Pabai Pabai and Anor vs Commonwealth: Torres Strait climate change case fails in Federal Court
A federal court justice has found the government did not have a duty of care to protect the Torres Strait Islander people from climate change as he dismissed a landmark case.
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A federal court justice has found the government did not have a duty of care to protect the Torres Strait Islander people from climate change as he dismissed a landmark case.
Uncle Pabai and Uncle Kabai are both Guda Maluyligal men in their fifties, having lived their whole lives on Boigu island and Saibai Island respectively.
The plaintiffs argued that the Commonwealth owed a duty of care to Torres Strait Islanders and was breaching that duty of care due to climate change inaction.
The Australian government currently has a 2050 net zero emissions target, which experts have said will not be enough to prevent disaster in the Torres Strait.
On July 15, Justice Michael Wigney found the applicants had failed in their primary case to prove negligence on the part of the Commonwealth government.
The decision was met with sadness, anger and tears from hundreds of community members and their supporters who gathered in Cairns to hear the judgement.
“My heart is broken for my family and my community,” Uncle Pabai said.
“Love has driven us on this journey for the last five years, love for our families and communities.
“That love will keep driving us.”
Uncle Kabai said he was in shock over the decision.
“I thought that the decision would be in our favour and I’m in shock,” he said.
“This pain isn’t just for me, it’s for all people, Indigenous and non-Indigenous, who have been affected by climate change.
“What do any of us say to our families now?”
Justice Wigney found the Commonwealth did not have the duty of care alleged by the applicants, but did accept many of the key factual allegations they had made.
“The Torres Strait Islands, in recent years, have been ravaged by the impact of human-induced climate change,” he said.
“Rising sea levels, storm surges and other extreme water level events have resulted in flooding and sea water inundation on many of the islands.”
He said the impacts have had a profound impact on the customary life of the inhabitants and traditional owners of the islands.
“They are finding it increasingly difficult to observe the body of customs, traditions and beliefs known generally as Ailan Kastom, which has sustained them for generations.”
He said there was no doubt the people of the islands were far more vulnerable to climate change.
He said it was clear that the Commonwealth government had for some time known about the perils of and the ongoing risks posed by climate change.
The applicant’s primary case focused on the greenhouse gas emissions targets the Commonwealth set in 2015, 2020, 2021 and 2022.
Justice Wigney found that when the government set Australia’s greenhouse emissions targets in 2015, 2020, and 2021 it “paid scant, if any, regard to the best available science”.
He found the 2022 target was significantly higher than the targets set by the previous government.
He also said the evidence clearly indicated the damage being brought to the Torres Strait Islands by climate change.
“There could also be no doubt that those and other impacts have had a significant adverse impact on the traditional way of life of many Torres Strait Islanders,” he said.
“The Torres Strait Islands and their inhabitants are quite literally on the front line of climate change and its devastating impacts.”
Justice Wigney found the government did not and does not owe Torres Strait Islanders the duty of care alleged by the applicants.
“In respect to the law of negligence, by which I am clearly bound, establishes that governmental conduct and core government policy are not properly or appropriately made the subject of common law duties of care,” he said.
“The reasonableness of decisions of that nature are ordinarily decided through political processes, not by judges.”
In closing his statements, Justice Wigney said, “It will be apparent that the main reason for the failure of the applicants’ primary case was not that they were unable to prove the main factual elements of their case against the Commonwealth”.
“The reality is the law in Australia, as it currently stands, provides no real or effective legal avenue through which individuals and communities like the Torres Strait Islands can claim damages or other relief as a result of government decisions and conduct which involves matters of policy,” he said.
“This will remain the case in Australia until the law changes.
“Until then, the only real avenue available to those in the position of the applicants and other Torres Strait Islanders involves public advocacy and protest and ultimately recourse via the ballot box.”
Saibai elder Aunty McRose Elyu said they would keep fighting.
“I feel deep grief in this moment,” she said.
“I have watched the journey of my two brothers in the case for the last five years.
“They’ve fought for the betterment, not only of their communities, but the whole Torres Strait.
“Where is the duty of care from the government?
“We will be the first climate refugees in Australia. I’m burdened with that heaviness.
“What will I say to my grandchildren about this decision? It’s their future, not mine.
“Whether or not people like Mr Albanese want to admit it, they have a duty of care to all of us.
“Prime Minister Albanese and his ministers’ weakness and refusal to accept this through this legal process is a damning moral loss.
“They should all be ashamed.”
Originally published as Pabai Pabai and Anor vs Commonwealth: Torres Strait climate change case fails in Federal Court
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