Torres Strait Islanders sue to save ‘way of life’

The first climate-change class action brought by First Nations people against the Federal government has attracted the support of a prominent Melbourne businessman.

Melbourne businessman Alan Schwartz.

Two Torres Strait Islander leaders have secured financial backing from prominent Melbourne businessman and philanthropist Alan Schwartz to launch the first climate-change class action brought by First Nations people against the federal government.

The Federal Court claim, lodged on Tuesday, uses the same formula as a landmark 2015 case in The Netherlands, in which a court decision ultimately led to the Dutch government’s adoption of a sweeping set of pro-climate policies, including closure of coal-fired power stations and ­billions of euros in renewable ­energy investment.

The plaintiffs want to prevent destruction of their communities by rising sea levels, alleging they risk becoming Australia’s first “climate refugees” unless sufficient cuts are made to greenhouse gas emissions.

They argue that the commonwealth has unlawfully breached its legal duty of care, based on the law of negligence, the Torres Strait Treaty and native title.

“Our ancestors have lived on these islands for more than 65,000 years, but the government’s failure to prevent the climate crisis means our islands could be flooded, our soils ruined by salt and our communities forced to leave,” plaintiff Paul Kabai said.

“Becoming climate refugees means losing everything: our homes, our culture, our stories and our identity. If you take away our homelands, we don’t know who we are.

“We have a cultural responsibility to make sure that doesn’t happen and to protect country and our communities, culture and spirituality from climate change.”

News of the class action came as Scott Morrison confirmed he would take a plan for net-zero carbon emissions by 2050 to the COP26 UN climate conference in Glasgow.

The Prime Minister said the plan would be achieved the “Australian way” through technology, not taxes, but he vowed not to bend to international and domestic pressure and increase the 2030 emissions reduction targets announced at the last election.

This was despite modelling by Climate Targets Panel scientists saying that Australia’s emissions have to be slashed by 74 per cent from 2005 levels by 2030, and to net zero by 2035, to restrict global warming to 1.5C on pre-industrial levels and avert the destruction of Torres Strait communities.

Mr Schwartz, a former chairman of the peak philanthropic group Philanthropy Australia and who runs the diverse Schwartz family office called the Trawalla Group, started the Universal Commons project in 2017 to reform political and economic institutions so business and capitalism “serve the common good”.

A similar purpose, he said, led to his involvement in the climate class action. “We have to hold this government to account because the political process doesn’t seem to be doing its job,” he said. “So we’re using all the resources and options we have at our disposal, including the courts, as many others in the world have done.”

In its climate change litigation update in August, law firm Norton Rose Fulbright said the total number of cases lodged globally had reached more than 1800, up from about 1650 in November 2020. While most of the litigation was initiated in the US, cases were increasingly being lodged in other countries and different ­forums.

“Action against governments … continue to gain both volume and prominence,” the update said.

The Grata Fund public interest advocacy group and international climate law experts at the Urgenda Foundation have supported the Federal Court case, which will be conducted by specialist class action and public interest law firm, Phi Finney McDonald.

Urgenda also supported the 2015 Netherlands case, in which 886 Dutch people successfully argued that the government had a legal responsibility to reduce emissions to protect them from climate change.

While the government appealed, the Supreme Court upheld the original order that the government had to cut the country’s emissions by at least 25 per cent from 1990 levels by 2020.

Grata Fund said in a media release on Tuesday that the Torres Strait Islands were at the frontline of the climate crisis, with sea levels rising 6cm in the last decade – double the global average.

“Without urgent action to cut greenhouse gas emissions, sea levels are projected to rise by up to one metre by 2100,” the fund said.

“The weather would become more extreme, with more intense rain in the wet season, a longer, hotter, drier dry season, more severe cyclones and more frequent and severe storms and flooding, leading to coastal erosion and inundation, which threatens freshwater supplies.”

Grata Fund said Boigu and Saibai islands, where the plaintiffs live, were flat and low-lying, about one and a half metres above sea level.

Both islands were regularly flooded by sea water, affecting settlements, infrastructure, important cultural sites and the gardens where people grew vegetables to feed themselves and their families.

Fiona McLeod SC will argue the plaintiffs’ case in the Federal Court.

Ms McLeod has represented the commonwealth in major cases, including leading the legal team in the Victorian Bushfires Royal Commission, the Queensland Floods Commission and the Royal Commission into Institutional Child Sex Abuse.