Commonwealth not liable for ravages of climate change in Torres Strait

The Federal Court has dismissed a landmark case in which Torres Strait Islands traditional owners sought to establish that the Commonwealth had breached a duty of care to protect their islands from harm caused by climate change.

Traditional owners Uncle Pabai Pabai, left, and Uncle Paul Kabai are heartbroken by the decision.Credit: Justin McManus

The court found that although humanity faced an existential threat from climate change, and though Torres Strait Islanders were particularly vulnerable to its impact, Commonwealth governments did not currently have a legal duty of care to protect Torres Strait people from climate harm.

Justice Michael Wigney said in a summary of the judgment that in setting emission-reduction targets in 2015, 2020 and 2021, previous governments had failed “to give any real or genuine consideration” to available scientific evidence, about how much Australia should cut emissions to contribute fairly to global efforts to limit warming to as close to 1.5 degrees as possible in order to prevent the worst impacts of climate change.

But he said the Commonwealth government was not subject to common law duty of care, and that such decisions should be made by political processes rather than by judges.

He also found that in setting emissions targets, the government needed to give regard to “not only to the best available science, but also broader economic, social and political considerations”.

A tree at the water’s edge of Saibai Island, which the Federal Court found to be under existential threat from climate change.Credit: Kate Geraghty

The court found that the islands in recent years had been “ravaged” by the impacts of climate change, including rising sea levels, storm surges and other extreme water-level events which had resulted in flooding and seawater inundation on many of the islands.

“Trees are dying and previously fertile areas have been adversely affected by salination and are no longer suitable for growing traditional crops. Rising sea levels and storms have led to the erosion and depletion of beaches and the salination of tidal wetlands. Warmer ocean temperatures and ocean acidification have caused coral bleaching and the loss of seagrass bed,” Justice Michael Wigney said in his summary.

“Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicants’ worst fears will be realised, and they will lose their islands, their culture and their way of life and will become, as it were, climate refugees.

“That would, of course, be a devastating outcome.”

Uncle Pabai Pabai, a traditional owner from the island of Boigu and one of the applicants in the case, said he was heartbroken by the decision.

“My heart is broken for my family and my community. Love has driven us on this journey for the last five years, love for our families and communities.”

Uncle Paul Kabai, a traditional owner, from the island of Saibai said:“Mr Albanese and his expensive government lawyers will stand up and walk away just like they walk out the door of this court today.

“They go home and sleep soundly in their expensive beds. We go back to our islands and the deepest pain imaginable.

“I want to ask Mr Albanese what I should say when I go home to my family, how do I tell them we have less than 30 years left?”

Wigney said in his summary that was it important to note, when the Albanese government reset Australia’s emissions reduction target in 2022, that it did consider climate science.

“While the target that was set by the Commonwealth in that year perhaps did not go as far as some climate scientists would consider was necessary for Australia to play its part in the global objective of holding global average temperatures to l.5 degrees above pre-industrial levels, that emissions reduction target was significantly higher and more ambitious than the targets set by the previous government,” he said.

In a joint statement, Climate Change Minister Chris Bowen and Minister for Indigenous Australians Malarndirri McCarthy said that unlike the previous government, “we understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts”.

“We’re on track to achieve our ambitious but achievable targets of 43 per cent emissions reduction by 2030.”

Wigney said his findings should not be construed as sanctioning or justifying the “unquestionably modest and unambitious greenhouse gas emissions reduction targets” set by the previous government.

“It is one thing to say that those low targets cannot be proved to have materially contributed to the impacts of climate in one small region during one short period of time,” he said.

“It is entirely another thing to say that the targets were somehow justified or justifiable because of the applicants’ inability to prove their precise causal effect, and notwithstanding the scientifically demonstrated need for nations to drastically reduce their greenhouse gas emissions.”

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