Federal Court Torres Strait ruling ‘a test for climate ambition’

The Federal Court’s landmark decision on climate change in the Torres Strait has posed confronting questions for policy makers about whether Australia can ‘make a jot of difference’.

Guy Paul Kabai, left, and Pabai Pabai.

You can now listen to The Australian's articles. Give us your feedback.

You can now listen to The Australian's articles.

The Federal Court’s landmark decision on climate change in the Torres Strait has posed confronting questions for policy makers about whether Australia can “make a jot of difference”.

Federal Court judge Michael Wigney’s decision on Tuesday in the case brought by traditional owners Pabai Pabai and Guy Paul Kabai included a finding that the previous Coalition government set its emissions targets in 2015, 2020 and 2021 with scant regard for the best available science.

However, Justice Wigney ruled against the men’s claim that the commonwealth was liable for climate change in the Torres Strait, prompting speculation they would appeal. On Wednesday, retired Supreme Court of Western Australia judge Kenneth Martin KC said the judgment also raised the question of how Australia might have effectively protected the Torres Strait from climate change anyway.

“On the factual question of causation, the judge is, correctly, asking, ‘Let’s assume we actually emitted less or even nothing – would that make a jot of difference to the climatic conditions being experienced?’” Mr Martin said.

In his reasons, Justice Wigney writes: “I have found that even if the commonwealth was subject to and breached a duty of care of the sort alleged by the applicants in their primary case, it cannot be concluded on the available evidence that any such breach materially contributed to the harm suffered by Torres Strait Islanders from the impacts of climate change”.

“While Australia is a comparatively large emitter of greenhouse gas, particularly on a per capita basis, its emissions make up only a relatively small proportion of the global greenhouse gas emissions that induce climate change.

“More significantly, the scientific evidence indicated that any additional greenhouse gases that might have been emitted by Australia as a result of the low emissions reduction targets set by the commonwealth in 2015, 2020 and 2021 would have caused no more than an extremely small and almost immeasurable increase in global average temperature.

“While it was open to conclude that the extremely small increase in temperature would have had some climate change impact, including in the Torres Strait Islands, it was not open on the evidence for me to conclude that any such impact materially contributed to any harm that has, or was being, suffered by Torres Strait Islanders.”

QUT professor Matthew Rimmer described the judgment as melancholy. “I don’t think the judge is very confident that there is a clear solution to the problem he’s identified,” Professor Rimmer said.

Professor Rimmer said the Federal Court’s decision that the Commonwealth did not owe Torres Strait Islander people a duty of care or compensation was at odds with a 2019 decision of the Dutch Supreme Court that the Dutch government had an obligation to urgently reduce greenhouse emission in line with its human rights obligations.

Professor Rimmer said the UN Human Rights Committee had already found that Australia’s failure to adequately protect Torres Strait Islander people from adverse climate impacts violated their human rights.

“The committee found that under the UN’s Covenant on Civil and Political Rights, which Australia ratified in 1980, Australia had violated their human rights, in particular their cultural rights, and rights to be free from arbitrary interferences with their private life, and family, and home,” Professor Rimmer said.

However, emeritus professor of law at the University of SA Rick Serra has described Tuesday’s decision as predictable given a landmark decision of the Full Federal Court three years ago against opponents of a coal mine near Gunnedah, NSW. In that case, called Sharma v Minister for the Environment, the eight applicants were unable to link the detrimental effects of a warming planet to a breach of any duty of care owed by the Australian government to its people.

“It is very clear that Justice Wigney is not a climate change sceptic. He found the factual elements of the environmental catastrophes in and around the Torres Strait Islands had been proved, and, yes, all nations, he said, must reduce their greenhouse gas emissions,” Professor Sarre said. “But he concluded that the current state of the common law of negligence in Australia does not provide a vehicle, and certainly not a legal one, for claims seeking compensation or remediation from the effects of climate change. So, unless and until the High Court moves Mabo-like into this space, all matters regarding compensation, remediation and adaptation will need to move from the halls of parliament in Canberra, not from the Federal Court.”

While Justice Wigney’s criticism of Coalition emissions targets drew attention, law experts contacted by The Australian said this was a result of evidence.

Mr Martin said the commonwealth appeared, on a quick reading, to support the Albanese government’s approach to climate change. Mr Martin said if the case had been heard at the time of a government it was feasible a different cohort of evidence from different sources may have been put before Judge Wigney.