The federal court has dismissed a landmark case brought by two Torres Strait community leaders that argued the Australian federal government breached its duty of care to protect the Torres Strait Islands from climate change.
In delivering the decision, however, Justice Michael Wigney noted: “There could be little if any doubt that the Torres Strait Islands and their inhabitants face a bleak future if urgent action is not taken to address climate change and its impacts.”
The class action, filed in 2021, argued the government had a legal duty of care towards Torres Strait Islander peoples and that it had breached this duty by failing to prevent or deal with damage in the Torres Strait linked to global heating.
The lead plaintiffs, Torres Strait community leaders Uncle Pabai Pabai and Uncle Paul Kabai from the islands of Boigu and Saibai, sought orders requiring the government to take steps to prevent climate harm to their communities, including by cutting greenhouse gas emissions at the pace climate scientists say is necessary.
“My heart is broken for my family and my community. Love has driven us on this journey for the last 5 years, love for our families and communities. That love will keep driving us,” Uncle Pabai said in a statement after the judgment.
Uncle Paul said: “I thought that the decision would be in our favour, and I’m in shock. This pain isn’t just for me, it’s for all people Indigenous and non-Indigenous who have been affected by climate change. What do any of us say to our families now?”
In a joint statement, the climate change and energy minister, Chris Bowen, and the minister for Indigenous Australians, Malarndirri McCarthy, said: “Unlike the former Liberal Government, we understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts.”
“Where the former Government failed on climate change, the Albanese Government is delivering – because it’s in the interest of all Australians.”
Hearings in the case were held in 2023 in Melbourne and on-country in the Torres Strait to allow the court to tour the islands and view the existing impacts of climate change.
On Saibai Island, homes were already being inundated by king tides, the cemetery had been affected by erosion and sea walls had been built.
The legal challenge was modelled on the Urgenda climate case against the Dutch government, in which the Urgenda Foundation and 886 people took the Dutch government to court for not doing enough to prevent the climate crisis.
That case was the first in the world in which citizens established their government had a legal duty to prevent dangerous climate change and resulted in the court ordering the Dutch government to take immediate steps to cut greenhouse gas emissions.
Uncle Pabai, Uncle Paul and their communities were represented by law firm Phi Finney McDonald and their case is supported by the Urgenda Foundation and Grata Fund, a public interest organisation that helps individuals access the courts.
More details soon …
