Islanders face battle over climate class action

Torres Strait Islanders allege federal government failed to protect vulnerable residents from rising sea levels and worsening weather.

Paul Kabai and Pabai Pabai have instigated a climate change class action against the Commonwealth Government alleging a threat of inundation of the Torres Strait Island. Picture: Talei Elu

The federal government is fighting the first climate change class action by Indigenous people in Australia, brought by Torres Strait Islanders who allege it failed its obligation to protect vulnerable residents from rising sea levels and worsening weather, and from the economic, cultural and health consequences.

Boigu islander Pabai Pabai and Saibai islander Paul Kabai, who are native title holders, took court action in October.

They claimed the commonwealth was required to take reasonable steps to protect Torres Strait Islanders, their traditional way of life and marine environment in and around a “protected zone” that includes the islands.

The government denied these allegations when it lodged its ­defence in Federal Court of Australia on February 25.

The Torres Strait covers 48,000km, with 270 islands and a population of about 4500 at the 2016 census. The establishment of the protected zone was part of the 1985 Torres Strait Treaty between Australia and Papua New Guinea.

Allegations in Pabai Pabai & Anor v Commonwealth of Australia also include that the government had failed to identify current and projected impacts of climate change on the islands, or ­implement necessary measures to reduce greenhouse gas emissions on Torres Strait Islanders.

The government argued that “determination of any national GHG emissions target is a decision of high level government policy, involving economic, social and political factors, including the [government’s] relationships with foreign governments, and in ­respect of which the court should not impose a duty of care”.

“It was not reasonably foreseeable that conduct by the [government] in determining its GHG emissions targets would cause global temperature increase of a degree that would cause any person, or alternatively, a class of persons including the applicants and group members, to suffer loss and damage.”

The government also disputed Mr Pabai’s claim that it had set and maintained a GHG emissions reduction target without regard to the best science available and ­justified its record on targets. It argued it had “communicated an updated and enhanced nationally determined contribution adopting a target of net zero emissions by 2050, committing to seven low emissions technology stretch goals and reaffirming its economy-wide target to reduce emissions by 26-28 per cent below 2005 levels by 2030”.

The government admitted “some Indigenous peoples, including some … in Australia, are more vulnerable to the impacts of climate change than other peoples, by ­reason of … their place of residence, occupation, connection to the land and environment and/or ­social and economic dis­advantage”.

Mr Pabai and Mr Kabai are being represented by class action specialists Phi Finney McDonald on a no-win, no-fee basis. The case is listed for a case-management hearing on March 17.