8. Obligations to protect Indigenous Peoples from the effects of climate change

Climate change threatens the effective enjoyment of a whole range of human rights for all, including the rights to life, private life and home, health, property and culture. Indigenous Peoples are among the groups whose human rights are particularly vulnerable to climate change.

There is internationally no legally binding right to a healthy environment as such under UN human rights treaties or the European Convention on Human Rights (ECHR). However, in 2022, 161 UN Member States acknowledged in a non-binding UN resolution that climate change “constitute [one] of the most pressing and serious threats to the ability of present and future generations to effectively enjoy all human rights”.¹⁴⁶ Over 110 States recognise a legally binding right to a safe, clean, healthy and sustainable environment in their domestic legislation.¹⁴⁷ In Norway, Article 112 of the Constitution grants the right to a healthy environment.

This report focuses on Indigenous Peoples’ rights that may be disproportionately impacted by climate change, particularly the right to private life and home under ICCPR Article 17 and the right to culture under ICCPR Article 27. The interpretation of ICCPR Article 17 may be relevant to the corresponding right under ECHR Article 8, which also protects against certain environmental threats, and arguably aspects of Indigenous Peoples’ cultures and traditional livelihoods.¹⁴⁸

In the following sections, we first discuss how the HRC has considered the applicability of, and positive obligations under, ICCPR Articles 17 and 27 in previous environmental and climate cases. Against this backdrop, we analyse whether the (Norwegian) State has a positive obligation to protect the Sámi people from climate change under Articles 17 and 27, and whether that might entail an obligation to reduce GHG emissions (mitigation) and facilitate adjustment to existing or unpreventable impacts (adaptation).

8.1 Existing HRC decisions on environmental harm

In its General Comment no. 36, the HRC defines environmental degradation and climate change as “some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life”.¹⁴⁹ Accordingly, States have an obligation to take “appropriate measures” to “preserve the environment and protect it against harm, pollution and climate change caused by public and private actors” and to “pay due regard to the precautionary approach”.¹⁵⁰ The Committee has also clarified that the right to life should be interpreted in light of international environmental law, which presumably includes the UN Framework Convention on Climate Change (UNFCCC) and the Paris Agreement.¹⁵¹ This is consistent with the approach of the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights, which also interpret their conventions in light of inter aliathe precautionary principle.¹⁵²

States’ human rights obligations concerning pollution and climate change both pertain to environmental harm. Both pollution and climate change are caused by activities which to a large extent are controlled by the State through domestic regulations, licensing and approval processes. The human rights impacts of pollution and climate change are therefore similar, including the impacts on Indigenous Peoples’ rights to life, health and culture.

The Precautionary Principle

The UNFCCC is an international treaty to which Norway and 197 other States are a party that aims to stabilise GHG concentrations”at a level that would prevent dangerous anthropogenic [human induced] interference with the climate system”. According to Article 3.3, States Parties should take precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigate its adverse effects. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing such measures.

The broad inclusion of the precautionary principle in various international conventions allows “a strong argument to be made that it reflects a principle of customary law, and that within the context of the European Union it has now achieved customary status, without prejudice to the precise consequences of its application in any given case”, see Sands et al, Principles of International Environmental Law, Fourth Edition Cambridge University Press 2018, pp. 239-240. In Norway, it is included in Nature Diversity Act section 9.

In individual cases, the HRC has interpreted ICCPR Articles 6, 17 and 27 as requiring States to avoid “real” or “serious” and “reasonably foreseeable” threats to these rights from environmental harm.¹⁵³ This resembles the applicability test under ECHR Articles 2 and 8.¹⁵⁴ With regard to the content of this obligation, the HRC has required States to adopt the “appropriate”, “adequate” or “necessary” positive measures to ensure the “effective exercise” of the right in question.¹⁵⁵

The HRC has dealt with two cases concerning local pollution. In the first case, Portillo Cáceres v. Paraguay, the HRC found that pollution from toxic agrochemicals posed a reasonably foreseeable threat to the authors’ lives.¹⁵⁶ The Committee observed that States have an obligation under ICCPR Articles 6 and 17 to adopt positive measures to protect and ensure the effective exercise of these rights by properly supervising and avoiding dangerous pollution.¹⁵⁷

In the second case, Benito Oliveira et al. v. Paraguay, the HRC found that large-scale fumigation with toxic agrochemicals had contaminated waterways, food sources and natural resources, posing a reasonably foreseeable threat to the Campo Agua’e Indigenous community’s health, culture and means of subsistence. The State was aware of this threat, but still failed to monitor and take steps to provide protection, which constituted a violation of ICCPR Articles 17 and 27.¹⁵⁸

The HRC has also dealt with two cases concerning climate change. In the first case, Teitiota v. New Zealand, the Committee considered whether New Zealand’s decision to reject an asylum application from a citizen of Kiribati in the Pacific Ocean violated the non-refoulment obligation under Article 6. The individual applied for asylum because of rising sea levels in his home country, arguing, among other things, that sea level rise had led to a lack of clean drinking water and opportunities to obtain food. While the Committee did not find a violation in this case, it noted that “without robust national and international efforts, the effects of climate change in receiving States may expose individuals to a violation of their rights […] thereby triggering the non-refoulement obligations of sending States”.¹⁵⁹

In its second climate case, Daniel Billy et al. v Australia, the HRC found that Australia had violated its obligation under ICCPR Articles 17 and 27 to protect the Indigenous Torres Strait Islander people and their culture from the foreseeable threats of climate change. This was because rising sea levels, flooding and ocean acidification had already threatened homes and ancestral graveyards, eroded lands and resources used for traditional fishing, farming and cultural ceremonies, while also causing anxiety and distress.¹⁶⁰ According to the Committee, Australia had failed to “adopt timely adequate adaptation measures to protect the [Indigenous Peoples’] collective ability to maintain their traditional way of life” and transmit it “to their children and future generations”, which amounted to a violation of ICCPR Articles 17 and 27.¹⁶¹

The Committee’s decision was based on Australia’s lack of adequate adaptation measures, primarily the delayed construction of seawalls.¹⁶² While the Committee referenced different mitigation measures taken by Australia, it did not consider their adequacy or relevance in this case. However, the majority reaffirmed that without “robust national and international efforts”, climate change may expose individuals to violations of the right to life.¹⁶³ The Committee moreover required Australia to provide an effective remedy and to take steps to “prevent similar violations” (of Article 17 and 27) in the future.¹⁶⁴

In a concurring individual opinion in Daniel Billy et al. v Australia, one member of the Committee¹⁶⁵ noted that “it is mitigation actions which are aimed at addressing the root cause of the problem and not just remedying the effects. If no effective mitigation actions are undertaken in a timely manner, adaptation will eventually become impossible.”¹⁶⁶

Daniel Billy et al. v. Australia, UN Human Rights Committee, 23 September 2022

Facts: A group of eight Indigenous people from the Torres Strait Islands submitted a petition against the Australian Government claiming that the effects of climate change, including sea-level rise, storm surges and ocean acidification, cause direct harm to their culture, livelihood, traditional way of life and food sources.

Key Issues: Whether Australia had violated the complainants’ rights to life (Article 6), culture (Article 27), and privacy, family and home (Article 17) by failing to (a) adequately mitigate climate change through emission reductions and (b) adequately fund climate adaptation measures such as seawalls.

Decision: The Committee found that Australia’s failure to adopt timely and adequate adaptation measures to protect the complainants from the adverse effects of climate change violated their rights under ICCPR Articles 17 and 27. The Committee did not consider whether Australia’s mitigation measures were adequate. The Committee’s majority did not find a violation of Article 6. The Committee stated that Australia should (1) provide the complainants with adequate compensation for the harm suffered; (2) begin consultations with the complainants; (3) continue implementing adaptation measures; and (4) take steps to prevent similar violations in the future. In its response to the Committee, the Australian Government has outlined several new measures to implement the decision.

Source: Daniel Billy et al. v. Australia, Australian Government Attorney General’s Department, Billy et al. v Australia (3624/2019) Australian Government Response, 30.3.2023.

8.2 Positive obligations to protect the Sámi people from the effects of climate change

8.2.1 Applicability of Articles 17 and 27

Climate change, in combination with other cumulative negative effects, has already caused adverse effects on Sámi culture in Norway to the extent that the adaptive capacity in Sámi societies is strained (Chapter 6.1). Further warming poses a real, serious and reasonably foreseeable threat to the long-term sustainability of core elements of Sámi culture and identity, such as reindeer husbandry (Chapter 6.2). These risks are well-known to the Norwegian Government, which endorses the IPCC reports,¹⁶⁷ and has itself described the Sámi population as vulnerable to the effects of climate change.¹⁶⁸

ICCPR Articles 17 and 27 are therefore applicable to the “real, serious and reasonably foreseeable” threat that climate change poses to the Sámi people. The question then becomes what measures are “appropriate”, “adequate” or “necessary” to protect the Sámi people from the risks arising from climate change.¹⁶⁹

8.2.2 Mitigation of climate change through emission reductions in line with science

The HRC has neither rejected nor affirmed that States have a duty to reduce their GHG emissions through mitigation measures in order to protect Indigenous rights from the adverse effects of climate change. In the Daniel Billy decision, the HRC found that it had jurisdiction to consider both mitigation and adaptation measures, but it did not discuss mitigation measures further with respect to the articles that were found to be violated.¹⁷⁰

However, the Committee has on several occasions noted that States have an obligation to take “appropriate”, “adequate” or “necessary” measures to protect the rights recognised in ICCPR Articles 6, 17 and 27 from environmental harm. Any determination of what is necessary to effectively protect the Sámi people and culture from the effects of climate change should be based on updated best available science and Indigenous Peoples’ traditional knowledge.

The relevant question is therefore whether mitigation measures are necessary to adequately protect the rights of Indigenous Peoples under ICCPR Articles 17 and 27. The following discussion is without prejudice to States’ obligation to avoid interference aimed at reducing emissions that will threaten Indigenous Peoples rights under international human rights law (discussed further in Chapter 10).

It is well established in climate science that “deep, rapid and sustained GHG emissions reductions” and a “substantial reduction in overall fossil fuel use” are necessary to avert dangerous climate change above the critical 1.5°C threshold and to secure a liveable future for all.¹⁷¹

It is also well established in climate science that with increasing global warming, “adaptation options that are feasible and effective today will become constrained” because “human and natural systems will reach adaptation limits”.¹⁷² For example, people living on low-lying islands face hard adaptation limits if warming exceeds 1.5°C. According to the IPCC, “seawalls effectively reduce impacts” in the short-term, but “can also result in lock-ins and increase exposure to climate risks in the long-term”. This can worsen “existing inequities especially for Indigenous Peoples”.¹⁷³ This is partly because exceeding 1.5°C risks activating tipping points such as abrupt loss of Barents Sea ice and collapse of the Greenland ice sheet, which would ultimately lead to several meters of sea level rise.¹⁷⁴ It therefore follows from the IPCC’s reasoning that the culture of Indigenous Peoples on low-lying islands, such as the Torres Strait Islander people, cannot in practice be sufficiently protected in the long term unless emissions are mitigated in line with the 1.5°C target.¹⁷⁵

With regard to the Sámi people, there does not appear to exist any detailed projections on the temperature thresholds at which Sámi reindeer husbandry, fishing or other cultural practices become untenable. However, the best available science establishes that the risks greatly accelerate if warming exceeds the critical 1.5°C limit and worsen under higher emissions scenarios. Even under a best-case emissions scenario where global temperatures are kept within the 1.5°C limit, the average temperature in Finnmarksvidda will still increase by 2.8°C. Under a worst-case emissions scenario, by 2100 the average temperature in Finnmarksvidda will increase by 6.7°C, snow cover duration will decrease by 2-3 months, there will be up to 40 more days with 0°C crossings per year and sea surface temperature along the coast in Northern Norway will increase by 2.2°C. This would be devastating for reindeer husbandry, and for cold-water species traditionally used in Sámi fishing, with associated impacts on Sámi health. Thus, in line with the precautionary principle, lack of full scientific certainty of when Sámi cultural practices become untenable should not be used as a reason for not adopting mitigation measures.

The Supreme Court of Norway has acknowledged that climate change will seriously affect Indigenous Peoples and local communities, particularly in the Arctic and Northern Norway.¹⁷⁶ Moreover, in the Fosen case, a wind power development caused a substantive negative impact on the local Sámi reindeer herders’ possibility to enjoy their culture through loss of winter pastures used for reindeer herding.¹⁷⁷ While this case concerned an industrial development, climate change also causes or exacerbates periodical losses of access to winter grazing areas due to inaccessible ice-locked pastures and insecure migration routes (see Chapter 6). As the projections above regarding snow cover loss illustrate, there will be a significant loss of winter pastures in the future if global warming exceeds 1.5°C, especially in Trøndelag, where the South-Sámi culture is already vulnerable.

In summary, based on the best available climate science, it will likely not be possible to effectively protect the Sámi people’s rights under ICCPR Articles 17 and 27 in the long term if States do not reduce the GHG emissions within their effective control in line with the remaining carbon budget for 1.5°C.¹⁷⁸ While the precise temperature limits for the viability of Sámi cultural practices are unclear, a precautionary approach favours that States stay within the 1.5°C limit to avoid possible significant and irreversible damage to Sámi culture. Although reduced emissions from one State alone will not determine the future course of climate change, it may be argued (as several national courts have done) that every State must do its part to combat climate change by reducing its own emissions,¹⁷⁹ in line with the scientific fact that “every tonne of CO₂ emissions adds to global warming”.¹⁸⁰

An obligation to reduce emissions would be in line with several judgements from national courts, primarily based on the right to life and physical integrity under ECHR Articles 2 and 8 or equivalent constitutional rights.¹⁸¹ Three cases based on the same rights under the ECHR are currently pending before the Grand Chamber of the ECtHR. Thus far, there have been few cases concerning Indigenous rights and mitigation obligations.¹⁸² However, the International Court of Justice might clarify the question of a duty to mitigate emissions under the ICCPR in its pending advisory opinion on the obligation of States in respect of climate change.¹⁸³

8.2.3 Adaptation to existing or unpreventable climate change impacts

ICCPR Articles 17 and 27 entail a positive obligation on States to take “timely and adequate adaptation measures” to protect these rights from the serious negative effects caused by already incurred or unpreventable climate change.^{¹⁸⁴Daniel Billy et al. v. Australia, paras. 8.12 and 8.14.} This has already been established by the HRC in Daniel Billy et al. v. Australia.

In Daniel Billy, the State had taken “numerous actions to address adverse impacts caused by climate change” through adaptation measures. This included, among other things, an adaptation plan where 58 of the actions had been initiated or completed. These encompassed direct involvement with regional authorities with Indigenous representation on adaptation, heat mapping, installation of monitoring sites relating to tides, sea level, temperature and rainfall and financing different adaptation projects worth billions of dollars.¹⁸⁵ The State, however, failed to explain a “delay in seawall construction” it had planned, which was crucial to protect against the damaging impacts from rising sea levels.¹⁸⁶ The Australian Government and the Queensland State Government committed $24 million AUD in 2013/14 for the construction of seawalls on four islands in the Torres Strait. However, all this funding was used to construct a seawall on just one of the islands in 2017, leaving the other islands without protection. At the time of the Committee’s decision there had therefore been a ten-year construction delay for the remaining islands.¹⁸⁷

The UN Committee on the Rights of the Child, interpreting the right for indigenous children to culture under CRC Article 30,¹⁸⁸ has also highlighted that States “must undertake measures to meaningfully engage with Indigenous children and their families in responding to environmental harm, including harm caused by climate change, taking due account of and integrating concepts from Indigenous cultures and traditional knowledge in mitigation and adaptation measures”.¹⁸⁹

If the HRC’s reasoning in Daniel Billy is applied to the Sámi context, the relevant question is which “timely adequate adaptation measures” are necessary to protect the Sámi’s “collective ability to maintain their traditional way of life” and transmit it “to their children and future generations”.¹⁹⁰ The Sámi people should take an active part in such discussions, so that their knowledge of adaptation measures and their views on how to maintain their culture for future generations are taken into account.

According to the IPCC, the most important adaptation measures for Sámi reindeer husbandry include protecting grazing lands and ensuring flexibility in access to alternative winter pasture areas that might be less exposed to an unstable climate and snow-on-ice events.¹⁹¹ This is supported by research which indicates that inflexible regulatory approaches to land-use planning and crisis responses, and a disregard for traditional knowledge in the management of reindeer husbandry, make it difficult for Sámi reindeer herders to adapt to climate change.¹⁹² Similarly, a lack of flexibility in fishing regulations, management policies and quota systems makes it difficult for Sámi fisheries to adapt to climate change.¹⁹³

According to the IPCC, “Indigenous knowledge and local knowledge can provide important understanding for acting effectively on climate risk and can help diversify knowledge that may enrich adaptation policy and practice.”¹⁹⁴ This is supported by a vast body of research which indicates that Indigenous Peoples’ traditional knowledges increase the effectiveness, sustainability and equity of adaptation measures.¹⁹⁵

A more comprehensive discussion of adaptation for Sámi reindeer husbandry, fishing and health, and the role of traditional knowledge in adaptation measures, can be found in the Saami Council’s recent report on climate change.¹⁹⁶

In a 2023 white paper to Parliament on climate adaptation, the Norwegian Government discussed the impacts of climate change on Sámi culture, and the need to integrate Sámi interests and knowledge in climate adaptation.¹⁹⁷ In this context, the government expressly acknowledged that Norwegian authorities are obligated under the Constitution and ICCPR Article 27 to secure the natural basis for Sámi reindeer herding and carry out consultations in decisions that can affect Sámi interests directly. With reference to the report from the Saami Council, the Government expressed that it will:

gather more knowledge on how climate change is affecting Sámi culture and business, traditions, lifestyle and health,
consult with the Sámi Parliament and the Sámi Reindeer Herders’ Association of Norway on adaptation where relevant, even if it is not legally obliged to do so, and
incorporate Sámi traditional knowledge in adaptation measures.

These measures, including the human rights-based approach, are promising. Yet, to be effective, actual adaptation measures must be adequate and be implemented in a timely manner. At present, there is not enough information to make a comprehensive assessment of whether existing or proposed adaptation measures are sufficiently timely and adequate to protect Sámi culture from the effects of climate change.

We will highlight two important points regarding limits to adaptation, underscoring that adaptation and mitigation must go hand in hand also for the protection of Sámi rights. Firstly, adaptation measures may be insufficient under ICCPR Article 27 if they deprive the cultural practice of its traditional elements. For example, a proposal for winter feeding of reindeer in enclosures, as a remedial measure, was rejected by the Norwegian Supreme Court in the Fosen case partly because the suggested model deviated “considerably from traditional, nomadic reindeer husbandry”.¹⁹⁸

Secondly, if global warming exceeds 1.5°C, certain harmful effects of climate change will be increasingly difficult to avoid through adaptation measures.¹⁹⁹ For this reason, national courts have found in cases regarding states mitigation measures under human rights law and the right to a healthy environment that adaptation measures alone cannot adequately protect individuals’ rights to life, physical integrity and property.²⁰⁰ As noted above (Chapter 6.2), adaptation measures alone cannot protect Sámi rights from the long-term effects of climate change.

Fotnoter:

¹A/76/L.75 preamble rec. 13.
²See Report of the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, Right to a healthy environment: good practices, A/HRC/43/53 30.12.2019 para 10.
³Council of Europe, Manual on Human Rights and the Environment (3^rd edition), February 2022. In a Sámi and climate change context, see for example discussions in Nordlander, Linnéa, “Litigating climate change in the Arctic: the potential of Sámi human rights claims” in Journal of Human Rights and the Environment, Vol. 13 no. 2 pp. 415-440.
⁴HRC, General comment No. 36 on article 6: right to life (CCPR/C/GC/36) paras. 26 and 62.
⁵Ibid.
⁶Ibid.
⁷Under ECHR Article 8, see Tătar c. Roumanie (67021/01) 27.1.2009 §§ 109, 112, 120 and ECHR, Guide on case-law of the Convention – Environment, 31.8.2022 p. 85. Under the right to life and private life in the Inter-American Convention on Human Rights, see Advisory Opinion OC/17, 15.11.2017, para 180.
⁸Daniel Billy et al. v. Australia para 8.3, 8.6, 8.9, 8.14; Portillo Cáceres v. Paraguay para. 7.5, 7.8; Benito Oliveira et al. v. Paraguay, (CCPR/C/132/D/2552/2015), 21 September 2022, para 8.8 (“the large-scale fumigation with toxic agrochemicals presents a threat which the State party could reasonably have foreseen»); General comment no. 16 on article 17 (1988), paras. 1 and 9. See also Teitiota v. New Zealand, (CCPR/C/127/D/2728/2016) 2019 para 9.4 with further references.
⁹ECHR, Guide on case-law of the Convention – Environment, 31.8.2022 pp. 7-8, pp. 24-29.
¹⁰ Portillo Cáceres v. Paraguay para. 7.3; Benito Oliveira et al. v. Paragua para. 8.3, Daniel Billy et al. v. Australia paras. 8.12, 8.14.
¹¹Portillo Cáceres v. Paraguay (CCPR/C/126/D/2751/2016), 20 September 2019, paras. 2.3, 7.5.
¹²Portillo Cáceres v. Paraguay, paras. 7.3, 7.8.
¹³Benito Oliveira et al. v. Paraguay, paras. 8.3, 8.4, 8.5, and 8.8
¹⁴Teitiota v. New Zealand para 9.11.
¹⁵Daniel Billy et al. v. Australia, paras. 8.12, 8.13, 8.14.
¹⁶Ibid, para. 9.
¹⁷Ibid, para 8.14.
¹⁸Daniel Billy et al. v. Australia, para. 8.7
¹⁹Daniel Billy et al. v. Australia, para. 11.
²⁰Gentian Zyberi.
²¹Daniel Billy et al. v. Australia, annex II. See also Individual opinion by Committee Member Duncan Laki Muhumuza (Annex I).
²²IPCC, IPCC Factsheet – How does the IPCC approve reports?, revised July 2021.
²³Meld. St. 26 (2022-2023) s. 30.
²⁴Paraguay Para 7.3, 7.; Benito para 8.3, Billy para 8.12, 8.14.
²⁵Daniel Billy, para 7.7 and 7.8.
²⁶IPCC, AR6 Synthesis Report: Summary for Policymakers, 2023, pp. 18 and 28.
²⁷Ibid, p. 19.
²⁸IPCC, AR6 SYR (2023) SPM, paras. B.4.2, B.4.3.
²⁹Mckay et al., 2022; Boers et al., “Critical slowing down suggests that the western Greenland Ice Sheet is close to a tipping point,” Proc. Natl. Acad. Sci. 118, no. 21 (2021).
³⁰There is a pending domestic case before the Federal Court of Australia concerning the impacts of climate change in the Torres Strait Islands, which deals with the question of mitigation, see Federal Court of Australia, Pabai Pabai v Commonwealth of Australia Online File, https://fedcourt.gov.au/services/access-to-files-and-transcripts/online-files/pabai-v-australia.
³¹HR-2020-2472-P paras. 52, 55.
³²HR-2021-1975-S para 136.
³³For a discussion of which emissions that are within State’s effective control, see e.g. NIM, Grunnloven § 112 og plan for utbygging og drift av petroleumsforekomster, 18.3.2022 Chapter 3.2.5. with references to e.g. Greenpeace Nordic et al. v. Norway, HR-2020-2472-P (Supreme Court of Norway), 22.12.2020 para. 149 ref. para 155, see also paras 167 and 260; Royal Dutch Shell, ECLI:NL:RBDHA:2021:5339 (The Hague District Court), 26.05.2021, para. 4.4.19 (appealed), Sacchi (dec.), para 9.9.
³⁴See e.g. Urgenda, paras. 5.7.1, 5.7.7-5.7.8; Neubauer, paras. 149, 202-204; Notre Affaire à Tous et al. v. France, no. 1904967, 1904968, 1904972, 1904976/4-1 (Administrative Court of Paris), 3.2.2021, para 34; Commune de Grande-Synthe v. France (“Grande-Synthe I”), no. 427301, (Le Council d'Etat) 19.11.2020 para 12; Massachusetts v. EPA, 549 U.S. 497 (Supreme Court of the United States), 2.4.2007, p. 23.
³⁵IPCC, AR6 WGI The Physical Science Basis: Summary for Policymakers (SPM), 2021, para. B.2.2, pp. 19–24, 35, 41. IPCC, AR6 WGI (2021) para. 11.3.5
³⁶Urgenda v. the Netherlands, ECLI:NL:HR:2019:2007 (Supreme Court of the Netherlands), 20.12.2019 para. 8.3.4-5; Neubauer paras. 137, 154-170, interpreting the right to life and physical integrity under the German Constitution art. 2(2) in light of the parallel rights under ECHR and ECtHR case-law as requiring emission cuts; VZW Klimaatzaak v. Belgium et al. 2021/AR/15gs, 2022/AR/737, 2022/AR/891, (Court of Appeal Brussels) 30.11.2023 (not final).
³⁷But see e.g. Waratah Coal Pty Ltd v Youth Verdict et al. (No 6) [2022] QLC 21, 25.11.2022 paras 40-46, paras. 1521-1536, 1566-1568.
³⁸UN General Assembly, Resolution 77/276, 29 March 2023.
³⁹Daniel Billy et al. v. Australia, paras. 8.12 and 8.14.
⁴⁰Daniel Billy, para. 8.11.
⁴¹Ibid, para. 8.12.
⁴²Joanne Etherton et al., Communication to the UN Human Rights Committee in Daniel Billy et al. v. Australia, 13 May 2019, paras. 91-95, available at www.climatecasechart.com.
⁴³In General Comment no. 11, the UN CRC underlined the linkage between CRC art. 30 and art. 27 of the ICCPR and referred to interpretations from the Human Rights Committee, see CRC/C/GC/11 para 16 and 17.
⁴⁴CRC/C/GC/26 para 58.
⁴⁵Ibid.
⁴⁶IPCC AR6, Climate Change 2022: Impacts, Adaptation and Vulnerability, Tables CCP6.2 and CCP6.6, Box 13.2. See also the evidentiary assessment referred to in HR-2021-1975-S, para 83.
⁴⁷Johnsen et al., “Leaving no one behind”, p. 57; Saami Council, “Climate Change in Sápmi – an overview and a Path Forward”, 2023, p. 121
⁴⁸Ibid, p. 122.
⁴⁹IPCC. Climate Change 2022: Impacts, Adaptation and Vulnerability, ch. 1, Executive Summary and 1.3.2.3.
⁵⁰Petzold, J., Andrews, N., Ford, J., Hedemann, C. & Postigo, J. Indigenous knowledge on climate change adaptation: a global evidence map of academic literature. Environ. Res. Lett. 15, 113007 (2020); Sawatzky, A. et al. “The best scientists are the people that’s out there”: Inuit-led integrated environment and health monitoring to respond to climate change in the Circumpolar North. Clim. Change 160, 45–66 (2020); Schlingmann, A. et al. Global patterns of adaptation to climate change by Indigenous Peoples and local communities. A systematic review. Curr. Opin. Environ. Sustain. 51, 55–64 (2021).
⁵¹Saami Council, “Climate Change in Sápmi – an overview and a Path Forward”, 2023, pp. 119-130. The Norwegian authorities have also carried out adaptive measures related to ice-locked-pastures, and efforts to improve the system has commenced, but we will not further elaborate on this here.
⁵²Meld. St. 26 (2022-2023) s. 57.
⁵³The Norwegian Supreme Court in HR-2021-1975-S para. 149, the Supreme Court concluding that “the information provided to the Supreme Court demonstrates uncertainty as to whether such a system is compatible with reindeer herders' right to enjoy their own culture”.
⁵⁴World Climate Research Programme et al. 10 New Insights in Climate Science, 10.11.2022, pp. 13–17. See also IPCC, AR6 WGII, 2022 SPM para C.3 ff.
⁵⁵The Dutch Supreme Court found that the Netherlands could not demonstrate that “the potentially disastrous consequences of excessive global warming can be adequately prevented by” adaptation measures (Urgenda, para. 7.5.2). The German Constitutional Court held that it would be “completely inadequate” – and a violation of the right to life, physical integrity and property – to rely on adaption alone (Neubauer, para. 157).