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Green, Donna; Ruddock, Kirsty --- "Climate Change Impacts in the Torres Strait, Australia" [2008] IndigLawB 34; (2008) 7(8) Indigenous Law Bulletin 2

Climate Change Impacts in the Torres Strait, Australia

By Dr Donna Green and Kirsty Ruddock.

Lying between the northernmost tip of mainland Australia and Papua New Guinea, the Torres Strait region comprises of hundreds of islands, 17 of which are permanently inhabited. Most people who live on the Islands have ancestral links going back for centuries, giving them unique knowledge of the local climatic and marine conditions.[1] As a result, they are used to natural variations in the climate and associated impacts, such as semi-regular flooding of low-lying coastal areas each year when high tides combine with northwest winds.[2]

Over recent years, however, personal communications with Torres Strait Islander peoples suggest environmental shifts that cannot be explained by traditional knowledge; many Torres Strait Islander people are concerned about whether these shifts could be linked to climate change.[3]

Anecdotally, flooding on some islands appears to be worsening; cultural sites, including graveyards, are regularly inundated during king tides at the beginning of the year.[4] Accurate data on tide levels are not available due to the lack of long term tide gauge records in the Torres Strait; this makes scientific assessment of recent inundations compared to past events extremely difficult.[5] This lack of local scientific data makes it hard to provide Islander people with much needed climate projections and to assess how the global trend of gradually rising sea levels could affect them at the regional level. Based on the best available science, it is reasonable to conclude that, in the short term (for this generation), the ‘slow onset’ sea level rise on its own is not an immediate threat to the islands. However, cause for greater concern is the combination of even a relatively small rise in sea levels and stronger winds during the high tide. This combination is likely to cause bigger and more dangerous storm tides, increasing the risk of flood damage to the local environment and infrastructure.[6]

Temperature rise is also of concern for Islander peoples. By 2070, average temperatures in this region are projected to increase by between 1 and 5 degrees.[7] Rainfall patterns in this region are also likely to become more extreme, with projected changes of between +17 to -35 per cent (in the wet and dry seasons respectively compared to 1990 levels). This suggests the potential for heavier downpours during the monsoon, as well as more extended dry spells. Rising temperature and changing rainfall patterns are likely to have several indirect impacts especially in combination with other more global climate impacts.

Likely direct and indirect impacts on the Islands due to climate change include:

• Reduced freshwater availability in dry season;

• More expensive fuel, food and other items that need to be barged or flown in;

• Greater risk of disease from flooded rubbish tips and changing mosquito habitats;

• Greater erosion of roads, airstrips and near-shoreline buildings due to more intense storm tides;

• Degradation of significant cultural sites, such as near-shoreline graveyards;

• Change in the location or abundance of plants and animals, such as dugongs, turtles, seagrass beds and mangroves;

• Change in coral growth and coral bleaching caused by increasing ocean temperature and acidity.[8]

In further personal communications, some Island leaders have expressed a strong desire to help their communities adapt to likely climate impacts now, rather than responding after the fact.[9] Due to variations between the Islands, there is no simple adaptation strategy that could be applied to all of them uniformly. This means that Islander people will need more local information from scientific assessments, as well as planning assistance and greater Government resources, to pay for the development and implementation of these adaptation strategies.

Despite the fact that severe storm tides are likely to occur more frequently due to climate change, there has been little action to date from the Federal Government or Queensland Government to protect the land rights of Torres Strait Islander peoples. There are also no laws protecting them from the effects of climate change. However, this does not mean that Islander people cannot use the legal system to force government and business to heed their concerns about climate change.

Torres Strait Islander people have a proud tradition of public interest litigation established by Eddie Mabo and others from the island of Mer. Their successful Native Title claim destroyed the legal myth of terra nullius, meaning ‘nobody's land’, which had been used to deny Indigenous Australians’ rights to land following British colonisation.[10] Legal action brought by Islander peoples could focus on protecting these native land rights or, alternatively, on industries contributing significantly to climate change.

At the State level, the Queensland Environmental Protection Act 1994 includes an offence of causing serious or material environmental harm.[11] It is arguable that coal fired power stations in Queensland, which are emitting greenhouse gases, are causing ‘environmental harm’ and contributing to impacts such as greater storm tides in the Torres Strait. One of the benefits of the Environmental Protection Act 1994 (Qld) is that it does not require a particular power station to be the sole cause of climate change, which is caused by many contributing factors.[12] The benefit of this type of action is that a court could potentially order the power station to pay for the cost of repairs to infrastructure caused by storms or even the costs of relocating homes and people.[13] One of the difficulties in bringing such an action is that the power station might present a number of arguments in response, including that it had all the necessary approvals.[14]

The law of Tort is used to hold people liable for their negligent actions, for instance where a road accident is caused by the local council’s failure to carry out reasonable maintenance works. It is arguable that Australian governments at all levels have a duty of care to protect the land and culture of all Australian citizens, including Torres Strait Islander peoples, by acting to prevent harm to communities from climate change.[15] However, it is worth noting that most negligence claims are brought against a particular person or company with clear responsibility for a problem; climate change is a global problem with multiple causes.

Another possible avenue is the ‘public nuisance’ provisions in the law, which cover illegal acts that endanger the life or property of others.[16] Public nuisance cases brought in the United States to date have not been successful in this regard; however, they have raised significant public awareness and prompted greater government and business engagement with the issue.[17]

All islands in the Torres Straits are the subject of successful claims to Native Title.[18] Damage caused by climate change will impact on those rights, particularly if some land area disappears due to rising sea levels and extreme weather events. Therefore Torres Strait Islander peoples may be able to establish valid claims for compensation where their rights under the Native Title Act 1993 (Cth) have been extinguished as a result of climate change.[19] The Inuit people in North America have brought a much publicised case before the Inter-American Commission of Human Rights about the impact of climate change on their culture.[20] It is possible that international human rights laws may also protect the culture and lives of Torres Strait Islander peoples, allowing for complaints to be made to the Human Rights Committee of the United Nations.

In conclusion, all levels of government and industry clearly need to consider the financial and publicity risks of such legal cases being brought against them. Both must consider a more mutually beneficial approach of reducing greenhouse emissions while also engaging in appropriate adaptation strategies.

Donna Green, Climate Change Research Centre, UNSW and Kirsty Ruddock, Principal Solicitor, Environmental Defender’s Office of NSW.


[1] Ron Day quoted in Kathy Marks, ‘Sinking without a Trace’, The Independent, London. 5 May 2008, 20-21.

[2] Environmental Protection Agency (Queensland) Fact Sheet King Tides in Torres Strait, available at <http://www.epa.qld.gov.au/publications/p01864aa.pdf/2006_King_Tides_in_Torres_Strait.pdf> at 22 March 2006.

[3] Interviews with Island Councillors have expressed this concern to Dr Donna Green including on Warraber, Mer, Saibai, Boigu, Masig and Iama, 2006 and 2008.

[4] Ibid.

[5] ARUP 2006 Natural Disaster Risk Management Study (ARUP:Brisbane)

[6] Kevin Hennessy et al, ‘Australia and New Zealand. Climate Change: Impacts, Adaptation and Vulnerability’ in Contribution of Working Group II to the Fourth Assessment: Report of the Intergovernmental Panel on Climate Change (2007).

[7] Available at <http://www.sharingknowledge.net.au> at.

[8] Dr Donna Green, Climate Change and Health: Impacts on Remote Indigenous Communities in Northern Australia (CSIRO Report 2006); Dr Donna Green, Climate Impacts on the Health of Remote Northern Australian Indigenous Communities (Climate Change Research Centre, UNSW 2008), report commissioned for the Garnaut Climate Change Review, available at <http://www.garnautreview.org.au/CA25734E0016A131/WebObj/03-CIndigenous/$File/03-C%20Indigenous.pdf> .

[9] Interviews with Island Councillors, above, n3.

[10] Mabo v Queensland [1992] HCA 23; (1992) 175 CLR 1.

[11] Environmental Protection Act 1994 (Qld) ss 437, 438.

[12] Ibid s 14(2).

[13] Ibid s 502.

[14] Ibid s 436.

[15] Legislation that may be important to establish that governments owe a duty of care to Torres Strait Islander peoples include: Torres Strait Islander Cultural Heritage Act 2003 (Qld), Aboriginal and Torres Strait Islander Act 2005 (Cth).

[16] R v Clifford [1980] 1 NSWLR 314, 318.

[17] Connecticut v American Electric Power Co Inc, 406 F Supp 2d 265 (SDNY 2005), California v General Motors Corp, WL 2726871, No. C06-05755 MJJ(ND Cal 17 September 2007), F Supp 2d WL272687 (ND Cal 2007).

[18] See National Native Title Tribunal, Torres Strait Native Title Applications and Determination Areas as per the Federal Court (1 July 2008) Non Freehold Land Tenure (2008) <http://www.nntt.gov.au/Publications-And-Research/Maps-and-Spatial-Reports/Documents/Quarterly%20Maps/QLD_Torres_Strait_NTDA_Schedule.pdf> at 11 September 2008.

[19] Native Title Act 1993 (Cth) ss 17, 20, 22G, 22L, 23J, 50, 51, 51A.

[20] Inuit Circumpolar Conference, Petition to the Inter American Commission on Human Rights Seeking Relief from Violations Resulting from Global Warming Caused by Acts and Omissions of the United States (2005) Earthjustice <http://www.earthjustice.org/library/legal_docs/petition-to-the-inter-american-commission-on-human-rights-on-behalf-of-the-inuit-circumpolar-conference.pdf> at 11 September 2008.


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