In the Torres Strait, sea levels are rising twice as fast as the global average.
Author
- Maria Nawaz
Project Lead, Australian Climate Accountability Project at the UNSW Australian Human Rights Institute, UNSW
Scientists predict several low-lying islands in the Torres Strait will be uninhabitable by 2050 if global warming continues on its current trajectory.
In 2021, two Torres Strait Islander elders, Uncle Pabai Pabai and Uncle Paul Kabai, filed the first-ever negligence case against the Australian government claiming failure to protect them from the damage done by climate change.
Both live on islands at direct risk from rising seas. Uncle Pabai lives on Boigu Island , whose highest point is just three metres above sea level. Uncle Paul lives on Saibai Island , which tops out at 1.7 metres. They claimed they would suffer cultural loss if forced to leave their island homes due to climate change, which would sever over 40,000 years of connection to Country.
The case was heard by a Federal Court judge, who found the government had no duty of care.
Late last year, the elders from the Guda Maluyligal nation filed an appeal . Australia's full Federal Court will hear the appeal this week. If successful, the case could lead to the Australian government having to pay compensation for the loss of culture due to climate harms.
What was in the Federal Court decision?
In his findings on the Pabai case, Federal Court Justice Michael Wigney found the government didn't have a duty of care .
Justice Wigney said setting emissions reductions targets is a core policy decision which lay beyond the court's remit. He found it wasn't open to him as a single judge to recognise loss of culture under negligence law for the first time.
However, the decision recognised the Torres Strait Islands and their inhabitants are "undoubtedly far more vulnerable to the impacts of climate change than other communities in Australia".
The court also found the government failed to take the best available science into account when setting emissions targets in 2015, 2020 and 2021.
What does this appeal rest on?
Uncle Pabai and Uncle Paul appealed to the full Federal Court, meaning a panel of three justices will hear the case.
Their lawyer, Brett Spiegel, told the ABC the appeal would ask the full court to "take steps that the trial judge felt he was unable to."
Uncles Pabai and Paul are arguing the government owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them from the impacts of climate change. To date, this link has not been recognised in Australian law. Duty of care cases often focus on the legal responsibility of authorities or employers to avoid foreseeable harm to other people.
The Uncles claim the government breached this duty of care by failing to set emissions reductions targets in line with the best available science to keep warming below 1.5°C.
They say the government voluntarily signed the Paris Agreement , which outlines the 1.5°C target, and set domestic emissions cut targets as part of this. As such, the Uncles claim it's appropriate for the court to review these actions.
In their written submissions, lawyers for the government argue the case involves core government policy, so it would be inappropriate for the court to find a duty of care due to the separation of powers . Even if government emissions reductions targets contributed to climate impacts in the Torres Strait, they argue the contribution is too small to be measurable. This would mean the government is not negligent.
Uncles Pabai and Paul will say the science is clear that all greenhouse gas emissions worsen global warming, and the government's lack of action on emissions made a material contribution to climate change harms in the Torres Strait.
How can climate change threaten culture?
Uncles Pabai and Paul are concerned about losing their ability to practise their culture, known as Ailan Kastom (Island Custom). This includes cultural ceremonies, teaching culture, burying and mourning rituals and caring for sacred sites.
During the original case, Uncle Pabai gave evidence about the uninhabited sacred island of Warul Kawa , visited for millennia for hunting, fishing and ceremonies. If the island was lost, Uncle Pabai said Torres Strait Islanders would:
[lose] our spiritual connection to the ancestors […] It would be like losing our version of heaven.
At the appeal, the Uncles will argue the government has contributed to climate impacts on their islands and that it is liable in negligence for Torres Strait Islanders losing their ability to practise culture.
The government's lawyers will argue losing Ailan Kastom is not compensable under negligence law.
Can the law address climate change?
It may be surprising to hear this appeal is effectively asking the full Federal Court to find a new type of duty of care and a new type of compensation for cultural loss.
But Australian law can and does evolve to address new challenges. The seminal Mabo case brought by Torres Strait Islander Eddie Mabo led to the recognition of land rights for Indigenous peoples.
Courts overseas have found governments have a duty of care to protect their people from climate change harms.
The appeal will be watched closely. Australia's efforts on climate change are already under scrutiny as it prepares for its role leading negotiations at the COP31 United Nations climate talks in Turkey this year. Neighbouring Pacific Island nations face similar threats from sea level rise.
As climate damage worsens, we can expect to see more legal cases focused on the obligations of governments to keep their citizens safe from climate harms.
The author previously worked at Grata Fund which supports the Pabai litigation.
