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Pabai Pabai and Paul Kabai have faced defeat in their significant legal battle against the Commonwealth, as Federal Court Justice Michael Wigney concluded that the Australian Government was not responsible for negligence in failing to implement decisive climate change measures.
Anticipation was high, but today’s outcome was a disappointing setback for the Torres Strait Islander claimants involved in this pivotal climate lawsuit.
“My heart is broken for my family and my community,” Uncle Pabai Pabai, from Boigu, 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 Paul Kabai, Saibai Traditional Owner, said he was in shock because he had expected the decision to be in the Islanders’ favour.
“This pain isn’t just for me, it’s for all people, Indigenous and non-Indigenous who have been affected by climate change,” he said.
“What do any of us say to our families now?”
In a much-anticipated decision handed down in Cairns, the Federal Court ruled against the Uncles’ claim – that the Australian Government had been negligent by failing to take stronger action on climate change.
While accepting many of the key facts that the Uncles had presented to the court regarding the devastating effects human-induced climate change has had on the Torres Strait Islands, Judge Michael Wigney ruled that it was not enough to prove their case of negligence against the Australian Government.
It’s a devastating outcome for the claimants and for communities across the Torres Strait who are already living with the daily impacts of climate change.
Saibai Elder Aunty McRose Elu, who gave evidence during the case, said she was feeling deep grief.
“It is a moral loss for the government, not for us – we are the winners,” she said.
“Where is the duty of care from the government?
“We will be the first climate refugees in Australia – I am burdened with that heaviness.
“What will I say to my grandchildren about this decision? It’s their future not mine.
“We will keep on fighting.”
From homes threatened by rising tides, to the erosion of sacred sites and cultural heritage, Traditional Owners have long argued that their future is at risk.
But today, the court ruled the Government has no legal obligation to act.
In making his decision Justice Wigney said there was no doubt that the inhabitants of the Torres Strait Islands are far more vulnerable to the impacts of climate change than other communities in Australia.
“They understandably feel powerless when it comes to protecting themselves against climate change and its impact on their islands and traditional way of life,” he said.
“There is little, if any, doubt that the Torres Strait Islands and their traditional communities are confronted with a dire future unless immediate action is taken to tackle climate change and its consequences.”
Nonetheless the judge ruled that the Uncles had not proved their case to satisfy the common law of negligence.
“The reality is that the law in Australia as it currently stands provides no real or effective legal avenue through which individuals and communities like those in the Torres Strait Islands can claim damages or other relief in respect of harm that they claim to have suffered as a result of governmental decisions … including in respect of the responses to climate change,” he said.
“… That will remain the case unless the law in Australia 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.”
Justice Wigney found that when the former Coalition Government set Australia’s greenhouse gas emissions targets in 2015, 2020, and 2021, it failed to give any genuine consideration to what the best available science indicated was required for Australia to play its part in the important global objective enshrined in the Paris Agreement of significantly reducing greenhouse gas emissions.
In a joint statement Indigenous Australians Minister Malarndirri McCarthy and Climate Change Minister Chris Bowen said they understood the Torres Strait Islands are vulnerable to climate change and that the Commonwealth was considering the judgment.
“We are focusing on reversing a decade of inaction on climate issues by setting serious climate goals into legislation and initiating the necessary changes to meet them,” their statement conveyed.
