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Although the Federal Court agreed the Australian government failed in its approach to greenhouse gas emissions targets, the common law meant the judge was unable to rule in favour of Torres Strait Islanders, who are most vulnerable to the impacts of climate change.
Photo credit: Catherine Black.
Boigu traditional owner Uncle Pabai Pabai and Saibai traditional owner Uncle Paul Kabai said their hearts were broken over the Federal Court’s verdict on their landmark climate change case, which sought to hold the Commonwealth government responsible for the impacts of rising sea levels on the Torres Strait Islands.
“I thought this decision would be in our favour, and I’m in shock.
“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?” Uncle Kabai said.
Justice Michael Wigney found that Uncle Pabai and Uncle Kabai succeeded in establishing a number of factual allegations underpinning their primary case, particularly that the government failed to give “any real or genuine consideration” as to the best available science when it set greenhouse gas emissions targets.
Although the best available science was “patently clear” at the time the targets were set in 2015, 2020, and 2021, Justice Wigney said the federal government paid “scant if any regard” to the evidence that required it to contribute to a global goal to limit the temperature increase to 1.5 degrees celsius above pre-industrial levels.
However, Justice Wigney found the applicants failed to make out their primary case, which alleged the government owed a duty of care to all Torres Strait Islanders to take reasonable steps to protect them, their traditional ways of life, and their marine environment.
The uncles also failed in their alternative case, which alleged the government owed Torres Strait Islanders a duty of care to avoid causing property damage, loss of fulfilment of island custom, and injury arising from a failure to adequately implement adaption measures to prevent or minimise the impacts of climate change.
The alternative case hinged on Commonwealth funding to construct seawalls on the most affected islands and to establish a coherent plan for the provision of this funding. The uncles alleged this funding was “delayed, unpredictable and inadequate”.
Justice Wigney said Uncle Pabai and Uncle Kabai failed because the common law of negligence in Australia “was not a suitable legal vehicle through which the applicants could obtain effective relief in respect of the type of harm they claim to have suffered as a result of the type of governmental action or inaction”.
“While I have considerable sympathy for the applicants’ contention that Ailan Kastom [or island custom] should be recognised as capable of protection by law, I do not consider that it is open for me, sitting as a single judge of this court, to recognise, for the first time, that participation in, or enjoyment or observance of, customs, traditions, observances and beliefs, can constitute or comprise rights or interests capable of protection by law,” Justice Wigney said.
As it currently stands, the law in Australia provides no “real or effective legal avenue” for communities like those in the Torres Strait Islands to claim damages or other relief in respect of harm they have suffered as a result of governmental decisions and conduct.
Justice Wigney said it would remain the case until the law changes, either by “incremental development or expansion of common law” by appellate courts, or by the enactment of legislation.
“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,” Justice Wigney said in his summary of written reasons.
The court made clear its findings that the Torres Strait Islands have continued to be “ravaged” by the impacts of climate change, with evidence pointing to the flooding and inundation of townships, extreme sea level and weather events, severe erosion, the salination of wetlands, and the degradation of fragile ecosystems.
Justice Wigney said there was “no doubt” this has had a significant adverse impact on the traditional way of life for many Torres Strait Islanders and resulted in their loss of fulfilment of Ailan Kastom.
“The Torres Strait Islands and their traditional owners are quite literally at the very frontline of climate change and its devastating impacts,” Justice Wigney said.
“Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicant’s worst fears will be realised, and they will lose their islands, their culture and their way of life and will become, as it were, climate refugees.
“That would, of course, be a devastating outcome.”
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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