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Two Torres Strait Islander men have filed an appeal in the Federal Court after losing a landmark duty of care climate case against the Commonwealth in July.

Uncle Pabai Pabai and Uncle Paul Kabai’s lawsuit, claiming the Australian Government’s negligence in not taking robust measures against climate change, was dismissed by Justice Michael Wigney.

While he ruled that the case had not proven negligence by the government, he did accept many of the key facts regarding the serious impacts human induced climate change was having on the Torres Strait Islands.
The new appeal is claiming that the judged erred in some of his conclusions and will argue that the government does owe a duty of care to Torres Strait Islander peoples regarding climate change.

The appeal aims to challenge whether the Federal Court will uphold the government’s ability to endorse policies and projects that escalate greenhouse gas emissions, despite the increasing impact of climate change on First Nations communities.

In a statement, Uncle Paul and Uncle Pabai said they would continue fighting for their communities.
“We’ve decided we’re going to continue this fight because we don’t have a choice,” Uncle Paul said.

“We must persist in our fight, not only for our communities but also for our kin on the mainland, in the Pacific, and for those affected by bushfires, floods, farmers, and schoolchildren,” they declared.

Uncle Pabai said human induced climate change was causing catastrophic harm to his people.
“My community right now is preparing for our homes to be flooded by rising seas when the next king tides come this summer,” he said.
“The scientists have told us we could have less than 30 years before we lose our islands, our homes, our connection to everything.”
Isabelle Reinecke, Founder and National Director of Grata Fund, said similar cases overseas have succeeded and that Australian law must soon follow suit.
“In fact, recently the International Court of Justice found that parties to the Paris Agreement, including Australia, have a legal obligation to set emissions targets that align with a goal of limiting global warming to 1.5°C above pre-industrial levels,” she said.
The case is being closely watched both nationally and internationally as one of the first climate change negligence lawsuits brought by Indigenous peoples against a national government.
Aunty McRose Elu, a senior Elder from Seisia and Saibai, said it was their “destiny” to keep fighting.
“We are thinking about Eddie Mabo and his journey through the courts. He suffered losses but he never gave up,” she said.

They continued, “Our hearts are heavy with the loss we foresee, yet they remain strong with the determination to continue our struggle.”

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