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Pabai versus Commonwealth: Court hears closing submissions in landmark climate case

The Commonwealth has claimed they don’t have a duty of care to protect the people of the Torres Strait from climate change as they could take steps to protect themselves in an argument a judge said had “an air of unreality”.

Uncle Paul and Uncle Pabai in court On Country in June 2023. Pic credit: Ruby Mitchell
Uncle Paul and Uncle Pabai in court On Country in June 2023. Pic credit: Ruby Mitchell

The Commonwealth has claimed they don’t have a duty of care to protect the people of the Torres Strait from climate change as they could take steps to protect themselves in an argument a judge said had “an air of unreality”.

Closing arguments in the Australian climate case of Pabai Pabai v Commonwealth of Australia have been heard in Cairns this week.

Faced with rising sea levels and distressing inaction on climate change, in October 2021 Uncle Pabai Pabai and Uncle Paul Kabai filed the Australian Climate Case against the Australian Government for failing to prevent climate change.

Uncle Pabai and Uncle Paul are seeking orders from the court that require the Federal Government to take steps to prevent this harm to their communities, including cutting greenhouse gas emissions in line with the best available science.

Badu community showing support to Uncle Pabai and Uncle Paul after meeting to discuss climate impacts. Photo: Ruby Mitchell
Badu community showing support to Uncle Pabai and Uncle Paul after meeting to discuss climate impacts. Photo: Ruby Mitchell

During the first two days of the hearings the court heard the applicants’ closing submissions.

Lead counsel for the applicants, Fiona McLeod SC, told the court Torres Strait Islanders stand to lose their very identity as people of their islands due to climate change and that the government has never proposed emissions reductions targets consistent with limiting global warming to 1.5 degrees.

“This case concerns an incontrovertible truth – a truth that has been widely acknowledged by the Commonwealth in a number of ways and places for more than a decade – that our First People in the Torres Strait are and will be brutally impacted by climate change and they have and will continue to suffer devastating losses,” Ms McLeod said.

Timena Nona walking along Badu seawall at high tide, March 2024. Photo: Ruby Mitchell
Timena Nona walking along Badu seawall at high tide, March 2024. Photo: Ruby Mitchell

Ms McLeod told the court Torres Strait Islanders stand to lose their very identity as people of their islands due to climate change and their children will inherit a region confronting damage beyond comprehension.

The applicants’ counsel also rejected the Commonwealth’s submissions that Torres Strait Islanders can take measures on their own to protect themselves from climate change.

“The Commonwealth cannot seriously be suggesting that these makeshift measures, small as they are, are somehow sufficient to defray threats of inundation and erosion, such that the Commonwealth is justified in ignoring the risk of harm altogether.”

Town drinking water flooded with saltwater from swamps on Boigu Island in March 2023. Photo: Supplied
Town drinking water flooded with saltwater from swamps on Boigu Island in March 2023. Photo: Supplied

The Commonwealth’s lead counsel, Stephen Lloyd SC, began his closing submissions on Wednesday.

A common thread to the Commonwealth’s defence is that questions such as whether a duty of care exists is ultimately a matter for public policy.

As such, the action is not, in the government’s view, amendable to proper judicial determination.

The Commonwealth acknowledged that the Torres Strait Islands were vulnerable to some impacts of climate change but that it is “not possible for the respondent itself to prevent or mitigate climate change or its impacts”.

The Commonwealth said it is generally required to do “what it can” to “reduce greenhouse emissions and prepare Australia and its citizens to adapt to climate change,” and that it is already doing so.

It argued that this cannot be interpreted as a duty of care to prevent the most dangerous climate impacts or minimise them.

Exposed roots and erosion on Saibai Island. Photo: Supplied
Exposed roots and erosion on Saibai Island. Photo: Supplied

The Commonwealth claimed that they don’t have a duty of care because people in Torres Strait could take steps to protect themselves, by doing things like sandbagging.

Justice Michael Wigney said there was an “air of unreality” to the argument.

“There’s a bit of an air of unreality to say that filling sandbags, or putting tractor tyres out, or building rubble is really something that practically can protect the Islanders from climate change, or raising their houses on stilts,” she said.

“I suspect if you said that to the citizens of Colloroy that they can raise their houses on stilts, they might say, well the practicality of that.”

The Commonwealth argues that because it contributes a very small proportion of global green house gas emissions, it is not reasonably foreseeable that the its conduct in determining its greenhouse gas emissions reductions targets would cause the applicants and group members harm and they lack the necessary control prevent or materially mitigate climate change or its impacts.

They argue the alleged duty “would lead to disproportionate and indeterminate liability”.

The Commonwealth argues that setting an emissions reduction target is a matter of policy so the court cannot not rule on it and its approach to its targets was reasonable.

A decision on the case could potentially be handed down later this year.

dylan.nicholson@news.com.au

Originally published as Pabai versus Commonwealth: Court hears closing submissions in landmark climate case

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Original URL: https://www.thechronicle.com.au/news/cairns/pabai-versus-commonwealth-court-hears-closing-submissions-in-landmark-climate-case/news-story/22042f9b7c0dc0395ba9bac23abddc42