable steps to protect them from climate change impacts, as such a duty should not be imposed in relation to matters of ‘high or core government policy’. The Court held the Commonwealth was not obliged to set greenhouse gas emission reduction targets consistent with ‘best available science’ and, even if there was a duty of care, the Commonwealth was not found to have ‘materially contributed’ to the harm suffered by Torres Strait Islanders. Additionally, the Court held that loss of cultural fulfilment as pleaded by the plaintiffs (collective loss, in terms substantially similar to but disavowing native title compensation) was not compensable in negligence.

Facts

The applicants, Mr Pabai Pabai and Mr Guy Paul Kabai of the Guda Maluyligal Nation, lived on the Torres Strait Islands of Boigu and Saibai, respectively, where the impacts of climate change have adversely affected the ability of Torres Strait Islanders to practise their culture:

The impacts of climate change on the land and marine environment of the Torres Strait Islands have had a profound impact on the customary way of life of the inhabitants and traditional owners of the Torres Strait Islands. They are finding it increasingly difficult to practise and observe the body of customs, traditions and beliefs, known generally as Ailan Kastom, which has sustained them for generations. Sacred sites, including burial and ceremonial sites, have been damaged and are constantly at risk of further inundation. The traditional owners who reside on the islands are increasingly unable to source traditional foods or engage in certain cultural ceremonies, particularly those involving hunting and gathering. Changing seasonal, migratory and stellar patterns make it increasingly difficult for elders to pass-on traditional knowledge to the next generations.¹⁹¹

Torres Strait Island inhabitants are vulnerable to climate change impacts as the many low-lying islands and their ecosystems are prone to damage and destruction caused by rising sea waters, extreme weather events, increasing ocean temperatures, and ocean acidification.¹⁹²

The applicants lodged a representative proceeding on behalf of themselves and the traditional inhabitants of the Torres Strait Islands alleging that the Commonwealth of Australia (the respondent) owed a duty to protect Torres Strait Islanders from climate change, that this duty had been breached, and that damage flowed from that breach.¹⁹³

The applicants’ primary case against the respondent was that the respondent breached a duty of care to Torres Strait Islanders to take reasonable steps to protect them from the impacts of climate change.¹⁹⁴ This duty of care was said to arise from the respondent’s special relationship with Torres Strait Islanders by virtue of their colonisation.¹⁹⁵ It was argued that the respondent failed to have regard to, and act in accordance with, the best available science in respect of climate change when setting its greenhouse gas emission reduction targets, and, therefore, failed to prevent or minimise its impacts on Torres Strait Islanders.¹⁹⁶

In the alternative, the applicants argued that the respondent breached its duty of care to Torres Strait Islanders to take reasonable steps to implement adaptation measures to prevent or minimise the impacts of climate change in the Torres Strait Islands.¹⁹⁷ In particular, the applicants alleged that the respondent failed to provide predictable and adequate infrastructure, including seawalls, to protect the islands from inundation and flooding.¹⁹⁸ While the respondent did provide some funding for the construction of seawalls on certain islands on the Torres Strait, there were delays in the provision of funding and the applicants claimed that the funding that was eventually provided was unpredictable and inadequate.¹⁹⁹

The applicants sought declaratory and injunctive relief,²⁰⁰ and damages which included compensation for their loss of body of customs, traditions and beliefs (known as Ailan Kastom).²⁰¹

Held

The application was dismissed.

In dismissing the applicant’s case, the Court held:

The Commonwealth had no duty of care to the Torres Strait Islanders, as governmental conduct involving matters of high or core government policy are not subject to a common law duty of care.²⁰² The Court held it was bound by Full Court authority to this effect.²⁰³
The Commonwealth was not obliged to set greenhouse gas emissions targets by reference to best available science, as such targets were political decisions and it would not be unreasonable for the respondent to also have regard to broader economic, social and political considerations.²⁰⁴
Even if there was a duty of care, it could not be demonstrated that the Commonwealth materially contributed to any harm suffered by Torres Strait Islanders as Australia’s emissions make up only a relatively small fraction of global greenhouse gas emissions.²⁰⁵
While the law of negligence can and has recognised aspects of the loss of fulfilment of culture, customs, observances, beliefs and traditions, where suffered individually, it has no precedent for recognising collective loss as pleaded by the plaintiffs as compensable damage.²⁰⁶

In relation to the applicants’ alternative case, it was held that the applicants were not owed a duty of care concerning the funding of adaptation measures in the Torres Strait Islands as it concerned a matter of important public policy, in relation to budgetary concerns and priorities, which should not be subject to a common law duty of care.²⁰⁷

Even if there did exist a duty of care, the evidence did not demonstrate that the duty of care was breached regarding the implementation of the seawall as an adaptation measure, as, despite the delay from the Commonwealth in the provision of funding, it eventually provided all funding that had been sought.²⁰⁸ Regarding the fact that the funding was inadequate to successfully implement the sea wall, it was found that the evidence suggested this was due to the administration of the project by the Torres Strait Islander Regional Council rather than the carelessness of the respondent.²⁰⁹

Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21

Keywords

Planning and environment — Climate change — Indigenous human rights — Displacement, disruption to culture — Vulnerability of Indigenous peoples and climate change — Human Rights Act 2019 (Qld) — Administrative jurisdiction of the Land Court of Queensland under the Environmental Protection Act 1994 (Qld).

Summary

This case recognised that the burden which would be imposed on future generations from a coal mine is disproportionate for future generations, which does not give effect to the goal of ecologically sustainable development (‘ESD’) principle of intergenerational equity. The court also considered that the intergenerational risks to First Nations culture in the context of the Human Rights Act 2019 (Qld) were serious enough to warrant refusal of the mining lease. This case is useful as it specifically discusses the relationship between First Nations people and sea Country and how this impacts parents’ abilities to teach their children. This was considered in the context of intergenerational equity and the Human Rights Act 2019 (Qld).

Facts

Waratah Coal applied to the Land Court of Queensland for approval of a mining lease and environmental authority to mine thermal coal. Evidence showed it was likely that a nature refuge would be lost and its ecological value seriously damaged. Waratah Coal presented no credible plan to offset this loss. The objectors argued that approval of the mine is not consistent with the ESD principles and is not compatible with a range of human rights, including those of children, vulnerable people and communities, and First Nations peoples.

Held

The Land Court recommended that both applications be refused as the mine imposed unjustifiable limits on human rights and did not give effect to the ESD principles, particularly intergenerational equity and the precautionary principle.

This judgment provides a useful summary of the case law on intergenerational equity at [117]–[124].

In relation to the ESD principles, the Court recognised there were intergenerational benefits from the project; however, the detrimental effects that the mine would have on climate change and future generations outweighed those benefits.²¹⁰ ‘Approving the application would risk disproportionate burdens for future generations, which does not give effect to … intergenerational equity’.²¹¹ The Court did not accept the argument from Waratah that the nature refuge would continue as a refuge in perpetuity and so the principle of intergenerational equity should not weigh against the project. Rather, the fact that the current owners and managers of the refuge had demonstrated a commitment over two decades to maintaining its ecological values demonstrated that the community would continue that work in the future.²¹²

The Court recognised that First Nations peoples will be disproportionately affected by climate change impacts.²¹³ The Court considered the intergenerational risks to First Nations culture in the context of the Human Rights Act 2019 (Qld), specifically, the rights of children. The Court recognised that increased temperatures already hamper the efforts of First Nations parents to teach their children about their sea Country.²¹⁴ If these children grow up and become displaced from their Country, this will risk severing their relationship to Country and culture.²¹⁵ This right is intergenerational due to the inherent right to maintain and develop culture.²¹⁶

It is also helpful to note that two decades of dedication to the nature refuge was enough evidence to suggest that community care and commitment to the refuge would continue into the future, and so the destruction of this area would risk disproportionate burden for future generations which does not give effect to the goal of intergenerational equity.

5.6 Further Reading

5.6.1 Journal Articles

Bedford, Narelle (Yuin woman), Tony McAvoy SC (Wirdi man) and Lindsey Stevenson-Graf, ‘First Nations Peoples, Climate Change, Human Rights and Legal Rights’ (2021) 40(3) University of Queensland Law Journal 371

This article provides a First Nations standpoint on climate change, informed by human rights law. It is co-authored by a Yuin woman who is a law academic, a Wirdi man who is a Senior Counsel, and a human rights law academic. The article argues that, for any responses to climate change to be effective, they must be grounded in the perspectives, knowledge and rights of First Nations peoples.

Of relevance for judicial officers:

Part II (from p. 374) provides a synopsis of ‘the human rights frameworks that could be drawn upon to promote First Nations peoples’ rights and respond to the grave implications of climate change’ within the Australian legal context, from the perspective of a First Nations’ practitioner. This part canvasses international human rights frameworks and discusses approaches adopted by the High Court in different cases.
Page 380 discusses First Nations peoples’ spiritual, cultural and legal frameworks and ongoing climate litigation in Australia, New Zealand and globally, relying on human rights frameworks.
Page 382 details the interaction of international frameworks with Australian domestic law.
Page 385 discusses the human rights frameworks for First Nations peoples.

The article concludes with a discussion of how First Nations conceptions of the earth as an identity to whom obligations are owed ‘can be given form in the western legal sense’. This includes discussion of legislative approaches to recognising earth as a legal personality adopted in New Zealand, and jurisdictional issues that may arise in doing so in Australia.

Bell-James, Justine and Briana Collins, ‘Queensland’s “Human Rights Act”: A New Frontier for Australian Climate Change Litigation?’ (2020) 43(1) University of New South Wales Law Journal 3

This article explores how climate change litigation may be pursued under a rights model under the Queensland’s new Human Rights Act. It focuses mainly on the right to life, although it mentions how many rights might be employed to make the argument (including rights under the ICCPR and ICESCR).

The article also reviews several international cases.

Green, Donna and Kirsty Ruddock, ‘Climate Change Impacts in the Torres Strait, Australia’ (2008) 7(8) Indigenous Law Bulletin 2

Torres Strait Islander peoples have observed environmental changes that cannot be explained by traditional knowledge; many have raised concerns about whether those shifts could be linked to climate change. Anecdotally, flooding on some islands appears to be becoming more severe. Long-established cultural sites, such as graveyards, have been inundated for the first time in regular king tides at the beginning of the year (at p. 2).

It is arguable that Australian governments, at all levels, have a duty of care to protect the land and culture of all Australians, including Torres Strait Islanders, by acting to prevent harm to communities from climate change. However, it is worth noting that most negligence claims are brought against a particular person or company with clear responsibility for a problem, whereas climate change is a global problem with multiple causes (at p. 3).

Lanyi, Gustav, ‘Climate Change and Human Rights: An Unlikely Relationship?’ (2012) 37(4) Alternative Law Journal 269

Many economic, social and cultural rights are impacted by climate change, including the right to food, water, housing and health. Civil and political rights, such as the right to life, and the cultural rights of Indigenous people, can also be impacted by climate change.

Examples of these rights and their protections include:

the right to food — Article 11 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’);²¹⁷
the right to water — Article 12 of the ICESCR;
the right to health — Article 12 of the ICESCR and, possibly, the International Convention on the Elimination of All Forms of Racial Discrimination;²¹⁸
the right to housing — Article 11 of the ICESCR;
the right to life — Article 6 of the ICCPR; and
cultural rights of Indigenous minorities — Article 27 of the ICCPR.

Longman, Craig and Bridget Flaherty, ‘Indigenous-Led Climate Litigation in Australia’ (2023 Winter) Bar News: Journal of the NSW Bar Association 53

This article discusses the emergence of strategic litigation in relation to climate change proceedings brought by Indigenous plaintiffs. The article highlights the significant contribution that Indigenous plaintiffs can make in this type of litigation by voicing their lived experiences and stories.

Nona, Francis (Dhoeybaw Clan), ‘Traditional Community-Based Knowledge for Envisioning Climate Change Action for the Torres Strait’ (2024) 48(5) Australian and New Zealand Journal of Public Health 1

This short commentary provides an overview of the strengths that Torres Strait Islander–led research provides to navigate climate change as a public health issue, for Torres Strait Islander peoples and other First Nations communities. The commentary identifies ways in which Torres Strait Islander peoples’ maintenance of culture, language, lore and connection have enabled them to protect their homeland and have successfully informed recent legal cases, such as the Torres Strait Eight Case,²¹⁹ and consequent government policy, such as the National Health and Climate Strategy 2023 (see p. 2, ‘History and Truth-Telling to Guide the Way Forward’ and ‘A Strengths-Based Approach Enhances the Ability for Action’). The commentary illustrates that ‘[t]okenistic approaches that do not authentically involve Torres Strait Islander communities will not work in addressing climate change’. It outlines how strengths-based approaches, self-determination, co-design, Indigenous governance and respectful incorporation of Indigenous knowledges will enhance climate change action. It also identifies benefits and strategies for embedding Indigenous-led approaches that privilege both Western and Traditional sciences and knowledges.

Von Doussa, John, Allison Corkery and Renee Chartres, ‘Human Rights and Climate Change’ (2007) 14(12) Australian International Law Journal 161

The human impacts of climate change threaten fundamental human rights.

Under the United Nations Declaration on the Rights of Indigenous People and other international human rights instruments, Indigenous peoples have the right to practise and revitalise their cultural practices, customs and institutions.

Climate change will affect Indigenous peoples directly and indirectly. Directly, climate change will threaten Indigenous communities (e.g. through sea level rise) and by limiting their capacity to practise and transmit their cultures.

However, there are also indirect effects, such as mental harm:

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.²²⁰

The broad range of rights most likely to be under threat from the impact of climate change, including those set out in the ICESCR, have not been directly incorporated into Australian law.

In Minister for Immigration and Ethnic Affairs v Teoh,²²¹ the High Court held that, in decisions made under domestic laws by the executive arm of government, people in Australia had a ‘legitimate expectation’ that bureaucrats would act in accordance with Australia’s international treaty obligations, even when the treaty had not been enacted in domestic law.

5.6.2 International Materials

Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 79 (entered into force 4 November 2016) (UN Dossier No. 16)

The Paris Agreement is a legally binding international treaty on climate change which contains obligations for states to limit the global temperature increase to the parties’ agreed-upon temperature threshold of 1.5 degrees Celsius above the pre-industrial average.

Tauli-Corpuz, Victoria, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017)

This report discusses the disproportionate impact of climate change on Indigenous peoples globally, and how they are particularly vulnerable to climate change due to their dependence on lands and natural resources for their livelihood and cultural connection. It also discusses cases where the implementation of mitigation measures, such as renewable energy, have negatively affected Indigenous peoples’ rights.

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007)

The Declaration contains the fundamental rights of Indigenous peoples which are primarily guided by four key principles: self-determination, participation in decision-making, respect for and protection of culture, and equality and non-discrimination. Relevantly, for climate change, the Declaration is authority for the proposition that states have an obligation to consult with Indigenous peoples to ensure that their free, prior and informed consent is obtained for projects that affect them, and that Indigenous peoples have the right to participate in decision-making in matters which affect their rights. The Declaration also contains specific cultural rights of Indigenous peoples including the right of recognition and preservation of their relationship to the natural environment and its resources under Article 29(1).

5.6.3 Other Resources

Department of Climate Change, Energy, the Environment and Water (Cth), The First Nations Clean Energy Strategy 2024–2030 (National Strategy, February 2024)

The First Nations Clean Energy Strategy provides a national clean energy framework for governments, industries and communities. The Strategy was developed with First Nations people and aims to empower First Nations communities with clean energy, achieve economic benefits with First Nations peoples and enable equitable partnerships. It also seeks to ensure that First Nations people maintain their right to live on their land and that their cultural heritage is protected throughout the clean energy transition.

5.6.4 Reports/Discussion Papers

Indigenous Peoples’ Organisation Australia, Heal Country, Heal Climate: Priorities for Climate and Environment (November 2021)

This report was developed to inform the 26th United Nations Climate Change Conference of the Parties (‘COP26’) and environmental policies impacting Aboriginal and Torres Strait Islander peoples. The report summarises priorities for climate and environment identified by First Nations peoples, based on a series of webinars, workshops and nation-wide community consultations throughout 2021. Summary lists of ‘overarching priorities’ and ‘legislative priorities’ are set out on p. 3.

The substance of the report provides short summaries of multiple legal and policy issues relevant to First Nations peoples’ human rights and to climate change. These summaries include discussion of the impact of certain legislative regimes and legal developments on First Nations communities (particularly those developed without consultation with Traditional Owners), and relevant case law, where applicable. These include:

coal mining on Country (p. 4);
Aboriginal land rights (p. 4);
native title (p. 5);
repatriation of ancestral lands (p. 6); and
cultural heritage protection (pp. 7–8).

Details about how human rights frameworks can be used to address impacts on climate change for First Nations peoples are specifically discussed from p. 15 onwards, including Indigenous rights to self-determination, and the right to environmentally healthy housing, renewable energy, access to clean water, environmentally healthy communities and employment.

Particular climate change–related issues that are relevant to legislative schemes and other policies are also identified, such as property law and native title rights and/or other legal avenues available in regard to:

carbon farming (pp. 8–9);
rising oceans around the Torres Strait Islands (p. 11);
Australian marine ecosystems (p. 12); and
protection and restoration of freshwater river systems (p. 12).

Litigation in specific locations is also summarised, such as the litigation involving Adani’s Carmichael coal mine (p. 5), the Daintree Rainforest (p. 7) and the Narrabri gas project (p. 7).

Nona, Francis (Dhoeybaw Clan), Veronica Matthews (Quandamooka), Nina Lansbury, Kristina Zvine and Lillian Ireland (Melukerdee), ‘Indigenous-Led Rights-Based Approaches to Climate Litigation’ (Discussion Paper, Lowitja Institute, June 2025)

In this paper, academics from the Lowitja Institute discuss rights-based climate litigation brought by Indigenous peoples. The paper considers cases based in constitutional, human rights and environmental rights which imbue individuals and communities with rights to climate mitigation and adaptation. The paper notes that human rights legal actions in Australia are ‘long and difficult’ and considers four case studies across the globe, including Billy v Australia.²²² The paper summarises the disproportionate impacts of a range of climate change effects including heatwaves, bushfires, floods, storms, cyclones and droughts, as well as existing disparities that will increase — for example, access to safe water, and food security. The paper also identifies a number of community-led climate change adaptations from across Australia.

¹Irene Watson (Tanganekald and Meintangk), ‘Aboriginal Relationships to the Natural World: Colonial “Protection” of Human Rights and the Environment’ (2018) 9(2) Journal of Human Rights and the Environment 119, 119.

²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1563] (FY Kingham P), quoting evidence of Juritju Fourmile (Gimuy Walabuara Yidninji).

³James Powell, ‘Scientists Reach 100% Consensus on Anthropogenic Global Warming’ (2017) 37(4) Bulletin of Science, Technology & Society 183.

⁴Intergovernmental Panel on Climate Change, Climate Change 2014: Synthesis Report (Summary for Policymakers, 2014) 4 statement 1.2; Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis (Summary for Policymakers, 6 August 2021) 4 [A.1].

⁵Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023) 4 [A.1].

⁶Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023) 5 [A.2].

⁷Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023) 5 [A.2].

⁸Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023) 12 [B.1.3].

⁹Business & Human Rights Resource Centre, Turning Up the Heat: Corporate Legal Accountability for Climate Change (Annual Briefing, 2018) 1.

¹⁰Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023), 18 [B.3]: ‘Some future changes are unavoidable and/or irreversible but can be limited by deep, rapid and sustained global greenhouse gas emissions reduction. The likelihood of abrupt and/or irreversible changes increases with higher global warming levels. Similarly, the probability of low-likelihood outcomes associated with potentially very large adverse impacts increases with higher global warming levels’.

¹¹Intergovernmental Panel on Climate Change, Principles Governing IPCC Work: Procedures for the Preparation, Review, Acceptance, Adoption, Approval and Publication of IPCC Reports (Appendix A, 15–18 April 1999) 2 [2], 8 [4.4].

¹²The definition of ‘acceptance’ is contained in Intergovernmental Panel on Climate Change, Principles Governing IPCC Work: Procedures for the Preparation, Review, Acceptance, Adoption, Approval and Publication of IPCC Reports (Appendix A, 15–18 April 1999) at [2] (definition of ‘acceptance’).

¹³Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 9 [B.1].

¹⁴Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 9 [B.1.2]. The IPCC uses confidence levels for its findings, which can be found in Reports: ‘A level of confidence is expressed using five qualifiers: very low, low, medium, high and very high, and typeset in italics, for example, medium confidence. The following terms have been used to indicate the assessed likelihood of an outcome or result: virtually certain 99–100% probability; very likely 90–100%; likely 66–100%; about as likely as not 33–66%; unlikely 0–33%; very unlikely 0–10%; and exceptionally unlikely 0–1%. Additional terms (extremely likely 95–100%; more likely than not >50–100%; and extremely unlikely 0–5%) are also used when appropriate. Assessed likelihood is typeset in italics, for example, very likely’: Intergovernmental Panel on Climate Change, Climate Change 2021: The Physical Science Basis (Summary for Policymakers, 6 August 2021) 4, n 4. (Emphasis added).

¹⁵Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 9 [B.1.3].

¹⁶Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 11 [B.1.4].

¹⁷Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 11 [B.1.7].

¹⁸Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 11 [B.1.7].

¹⁹Victoria Tauli-Corpuz, Report of the Special Rapporteur of the Human Rights Council on the Rights of Indigenous Peoples, UN Doc A/71/229 (29 July 2016) 7 [14].

²⁰Nicole Redvers et al, ‘Indigenous Natural and First Law in Planetary Health’ (2020) 11(2) Challenges 29, 30.

²¹Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023) 4 [A.1].

²²Intergovernmental Panel on Climate Change, Climate Change 2023: Synthesis Report (Summary for Policymakers, 2023) 5 [A.2].

²³Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 9 [B.1].

²⁴Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 12 [B.2.4].

²⁵Intergovernmental Panel on Climate Change, Climate Change 2022: Impacts, Adaptation and Vulnerability (Summary for Policymakers, 27 February 2022) 12 [B.2.1].

²⁶Department of Climate Change, Energy, the Environment and Water (Cth), Annual Climate Change Statement 2022 (Report, December 2022) 20. See also Department of Climate Change, Energy, the Environment and Water (Cth), The First Nations Clean Energy Strategy 2024–2030 (National Strategy, February 2024) 20.

²⁷Department of Climate Change, Energy, the Environment and Water (Cth), Annual Climate Change Statement 2022 (Report, December 2022) 20. See also Department of Climate Change, Energy, the Environment and Water (Cth), The First Nations Clean Energy Strategy 2024–2030 (National Strategy, February 2024) 7.

²⁸Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1565] (FY Kingham P).

²⁹Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [631] (FY Kingham P).

³⁰Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [625] (FY Kingham P).

³¹Due to ‘higher rates of underlying chronic conditions, socioeconomic disadvantage, more dangerous jobs, and reduced access to cool spaces and health services’: Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [630] (FY Kingham P), quoting evidence of Professor Hilary Bambrick.

³²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [630] (FY Kingham P).

³³Pabai Pabai and Guy Paul Kabai, ‘Applicants’ Closing Submissions’, Submission in Pabai v Commonwealth, VID622/2021, 29 April 2024, 66 [144], quoting evidence of Uncle Laurie (Traditional Owner and native title holder of Badu).

³⁴Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 3–4 [6]–[7].

³⁵Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 3–4 [6]–[7].

³⁶For a review of rights-based climate litigation brought by Indigenous people, as well as the limitations in such litigation, see Francis Nona (Dhoeybaw Clan), Veronica Matthews (Quandamooka), Nina Lansbury, Kristina Vine and Lillian Ireland (Melukerdee), ‘Indigenous-Led Rights-Based Approaches to Climate Litigation’ (Discussion Paper, Lowitja Institute, June 2025).

³⁷Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21.

³⁸Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21.

³⁹Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [116] (FY Kingham P); Anderson v Director General, Department of Environmental and Climate Change and Anor [2008] NSWCA 337, [85]; Gray v Minister for Planning and Ors [2006] NSWLEC 720, [122]. A particular aspect of the intergenerational principle developing in this case law has been the emergence of considerations of ‘distributive justice’: see Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] NSWLEC 48, where Preston CJ found that intergenerational equity requires consideration of equity and distributive justice, and that an environmental impact assessment was of limited utility where it failed to assess the fairness of who would receive the benefits and burdens from the project noting that ‘in the context of environmental justice, distribution of environmental risks and harms should be equitable and fair’: at [486].

⁴⁰Williams v Minister for Planning (No 2) [2011] NSWLEC 62.

⁴¹Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] NSWLEC 48, [470] (Preston CJ).

⁴²Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257.

⁴³Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257.

⁴⁴Gloucester Resources Ltd v Minister for Planning (2019) 234 LGERA 257, [415].

⁴⁵Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26.

⁴⁶Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [59], [169] (Mortimer CJ), discussing Santos NSW Pty Ltd v Gomeroi People [2022] NNTTA 74, [970]–[972] (J A Dowsett AM KC).

⁴⁷Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’).

⁴⁸International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) arts 17, 27.

⁴⁹Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 16–17 [11].

⁵⁰Pabai v Commonwealth (No 2) [2025] FCA 796.

⁵¹Pabai v Commonwealth (No 2) [2025] FCA 796, [19] (Wigney J).

⁵²Pabai v Commonwealth of Australia (No 2) [2025] FCA 796, [165] (Wigney J).

⁵³Pabai v Commonwealth of Australia (No 2) [2025] FCA 796, [1105] (Wigney J).

⁵⁴Grata Fund, ‘Australian Government to Face More Climate Scrutiny in Appeal of Landmark Torres Strait Case’ (Media Release, 11 November 2025) <https://www.gratafund.org.au/appeal_filed>.

⁵⁵United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007); Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 79 (entered into force 4 November 2016) Preamble, art 7.

⁵⁶Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017).

⁵⁷Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 4 [8].

⁵⁸Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 4 [8].

⁵⁹Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 6–7 [27], 7 [32].

⁶⁰Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 6–7 [27], 7 [32], citing Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’).

⁶¹Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 9 [45], citing United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007).

⁶²International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 27; International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

⁶³Human Rights Committee, Views adopted by the Committee under art 5(4) of the Optional Protocol, concerning communication No 3585/2019 (Ailsa Roy v Australia), UN Doc CCPR/C/137/D/3585/2019 (13 March 2024) 13 [8.5].

⁶⁴Murrawah Johnson (Wirdi woman from the Birri Gubba Nation), quoted in ‘W&J Support for Human Rights and Climate Change Case Against Palmer’s Coal Plans’, Wangan and Jagalingou Traditional Owners Family Council (Web Page, 14 May 2020) <https://wanganjagalingou.com.au/family-council-archive/wj-support-for-human-rights-and-climate-change-case-against-palmers-coal-plans/>.

⁶⁵Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 6–7 [27].

⁶⁶Victoria Tauli-Corpuz, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017) 6 [23].

⁶⁷United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994).

⁶⁸Request for an Advisory Opinion submitted by the Commission of Small Island States on Climate Change and International Law (Advisory Opinion) (International Tribunal for the Law of the Sea, Case No 31, 21 May 2024) 64 [173].

⁶⁹Climate Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, AO-32/25, 29 May 2025).

⁷⁰Climate Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, AO-32/25, 29 May 2025) 214 [1].

⁷¹Climate Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, AO-32/25, 29 May 2025) 215–16 [9].

⁷²Climate Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, AO-32/25, 29 May 2025) 215–18.

⁷³Climate Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, AO-32/25, 29 May 2025) 216–18 [14], [20].

⁷⁴Obligations of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025).

⁷⁵While litigation on Indigenous rights and interests in a just transition has not yet developed in Australia, one can expect it will do so given developments globally. For example, in a 2008 American case, the Quechan Tribe of the Fort Yuma Indian Reservation succeeded in challenging a government agency’s approval for a solar farm in an area that contained cultural and biological significance to the Tribe: Quechan Tribe of the Fort Yuma Indian Reservation v United States Department of Interior, 547 F Supp 2d 1033 (D Ariz, 2008).

⁷⁶Department of Climate Change, Energy, the Environment and Water (Cth), The First Nations Clean Energy Strategy 2024–2030 (National Strategy, February 2024) 6. See also, for a review of rights-based climate litigation, Francis Nona (Dhoeybaw Clan), Veronica Matthews (Quandamooka), Nina Lansbury, Kristina Vine and Lillian Ireland (Melukerdee), ‘Indigenous-Led Rights-Based Approaches to Climate Litigation’ (Discussion Paper, Lowitja Institute, June 2025).

⁷⁷Charting a Just Transition for Indigenous Peoples’, International Work Group for Indigenous Affairs (Web Page, 13 December 2024) <https://iwgia.org/en/news/5586-charting-just-transition-indigenous-peoples.html>.

⁷⁸Indigenous Environmental Network, Indigenous Principles of Just Transition (Principles, 2017) <https://www.ienearth.org/wp-content/uploads/2017/10/IENJustTransitionPrinciples.pdf>.

⁷⁹The National Native Title Council has cited predictions ‘that about 25 per cent of Australia’s land mass would need to be blanketed in solar panels and wind turbines to deliver global demand for green hydrogen by 2050 — of which will be on lands held under native title and land rights, that legally covers around 40% of Australia’: ‘Just Laws, Fair Play & First Nations Renewables’, National Native Title Council (Web Page, 8 November 2022) <https://nntc.com.au/media_releases/just-laws-fair-play-first-nations-renewables/>. In addition, a 2022 study that considered 5,097 mining projects involving about 30 minerals needed in the energy transition identified that some 54% of those projects were located on or near Indigenous peoples’ land: Deanna Kemp, John Owen and Kado Muir, ‘54% of Projects Extracting Clean Energy Minerals Overlap with Indigenous Lands, Research Reveals’, The Conversation (online, 2 December 2022) <https://theconversation.com/54-of-projects-extracting-clean-energy-minerals-overlap-with-indigenous-lands-research-reveals-195438>.

⁸⁰‘Just Laws, Fair Play & First Nations Renewables’, National Native Title Council (Web Page, 8 November 2022) <https://nntc.com.au/media_releases/just-laws-fair-play-first-nations-renewables/>.

⁸¹‘Just Laws, Fair Play & First Nations Renewables’, National Native Title Council (Web Page, 8 November 2022) <https://nntc.com.au/media_releases/just-laws-fair-play-first-nations-renewables/>.

⁸²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21.

⁸³Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(d).

⁸⁴Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 3(1)(f) and the definition of “Environment” contained in s 528.

⁸⁵Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193.

⁸⁶Santos NA Barossa Pty Ltd v Tipakalippa [2022] FCAFC 193, [68] (Kenny and Mortimer JJ).

⁸⁷Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124, [74] (Kenny and Mortimer JJ). See also Cooper v National Offshore Petroleum Safety and Environmental Management Authority [2023] FCA 1112, [18] where the Federal Court accepted (for the purposes of an application for an interim injunction) cultural and spiritual harm (through potential impacts of a seismic survey on ‘Aboriginal cultural heritage, particularly spiritually important songlines used for migration, breeding and feeding of culturally significant animal and bird life, including whales, turtles and dugongs’) were ‘interests’ for the purpose of the regulatory obligation to consult: at [74].

⁸⁸In relation to a regulatory scheme that required consultation, in Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124 and, more recently, Cooper v National Offshore Petroleum Safety and Environmental Management Authority (No 2) [2023] FCA 1158, the Federal Court invalidated a regulator’s approval of activities sought to be undertaken by fossil fuel companies pursuant to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth) (and its associated regulations). That legislation provided for a regulatory scheme that involved balancing competing interests. In both cases, the Court held that consultation with Indigenous stakeholders, beyond consulting the local Aboriginal land council, was required.

⁸⁹Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124, [96] (Kenny and Mortimer JJ).

⁹⁰Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124, [95] (Kenny and Mortimer JJ).

⁹¹Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124, [98] (Kenny and Mortimer JJ).

⁹²Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124, [100] (Kenny and Mortimer JJ).

⁹³Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124 [101] (Kenny and Mortimer JJ), quoting McGlade v South West Aboriginal Land & Sea Aboriginal Corporation (No 2) [2019] FCAFC 238, [187] (Allsop CJ, McKerracher and Mortimer JJ).

⁹⁴Santos NA Barossa Pty Ltd v Tipakalippa (2022) 296 FCR 124, [102] (Kenny and Mortimer JJ), quoting Anderson v Western Australia [2007] FCA 1733, [36] (French J).

⁹⁵Department of Climate Change, Energy, the Environment and Water (Cth), The First Nations Clean Energy Strategy 2024–2030 (National Strategy, February 2024) 9.

⁹⁶‘Best Practice Network Guides’, First Nations Clean Energy Network (Web Page) <https://www.firstnationscleanenergy.org.au/network_guides>.

⁹⁷Heidi Norman, Therese Apolonio, Chris Briggs and Fergus Nelson, New South Wales Policy Overview: First Peoples and Clean Energy (Report, November 2023) <https://www.firstnationscleanenergy.org.au/nsw_policy_overview_first_nations_and_clean_energy>.

⁹⁸See, eg, Electricity Infrastructure Investment Act 2020 (NSW) s 29(4)(a).

⁹⁹Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 3 [3.1].

¹⁰⁰Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 2 [2.1].

¹⁰¹Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 3 [3.1].

¹⁰²Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 2 [2.3].

¹⁰³Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 2 [2.4].

¹⁰⁴Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 2–3 [2.5].

¹⁰⁵Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 3 [2.9], citing Graham Barclay Oysters v Ryan [2002] HCA 54.

¹⁰⁶Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 10–11 [7.4].

¹⁰⁷Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 12 [7.11].

¹⁰⁸Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 11 [7.8].

¹⁰⁹Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 12 [7.10].

¹¹⁰Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 12 [7.10].

¹¹¹Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 12 [7.10].

¹¹²Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 4 [3.4].

¹¹³Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 12–13 [8.3].

¹¹⁴Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 13 [8.6].

¹¹⁵Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 14 [8.7].

¹¹⁶Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 14 [8.8].

¹¹⁷Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 15–16 [8.12].

¹¹⁸Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 4 [3.6].

¹¹⁹Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 14–15 [8.10].

¹²⁰Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 15–16 [8.12].

¹²¹Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023 (‘Billy v Australia’) 15–16 [8.12].

¹²²Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 15–16 [8.12].

¹²³Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 15–16 [8.12].

¹²⁴Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 4 [3.5].

¹²⁵Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 16 [8.13].

¹²⁶Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 16 [8.13].

¹²⁷Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 16 [8.14].

¹²⁸Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 16 [8.14].

¹²⁹Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948).

¹³⁰Human Rights Committee, Views: Communication No 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 16–17 [11].

¹³¹Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [1] (Mortimer CJ).

¹³²Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [12] (Mortimer CJ).

¹³³Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [6] (Mortimer CJ).

¹³⁴Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [6] (Mortimer CJ).

¹³⁵Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [188] (Mortimer CJ).

¹³⁶Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [69]–[70] (Mortimer CJ).

¹³⁷Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [71] (Mortimer CJ).

¹³⁸Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [73]–[75] (Mortimer CJ).

¹³⁹Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [178] (Mortimer CJ).

¹⁴⁰Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [231] (Mortimer CJ) with whom O’Bryan J agreed at [388].

¹⁴¹Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [77].

¹⁴²Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [78].

¹⁴³Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [78].

¹⁴⁴Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [79].

¹⁴⁵Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [95] (Mortimer CJ).

¹⁴⁶Walley v Western Australia (1999) 87 FCR 565, [15], quoted in Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [95].

¹⁴⁷Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [82] (Mortimer CJ).

¹⁴⁸Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [89] (Mortimer CJ).

¹⁴⁹Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [89] (Mortimer CJ).

¹⁵⁰Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [97]–[98] (Mortimer CJ).

¹⁵¹Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [215] (Mortimer CJ).

¹⁵²Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [222] (Mortimer CJ).

¹⁵³Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [221] (Mortimer CJ) (emphasis added).

¹⁵⁴Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26, [223] (Mortimer CJ).

¹⁵⁵Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 [226]–[228].

¹⁵⁶Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26 [231] (Mortimer CJ, O’Bryan J agreeing at [422]).

¹⁵⁷Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [94]–[95].

¹⁵⁸Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [94].

¹⁵⁹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [272]–[273].

¹⁶⁰Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [281].

¹⁶¹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [283].

¹⁶²Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [301]–[308].

¹⁶³Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [201]–[203], citing the United Nations Framework Convention on Climate Change, opened for signature 9 May 1998, 1771 UNTS 107 (entered into force 21 March 1994).

¹⁶⁴UN Climate Change, Parties & Observers (Web Page) <https://unfccc.int/parties-observers>.

¹⁶⁵Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [199].

¹⁶⁶Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [199], [217].

¹⁶⁷Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [219]–[221], citing the Kyoto Protocol to the United Nations Framework Convention on Climate Change, opened for signature 11 December 1997, 2303 UNTS 162 (entered into force 16 February 2005).

¹⁶⁸Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [229], citing the Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 79 (entered into force 4 November 2016).

¹⁶⁹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [270].

¹⁷⁰Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [242].

¹⁷¹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [253].

¹⁷²Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [256]–[257].

¹⁷³Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [264]–[267].

¹⁷⁴Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [335].

¹⁷⁵Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [316]–[335]. The treaties discussed included the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol on Substance that Deplete the Ozone Layer, the United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa and the Convention on Biological Diversity.

¹⁷⁶Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [343], citing United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 397 (entered into force 16 November 1994).

¹⁷⁷Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [365].

¹⁷⁸Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [376]–[380].

¹⁷⁹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [381] citing Human Rights Committee, Views: Communication No. 3624/2019), 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’) 14–16 [8.9]–[8.12].

¹⁸⁰Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [382].

¹⁸¹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [393].

¹⁸²Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [405].

¹⁸³Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [429].

¹⁸⁴Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [427].

¹⁸⁵Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [437].

¹⁸⁶Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [441].

¹⁸⁷Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [448].

¹⁸⁸Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [448].

¹⁸⁹Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [449]–[455].

¹⁹⁰Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025) [446].

¹⁹¹Pabai v Commonwealth (No 2) [2025] FCA 796, [4] (Wigney J).

¹⁹²Pabai v Commonwealth (No 2) [2025] FCA 796, [5] (Wigney J).

¹⁹³Pabai v Commonwealth (No 2) [2025] FCA 796, [10] (Wigney J).

¹⁹⁴Pabai v Commonwealth (No 2) [2025] FCA 796, [31] (Wigney J).

¹⁹⁵Pabai v Commonwealth (No 2) [2025] FCA 796, [29] (Wigney J).

¹⁹⁶Pabai v Commonwealth (No 2) [2025] FCA 796, [10], [31] (Wigney J).

¹⁹⁷Pabai v Commonwealth (No 2) [2025] FCA 796, [10], [31] (Wigney J).

¹⁹⁸Pabai v Commonwealth (No 2) [2025] FCA 796, [10], [31] (Wigney J).

¹⁹⁹Pabai v Commonwealth (No 2) [2025] FCA 796, [765] (Wigney J).

²⁰⁰Pabai v Commonwealth (No 2) [2025] FCA 796, [1236] (Wigney J).

²⁰¹Pabai v Commonwealth (No 2) [2025] FCA 796, [165] (Wigney J).

²⁰²Pabai v Commonwealth (No 2) [2025] FCA 796, [855], [865]–[866] (Wigney J).

²⁰³Minister for the Environment v Sharma [2022] FCAFC 35.

²⁰⁴Pabai v Commonwealth (No 2) [2025] FCA 796, [1010]–[1013] (Wigney J).

²⁰⁵Pabai v Commonwealth (No 2) [2025] FCA 796, [1084]–[1097] (Wigney J).

²⁰⁶Pabai v Commonwealth (No 2) [2025] FCA 796, [1120]–[1132] (Wigney J).

²⁰⁷Pabai v Commonwealth (No 2) [2025] FCA 796, [1186] (Wigney J).

²⁰⁸Pabai v Commonwealth (No 2) [2025] FCA 796, [1214] (Wigney J).

²⁰⁹Pabai v Commonwealth (No 2) [2025] FCA 796, [1215] (Wigney J).

²¹⁰Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1841] (FY Kingham P).

²¹¹Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1938] (FY Kingham P).

²¹²Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1839] (FY Kingham P).

²¹³Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1016] (FY Kingham P).

²¹⁴Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1601] (FY Kingham P).

²¹⁵Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1601] (FY Kingham P).

²¹⁶Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21, [1536] (FY Kingham P).

²¹⁷International Covenant on Economic, Social and Cultural Rights, opened for signature 19 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

²¹⁸International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature on 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969).

²¹⁹Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’).

²²⁰Friends of the Earth International, Climate Change: Voices from Communities Affected by Climate Change (Report, November 2007) 6.

²²¹Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

²²²Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’).

5 Climate Change

5.1 Climate Change and Aboriginal and Torres Strait Islander Peoples

5.2 Indigenous-Led Climate Change Litigation

5.2.1 Human Rights36

5.2.2 Environmental Law

5.2.3 Native Title Law

5.2.4 International Law

5.2.5 Tort Law

5.3 International Obligations to Promote, Consider and Protect Indigenous Peoples’ Rights in the Context of Climate Change

5.3.1 Special Rapporteur on the Rights of Indigenous Peoples

5.3.2 International Tribunals Addressing Climate Change

5.4 Just Transitions75

5.4.1 Consultation

5.5 Case Summaries

Human Rights Committee, Views: Communication No 3624/2019, 135th sess, UN Doc CCPR/C/135/D/3624/2019 (18 September 2023) (‘Billy v Australia’)

Keywords

Summary

Facts

Held

Admissibility

Article 6: The Right to Life

Article 17: The Right to Privacy, Family and Home

Article 27: The Right to Practise and Enjoy One’s Culture

Effective Remedies

Gomeroi People v Santos NSW Pty Ltd and Santos NSW (Narrabri Gas) Pty Ltd [2024] FCAFC 26

Keywords

Summary

Facts

Procedural History

Held

Issue 1: Good Faith

Issue 2: Climate Change

Obligation of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, General List No 187, 23 July 2025)

Keywords

Summary

Facts

Held

Question (a): Obligations of States in respect of Climate Change

Customary International Law

Climate Change and Other Environmental Treaties

The Law of the Sea and Related Issues

International Human Rights Law

Question (b): Legal Consequences for Breaching Obligations

Useful Quotes

Pabai v Commonwealth (No 2) [2025] FCA 796

Keywords

Summary

Facts

Held

Waratah Coal Pty Ltd v Youth Verdict Ltd (No 6) [2022] QLC 21

Keywords

Summary

Facts

Held

5.6 Further Reading

5.6.1 Journal Articles

Bedford, Narelle (Yuin woman), Tony McAvoy SC (Wirdi man) and Lindsey Stevenson-Graf, ‘First Nations Peoples, Climate Change, Human Rights and Legal Rights’ (2021) 40(3) University of Queensland Law Journal 371

Bell-James, Justine and Briana Collins, ‘Queensland’s “Human Rights Act”: A New Frontier for Australian Climate Change Litigation?’ (2020) 43(1) University of New South Wales Law Journal 3

Green, Donna and Kirsty Ruddock, ‘Climate Change Impacts in the Torres Strait, Australia’ (2008) 7(8) Indigenous Law Bulletin 2

Lanyi, Gustav, ‘Climate Change and Human Rights: An Unlikely Relationship?’ (2012) 37(4) Alternative Law Journal 269

Longman, Craig and Bridget Flaherty, ‘Indigenous-Led Climate Litigation in Australia’ (2023 Winter) Bar News: Journal of the NSW Bar Association 53

Nona, Francis (Dhoeybaw Clan), ‘Traditional Community-Based Knowledge for Envisioning Climate Change Action for the Torres Strait’ (2024) 48(5) Australian and New Zealand Journal of Public Health 1

Von Doussa, John, Allison Corkery and Renee Chartres, ‘Human Rights and Climate Change’ (2007) 14(12) Australian International Law Journal 161

5.6.2 International Materials

Paris Agreement, opened for signature 22 April 2016, 3156 UNTS 79 (entered into force 4 November 2016) (UN Dossier No. 16)

Tauli-Corpuz, Victoria, Report of the Special Rapporteur on the Rights of Indigenous Peoples, UN Doc A/HRC/36/46 (1 November 2017)

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN Doc A/RES/61/295 (2 October 2007, adopted 13 September 2007)

5.6.3 Other Resources

Department of Climate Change, Energy, the Environment and Water (Cth), The First Nations Clean Energy Strategy 2024–2030 (National Strategy, February 2024)

5.6.4 Reports/Discussion Papers

Indigenous Peoples’ Organisation Australia, Heal Country, Heal Climate: Priorities for Climate and Environment (November 2021)

Nona, Francis (Dhoeybaw Clan), Veronica Matthews (Quandamooka), Nina Lansbury, Kristina Zvine and Lillian Ireland (Melukerdee), ‘Indigenous-Led Rights-Based Approaches to Climate Litigation’ (Discussion Paper, Lowitja Institute, June 2025)

5.2.1 Human Rights³⁶

5.4 Just Transitions⁷⁵