Climate courts would be fraught

Federal Court Justice Michael Wigney has reached the only sensible decision in dismissing the claim by two Torres Strait Islander men for compensation because of the impact of climate change on their island. The decision was a shock to the claimants and a setback for environmental groups that had wanted the claim to succeed.

But given the global nature of climate change, parliaments – not the courts – must take responsibility for making decisions about mitigation and compensation.

Justice Wigney was at pains to empathise with the claimants and criticise the actions of the former federal Coalition government. But he ruled that “common law is not a suitable legal vehicle through which the applicants could obtain effective relief”.

The ruling is in line with the Full Federal Court that overturned a judgment involving Whitehaven’s Vickery coalmine that found the federal environment minister owed a duty of care based in tort law to Australian children not to cause them harm from climate change. The Full Court emphasised that decisions on climate policy were the responsibility of the executive and legislature rather than the judiciary through tort law.

Naturally, climate groups have said the outcome of the latest case highlights the need for “innovative law reform to better protect victims of climate change”. Innovative laws to give compensation are the last thing an already fraught climate change response needs. Criticisms levelled at the Coalition government by Justice Wigney and the more favourable treatment of the Albanese government underscore why courts should steer well clear of politics.