Human Rights Defender Volume 29 Issue 3 by HumanRightsUNSW

HUMAN RIGHTS DEFENDER Climate Justice: A Case for Atoll Nations

Legislating for Climate Justice in Australia

Climate Justice for the Torres Strait

HILDA C. HEINE

ZALI STEGGALL

YESSIE MOSBY

SPECIAL ISSUE: CLIMATE JUSTICE HUMAN RIGHTS DEFENDER | VOLUME 29: ISSUE 3 – OCTOBER 2020

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MANAGING EDITORS:

AUSTRALIAN HUMAN RIGHTS INSTITUTE Website: www.humanrights.unsw.edu.au Email: humanrights@unsw.edu.au Twitter: @humanrightsUNSW LinkedIn: Australian Human Rights Institute

ASSOCIATE PROFESSOR CAROLINE LENETTE is an artsbased researcher in the School of Social Sciences and Deputy Director at the Australian Human Rights Institute at UNSW Sydney. Caroline’s research explores how storytelling through creative means can influence decision-makers towards meaningful change, and the ethical considerations of collaborative, arts-based research. Caroline is the Editor-in-Chief of the Human Rights Defender. DR CLAIRE HIGGINS is a Senior Research Fellow at the Andrew and Renata Kaldor Centre for International Refugee Law, at UNSW Sydney. She is the author of ‘Asylum by Boat: origins of Australia’s refugee policy’ (NewSouth, 2017) and was a Fulbright Postdoctoral Scholar at Georgetown University, Washington DC, in 2018. DR ANNI GETHIN is a health social scientist with an interest in domestic violence law reform. She coordinates the Brigid Project, a peer support charity for survivors of domestic violence, runs a research consulting business, and lectures in public health and criminology at Western Sydney University. Anni will commence a PhD at Sydney University law school in 2020; her research will be on legal remedies for victims of domestic violence, and perpetrator accountability. ANGELA KINTOMINAS is a Scientia PhD Scholar at the University of New South Wales and Teaching Fellow at UNSW Law. As a feminist legal researcher, Angela’s interests are in the intersections of gender, migration and work. She is a Research Associate with the Migrant Worker Justice Initiative and the Social Policy Research Centre.

ANDY SYMINGTON is a PhD candidate at UNSW Law and an Associate of the Australian Human Rights Institute. He is researching business and human rights, focusing on the extraction of lithium in the high Andean salt flats of South America. In 2018 he was honoured to be the recipient of UNSW’s inaugural Judith Parker Wood Memorial Prize for human rights law. He is an experienced freelance writer and journalist. JOSH GIBSON is a current PhD Candidate and Garth Nettheim Doctoral Teaching Fellow at UNSW. He is a member of the Australian Human Rights Institute and Gilbert + Tobin Centre. Josh’s research interests include human rights litigation, public interest issues and the role of the courts in the Australian human rights praxis. Josh has experience teaching public law, and legal research at UNSW, and human rights law at Macquarie University.

PRODUCTION TEAM Student editor: Georgia Morelli Production manager: Gabrielle Dunlevy Designer: Stephanie Kay, On The Farm - Creative Services

COVER/CONTENTS IMAGE Cover image and page 3: Rebecca Mayo, Habitus 2017 Installation view at Heide, Museum of Modern Art, Melbourne, for CLIMARTE’s ART+CLIMATE=CHANGE 2017 festival. For this installation, Rebecca Mayo reflected on the history of the Heide site to create imagery for a series of cloth sandbags. Printed with dyes made from indigenous and introduced plants gathered locally by the artist, they were stacked to form a wall in the exhibition space, symbolising the crisis point of climate change and highlighting the cumulative impact of everyday and habitual activities. Curator: Lesley Harding, Heide Museum of Modern Art Photo: Matthew Stanton Reproduced with the kind permission of the artist, Heide and CLIMARTE

CLIMARTE: ARTS FOR A SAFE CLIMATE Throughout history the arts have played a major role in recording and reflecting the state of human society and its relationship with the natural world. Indeed, for some historical periods it is only through the arts that we have been able to learn about our past. Sometimes we have also needed the arts to be a catalyst for change, a call to action, a pricking of humanity’s collective conscience. We believe that now is one of those times. This is an invitation to join others who work, live and play in the arts in taking a stand. It is time for us to come together, as representatives of all that is creative, imaginative and hopeful in humanity. It is time for us to engage with our communities and our leaders, our peers and our audiences. It is time to let them know that we will act and that we expect them to act on this clear and present danger to humanity, and to protect the wondrous world we inhabit. It is time to have our voices heard on climate change. For more information please go to WWW.CLIMARTE.ORG

© 2020 Human Rights Defender. The views expressed herein are those of the authors. The Australian Human Rights Institute accepts no liability for any comments or errors of fact. Copyright of articles is reserved by the Human Rights Defender. ISSN 1039-2637 CRICOS Provider Code. 00098G HUMAN RIGHTS DEFENDER | VOLUME 29: ISSUE 3 – OCTOBER 2020

Climate Justice: A case for atoll nations

Connecting climate justice, human rights and burden-sharing: a philosophical perspective

Hilda C. Heine

Laura García-Portela

Three poems

After a Black Summer, a call for drastic action

Ali Cobby Eckermann

Greg Mullins AO, AFSM

Legislating for climate justice in Australia

Can we conceive of the right to a safe environment in the face of climate catastrophe?

Zali Steggall OAM MP

Bruce Lindsay

Climate justice for the Torres Strait

The role of climate change litigation

The Atacama: At the centre of climate injustice

Yessie Mosby, interviewed by Gabrielle Dunlevy

Sophie Marjanac, interviewed by Andy Symington

Ramón Morales Balcázar

How responsible shareholders can change the world, and why they must Brynn O’Brien

A movement of First Nations young people standing up for their land, water and culture Tishiko King

CONTENTS HUMAN RIGHTS DEFENDER VOLUME 29: ISSUE 3 – OCTOBER 2020

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EDITORIAL ANDY SYMINGTON

The pandemic has shaken us, brought tragic consequences across the planet, and led us to question many things that we took to be certainties. Yet when the history of the 21st century is written, COVID-19 will not occupy many of its pages. Global warming and its consequences for the people and environment of the world will, however, be a theme likely to dominate every chapter.

has been particularly important in developing our understanding of it. Going further, the Inter-American Court of Human Rights recognised in 2017 the right to a healthy environment as an autonomous right, thus granting components of the environment — such as forests and rivers — legal rights of their own. These socalled ‘rights of nature’ inform another fast-developing field.

Climate change is an issue of paramount importance for human rights. Numerous rights – the right to life, the right to food and water, the right to health and many more – will be severely impacted and in numerous cases are already badly affected by climate change. Furthermore, with global systems increasingly imperilled by rising nationalism, the additional pressures caused by climate change must in fact be considered an existential threat to the whole international human rights system.

Rights and climate are therefore intimately connected. When we speak of climate justice, we speak of the human rights of all those who populate this planet.

Yet climate justice and human rights are even more closely entwined. There is a growing understanding that protection of the environment is necessary for effective protection of human rights; environmental law and human rights law have been characterised as ‘converging regimes’.1 In the words of International Court of Justice Judge Weeramantry:

‘The protection of the environment is likewise a vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human rights such as the right to health and the right to life itself. It is scarcely necessary to elaborate on this, as damage to the environment can impair and undermine all the human rights spoken of in the Universal Declaration and other human rights instruments.’2 This realisation has led to the rapid evolution of the idea of a human right to a healthy environment. Worldwide, more than 150 states now recognise this right in some form; 3 in South America progressive legislation and jurisprudence

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Yet implicit in the word ‘justice’ is fairness. While climate change is a challenge to be faced together, it is also an injustice of staggering proportions visited on the many by the few: the major economic powers of the globe. However you choose to measure who has contributed most to cause this crisis – states, corporations, consumers – it is clear that the vast majority of emissions come from the Global North. It is equally clear who will disproportionately bear the impact of those emissions: the Global South and the most vulnerable within these countries. We are at a moment when some progress is being made. Climate risk is being discussed in more boardrooms and debated in more parliaments. Slow wheels are beginning to turn. But our response is being outpaced by the warming. There is a window of opportunity but it is beginning to close. We must not only do more but do it more effectively, by bringing pressure to bear on those who can make the biggest difference: governments and corporations. The appealing purity of international human rights – inalienable, universal, indivisible – as laid down in treaties is a great strength. Yet this purity can also become a weakness when those pursuing the cause of human rights fail to interact with a broader spectrum of movements. In adopting the Sustainable Development Goals, the United Nations has accurately identified that what have previously been largely separate silos – human rights, environmental law, global development, climate science, business ethics and others – must recognise that they are bedfellows in

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the broader struggle to ensure a sustainable future. The stakes could not be higher and on this issue human rights must take its place alongside others under the umbrella of sustainability rather than seeking to fight alone. In this issue of Human Rights Defender, there are some stark perspectives presented of the actual and potential impacts of climate change in different parts of the world: islands at risk of disappearance in the Torres Strait, the Pacific and Indian Oceans; drought and flood in the highlands of the Andes; devastating bushfires in Australia and California. These articles and poems pull no punches and highlight the especially severe impact of climate change on Indigenous communities across the globe. This climate crisis is so complex, multifaceted, systemwide that it can overwhelm us to think about it. Its implications for our societies, our cultures, the environment are so potentially catastrophic that we can become incapable of acting or might take inappropriate action, retreating from the news or focusing on smaller things. An animal in serious danger, faced with a powerful urge to flee but unable to do so may engage in what psychologists label displacement activity: a seemingly illogical behaviour that is not an adequate response to the situation at hand yet is caused by it. Yet we need not feel so helpless. Though the scale of achieving climate justice is daunting, we should not imagine there is a single, overarching solution to this complex problem. There is no use seeking the giant lever that Archimedes would use to move the Earth – there isn’t one. But there are many smaller levers that, if used effectively, will achieve important incremental gains. This may not sound sufficient but, just as climate scientists warn of tipping points that will produce irreversible systemic change, there are also political tipping points where gradual progress suddenly becomes an avalanche: a substantial improvement in a short space of time.

So rather than be overwhelmed, it is critical that we all focus on what we individually can do. This must go beyond concentrating on reducing our own personal carbon footprint. That is an excellent idea of course, but it is not a lever that will change anything at policy level. We must look to what we can do to influence governments and companies. We all have power to exert some leverage on this issue; it is just a question of finding our best tool to do it with.

This is the second aim of this issue, which seeks to highlight some of the tools available: grassroots activism, legal and political reform, shareholder action, strategic litigation and more. By supporting and engaging in these activities we can apply substantial pressure to governments and corporations to change their policies and modify their behaviour. It is our best hope. The issue begins with a powerful plea for action from the Pacific. Hilda Heine, former President of the Marshall Islands, sets out the grim consequences for atoll nations should sea levels continue to rise. The situations in Pacific island states are perhaps the most egregious example of climate injustice: the disparity between those who have caused the problem and those who will bear the brunt of it is appalling. The moral dimensions of this disparity are then explored by Laura García Portela, who brings a philosopher’s perspective to examining the question of who may have responsibilities towards mitigation of climate change and what we actually mean by the term climate justice. We then move to Australia and the work of poet Ali Cobby Eckermann, who imparts an almost physical jolt reminding us with devastating, elegant force of bushfire and the continuing injustice visited on Indigenous lives and cultures in our nation. The bushfire theme is continued by Greg Mullins, a global expert on the subject and an important voice in Australian climate advocacy. He clearly outlines the link between climate change and bushfire, describes the horrific impact and presses for the need for a policy shift from Canberra. This policy shift is being passionately pursued from the inside by Zali Steggall, the independent federal MP who is pushing for a binding Australian target on emissions. She describes the bill that she is putting before the nation’s parliament that aims to achieve that. Further legislative changes are contemplated by Bruce Lindsay, who examines the international human rights framework and constitutional law as potential sources of a right to a safe climate. Yessie Mosby next describes the threat posed to his Torres Strait Islands homeland by rising water levels, and the damage already being done. A group of islanders has taken a complaint about Australia’s lack of action on climate issues to the United Nations’ Human Rights Committee. Sophie Marjanac is one of those helping them in this process and speaks eloquently about her work in strategic climate litigation, an important tool that is producing some heartening results across various jurisdictions.

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In a perspective from the other side of the Pacific, Ramón Balcázar introduces us to the scenario for Indigenous communities in the Andean highlands of Chile, where climate change and mining are degrading the environment and livelihoods on which they depend. Mining companies are among those that are a target for the shareholder activism that is helping gain traction on climate issues in boardrooms in various nations across the globe. Brynn O’Brien discusses her work on this in an Australian context and highlights the important role institutional and private investors can play in forcing companies to step up their act on climate issues. Another branch of activism is powerfully advocated for by Tishiko King, who relates how young Indigenous people from across Australia are mobilising and fighting hard to protect their lands from the fossil fuel industry and other devastations. Her words ring loud to bring the issue to a close and her tone – urgent, impassioned, and strong with hope – is a call for us all to act.

ACKNOWLEDGEMENTS I owe heartfelt thanks to all of our wonderful contributors for their generosity and expertise in agreeing to be part of this special issue. It is hugely appreciated. Also very important in the process were the many people who kindly facilitated contact with these and other potential contributors: thank you all, and especially Lisa Viliamu Jameson. Human Rights Defender is a totally collaborative effort and I am very grateful to the editorial board, the designers, and the whole Australian Human Rights Institute team, especially Caroline Lenette for trusting me with this issue, Georgia Morelli for her excellent editing work, and Gabrielle Dunlevy, without whom none of this would happen at all. – Andy Symington

The contributors to this issue highlight the magnitude of the problem, poignantly describe impacts already occurring and, most importantly, offer pathways to effective action. Climate justice and human rights are ideals but in the fight for them we need more realism than idealism. Strategies and leverage must be applied to force governments and corporations to take decisive action. In this year of pandemic, the world mourns those who have died and laments lost freedoms. But for climate justice the time for grieving is not yet upon us. Grief folds us into ourselves when we most need to mobilise to mitigate, to fight against those entrenched interests that jeopardise human rights and lives across the planet. We cannot succumb to despair; we must act, while we still can. There will be a time to write elegies should we fail.

1. Ben Boer and Rosemary Mwanza, ‘The Converging Regimes of Human Rights and Environmental Protection in International Law’ (2020) No 20/09 The University of Sydney Law School Legal Studies Research Paper Series. 2. Gabcíkovo-Nagymaros Project (Hungary/Slovakia) [1997] International Court of Justice ICJ Reports 1997, p7, Separate Opinion of VicePresident Weeramantry, pp.91-92. 3. John H Knox, ‘The Past, Present, and Future of Human Rights and the Environment’ (2018) 53 Wake Forest Law Review 649, 654.

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CLIMATE JUSTICE: A CASE FOR ATOLL NATIONS HILDA C. HEINE Senator Hilda C. Heine was the first Marshallese woman to be chosen as President of the Republic of the Marshall Islands, in 2016, and served in that capacity until January 2020. She was also reelected in 2019 to her third term as Member of Parliament (Nitijela). Senator Heine is a crusader for women’s rights and currently serves as an advisor to the Women United Together Marshall Islands (WUTMI), a non-governmental organizational that she co-founded with other Marshallese women leaders in 1987. WUTMI strengthens the voices of Marshall Islands women by promoting human rights and good governance, the Marshallese culture, and women’s empowerment in the economic and political spaces.

INTRODUCTION

‘Climate change threatens the full and effective enjoyment of a range of human rights, including the right to life, water, and sanitation, food, health, housing, self-determination, development, culture and sovereignty. The detrimental impacts of climate change are disproportionately borne by persons and communities in disadvantaged situations, owing to geography, poverty, gender, age, disability and ethnic background.’1 The Pacific Islands Forum (PIF), comprising 16 Pacific Island states and territories, declared in its 2018 Boe Declaration that climate change is the single greatest threat to the livelihood, security and wellbeing of Pacific people. While the climate crisis impacts all vulnerable people and communities globally, most nations have higher ground that offers the possibility of retreat from rising sea levels, unlike people and communities from exclusively low-lying atoll nations. This article focuses on climate justice for people and communities from the five exclusively low-lying island or atoll nations in the world: the Republic of the Marshall Islands, the Republic of Kiribati, Tuvalu and Tokelau in the Pacific Ocean and the Maldives in the Indian Ocean. These atoll nations are just above sea level, heavily dependent on traditional ecosystems for subsistence, and are on the frontline of the climate crisis. Atoll nations are formed from the remains of extinct seamounts of volcanoes, which have eroded or subsided partially beneath the water. The land that remains above water is typically low-lying and narrow, leaving it extremely vulnerable to sea level rise, cyclones and tsunamis. While there are many countries with atolls, there are only five exclusively made up of these geological features.

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Photo: Aur Atoll, Northern Marshall Islands (H. Heine, 2020)

LIVED EXPERIENCE OF THOSE MOST AFFECTED There is no climate justice for people from atoll nations if they are deprived of the ability to live off their land due to the climate crisis. Food and water sources, culture and traditions and livelihood of marginalised members of the population are threatened. The lived experiences of governments and people of atoll nations is not adequately covered by the media, who frequently confuse projected and observed impacts of climate change and sea level rise, leaving the impression that there is some legitimate debate around the reality of the issue. Meanwhile those of us who live on atoll nations witness, on a daily basis, impacts of climate change on our islands including associated land loss: the erosion of our beautiful beaches, now lined with fallen coconut trees; ancestral graveyards where loved ones are laid to rest are regularly washed away during high tides. Atoll nations have no rivers from which to draw necessary water for daily living. The frequent droughts brought on by climate change have created water security issues resulting from decreased rainfall and salt water intrusion into our water lenses. Agricultural activities such as vegetable gardening and growing of other food staples thus now present new challenges for families as well as for national atoll economies. The health of our oceans, critical to our food security challenge as well as for the economic stability of our respective atoll countries, is in a state of crisis. With limited arable land, livelihoods in atoll countries centre on fish, clams and other shellfish. Increasing ocean salinity

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Photo: Ebeye Graveyard, Ebeye, Kwajalein Atoll, Marshall Islands (Thomson Reuters Foundation/Nicky Milne (2020)

and rising ocean temperature are compromising the health, quality as well as quantity of fish and other marine life. In our communities we have seen the results: fewer and smaller fish stocks, meaning fishermen have to go farther away from the shorelines to catch the next meal for their families.

Given rising sea level and the possibility that some islands will be submerged, the inhabitants of these atoll nations are likely to experience dire living situations and deteriorating quality of life on increasingly uninhabitable land, including the disappearance of their island homes.

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The harsh living conditions exacerbated by extremely limited safe drinking water, and the inability to grow food or harvest fish and other marine life to sustain nutrition requirements for families will make life unbearable. Current experiences with national emergencies brought on by Zika virus, dengue and measles outbreaks are signposts of the health situation that is likely to face atoll residents. The subsistence economy and the reliance on the copra industry will be disrupted leaving no alternative source of income for community residents; similarly, plant materials, the basis of the handicraft industry, would become scarce, leaving this industry unsustainable. Additionally, culture and traditions that have kept generations of islanders thriving are being threatened by climate change. For example, the concept of manjabpopo or preparedness in the Marshall Islands, is an inherent feature of island tradition in food harvesting and preparedness. The two primary seasons of añeneañ and ien rak are associated with breadfruit and pandanus harvesting seasons. Excess breadfruit during ien rak is processed into bwiro and kept underground to sustain families during the off season; similarly, excess pandanus fruit is dried to make jeenkun to supplement the family diet during the añeneañ season. Traditional food plants like breadfruit and pandanus are threatened by saltwater intrusion and therefore they bear fewer fruits leaving no excess fruit for manjabpopo, threatening families with food shortage and hunger. In these atoll communities, climate change impacts have been the hardest on children and women. Children often stay home from school when there are limited food and water supplies; their health is often compromised by common insect-induced illnesses like dengue fever, zika, malaria, measles and other illnesses. Women are generally responsible for cooking, laundry and cleaning of homes as well as bathing of babies and young children. Extreme water situations place the burden on women to ensure there is adequate drinking and bathing water for the family; in some situations it means going the required distance to fetch water to meet family needs. Women as heads of households and in many cases the only breadwinner in families, struggle to meet family needs when plant materials which are the basis of the handicraft industry are ruined due to frequent drought. When there is a lack of food, women are likely to suffer nutritionally as they try to ensure there is adequate food on the table for other family members. A SEAT AT THE TABLE The UN and IPCCC regimes have championed efforts to bring about changes in practice by rich countries and

Majuro (Capital City), Marshall Islands (ChewyLin Photo, 2020)

have attempted to convince them to appreciate the dignity and human rights of everyone affected, regardless of how small and insignificant. The preamble of the Paris Agreement (2015) notes that all States ‘should, when taking action to address climate change, respect, promote and consider their respective obligations on human rights’. Even with this clearly stated goal, human rights are often absent from climate-, environment- and disaster-related discussions and in UN and high-level leaders’ meetings. Further, though climate action has been scaled up globally, there is still a lack of understanding of the human rights and climate change nexus, particularly in the context of atoll nations. The hostile impacts of climate change are global, contemporary, and expected to accelerate, as outlined in the most recent IPCCC Special Reports on Oceans and the Cryosphere (2019) and 1.5 Degrees of Global Warming (2019). Other groups have worked in tandem with and alongside the IPCCC regime including countries represented in the Alliance of Small Island States (AOSIS), the Climate Vulnerable Forum (CVF) and the High Ambition Coalition. However, to date, the rich and powerful countries and corporations continue to control the narrative and, unfortunately, the final policy decisions. The lack of compliance with the Paris Agreement by some of these powerful countries is a statement in itself. Leaders from low-lying atoll nations have appealed to the High Commissioner on Human Rights to consider their special case, particularly the human rights and climate change nexus and the natural and inalienable right for atoll people to stay on their islands. Ongoing discussions and proposal for a Human Rights Council Resolution in this regard is under consideration.

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Meanwhile, most Pacific Rim powers have shown lack of leadership and are doing little to tackle the Pacific region’s key security issue, which is climate change, as reflected in the Pacific Island Forum Boe Declaration signed in Nauru in 2018. The U.S. has withdrawn from the Paris Agreement; Australia is the world’s largest coal exporter and plans to increase coal export; Japan is promoting coal-fired power; and China is the world’s largest coal producer. In 2019 in Fiji, representatives from the five exclusively atoll nations came together, as members of the Coalition of Atoll Nations on Climate Change (CANCC), formed in 2014, to discuss the fact that their homes, cultures and livelihoods are at an increased risk as a result of the global climate crisis and that certain rights (such as the right to national boundaries, right to life, right to water and right to education) have been or are increasingly being compromised as a result of the climate crisis. These atoll nations also came together to identify concrete steps and strategies to collaborate and to identify solutions befitting their extraordinary and exceptional circumstances. CLIMATE JUSTICE FOR ATOLL NATIONS Leaders from these atoll nations have been at the forefront of the international climate crisis fight. They have successfully engaged in international diplomacy and, over time, have clearly articulated their issues, challenges and priorities to the world community. At the same time, they have continued to do what they can to shore up our resilience and our contribution to the global fight including via some of the world’s most aggressive renewable energy plans and emissions reduction efforts. Up to this point, efforts in this climate change fight have centered on mitigation efforts. The case for adaptation has been recently brought to the forefront of discussions and the full understanding of the climate crisis has compelled leaders of atoll nations to come together to find common solutions. The meeting of atoll nations in Fiji identified the need for accelerated adaptation, through national adaptation plans, focusing on some basic agreed principles2 including:

• Recognising the natural and inalienable right for atoll people to stay on their islands • Scaling up resilience as the fundamental focus • Adopting a scientific and knowledge-first approach • Strengthening capacity to adapt • Embracing innovation and traditional knowledge • Recognising the place of security, well-being, identity, self-determination, human rights and survival The suggestion that those impacted by the climate crisis, especially people from atoll nations, can simply pick up and

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migrate to another country highlights the mentality of those responsible for the environmentalism of the poor,3 and the slow violence they have often experienced at the hand of colonialists and corporations. The loss to a people of their land, culture, language and way of life, is not valued by others or considered worthy of decent efforts. The world, and especially those polluting countries, needs to recognise the natural and inalienable rights of atoll people to stay on their islands. The fight is for the very survival of these people and their cultures. This issue is at the core of what climate justice means for them. Meanwhile, as fallback plans, leaders and governments from some of the atoll nations have purchased lands in foreign countries for their people in the event the climate crisis made their islands uninhabitable. Others are looking at options to build up their islands in order to ensure that communities remain viable within their national sovereign boundaries. For the most part, the call for migration has been resisted by the majority of inhabitants from atoll nations. At best, it is an option that is available for those who may want to pursue that path. LEAVING NO ONE BEHIND The climate crisis is real and is a man-made phenomenon. It is created by the privileged, white global north. It can be unmade as long as rich and industrialised countries acknowledge their role in the crisis and stop building their economies on the backs of fossil fuels. They must recognise that those who contribute the least to the greenhouse gas emissions are the most disadvantaged and vulnerable across the world. Their rights to live peaceful existence on their lands, to practice their culture and lead meaningful livelihoods is seriously undermined and threatened by the effects of climate change to which they contributed little to nothing. According to Mary Robinson, ‘putting people at the heart of the solution’ is what climate justice is about. The people of atoll nations, among the most vulnerable to the climate crisis are among the ‘people’ that must be at the heart of identified strategies and solutions. After all they will be the first ones to go if the crisis is not addressed.

1. UN OHCHR (2020). “Climate change and the existential threat to human rights for citizens of Low-lying Atoll Nations.” 2. Pacific Community, ‘Atoll nations unite against the exceptional and existential threat caused by climate change,’ (15 May 2019) https://www.spc.int/updates/blog/2019/05/atoll-nations-uniteagainst-the-exceptional-and-existential-threat-caused-by 3. Nixon, R. “Slow Violence and Environmentalism of the Poor. (2011) Denote actions toward impoverished communities, often assailed by coercion and bribery and directed against those people lacking resources who are often primary casualties of slow violence.

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CONNECTING CLIMATE JUSTICE, HUMAN RIGHTS AND BURDEN-SHARING: A PHILOSOPHICAL PERSPECTIVE LAURA GARCÍA-PORTELA Laura García-Portela is a PhD Candidate at the Department of Philosophy and Doctoral Program in Climate Change at the University of Graz, Austria. Her research interests cover moral and political philosophy, with a focus on climate justice issues. She is currently writing her dissertation on a normative foundation for climate policies of Loss and Damage. Her work has appeared in collective works on green democracy, intergenerational justice and global studies, as well as in international and interdisciplinary peer-reviewed journals, such as Ethics, Policy and the Environment, Journal of Agricultural and Environmental Ethics and Teorema.

Global heating is leading to increased temperatures, rising sealevels, and more frequent extreme weather events. These planetary changes threaten the livelihood of people across the world and raise many human rights and climate justice concerns. This article connects human rights with climate justice from the perspective of philosophy. Firstly, I define dangerous climate change invoking the notion of human rights. Secondly, I argue that climate justice concerns the protection against human rights impacts caused by climate change through mitigation and adaptation measures, as well as the compensation for the impact. Thirdly, I argue that climate justice also requires a fair burden-sharing scheme and propose three alternative principles of justice.

DEFINING DANGEROUS CLIMATE CHANGE AND THE FOUNDATIONAL ROLE OF HUMAN RIGHTS There is agreement within the scientific community that the aim of climate policies should be to avoid dangerous climate change. But what counts as dangerous climate change? The answer to this cannot be found in science. Instead we need to turn to ethics to consider what kinds of values we hold, what we want to protect and the weight we attach to competing interests. The notion of dangerous climate change is inherently linked to the concept of human rights. That is, climate change becomes dangerous once it threatens or infringes people’s ability to enjoy their human rights.1 Therefore, if our aim is to avoid dangerous climate change we need to keep human rights to the fore. What are human rights, and what do they mean in the context of climate change? Human rights are moral thresholds.2 They are fundamental interests to ensure a minimally good life, or, in other words, a life with dignity. Human rights can therefore be needs3,

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or in terms of ensuring the development of capabilities to achieve human flourishing4. Nussbaum’s list of capabilities includes bodily health, affiliation, and control over one’s environment, both politically and materially. How we define the minimum level for each of these fundamental interests has consequences for our definition of dangerous climate change and the scope of our climate change-related duties. CLIMATE JUSTICE RESPONSES: MITIGATION, ADAPTATION AND COMPENSATION A human rights approach to climate justice involves duties of mitigation, adaptation and compensation. First, our generation has duties to avoid dangerous levels of climate change for the next generation through employing strategies of mitigation. Mitigation involves reducing emissions and removing emissions from the atmosphere (e.g. through reforestation or some forms of geoengineering) in order to keep the global temperate at a safe level. Second, climate justice also requires adaptation measures to prevent human rights infringements to both current and future generations. Adaptation duties involve adjusting natural and social environments to protect against adverse effects of climate change. For example, if mitigation efforts have not been sufficient to avoid sea-level rise, adaptation duties would require building seawalls to protect those populations living in low-lying areas. Third, if neither mitigation nor adaptation efforts have been sufficient to prevent or respond to climate change, climate justice requires compensation for those groups whose human rights have been impacted. Taking the example above, if an area cannot be protected from flooding, its population might need to migrate somewhere else. That might require not just assisting them to relocate, but also compensating them for the impact on their human rights. THE BURDEN-SHARING DEBATE AND THE PRINCIPLES OF CLIMATE JUSTICE These duties of mitigation, adaptation and compensation involve certain burdens. The third climate justice task is determining how to distribute those burdens (including individuals, states and companies). In order to be fair, this distribution should be according to principles of

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justice. The so-called ‘burden-sharing debate’ discusses various climate justice principles, each of which invokes different ethical considerations. The Polluter Pays Principle affirms that each agent should bear burdens proportional to their emissions record. The more an agent has emitted, the more they should contribute to mitigating, adapting to, or compensating for, climate changerelated harm. However, there are some objections to this Principle. Some argue that many of the emissions associated with climate change were produced without fault, and, thus, those who caused them should not be considered responsible 5. For instance, before the publication of the First IPCC Report in 1990, there was no general scientific agreement about the adverse effects of climate change. Therefore, the relevant agents are blameless for those emissions. Moreover, transiting to a low-carbon society could not have been achieved as soon as we became aware of the adverse effects of climate change, due to dependencies and lock-in mechanisms created by the reliance on fossil fuels infrastructure. Thus, the 1990 cut-off date could be extended even further, rendering the Polluter Pays Principle almost inapplicable. These objections have been contested by some who have challenged the underlying idea of (moral) responsibility in the climate justice debate.6 Many others have turned to other morally relevant considerations for the distribution of burdens. They believe that more important than how much an agent has emitted is whether and to what degree they have benefited from emissionsgenerating activities7. This leads to the Beneficiary Pays Principle, which holds that each agent should bear the burdens associated with the benefits they obtained from climate changeinducing activities. However, calculating how much an agent has benefited from climate change is a difficult task, mainly because both direct and indirect benefits must be considered. Others stick to a purely forward-looking principle known as the Ability to Pay Principle 8. This principle affirms that each agent should bear burdens according to their capacity to pay. Determining capacity to pay can be assessed according to different distributive principles. However, the Ability to Pay Principle has the

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disadvantage of being disconnected from the historical dimension of climate change and, arguably, its application would not provide the necessary incentives to abandon fossil fuels as the main energy and development sources. It is probable that developing the right incentive structure to avoid future climate change, as well as applying justice to the historical roots of climate change requires giving weight to historically focused principles such as Polluter Pays or Beneficiary Pays. However, despite their philosophical intricacy, all these principles are likely to converge into an agreement that highly industrialized countries of the Global North should bear most of the burdens of climate justice, whether because they have caused the problem, because they have benefited the most, or because they have the highest capacity to deal with the problem9.

CONCLUSION Calls for climate justice are increasing across the world and especially among those who will suffer the worst consequences of climate change. I have argued that climate justice is intrinsically connected with the protection against and compensation for human rights impacts. Climate justice action requires mitigating, adapting to and compensating for the effects of climate change on people’s ability to enjoy their human rights. Moreover, it requires a fair distribution of efforts to combat climate change. Here, I have presented three alternatives for a fair distribution of burdens and called attention to the fact that they all point to the same duty-bearers: people in the Global North.

1. Claire Heyward, ‘Situating and Abandoning Geoengineering: A Typology of Five Responses to Dangerous Climate Change’ (2013) 46(1) PS: Political Science & Politics 23. 2. Simon Caney, ‘Climate change, human rights and moral thresholds’ in Stephen Humphreys (ed), Human Rights and Climate Change (Cambridge University Press, 2009). 3. Len Doyal and Ian Gough, A Theory of Human Need (Guilford, 1991); Lukas Meyer and Thomas Pölzer, ‘Basic Needs and Sufficiency: The Foundations of Intergenerational Justice (forthcoming), Oxford Handbook of Intergenerational Ethics. 4. Martha C Nussbaum, Frontiers of Justice: Disability, Nationality, Species Membership (Harvard University Press, 2007). 5. Simon Caney, ‘Environmental degradation, reparations, and the moral significance of history’ (2006) 37(3) Journal of Social Philosophy 464; Lukas Meyer and Dominic Roser, ‘Climate justice and historical emissions’ (2010) 13(1) Critical Review of International Social and Political Philosophy 229. 6. Alexa Zellentin, ‘Compensation for Historical Emissions and Excusable Ignorance: Compensation for Historical Emissions and Excusable Ignorance’ (2015) 32(3) Journal of Applied Philosophy 258; Daniel Butt, ‘Excusable ignorance, hypothetical wrongdoing, and historical emissions: does it matter who knew what when?’ in Lukas Meyer and Pranay Sanklecha, (eds) Climate Change and Historical Emissions (Cambridge University Press, 2017); Laura García-Portela, ‘Moral Responsibility for Loss and Damage: A response to the excusable ignorance objection’ (2020) 39(1) Teorema 7. 7. Christian Baatz, ‘Responsibility for the Past? Some Thoughts on Compensating Those Vulnerable to Climate Change in Developing Countries,’ (2013) 16(1) Ethics, Policy & Environment 94. Lukas Meyer, ‘Why Historical Emissions Should Count,’ (2013) 13 Chicago Journal of International Law 597. 8. Darrel Moellendorf, The Moral Challenge of Dangerous Climate Change: Values, Poverty, and Policy (Cambridge University Press, 2014). 9. Henry Shue, ‘Historical Responsibility, Harm Prohibition, and Preservataion Requirement: Core Practical Convergence on Climate Change,’ (2015) 2(1) Moral Philosophy and Politics.

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THREE POEMS

(KURU WARU) BUSHFIRES EYES There are bushfires burning in my eyes I am burning down the modern world I am burning your invasion of me I am burning the image of you You are all burning on my pyre

ALI COBBY ECKERMANN Ali Cobby Eckermann’s first collection little bit long time was written in the desert and launched her literary career in 2009. In 2013 Ali toured Ireland as Australian Poetry Ambassador and won the Kenneth Slessor Prize for Poetry and Book Of The Year (NSW) for Ruby Moonlight, a massacre verse novel. In 2014 Ali was the inaugural recipient of the Tungkunungka Pintyanthi Fellowship at Adelaide Writers Week, and the first Aboriginal Australian writer to attend the International Writing Program at University of Iowa. In 2017 Ali received a Windham Campbell Award for Poetry from Yale University USA and was awarded a Literature Fellowship by the Australian Council for the Arts in 2018. Ali was granted a Civitella Ranieri Fellowship in Italy in 2019 and is currently an Adjunct Professor at RMIT Melbourne.

I am burning your prejudice of me I am burning your paternalism I am burning your policies I am burning your excuses I am burning your greed I am burning your lack of understanding I am burning your refusal to acknowledge that I am burning your insults and beratings I am burning your reaction to this poem There are bushfires burning in my eyes My Mother the land is crying My Mother is crying with beauty My Mother is crying with sadness I am crying for all my mothers We are crying for our land Our tears are embers unable to quell There has been no lull in you There will be no lull in me I am burning down the modern world There are bushfires burning in my eyes

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THERE IS A VOID

BLACK DEATHS IN CUSTODY

there is a void inside of me, a cavern

Despite the cost a new jail has been built

filled with water stilled by time

It seems the incarceration rates are trebling

when the solstice arrives drops of sunlight

I only came here in the role

seep in, mostly the void is dark

Of a Deaths In Custody inspector

forgotten even in the whispers of the aged

All the cells are stark and spotless

the void is inside me, the imprint

Blank screens watch from the corner

of my children whom I did not raise

The offices have the highest technology

who were whisked away, the pain

The faces of the staff all look the same

of their birth dulled by the pain of their removal

When I walk down this wing and peer

(and) my body exhausted does not respond

Into this filthy room the door slams behind me

to the anger inside my mouth

The feeling in my heart is changing

an anger that rises from maternity

From a proud strength to fear

centuries of childbirth adhered to nature

All the stories I have ever heard

I am the experiment, the other

Stand silent in the space beside me â&#x20AC;&#x201C;

trait of sensibility, the unnatural

A coil of rope is being pushed

I have become domestic, domesticated

Under the door of this cell

and you ride me like a horse tugging my head from side to side the reins in your hands bleed the words in my mouth to silence my eyes fill with fear, careful to watch my every step so as not to jolt you forcing you to punish me as I have not been punished enough the void is inside me my retreat even from myself I have retreated from the natural world dead inside, dead in a bottle of booze liquid that soothes, running over scarred ridges inside my mouth, scarred by your hands, your responsibility of me and my responsibility to self waits

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AFTER A BLACK SUMMER, A CALL FOR DRASTIC ACTION GREG MULLINS AO, AFSM Greg Mullins is an internationally recognised expert in responding to major bushfires and natural disasters and developed a keen interest in the linkages between climate change and extreme weather events after observing escalating frequency and impacts over nearly five decades. He coordinated responses to many major natural disasters over more than 2 decades and retired as Commissioner of Fire & Rescue NSW in January 2017. He worked with bushfire fighting authorities in the USA, Canada, France and Spain during a Churchill Fellowship in 1995, and represented Australian emergency services at many international forums. Upon retirement he rejoined the volunteer bushfire brigade where he had started in 1972, and fought fires through NSW during Black Summer.

The 2019/2020 bushfire season in Australia demonstrated what scientists have been trying to warn about for decades – that a warming climate will lead to increased risks from bushfires and other natural disasters. From early 2019 former fire and emergency services chiefs representing every Australian fire service tried to warn the Federal Government that climate change has pushed Australia into a new, dangerous era of bushfire and natural disaster risk, and that a horror bushfire season was unfolding. The warnings of scientists and experts were dismissed and even ridiculed by the Federal Government, such as when the Deputy Prime Minister, Michael McCormack, referred to the linkage between bushfires and climate change as ‘the ravings of some pure, enlightened, and woke inner-city greenies’. He also dismissed the former fire and emergency chiefs as ‘time wasters’.1

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A recap of the 2019/2020 bushfire season:

• 34 people killed by fires • At least 417 people killed by smoke • Up to 3 billion native animals killed and habitats destroyed • About 3,100 homes destroyed nationally • In NSW alone: 2,448 homes destroyed – 11 times greater than the previous worst fire season when 225 homes were destroyed (2013). 268 “facilities” destroyed (schools, shops, halls etc), and 5,499 other buildings • Hundreds of homes and businesses seriously damaged • Many people left homeless and destitute.

The year 2019 was the hottest, driest ever recorded in Australia. Current fire chiefs from across Australia warned repeatedly that the weather conditions driving the fires were unprecedented. The fires resulted in the largest bushfire property losses ever suffered in Queensland and NSW, and the destruction of hundreds of homes in Victoria and South Australia. More than 12 million hectares of land were scorched; about 21% of eastern broadleaf forest, against an average annual toll of around 2-3%.

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Places that had never burned before because they had been too damp, burned fiercely. Ancient Gondwana rainforest burned in places like the Hyland Nature Reserve near Dorrigo, NSW, and sub-tropical rainforest burned in Queensland. Rainforest fires also occurred in 2018, when vast tracts of ancient World Heritage forest burned in Tasmania. These fires followed a bout of intense fires in 2016 in other areas that had also never before experienced them. Nobody knows if these previously virtually fire-free landscapes will ever recover, because they are not adapted to intense fire. The fires and weather conditions were unprecedented, but certainly not unexpected. The warnings had been loud, clear, and detailed, but unfortunately not listened to by many people in positions of political power who had the ability to make changes. Former fire chiefs wrote to the Government and warned that there were insufficient large firefighting aircraft, that processes to engage the Defence Force to assist emergency services were convoluted and ad hoc, and that medium- to long-term measures such as more stringent building standards, revisited town planning standards, and better resourcing for emergency services were urgently needed. The Prime Minister dismissed the requests, refused to meet and initially publicly ridiculed suggestions of any link between climate change and bushfires. With the climate continually warming, natural disaster risks are escalating because of the increased frequency and intensity of extreme weather events. The warming atmosphere and oceans have resulted in a sustained reduction in East Coast rainfall, an average temperature increase of 1.4 degrees since the early 1900s and changes in patterns of fire risk. The Bureau of Meteorology has found that the annual accumulated fire danger index has increased in nearly all locations across eastern Australia, in some cases very significantly; that fire seasons now start much earlier and last longer; and that the previously rare category of Catastrophic fire danger, introduced after the 2009 Black Saturday fire storm, is becoming more common. It has also found that while the risk of tropical cyclones is likely to reduce overall, when they occur, they are more likely to be at the top end of the scale in terms of intensity and damage potential.

Some of the resulting natural disasters include the 2001/02 NSW fires, 2003 Canberra fire disaster, 2002/2003 alpine fires, 2009 Black Saturday disaster, 2011 Queensland floods and cyclone, 2013 NSW and Tasmanian fires, 2015 Pinery fire in South Australia, 2016 Tasmanian fires, 2018 Tasmanian, NSW and Queensland fires, and then our worst bushfire disaster in 2019/2020. This is a global issue. California is arguably just ahead of us on the climate change/bushfire curve. In 2017, about 10,000 homes were destroyed by fires. In 2018, records were repeatedly broken for the largest fires in Californian history, then the city of Paradise was devoured by flames: 20,000 buildings destroyed and nearly 100 people killed. At the time of writing, California, as well as Oregon, Colorado, and Washington state, are burning again, with unprecedented high temperatures, unprecedented dry lightning storms sparking hundreds of fires, and unprecedented fire conditions including the first-ever fire-induced tornado warning. Although still early in the season, California surpassed, for the first time in recorded history, more than 1 million hectares burned by mid-September 2020. Expressing frustration with the US President’s climate denial, California Governor Gavin Newson stated that the fires obviously underline a ‘a damn climate emergency’. Places that have never had a significant wildfire problem, like England, Greenland and Siberia, now regularly experience large fires. Countries with fire history, such as Portugal, France, Spain, Greece and Canada are suffering increasing losses. In Australia, our fire seasons are now longer, with many more days of ‘Very High’ fire danger and above. Fire seasons now overlap between states and territories, restricting the ability to share firefighting resources. Our longer fire seasons now also overlap significantly with lengthening northern hemisphere fire seasons, limiting access to the large firefighting aircraft that we lease each year. As we saw during our Black Summer, the formerly rare phenomenon of fire-induced lightning storms, usually without rain, is now commonplace because of increasing atmospheric instability, coupled with a 20-year drying trend that makes bushland fuels easier to ignite. This leads to more intense fires that feed off dry fuels, ever-increasing temperatures, low humidity and strong winds, making fire-generated storms almost commonplace.

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Ignitions due to ‘dry’ lightning are also on the increase, particularly in Tasmania. The NSW Bushfire Inquiry found that most of the very large fires during Black Summer were caused by remote lightning strikes from storms that produced little or no rain. Our efforts and capacity to combat such fires are paltry in comparison to the power of Mother Nature. Massive fires with perimeters of thousands of kilometres can only be controlled by rain, lots of it, so we were at the mercy of the elements until flooding rains arrived in February 2020. Our ability to conduct hazard reduction burns has been significantly reduced due to dangerous weather and shrinking windows of opportunity. At the Australian Bushfire and Climate Summit in 2020, Cassandra Goldie, CEO of the Australian Council of Social Services (ACOSS), said that natural disasters disproportionately impact those least able to absorb the blow, such as people living in poverty, Indigenous communities, older people, and single parents. They tend to be hit hardest and earliest, have the least capacity and knowledge of how to obtain help, and take longer to recover. Governments, accustomed to relatively rare natural disasters that in the past have destroyed hundreds rather than thousands of homes, have only rudimentary structures in place to manage recovery following disasters. Arrangements are in most cases ad hoc, and put in place on the run, further delaying help from reaching those most in need. This has been recognised in preliminary findings of the Royal Commission into Natural Disaster Arrangements, which suggests that more permanent and comprehensive structures for disaster recovery are now needed. Up until the mid-1990s, serious bushfire seasons that destroyed lives, livelihoods, homes and businesses had occurred around once a decade. Now, bad fire seasons are occurring about once every five or six years, and losses are escalating. Current structures in place for coordinating national response and recovery efforts are based on experience from a different era of lower risk and arguably are no longer fit for purpose.

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Such problems are some of the increasingly serious and expensive consequences of out-ofcontrol human-caused climate change. Our governments need to lead us out of COVID-19 with an economic pivot to renewables and low emission technologies, including new industries such as green hydrogen because we owe it to future generations to try to stabilise, then reduce global warming. The trajectory otherwise will be increasingly dire. The only way we can have any hope of managing climate risk is by starting to drive down emissions with a sense of national urgency, and to release the apparent stranglehold that the fossil fuel industry seems to exert on political decision making.

The impacts of climate change are now directly observable, and never more-so than during the Black Summer of 2019/2020. Who would ever have thought that Australia, a rich, well-resourced nation, would be trying to deal with the aftermath of a bushfire disaster leaving thousands homeless, dozens of families grieving the loss of loved ones, and tens of thousands of others dealing with physical and mental health issues caused by the relentless stress of living with fire risk and smoke? We must learn from the COVID-19 response, listen to scientists and experts, and take bold, farreaching decisions for the benefit of future generations. Unlike COVID-19, climate change is not a short- to medium-term problem. It is a rapidly worsening, relentless global disaster requiring drastic action right now.

1. ABC News, ‘Inner-city raving lunatics: Michael McCormark on the Greens and climate change’ (2019) https://www.abc.net.au/news/2019-11-11/ inner-city-raving-lunatics:-michael-mccormackon-greens/11694044?nw= 0

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LEGISLATING FOR CLIMATE JUSTICE IN AUSTRALIA ZALI STEGGALL OAM MP Zali Steggall OAM is the Independent Federal Member for the seat of Warringah in Sydney’s North. She is also Australia’s most successful alpine skier, winning a bronze medal in slalom at the 1998 Winter Olympics in Nagano, and a World Championship gold medal in 1999. From 2008, Zali was a practising Barrister, specialising in commercial law, sports law and family law. In 2019, Zali contested the Federal Parliamentary Seat of Warringah as an Independent Candidate. The seat had been held for nearly 25 years by former Prime Minister The Hon. Tony Abbott. Zali won the seat with a two-candidate preferred vote of 57.24%.

Last summer the world awoke to images of blood red skies in Australia. Fires raged across the Australian bush and toxic smoke blanketed cities for months. In its wake the bushfires left billions of animals wiped out; several thousand homes levelled; over 400 people dead1; 4000 people admitted to hospital from smoke inhalation; and many more displaced. The bushfires spared very little.

Climate change was thrust from the media sidelines into mainstream political discourse. No longer was it an issue for a few or for the future; it affected everyone, now. The warnings had been there but repeatedly ignored. In 2019 Australia experienced its warmest summer on record. This was following on from 2018 and 2017 having been Australia’s third and fourth-hottest years ever. According to the Bureau of Meteorology, climate change has been causing the fire season to grow longer and more intense. The Federal Government and the Prime Minister continue to minimise the risk of climate change and fail to properly address the problem. They deny what is so obvious to others such as climate scientists, farmers, and the United Nations - that the need for clear legislation to tackle climate change is evident. The Climate Change (National Framework for Adaptation and Mitigation) Bill2 2020 proposes a long-term plan for Australia to get to net-zero emissions by 2050, to implement sensible, five-year emission reduction budgets to get there, and to introduce accountability to identify and adapt to future risks like worsening fire seasons. The Bill is modelled on the United Kingdom’s Climate Change Act, passed in 2008, that has been effective.3

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In March, a week before I was about to introduce the Bill, we were rocked by another crisis – COVID-19. If we had not already seen the indiscriminate nature of the bushfires, the reality of a pandemic shook every part of society, including the suspension of the normal proceedings of Parliament. Face masks that were for smoke now warded off the virus. Since then, life as we know it has been put on hold and there will no doubt be further changes in the months to come. As we begin to build our economic recovery, there are valuable lessons learnt from both the bushfires and the pandemic that must be applied. Both events have been ‘vulnerability multipliers’. Simply, they have a greater impact on the more vulnerable in our community: those with illnesses, the young and the elderly, and especially those in poorer communities. You can see this in the many rural and regional communities – who were already doing it tough – now devastated by last summer’s climate-accelerated bushfires and likely to be most affected by extreme weather events, adverse health impacts and increased economic risk.

We are at a point in time where the focus on emissions reduction is not only of environmental benefit, but economic advantage. We have had a dozen reports outlining employment opportunities in such fields as renewables, energy efficiency, and hydrogen. One report from Beyond Zero Emissions shows that we can put 355,000 people per year back into work – many in disadvantaged communities. But in order to drive positive outcomes, we will need a strong policy framework and fiscal support. The Climate Change Bill is the perfect complement to a clean recovery underpinned by climate justice. Though it does not prescribe a specific technological mechanism, the Bill sets key guiding principles, including generational and regional equity, and good fiscal management. The Climate Change Bill will be introduced in November 2020 as a Private Member’s Bill. Passed, it would set a net-zero target by 2050 in law. Net-zero does not mean no emissions. It means we need to balance the carbon we put into the atmosphere with what we draw down through tree planting and soils - just like balancing a budget. This is not new. Every Australian state and territory has a net-zero target in either law or policy. Importantly, the target can be ramped up if circumstances change. The Bill also establishes a process to get to net zero by requiring the setting of 5-yearly emissions budgets. Taking steps to future-proof the Australian economy will benefit us now and into the future. At the Commonwealth level, many MPs have said that they support climate action. Now is the time to show it. The Government must act. Further delay is not acceptable. It has a duty to deliver policy that provides equity in all its forms: racial, regional, and generational. Unfortunately, no matter what we do, certain impacts from warming are likely locked in, as we saw last summer. As a matter of priority, we must have clear, reliable risk assessment and adaptation planning. This will develop greater resilience and strive to mitigate the worst by getting to net-zero by 2050. Then we will have true climate justice.

1. Includes deaths caused by bushfire smoke. See https://www.theguardian.com/australia-news/2020/may/26/australiassummer-bushfire-smoke-killed-445-and-put-thousands-in-hospital-inquiry-hears#:~:text=A%20study%20overlaying%20 hospital%20admissions,admissions%20to%20hospitals%20for%20asthma 2. See www.zalisteggall.com.au/zali_steggall_mp_relaunches_climate_change_bill. The full text of the bill can be seen at https://climateactnow.com.au 3. https://www.legislation.gov.uk/ukpga/2008/27/contents

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CAN WE CONCEIVE OF THE RIGHT TO A SAFE ENVIRONMENT IN THE FACE OF CLIMATE CATASTROPHE? BRUCE LINDSAY Bruce Lindsay is a Senior Lawyer and Acting Director Advocacy and Research at Environmental Justice Australia.

We are in a time of hard truths. The biggest of these is climate change, or rather ‘dangerous anthropogenic interference with the climate system’1 so profound it is not merely on the verge of dangerous but catastrophic. This truth is supported by scientific consensus and increasingly by direct experience.

The spectacular failure of Australian domestic law and policy to respond meaningfully, if at all, to the climate crisis should not in my view deter us from agitating for change. Governments must direct national effort fully towards conditions of ecological safety, in order to walk back from the precipice to the extent that we still can.

In what ways should we have a right to feel safe from such a crisis? Moreover, do we have a right to objective conditions of safety and health, and can we call on the state to strive for those conditions? In Australia we confront a further hard truth, namely that government and society are notoriously averse to norms of rights, and certainly human rights, as a form of claim on the state. The tacit bargain of Australian government and ‘people’ is a democratic one, with a certain protective function, but without lofty ambitions.

Innovations in law can contribute to this national effort. I will mention two key areas.

Climate change leaves us on a precipice beyond which objective or material conditions are not safe, nor stable, nor reversible. We know now that environmental conditions, on the global scale, can be conceived as comprising a ‘safe operating space for humanity’.2 Humanity is on the verge of passing thresholds, or ‘tipping points’, of climate safety.

THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK Human rights considerations should be integral to obligations to tackle climate change. For entire societies, climate change is an ‘existential’ crisis. For example, some states are likely to disappear entirely, millions displaced, lives already shortened. The Paris Agreement acknowledges the human rights context; 3 Australia has signed on to that Agreement.4 The UN Human Rights Council, through the work of a Special Rapporteur, sets out the nexus between climate change and human rights. UN Member States have obligations to protect the enjoyment of human rights from environmental injury.5 These obligations extend to climate change.6 Australia is required to observe these obligations.7 Obligations comprising rights to a safe and healthy environment are connected to fundamental rights, such as rights to life, health, and culture. There are

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enhanced duties owed to vulnerable populations, such as women, children and indigenous peoples.8 Framework principles 9 on human rights and the environment establish three forms of rights: procedural rights such as access to information and to justice, substantive rights include protections from State actions that jeopardise the right to a safe climate, and special rights attaching to proactive actions in favour of vulnerable populations. Private actors as well as States have obligations in respect of human rights to a safe and healthy environment. Environmental rights are recognised by over 150 countries and more than 100 include these rights in their Constitutions. Australia does not. In the international sphere, a right to a safe climate has been articulated, based on State and private obligations to address dangerous climate change: ‘A safe climate is a vital element of the right to a healthy environment and is absolutely essential to human life and well-being.’10 A safe climate has the status of specific, if urgent and compelling, application of established human rights norms and human rights law. This expression of human rights law as encompassing the right to a safe climate enables climate advocacy, clarifies imperatives for State response to the crisis, and focuses human rights institutions on improving climate policy.11 It can be delivered through execution of accepted climate programs.12 We can say there is a right to a safe climate at the global level. The science indicates it must be linked to the ‘safe operating space for humanity’13 – that is, planetary limits and boundaries. We can thank the UN for expressing clearly, forcefully and succinctly that the basic democratic premises on which our society purports to function extend to urgent and rapid action on climate change.

By January this year the litigation proceeded to the point of judgment on whether the case met the constitutional criteria for it to be heard in the courts. It was not successful. By a 2-1 majority, it failed. Climate action, the majority held, was a matter for executive and legislative government – precisely those domains in which action had previously failed and continues to fail. The majority ‘reluctantly’16 held the matter was beyond the competence of the courts to decide. However, what is extraordinary about this litigation is, firstly, the Court of Appeal found entirely for the plaintiffs on the facts, i.e. that climate change is real, dangerous and imperils the present and future of those bringing the action. Secondly, the majority was patently sympathetic to the legal claims even if they found the complaint stretched the functions of the judiciary too far. Thirdly, the dissenting judge set out one of those judgments that may well ring in the ears of lawyers and policymakers for years to come. Opening her dissent, Judge Josephine Staton, resounds:

… the [Federal] government accepts as fact that the United States has reached a tipping point calling out for concerted response – yet presses ahead toward calamity… Seeking to quash this suit, the government bluntly insists it has the absolute and unreviewable power to destroy the Nation… Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s wilful destruction.17

A CONSTITUTIONAL FRAMEWORK The second nascent source of law tying the outcome of a ‘safe’ climate to legal conditions may be constitutional. What has opened up this question is litigation in the USA. In January 2020, 19 young US citizens and NGOs supporting them received judgement on whether they could put that Government on trial for failing to act on climate change. The plaintiffs in the Juliana litigation14 argue that Federal laws and policies supporting fossil fuel industries and failure to act on climate change imperil basic constitutional protection of their rights and freedoms. As their complaint set out: ‘Fundamental to our scheme of ordered liberty… is the implied right to a stable climate system and an atmosphere and oceans that are free from dangerous levels of anthropogenic CO2.’15

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The extraordinary moment of Judge Staton’s opinion is that a superior US Federal Court accepts the scientific evidence put before it that climate change poses an existential threat to the Nation itself. She puts this on the footing that the US polity cannot countenance its own demise or destruction, a principle that goes back at least to the Civil War and which Lincoln used to wage war on the Confederacy. Where she departs from her colleagues is in this problem of accepted physical threat being susceptible of judicial solution. She accepts that it is. They do not. The procedural fight of the Juliana litigation is not quite over yet. Regardless of its fate, what this opinion does is set out a foundational question which even resonates in

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Australia: if the biophysical crises posed by climate change are so acute as to challenge functioning constitutional government, how can it be that government, through its judicial arm, cannot compel a course of action directed toward ‘safety’ as a matter of law? The relief sought by the Juliana plaintiffs is merely a ‘plan’ charting that course, not the guarantee of climate safety. RESONANCE IN THE AUSTRALIAN CONSTITUTIONAL FRAMEWORK? The Australian constitutional context is, plainly, quite different. No such question has been agitated here. We do not have the same rights protections. The notion of a basic constitutional protection of national institutions and national government is given expression in the so-called ‘nationhood power’ implied by the intersection of executive and legislative powers of the Commonwealth.18 This is framed as a power, not an obligation. The question seems logically to arise, however, in Australia, as in the US: if the climate crisis is, on the scientific evidence, existential in nature (or even likely to seriously imperil the functioning of national government), at what point can we insist, as a matter of law, that government exercise powers in order to physically safeguard the nation? In the Juliana case the plaintiffs seek only, by way of legal remedies, that national government does something in an organised way, not finally resolve the climate crisis. It is a suit for climate action, not resolution. It might be said to be an action setting out the right to hope for a safe climate. Perhaps this is an ambition Australians should be looking to also.

1. UN Framework Convention on Climate Change, Art 2. 2. Rockstrom et al ‘A safe operating space for humanity’ (2009) 461 Nature 472; see also Stockholm Resilience Centre ‘It’s all about the safe operating space’, https://www. stockholmresilience.org/research/research-news/2019-0725-its-all-about-the-safe-operating-space.html for a comprehensive overview of the concept and its use. 3. Paris Agreement to the UN Framework Convention on Climate Change, Dec 12 2015, TIAS No. 16-1104. 4. Paris Agreement [2016] ATS 24. 5. In respect of application to Australia, see Environment Defenders Office Legal Analysis: The Right to a Healthy Environment in Australia (2020), https://www.edo.org. au/2020/01/09/right-to-healthy-environment-in-australia/ 6. Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, UN General Assembly, A/HRC/31/52, 1 February 2016 (‘Special Rapporteur Report 2016’), [33]; Report of the Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, submitted in accordance with Human Rights Council Resolution 37/8, UN General Assembly, A/74/161, 15 July 2019 (‘Special Rapporteur Report 2019)’), [62]. 7. See Environment Defenders Office, Environmental Justice Australia and EarthJustice Joint Stakeholder Submissions on the UN Periodic Review of Australia (Submission to the Human Rights Council, 2020), https://www.edo.org.au/ publication/jointsubmission-un-periodic-review-of-australia/ 8. Special Rapporteur Report 2016, [50]-[84]. 9. UN Special Rapporteur on Human Rights and Environment Framework Principles on Human Rights and the Environment (2018), https://www.ohchr.org/Documents/Issues/ Environment/SREnvironment/ FrameworkPrinciplesUserFriendlyVersion.pdf 10. Special Rapporteur Report 2019, [96]. 11. Special Rapporteur Report 2016, [85]-[89]. 12. Special Rapporteur Report 2019, [76]-[94]. 13. See note 2 above. 14. See generally ‘Juliana v US: Youth Climate Lawsuit’, https:// www.ourchildrenstrust.org/juliana-v-us 15. First Amended Complaint for Declarative and Injunctive Relief; Case Number: 6:15-cv-0517-TC: https://static1. squarespace.com/ static/571d109b04426270152febe0/t/57a35ac5ebbd1ac038 47eece/1470323398409/ YouthAmendedComplaintAgainstUS.pdf, [304]. 16. Juliana v United States, No. 18-3602, United States Court of Appeal for the Ninth District, 17 January 2020, 32. 17. Juliana v United States, No. 18-3602, United States Court of Appeal for the Ninth District, 17 January 2020. 18. See generally Anne Twomey ‘Pushing the boundaries of executive power – Pape, the prerogative and nationhood powers’ [2010] 34 Monash University Law Review 313.

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CLIMATE JUSTICE FOR THE TORRES STRAIT INTERVIEW BY GABRIELLE DUNLEVY

YESSIE MOSBY Yessie Mosby is a traditional owner of Masig Island who moved back there 10 years ago after living in the western islands of the Torres Strait. He was shocked by the changes he found on the island and has continued to witness in the decade since.

I’m 38 years old. I’ve lived all my life on the western Torres Strait but came back here often for family gatherings. I moved back to Masig Island 10 years ago and have lived here ever since. I’ve got a lovely wife and seven kids, I’m so blessed. What I’ve seen change since my childhood is the impact of erosion, the impact on the food source, and on our drinking water. Most of our wells have turned brackish. Sweet potatoes are not how they used to be, which makes living in the community a bit harder, especially when you come from a big family. We rely now on the local shop to buy potatoes and taro, because the soil isn’t producing the bulk of our foods. When the rain season is expected to come in a particular month, it doesn’t come, and our crop dies. It’s had a giant effect. When we hose our garden using the well water, it contaminates the garden soil because it’s so brackish. We are relying heavily on rainwater tanks now. Our town water is desal (desalinated) saltwater turned into fresh water, and our bodies are still trying to get used to it. We still get very ill from it. Climate change affects our health, it affects us physically and mentally. How has climate change affected people’s livelihoods? You have to work twice as hard as before to survive. People now are relying more heavily now on payments from the government to buy food. This affects people with a higher cost of living. Since the price of oil has started to rise, the freight price has started to rise as well. To give you an example of prices at the local shop, a loaf of frozen bread costs A$5.

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We mainly fish, but we have to go out farther now to collect fish. It’s dangerous for the younger ones who don’t have much experience. Our main income here comes from crayfish, so regardless of the weather people still go out. When they get a good catch, it’s still not enough and they have to split the money between the divers. You returned to live on Masig Island 10 years ago. What were the biggest changes you noticed? I was shocked. I’ve lived in the Torres Strait my whole life. I’ve never lived on mainland Australia. I get ‘land sick’, I have to come back and smell the saltwater. Where I grew up, it’s a hilly island, and I’ve seen the impact of erosion and climate change there, but coming back home to a coral cay island, it was worse. I lost two of my grandfathers’ land boundary trees. When I was young, I stood under one of the trees eating almonds, it was a bush almond tree. When I came back it was gone, just a stump. I witnessed my other grandfathers’ land boundary tree collapse into the water, that happened before my eyes. I’ve seen my two great-grand grandmother’s remains get brought up by inundation. I’ve seen one of their skulls get smashed by driftwood. It’s something not good to witness, especially if you have ties to that loved one. It’s something that really affects us mentally. Being a cultural person, growing up with very strong beliefs, we have very strict cultural protocols and taboos that I don’t want to offend. This is something totally new to us, and a very scary thing to see throughout the last 10 years.

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I’ll be an elder at that time and it will be my children’s time when they have to make a big move. If that was to happen, I would probably tell my kids to go and I would remain. I have a big duty to my late father. Their responsibility was to look after the Country and ancestral remains. This bad thing happened to my grandparents on my shift. I didn’t play my cards right in looking after my grandparent’s remains. I put blame on myself when it’s not me to be blamed, but the world, with the burning of fossil fuels.

Storm surge destroying infrastructure on Masig Island (March 2019). Photo: Sophie Marjanac

On the video call, Yessie shows me the area where his great-great grandfather’s two wives are buried. The coconut grove where the graves are located was once inland but is now just steps from the beach. There is driftwood showing where the inundation reached. He also points out a well that was once inland but is now just metres from the shore. Yessie explains that an application to fund an expert to help relocate the graves to a safer area was not successful. The federal government has announced A$25 million for Torres Strait infrastructure, but Yessie believes it’s unlikely to be enough for the whole region. It’s very hard because nobody knows us. Australia doesn’t know about Masig. Trying to get the word out there is tough as hell. We had a handful of Australians who turned and looked, but it was like a cloud passing over us, or over them. Nobody can hear our cry, nobody can see what we’re facing. Prime Minister Scott Morrison declined an invitation to visit the Torres Strait. Yessie hopes that taking the case to the UN will put the story on the world stage. The Australian government is not listening to us, we want to go higher. We don’t want to deal with a middleman anymore. We are taxpayers but our cry is not being heard, not being dealt with, so we made this move to go higher and Sophie (Sophie Marjanac from ClientEarth) agreed to help us. We hope the outcome will be to recognise our suffering, slow down the burning of fossil fuels and emissions. We want the world to realise that … our lives matter, like everybody else’s. The main thing is we really don’t want to be refugees in our own country.

The majority of Torres Strait Islanders, 20,000 to 40,000, are now living on the mainland and there’s only 10,000 of us living back on Country. We are our families’ strongest link back to Country. If we move, there will be no link back to Country. We will be like helium balloons with strings tied to nothing. We will have our belief, but it will turn into folklore. We cannot attach onto another Indigenous place and call it home. If they move us down to mainland Australia, it’s not our land, it’s not our Country, God didn’t place us there. We don’t want to stay on a land where for the rest of our entire lives we have to give acknowledgement back to traditional owners and leave us with no recognition as one of Australia’s two Indigenous peoples. We try not to think about that. But mentally it does affect us here on Masig, and I know for a fact it affects the whole Torres Strait. Yessie is planning to sail down the east coast of Australia from Masig Island to Sydney in traditional voyaging canoes to bring awareness to the issue of climate change. If the government won’t come to us, we will come down to see them. We won’t be jumping in planes to make this voyage, we will be jumping in our ancient canoes and travelling down. I feel that once social media gets hold of that move, the whole world will be tuned into us. It could be a way to get the world’s attention. What will be your message for the world? We really want the world to know there’s people here called Masig people who exist. We are Torres Strait Islanders, we come from a tribe called Kulkalgal and a clan called Gudumadh and I come from a family called Mosby and I have seven kids. There’s human beings living in this part of the continent who are getting caught. I really want the world to know we are suffering; we really need help. Thanks to Sophie Marjanac and Lisa Viliamu Jameson for facilitating this interview.

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THE ROLE OF CLIMATE CHANGE LITIGATION INTERVIEW WITH SOPHIE MARJANAC, CLIMATE ACCOUNTABILITY LEAD, CLIENTEARTH. INTERVIEWED BY ANDY SYMINGTON. SOPHIE MARJANAC Sophie joined ClientEarth1 in November 2015 and is now the Climate Accountability Lead working on a range of climate change litigation and advocacy strategies using the power of the law to align states and companies with the goals of the Paris Agreement. She is the lead lawyer in the Torres Strait Climate Justice Case2. Prior to joining ClientEarth, Sophie was a senior lawyer at Clayton Utz, where she specialised in environmental and planning law. She has also previously worked in native title law in the Torres Strait. Sophie was awarded a Bachelor of Laws with first class honours and a Bachelor of International Studies with distinction from the University of New South Wales in 2009.

What do you feel is the role of litigation in achieving climate justice?

From international and regional down to local law, what is it that you first look at?

Litigation is certainly one lever, one piece of the puzzle. I don’t think it is necessarily the silver bullet; real change comes from social movements more broadly, however litigation can buttress changes in social norms and expectations. When injustice is recognised, the law can provide accountability and harden those social norms through time. We need all types of strategies and tools to achieve the goals of environmental and climate justice and litigation is certainly being tried at the moment, with a huge wave of cases being brought around the world. Obviously, there has been landmark litigation in the past that has brought incredible change in fields such as civil rights – look at the Mabo decision – and we hope that there will be similar cases that bring watershed moments for environmental justice.

Climate change is such a multi-scalar problem; part of the reason that it has been so difficult to tackle is that it goes from the macro down to the micro. International diplomacy and the United Nations Framework Convention on Climate Change (UNFCCC) process really matter to climate change, but so do drainage on floodplains and building standards, for example. I would say that the breadth and diversity and range of climate change litigation is definitely one of its distinguishing features, and our work is very wide-ranging and spans multiple jurisdictions, topics and themes. At ClientEarth we believe that we need to be very broad in our thinking because of the nature of the environmental problems we are tackling.

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So you are looking at targeting both governments and companies? Yes, absolutely. For example we are working with 350 Australia3 to bring a case against the Australian government on behalf of eight Torres Strait Islander claimants. It’s the first4 climate change case against Australia to be argued on human rights grounds under the International Covenant on Civil and Political Rights. We are also working on the UK’s continuing compliance with the Climate Change Act, we’re looking at local planning 5 law in the UK and what duties local authorities have to integrate climate considerations into the local planning framework. And then we also bring claims against companies, for example we recently 6 complained under an OECD mechanism about a BP advertising campaign, which it later dropped. We use corporate and financial law and leverage the financial risks that climate change poses to large companies to encourage them to take action; most recently7 we stopped a planned coal-fired power plant in Poland by taking action as a shareholder. Do you find ever that government or companies are relieved to have litigation brought because maybe they can’t get traction on an issue politically or within the company? Absolutely. Often in government the issue might not be the people in the department responsible for making the change, the issue might be their inability to get the funding. We have had the experience in the UK of being told that we act as a counterpoint to the objections of developers, who are often particularly influential in local government. Public interest environmental lawyers and litigation can play a role beyond simply success; we can open political space for conversation and for action within branches of government. There are so many different drivers of climate change. Do you find that litigation is more effective in certain areas than others? Often the biggest and most helpful levers are actually not climate-related laws, they are laws regulating other emissions. For example, a European directive to improve air quality in cities and protect human health has underpinned much of our clean air litigation across Europe. For instance, our cases in the UK and Germany resulted in courts ordering authorities to introduce drastic measures to reduce pollution from traffic in

cities. Our litigation and campaigns have been really influential in bringing pollution and air quality to the attention of the public. The combination of looming restrictions on diesel vehicles, increased awareness about air quality and the Dieselgate scandal are driving diesel out of the EU car market and accelerating the transition to zero emissions mobility. So that has been a really interesting example of how strategic litigation has played into an overall systemic shift in the automotive sector. Also the regulation of emissions to air is really forcing the closure of a lot of European coal plants across the continent because the cost of retrofit often exceeds the income from the very old facilities. So there is an interaction between overall climate benefit and the transition to a low-carbon economy and the regulation of air quality. Which is good, because that’s a win-win. Do you feel that it is often more effective using this kind of more specific legislation than, say, the right to health under international human rights law? We try to do both. We regularly invoke human rights arguments before the Court of Justice of the EU. The right to life and the protection of human health are central in our clean air cases under EU air quality laws. But we also aim at enforcing the right to healthy environment independently. For instance, ClientEarth was granted leave to file an amicus curiae before the European Court of Human Rights in a case originating from the south of Italy and concerning severe environmental pollution. Our submission supports the application of environmental principles (such as the precautionary principle) in human rights cases, in order to ensure stronger and earlier protection. Enforcing air quality laws is an important part of not only improving air quality for human health but also encouraging lower carbon alternatives and technologies. What do you see as the role of the UN in climate litigation? I think that the UN treaty bodies are crucial in interpreting and enunciating the obligations of states under the human rights treaties, which are living instruments that must evolve through time to meet modern challenges, which include these real threats to human rights that are arising from pollution and from climate change.

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Do you think governments pay enough attention to those interpretations? Well, Australia obviously doesn’t! The problem is that Australia’s constitutional framework is fundamentally bereft of individual protections. Generally, other governments do tend to pay more attention to what the UN treaty bodies say. Overall, there are many current threats to not just the concept of human rights but the enforcement through the UN system, which has taken quite a lot of criticism in the last few years. Currently, civil rights are being infringed in many states, globally it is a tough time for human rights but I hope that current social movements and the pandemic will help people to see the value of human rights and be reminded of why these instruments were created in the first place.

Frankly, it was the PR firms for the oil companies in the noughties who drove the personal responsibility narrative, and they did a great job of silencing people and making them think that the problems are too big to be solved, which is not true. Covid has shown that things that seemed impossible are just actually choices in how we organise our societies. Having said that, individual responsibility can also drive change; if you look at plastics, much of the growing pressure on the industry to change has come from the bottom up, from consumers telling companies to do better. But it certainly shouldn’t be used as an excuse or as a reason to discount the fundamental need for systemic change which, at the end of the day, I think will be more powerful in tackling these global issues.

The fundamental tension between the political and judicial branches of power is always an issue that you need to overcome but I think more and more we are seeing courts starting to accept that there are minimum standards that should be applied and that environmental harm does impact human rights. As the environmental crises worsen we will see these direct impacts even more starkly. I think that is the way that the law develops, by not interfering in the political process but by saying that the state does have to meet certain core obligations to protect its citizens. There’s a lot said about individual responsibility for climate change - what people can do in their own lives. Do you think that this can sometimes pull focus from government and corporate accountability? Absolutely it can. Unfortunately I think so much damage has been done to the environmental movement because people feel that they can’t speak up because they are still consuming or travelling for example. We all are. That doesn’t mean that you can’t speak up and say that a better system is possible.

1. 2. 3. 4.

https://www.clientearth.org/why-clientearth/ https://ourislandsourhome.com.au/ https://ourislandsourhome.com.au/ https://www.openglobalrights.org/matters-of-national-survivalclimate-change-beyond-courts/

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5. https://www.clientearth.org/climate-lawyers-put-local-authoritieson-notice/ 6. https://www.clientearth.org/the-whole-truth/ 7. https://www.clientearth.org/major-court-win-shows-power-ofcorporate-law-to-fight-climate-change/

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THE ATACAMA: AT THE CENTRE OF CLIMATE INJUSTICE RAMÓN MORALES BALCÁZAR Ramón Morales Balcázar is the founder of the local NGO Tantí Foundation (Seed, in the Kunza language) in San Pedro de Atacama, Chile, and a member of the Plurinational Observatory of Andean Salt Flats. He is also an active member of Red por los Ríos Libres (Free-Flowing Rivers Network) and SCAC (Civil Society for Climate Action). He is a PhD student in Rural Development at the Metropolitan Autonomous University UAM-Xochimilco in Mexico. His thesis project is aimed at understanding the territorial impacts resulting from eco-extractivism in the context of global crisis. Translated by Andy Symington.

Despite producing only 0.25% of global greenhouse gas emissions,1 Chile is one of the countries most vulnerable to climate change, possessing 7 of the 9 risk factors established by the United Nations Framework Convention on Climate Change. The community of San Pedro de Atacama, in the north of the country and origin of about 25% of the world’s lithium, fulfils four of these: arid or semi-arid areas; prone to natural disasters; areas liable to drought and desertification; and areas with mountainous ecosystems. At the foot of the Andes, the community has a population of nearly 11,000, of whom more than half identify as indigenous. The Atacameño or Lickanantay people are a First Nation of agropastoral tradition; though they descend from the first human settlements in the region, they were only recognised by the state of Chile in 1993. The United Nations Permanent Forum on Indigenous Issues has identified that indigenous peoples are ‘among the first to face the direct consequences of climate change, due to their dependence upon, and close relationship, with the environment and its

resources. Climate change exacerbates the difficulties already faced by indigenous communities including political and economic marginalization, loss of land and resources, human rights violations, discrimination and unemployment.’2 According to the country’s national human rights institute INDH, Chile currently has at least 117 socio-environmental conflicts, a third of which are in indigenous territory. In San Pedro de Atacama, indigenous communities and inhabitants of the Salar de Atacama basin face the effects of climate change in conditions of vulnerability exacerbated by the absence of the state and the socio-environmental impacts of expanding mining operations. Climate change is being felt with ever-greater intensity across the sizeable Atacama Desert, where high temperatures and extreme aridity combine, paradoxically, with violent summer rains to cause deaths, flooding and waterlogging, erosion, washingaway of mining waste and huge economic losses. These torrential rains descend from the Andes destroying vegetation, vehicles, homes and infrastructure, leaving people isolated and without basic services for weeks and even months. They force the closure of tourist sites administered by local indigenous communities and destroy the irrigation canals and vegetable gardens that give life to the

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oasis towns and mountain villages here.3 Events caused by climate change thus leave thousands of people out of work while the decrease in cultivable soil, drinkable water and wild vegetation – the basics needed for agriculture and livestock – means the gradual loss of food sovereignty which has already been weakened by drought and monopolization of land by the tourism and mining industries. These events were catastrophic in San Pedro and other northern Chilean locales in 2012,4 2015,5 20176 and 20197 and the late and insufficient response from the government, both in dealing with the flooding and in working to prevent future disasters, demonstrates a lack of concern for the lives of communities who find themselves exposed to increasingly difficult and unjust living conditions. The Chilean Observatory of Climate Change Law and the Civil Society for Action (SCAC) collective point out the lack of a human rights focus and the absence of indigenous consultation both in the Climate Change Framework bill (PLMCC) and in the development of Chile’s Nationally Determined Contributions (NDC). CRISIS UPON CRISIS…THE SAME CRISIS? Both climate change and the emergence of pandemics are related to the different forms of extractivism – the exploitation of natural resources for raw material export without added value – that exist on the planet. They both have the greatest impact on the same groups: indigenous communities, peasant farmers, marginal city dwellers, Afro-descendant people and migrants. Though the systemic crisis is the result of the devastating action not of humanity but rather of a powerful minority, its effects will be paid for by the large majority. Only a year after the last flood, the arrival of COVID-19 in San Pedro de Atacama paralysed tourism, leaving the town in deep economic crisis and its inhabitants in a state of desperation that resulted in a mass exodus caused by the precarity of work in the tourism sector and the high cost of living in the area. Faced with this, local organizations called on the government and mining companies to temporarily cease their operations to avoid contagion brought in by workers. Nevertheless, mining continued across the region with the blessing of the government, and the

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number of cases skyrocketed. As in the rest of the world,8 the crisis has also been used by mining companies in the region to launder their reputation. THE SPECTRE OF DROUGHT In Chile, the industrial and mining sectors consume nearly 40% of the energy matrix that is responsible for 77.4% of the country’s greenhouse gas emissions.9 It is extractivist mining – that causes large socioenvironmental impacts – which is currently expanding as a direct effect of the demand for lithium and copper by the electric vehicle market. More than emissions, though, inhabitants of San Pedro de Atacama are concerned about the water insecurity caused by excessive use of water by the mining sector, aggravating the effects of more than a decade of drought. This crisis is manifesting itself as a hydric imbalance that is causing the drying-up of rivers and aquifers. This is affecting the lakes and wetlands around the edges of the salt flat and in the mountains high above, ecosystems that are home to highly vulnerable endemic species and many of which are protected by law. The wetlands and oases of the Atacama Basin also regulate the desert temperature and capture CO2; they are living weapons against climate change that are disappearing under the impotent gaze of communities and environmentalists. The Chilean state, despite authorising the use of water and brine by mining companies, does not have hydrogeological data that would enable us to determine the real impact of lithium and copper mining on the ecosystem.10 MOVING FORWARDS ON ENVIRONMENTAL JUSTICE Between the climate crisis, the pandemic and the expansion of mining, the Salar de Atacama continues to be yet another example of environmental injustice. The eco-extractivist consensus that seeks to create a zero-emissions version of unsustainable ways of life has created a race to grab resources,11 a race that will produce socioenvironmental impacts and geopolitical consequences for Global South nations that we are yet to understand. In this context, climate justice must be the starting point for a process of collective reflection on the environmental debt of wealthy nations and the right of communities in the Global

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South to exist… and to say no. Recognising the urgency of limiting global greenhouse gas emissions but also the environmental and social impacts of an extractivism-driven energy transition, new ideas are emerging12 that seek a new deal for societies which, as well as the climate emergency, are facing the challenge of a post-pandemic economic revival that threatens to deepen the socioenvironmental conflicts of the Global South.

For Chile and the Salar de Atacama, the new constitutional process which has been driven by mass social upheaval in the country will be an historic moment and an opportunity to design a constitution that is plurinational, post-extractivist, unpatriarchal and agro-ecological, protecting life and equality.

1. Government of Chile, ‘Chile’s Nationally Determined Contribution Update 2020’ https://www4.unfccc.int/sites/ ndcstaging/PublishedDocuments/Chile%20First/Chile%27s_NDC_2020_english.pdf 2. UN Department of Economic and Social Affairs, ‘Indigenous peoples: climate change’ https://www.un.org/development/ desa/indigenouspeoples/climate-change.html 3. For the aftermath of a flood in Toconao, see https://www.youtube.com/watch?time_continue=26&v=AhlNTNAqGM&feature=emb_logo 4. Everton Fox, ‘Chile’s Atacama Desert hit by flooding’ (February 19, 2012) https://www.aljazeera.com/ weather/2012/02/201221694657519493.html 5. Tom di Liberto, ‘Flooding in Chile’s Atacama Desert after years’ worth of rain in one day’ (April 16, 2015) https://www. climate.gov/news-features/event-tracker/flooding-chile%E2%80%99s-atacama-desert-after-years%E2%80%99-worthrain-one-day 6. Richard Davies, ‘Chile – Deaths and Evacuations After Floods in Atacama and Coquimbo’ (May 15, 2017) http://floodlist. com/america/chile-floods-atacama-coquimbo-may-2017 7. Daniela Guzman, ‘World’s Driest Desert Floods as Extreme Weather Hits Chile’ (February 8, 2019) https://www. bloomberg.com/news/articles/2019-02-08/world-s-driest-desert-floods-as-extreme-weather-conditions-mount 8. ‘Voices from the Ground: How the Global Mining Industry is Profiting from the COVID-19 Pandemic 2020’ https:// miningwatch.ca/sites/default/files/covid-19_and_mining_snapshot_report_-_web_version.pdf 9. Informe del Inventario Nacional de Gases de Efecto Invernadero de Chile 2017 Ministerio del Medio Ambiente https:// mma.gob.cl/wp-content/uploads/2017/12/2016_iin_cl.pdf 10. Dave Sherwood, ‘(Spanish) Environmental Judge asks for hydrological study of “fragile” Atacama Salt Flat‘ (July 27, 2020) https://lta.reuters.com/articulo/mineria-chile-litio-idLTAKCN24S1BP-OUSLT 11. Patrick Wintour, ’Five Eyes alliance could expand in scope to counteract China’ (29 July 2020) https://www.theguardian. com/uk-news/2020/jul/29/five-eyes-alliance-could-expand-in-scope-to-counteract-china 12. E.g. Green New Deal(s): A Resource List for Political Ecologists – July 16, 2020 https://undisciplinedenvironments. org/2020/07/16/green-new-deals-a-resource-list-for-political-ecologists/

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HOW RESPONSIBLE SHAREHOLDERS CAN CHANGE THE WORLD, AND WHY THEY MUST BRYNN O’BRIEN Brynn O’Brien, Executive Director, Australasian Centre for Corporate Responsibility, has 15 years’ experience as a lawyer and strategist and is the Executive Director of the Australasian Centre for Corporate Responsibility (ACCR), which promotes better performance of Australian companies on climate, energy transition, human rights and corporate governance issues. As an ‘activist shareholder’ organisation, ACCR engages companies, including through filing shareholder resolutions. In the last 12 months, ACCR has filed resolutions to mining, oil and gas, and utilities giants.

Just a few short months ago, Australia endured the devastating ‘Black Summer’. More than 18 million hectares of land —particularly in New South Wales, Victoria and the ACT — burned across the country. Wildlife experts consider koalas to now be in severe risk of extinction; the Great Barrier Reef is very likely in a state of terminal decline. Scientific1 and expert2 reports have been warning for years of what is now immediately observable: we are losing the fight to limit global warming to safe or even manageable levels. Data published by the World Meteorological Organization confirms that in 2019 we arrived at 407.8 parts per million of carbon dioxide in the Earth’s atmosphere. The ‘safe’ limit is 350 ppm, a threshold we crossed in the late 1980s. The continued build-up of carbon dioxide due to human activity, primarily the extraction and burning of fossil fuels for energy, is driving global temperatures up, with harmful impacts worldwide. We are already over one degree of warming, and our current trajectory places us well above three degrees by the end of the century. The human consequences of unmitigated heating are visceral and they are here. There is no delicate way of saying this: climate change will render some places uninhabitable. When food cannot be grown because it is either much wetter or much drier than before; where human settlements are subject to increased flooding or fire activity; where water becomes less available: people will need to move. The movement of people due to climate change is predicted to be on a scale we have never seen

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before. Millions of people on the move at the same time is a recipe for human rights disaster. Research by the Carbon Disclosure Project has shown that roughly 70% of the world’s greenhouse gas emissions since 1988 can be linked to just 100 fossil fuels producers.3 Many of these companies are traded on global stock markets. Some of them, like BHP and Rio Tinto, are household names in Australia. Most are part-owned in some way by institutional investors that label themselves ‘responsible’ or ‘ethical,’ including the $3 trillion Australian superannuation sector. Superannuation capital is invested over the term of a working life, so it is not difficult to make the argument that addressing climate change is in the interests of members. Investors have a range of tools available to them, from informal, private measures like writing to companies and meeting with boards, through to filing shareholder resolutions, voting, nominating and removing directors, and using legal strategies. Used assertively, strategically and in combination, investors have some powerful levers at their disposal. But to date, engagement by Australian investment institutions with the companies in their portfolios has been sorely lacking in terms of achieving tangible emissions reductions. The Australian-listed oil and gas sector, for example, is still planning significant exploration and expansion despite project delays due to Covid-related demand shocks, and investors have not challenged these plans directly and in public. In September, upon releasing

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an updated company climate statement to much investor acclaim, BHP’s CEO Mike Henry nevertheless confirmed the company’s intention to continue to invest in petroleum assets, despite calls from investors to decarbonise the business.4 At the Australasian Centre for Corporate Responsibility (ACCR) we deploy strategies to facilitate collaborative action between civil society and ethical investors, in the interests of a safe planet and just society, which align strongly with the protection of shareholder value over the long term. ACCR is a not-for-profit research and shareholder advocacy organisation. We track the environmental, social and governance (ESG) practices of Australian-listed companies, including on climate change, human rights, and labour rights issues. We undertake research and highlight emerging areas of business risk through private and public engagement with companies and investors. We also hold shares in major companies, with the specific intention of influencing them using shareholder rights. We unlock advocacy methods and levers under corporations law that are underutilised or not used at all by investment institutions. We also consider the intersecting issues of climate justice and human rights (including First Nations rights and labour rights) in our company engagements. In addition to undertaking research and meeting with company boards and executives, ACCR works with our partners in civil society and investment institutions to file shareholder proposals. While these proposals do not bind the company board, they compel a vote of shareholders, which can have a powerful persuasive and normative effect, and generate unwelcome publicity for companies doing the wrong thing. For example, our engagement with Australian oil and gas companies has been underway for a few years. Petroleum exploration, as a business model, is fundamentally incompatible with the responsibility to respect human rights yet no major fossil fuels company currently meets the criteria for a transition that would credibly seek to prevent or mitigate human rights harms. In 2020, we achieved breakthrough results at the Annual General Meetings (AGMs) of Woodside and Santos with 50% of Woodside and 43% of Santos shareholders supporting our call for each company to set emissions reductions targets in line with the Paris Agreement. It is now up to these companies to present a credible response to their shareholders’ demands for greater clarity. If not, it will be up to shareholders to hold directors accountable. We have also used shareholder votes to prompt companies such as BHP and Rio Tinto to deal with their industry associations’ negative influence on Australian climate policy.

While this job is far from complete, shareholders have begun to spell out their expectations with regards to lobbyists. In addition, in many cases we work behind the scenes to mobilise institutional investors to exert their influence in the direction of more responsible and ethical outcomes. From late May 2020, ACCR briefed institutional investors accounting for well over $20 trillion of assets under management on Rio Tinto’s detonation of immeasurably significant Indigenous cultural heritage sites at Juukan Gorge in the Pilbara. Ultimately, increased investor understanding of Rio’s systemic failings led to the resignation of the company’s CEO, J-S Jacques, and two other senior executives. Working with a new, powerful coalition of Aboriginal and Torres Strait Islander organisations known as the First Nations Heritage Protection Alliance, ACCR has filed shareholder resolutions with Australia’s other major listed iron ore miners, BHP and Fortescue Metals Group, calling on them to commit not to undertake further destruction of cultural heritage until laws are strengthened to protect First Nations rights. Aboriginal power and decision-making authority need to be at the heart of law reform efforts, in order to protect cultural heritage sites and the long-term interests of investors and society at large. First Nations peoples’ right to self-determination is essential to climate justice, and these intersections are an increasing focus for our work. ACCR cannot do its work alone. Each time we engage with a company, we need 100 fellow shareholders in the company to work with us to unlock the rights under the Corporations Act to propose resolutions. If you hold shares in Australian listed companies and would like to use those shares to influence them, we would love to hear from you.5 In a world that is changing more rapidly than any of us can truly comprehend, shareholder activism can be a catalyst in the contested ground between competing forms of contemporary capitalism. Institutional investors such as superannuation funds need to be responsive to the concerns of a large number of stakeholders. Mobilising and influencing institutional investors is a valuable tool to achieve better outcomes in the long-term interests of society, justice and a safe planet.

1. IPCC, Special Report: Global Warming of 1.5ºC https://www.ipcc.ch/sr15/ 2. UN Environment Programme, Production Gap Report 2019 https://www.unenvironment.org/resources/report/ production-gap-report-2019 3. https://www.cdp.net/en/articles/media/new-report-showsjust-100-companies-are-source-of-over-70-of-emissions 4. Financial Times, ‘BHP targets 30% cut in carbon emissions by 2030’ (10 September 2020) https://www.ft.com/ content/9cffdac1-aba9-407d-a236-7560ab2e0554 5. Get in touch at https://www.accr.org.au/shareholders/

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A MOVEMENT OF FIRST NATIONS YOUNG PEOPLE STANDING UP FOR THEIR LAND, WATER AND CULTURE TISHIKO KING Tishiko King is a proud Torres Strait Islander from the Kulkulgal Nation, Seed Mob Community Organiser and Impact Coordinator with the Environmental Film Festival Australia.

Australia is one of the most biologically diverse countries on the planet and for over 46,000 years, Aboriginal people and Torres Strait Islanders have been conservationists and the custodians of their lands and islands. We are a part of the oldest continuing culture in the world and have lived in harmony with our land for generations. Right now, climate change is disproportionately affecting Aboriginal and Torres Strait Islander people where we are experiencing sea levels rising in the Torres Strait, the loss of sacred country, and diminishing food and water accessibility. Seed Indigenous Youth Climate Network, often referred to as Seed Mob, is Australia’s first Indigenous organisation that is on the frontlines of climate justice. We have been building a movement of young Aboriginal and Torres Strait Island people to protect their land, rivers and oceans from the causes and impacts of climate change. Since 2014 we have brought together and built the capacity of young mob from the far corners of our country, to lead and change their communities and collectively take action on our campaigns. This is through grassroots organising in communities, with pop-up stalls at local events like NAIDOC week and classroom visits at high schools and universities.

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We are seeing an incredible movement of First Nations people resisting further ecocide on their country. We are engaged with environmental concerns across our nation. In the Northern Territory, our campaigns are focused on fracking, where rock is fractured to extract gas. In Western Australia, after the recent destruction of culturally significant sites on Gija country in East Kimberley, Garnkiny and Goorlabal people are campaigning to demand changes to the flaws in the Aboriginal Heritage Act (1972). These are flaws that have allowed big mining corporations to legally destroy other Aboriginal heritage sites in the Pilbara. In Queensland, the Wangan and Jagalingou people are continuing the fight and resistance against coal company Adani, standing their ground to protect and end the desecration of their homelands. In Djapwurrung country in Victoria, their men, women and surrounding clans are fighting to protect their sacred 800-year-old trees from the development of highways and urbanisation. Their sacred trees are their songlines that have cultural significance to their women.

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And in the Torres Strait Islands, eight claimants have opened a case with the United Nations Human Rights Committee against the Australian government for not taking action on reducing greenhouse gas emissions in line with Australiaâ&#x20AC;&#x2122;s commitment to a 1.5-degree target under the Paris Agreement. Despite our remote communities and islands being most at risk, we are seeing big fossil fuel corporations cosying up to their mates in politics, so that they can continue to wreck our climate and bleed our country dry, for their own profits. First Nations people will not have that and we are holding governments and corporations accountable for their actions. Right now, 51% of the Northern Territory is covered by exploration licences for oil and gas. If all this went ahead, much of the Aboriginal-owned land would have their country polluted by the shale gas industry, led by companies like Origin Energy, with other energy companies like Santos waiting in the wings to follow their lead. Our deserts, springs, plains and bushland are too precious to risk dangerous fracking wells. These wells will potentially poison groundwater, pollute the air, destroy sacred sites, and change our seasons by worsening climate change. Fracking companies like Origin Energy have plans to frack up huge regions of the Northern Territory in the Beetaloo basin.1 For four years now, Seed has been supporting Aboriginal communities in the Northern Territory who have been standing up to protect their land, water and culture from the destruction and detrimental impacts of shale gas fracking. Energy companies are trying to progress by illustrating that they have consent from Traditional owners. While sadly this is not the case, we have used this as a tool in our campaign to shift the narrative that has inspired our theory of change. If we build a powerful movement of Origin staff, customers and community opposed to fracking, having thousands of conversations and putting internal and external pressure on Origin Energy, we will force them to abandon their risky fracking plans because we will associate their brand with fracking, oil and climate change and pose a significant reputational risk to them.

There is no denying that First Nations people are intrinsically entwined and connected to country. We are inherently a part of our natural ecosystems where bloodlines run deep into our land and oceans. The knowledge from our Ancestors that has been passed down through generations to our Elders today is the most valuable asset that we as First Nations people hold. With the devastation and environmental destruction from the bushfires of the summer of 2019/2020, our nation saw the impacts of climate change reach levels that we cannot ignore. Now, in unprecedented times, we are facing an international health pandemic. In recent years there has been education on Aboriginal Land Management using traditional practices like Cultural Burning. Significantly, on 25 August 2020, the New South Wales Government released the New South Wales Bushfire Inquiry Report, a detailed report that included a list of recommendations supporting the use of Aboriginal traditional practices for land management. This is why Seed is building a movement of young Aboriginal and Torres Strait Island people across our nation. We are advocating for our communities and for the rights of nature to exist, thrive and evolve whilst importantly supporting, encouraging and having critical conversations on why we should be leading in looking after our country. Right now at Seed we are focused on fighting to keep all fossil fuels in the ground. We recognise that digging up our sacred country hurts us now and has indirect global impacts on Indigenous communities. Our country is more than just a living heritage of deep cultural significance. It is who we are. We are born from our country, our islands. We need to rebalance the human-nature interaction that is central to our culture and our traditions. We are at a crucial moment, and the way we are occupying this planet is just not working. We need to stand together and we need to lead this movement because social justice is climate justice, and if not for us, then for our future generations.

1. Michael Mazengarb, â&#x20AC;&#x2DC;Origin resumes fracking in Beetaloo Basin as Coalition pushes gas-led recoveryâ&#x20AC;&#x2122; (21 September 2020) https://reneweconomy.com.au/ origin-resumes-fracking-in-beetaloo-basin-ascoalition-pushes-gas-led-recovery-94564/; See also www.originbeetaloo.com.au

ANNOUNCING INNOVATE RIGHTS:

NEW THINKING ON HEALTH AND HUMAN RIGHTS 19-21 OCTOBER, 2021 In 2019, we came together in Sydney for the Australian Human Rights Institute’s first Innovate Rights conference, tackling some of the biggest questions in the field of Business and Human Rights. We’re pleased to announce the theme for next year’s Innovate Rights will be Health and Human Rights, a topic that has become more relevant than ever. The conference will be an opportunity to hear from frontline responders of all kinds, including those who are critical to saving lives in disasters, drought and pandemics. It will consider health inequalities and explore how they can be addressed through a human rights approach.

SUBSCRIBE Subscribe for updates on the conference, where we will to bring you new ways to connect with people in medicine, academia and the community sector around the challenge of health and human rights: www.humanrights.unsw.edu.au/subscribe

HUMAN RIGHTS DEFENDER | VOLUME 29: ISSUE 3 – OCTOBER 2020

Human Rights Defender Volume 29 Issue 3

Articles inside

The role of climate change litigation

A movement of First Nations young people standing up for their land, water and culture

How responsible shareholders can change the world, and why they must

Three poems

After a Black Summer, a call for drastic action

Climate justice for the Torres Strait

Can we conceive of the right to a safe environment in the face of climate catastrophe?

Climate Justice: A case for atoll nations

Legislating for climate justice in Australia

Connecting climate justice, human rights and burden-sharing: a philosophical perspective

The Atacama: At the centre of climate injustice