Communications to Australia and three Australian companies concerning the fossil fuel activities of Woodside Energy

On June 26 and/or June 27, 2023, six UN Special Procedures on climate change, business and human rights, cultural rights, environment, indigenous peoples and toxic wastes, jointly issued communications to Australia and three Australian companies. The communications concern the fossil fuel activities of Woodside Energy, Australia’s largest natural gas producer, allegedly causing damage to indigenous sacred rock art and songlines in Murujuga, and to the wider objective of meeting obligations under the Paris Agreement. Specifically, the communication addresses the expansion of Woodside Energy’s gas infrastructure in the Burrup Peninsula as part of the $16.5bn Scarborough gas project and Pluto LNG facility. The Scarborough gas resource is estimated to contain 11.1 trillion cubic feet of dry gas, and it is destined for further development through offshore and onshore (LNG) facilities. The communication also addresses BHP Petroleum, an Australian company partaking in the Scarborough Joint Venture, and Perdaman Group, a major fertilizer production company that plans to build a fertilizer plant nearby, using a portion of the gas produced by Woodside Energy. The Scarborough Gas Project has already attracted many domestic appeals, including requests for injunctions on grounds of national law. According to a 2021 study, the Scarborough gas project will cause an estimated 1.37 billion tonnes of cumulative emissions by 2055, and result in a substantial increase of Western Australia’s GHGs emissions. In their communications, the UN Special Procedures draw special attention to the impact of the Scarborough project on the aboriginal rock art at the sacred Murujuga site, comprising over a million petroglyphs and rock art engravings of over 70,000 years old containing sacred songlines and stories. It is nominated for UNESCO world heritage listing. Several traditional custodians of Murujuga are concerned about damage to this cultural heritage, and claim they have already suffered loss of traditional livelihoods, traditional indigenous knowledge and spiritual relationship with the land, as well as displacement and ecological degradation. The UN Special Procedures convey their ‘most serious concern’ about the alleged human rights and environmental impacts of the project, noting that ‘climate change is having a major impact on a wide range of human rights today, and could have a cataclysmic impact in the future unless ambitious actions are undertaken immediately’. Among the human rights threatened and violated are ‘the rights to life, health, food, water and sanitation, a healthy environment, an adequate standard of living, housing, property, self-determination and development’. There is a special concern about long-standing and irreversible effects on the cultural rights of indigenous peoples due to loss of cultural elements. The relevant legal instruments providing the legal framework in this regard (set out in an Annex) include the Paris Agreement, and its references to human rights and indigenous people’s rights in the preamble; Article 6 of the International Covenant on Civil and Political Rights (ICCPR) on the right to life (with dignity), including in the context of environmental degradation and climate change caused by public and private actors; and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) on the right to culture. The latter has been interpreted in CESCR General Comment No. 21 (2009) as including an obligation to respect and protect cultural heritage in all its forms, by preserving, developing, enriching and transmitting it, for benefit of future generations. Indigenous peoples ‘have the right to the conservation and protection of the environment’ and ‘the right to determine and develop priorities and strategies for […] the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired’. Other relevant documents for cultural and environmental cited include the UN Declaration on the Rights of Indigenous Peoples (UNDRIP); UNGA Resolution 76/300 on the Right to Clean, Health and Sustainable Environment; UN Principles on Human Rights and Environment; and UN Guiding Principles on Business and Human Rights (UNGPs). According to the latter, States have a duty to protect against human rights abuses within their territory and/or jurisdiction by third parties, including business enterprises, whilst Woodside Energy, BHP and Perdaman’s bear human rights responsibility to respect rights and to provide for remedies when their activities have caused or contributed to adverse impacts. The UNGPs also underscore the need for a ‘due diligence process’ by companies to ‘identify, prevent, mitigate and account for’ human rights impacts. On 21 November 2022, Australia responded substantively by explaining how it has been consulting different traditional owner representatives, in addition to those lodging the complaint with the UN bodies. More specifically, the government must account for the ‘variety of different viewpoints’ within the community, and its ‘decision-making requires respecting the representative structures that Indigenous peoples have chosen for themselves’. The new Australian government acknowledges ‘the inadequacies of existing legislation in protecting cultural heritage’ and notes it commitment ‘to co-design a standalone piece of cultural heritage legislation’ in partnership with a coalition of 29 Indigenous peoples member organisations from across Australia. It also outlines ‘a number of interim measures in place to address matters raised in the joint communication’, and expresses willingness to update the Special Procedures on developments in the future: ‘Australia does not shy away from fair scrutiny of our own human rights record and is willing to participate in UN accountability mechanisms’. In November 2022, Woodside Energy and BHP also responded in some detail. Amongst others, they outlined their policies and practices related to indigenous peoples rights under UNDRIP, business and human rights under the UNGPs, as well as their corporate climate targets – without however considering whether or how the latter may be human rights compliant.