Powered by
MOMENTUM
MEDIA
The consensus reaction to the Federal Court’s decision on the landmark climate change case put forward by Torres Strait Islander leaders has been immense “disappointment”.
The Federal Court’s decision pertaining to the case pushed by Boigu traditional owner Uncle Pabai Pabai and Saibai traditional owner Uncle Paul Kabai has been met with widespread disappointment and frustration, although the court upheld a number of the factual allegations put forward.
Justice Michael Wigney, who oversaw the landmark case, agreed with a number of allegations introduced by the plaintiffs, in particular that the government failed to give “any real or genuine consideration” towards the best available science when it set greenhouse gas emissions targets.
However, when it came to the relief sought by the plaintiffs, the “common law of negligence” was found to have not been 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”.
With Judge Wigney’s hands tied unless “incremental development or expansion of common law” sprouted, the Torres Straight Islanders’ – who are front and centre to the impacts of climate change – only real avenue towards relief is through “public advocacy and protest, and ultimately recourse via the ballot box,” said Wigney.
Reflecting on the court’s decision, Kabai took aim at the federal government and Prime Minister Anthony Albanese.
“Mr Albanese and his expensive government lawyers will stand up and walk away just like walk out the door of this court today. They go home and sleep soundly in their expensive beds. We go back to our islands and the deepest pain imaginable.
“I want to ask Mr Albanese what I should say when I go home to my family, how do I tell them we have less than 30 years left?
“I can feel the moral burden on my shoulders. Sometimes when I’m alone I feel the heaviness of the burden and it is not mine to carry. The Prime Minister should be carrying this for the people, that’s his job.”
Dr Riona Moodley, a UNSW climate litigation expert, labeled the decision as “disappointing” but claimed that it would not act as a roadblock for climate justice.
“While the decision is a major setback, it is unlikely to stem the tide of climate litigation that is calling for greater accountability for climate change – especially for those most vulnerable to its impacts,” said Moodley.
“While the court did not find that the Commonwealth owed a duty of care in negligence in this instance, it left open the possibility that an Appellate Court could revisit this position. Around the world, courts and international human rights bodies are increasingly holding governments and corporations accountable for climate inaction.”
For climate justice to prevail, Moodley said that Australian law must adapt to face the new challenges already impacting Torres Straight Islanders.
“Today (15 July) might not be that day, but Australian law will need to adapt to meet the challenges of climate change. This must include providing a pathway for access to justice for those most vulnerable to its impacts.”
According to Dr Ella Vines, research fellow Green Lab at the Monash Business School, the decision from the Federal Court was “unsurprising” but should spur the federal government into action on behalf of Torres Straight Islanders being impacted.
“This outcome should serve as a wake-up call for the federal government to take stronger, more effective action to protect Torres Strait Islanders from climate change impacts. It also highlights the urgent need for law reform to ensure our legal system is equipped to address the complex and pressing challenges posed by climate change.
“The result is unsurprising, given the historical reluctance of Australian courts to find a duty of care to protect individuals from the impacts of climate change … The outcome highlights the need for innovative law reform to better protect victims of climate change.
“It strengthens the case for introducing federal human rights legislation, as well as laws that establish a clear duty of care to safeguard people from the impacts of climate change.”
