Impacts of human induced climate change laid bare in Federal Court judgement in Uncle Paul and Uncle Pabai landmark Australian Climate Case today.
Today in Cairns, the Federal Court accepted the factual case presented in Uncle Pabai and Uncle Paul’s landmark Australian Climate Case but found that “the law does not currently support” their claim that the government has a legal duty of care to protect the Torres Strait, its people and their culture from climate harm
The Federal Court found that while the Torres Strait Islands, people and culture are being “ravaged by human induced climate change” and that climate change poses “an existential threat to the whole of humanity”, the Australian Government does not “currently” have a legal duty of care to protect Torres Strait people from climate harm.
His Honour said that “when the Commonwealth identified and set Australia’s greenhouse gas emissions reduction targets in 2015, 2020 and 2021, it failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part in the critically important global objective, enshrined in the Paris Agreement, of significantly reducing greenhouse gas emissions and thereby moderating global warming and reducing the prospects of the worst and most dangerous impacts of climate change.”
His Honour noted that “In short, the evidence revealed that when it set Australia’s greenhouse gas emissions targets in those three years, the Commonwealth paid scant if any regard to the best available science.”
Uncle Pabai and Uncle Paul are global trailblazers for climate justice and accountability. This case has already had enormous success, it has dragged the Australian Government on country and forced it to face up to the truth of the harm they are actively and knowingly causing to Australian communities. They were forced to admit in open court that they failed to consider climate science or the harm they’re perpetuating against Australian communities in setting its climate targets.
Uncle Pabai and Uncle Paul are committed to seeing this case through to the end for their communities and will now sit with their legal team and carefully examine pathways for appeal. Appeal aside, Uncle Pabai and Uncle Paul have already achieved the extraordinary by bringing this case and taking a critical step to holding the Australian government accountable to the law and stopping climate harm.
The case uncovered that the Australian Government set climate targets without regard to the science, or to what would prevent climate catastrophe affecting Torres Strait communities.
In the proceedings Justice Wigney asked the Commonwealth, “In some respects … your case is that it would be open to the Commonwealth Government to set [an emissions reduction] target which completely ignores the climate science and that it would not be held accountable by the law of negligence?” and Stephen Lloyd SC acting for the government, responded, “Absolutely”.
The Australian Government has an emissions reduction target of 43% by 2030 (on 2005 levels), which has been roundly criticised by climate experts, with the Climate Council recommending 75% by 2030.
Australia is the third largest exporter of fossil fuels globally after Russia and the United States. Resisting global pressure and advice from experts, the Australian Government, led by the Australian Labor party, has approved 27 fossil fuel projects and expansions since taking office.
Uncle Pabai Pabai said:
“We are cultural people, our ancestors, I’ve got a 2 year old son, he’s my main focus – this is why I’m doing this. For the love of my son and for all the people in our community in the Torres Strait, for the bushfire and flood survivors, the farmers, kids and grandkids. I’ll keep fighting and will sit down with my lawyers and look at how we can appeal”
Uncle Paul Kabai said:
“Mr Albanese and his expensive government lawyers, will stand up and walk away just like they 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.”
Aunty McRose Elu, Saibai Elder, said:
“We will cry together and we will rise because unlike the Prime Minister, this isn’t a fancy job that one day he will walk away from – it’s our lives, our children’s futures, it’s everything we have. You come to our islands, you talk to us about climate change and then you leave and approve more fossil fuel projects.”
“Whether or not people like Mr Albanense want to admit it, they have a duty of care to all of us. Prime Minister Albanese and his and his Minister’s weakness and refusal to accept this through this legal process is a damning moral loss. They should all be ashamed.”
“Since the decision, I heard that Minister Bowen has already said he understands the impacts of climate change and he thinks the government is delivering. I say he’s a liar. Come and sit with me on Saibai and look those kids in the eyes, and you tell them that your government is doing enough when they have 30 years left on their islands. Your government just approved an extension of another massive fossil fuel project in WA that will drown us. Stop lying to us.”
Isabelle Reinecke, founder and Executive Director of Grata Fund, said:
“In May the Australian Government approved a 40 year extension to the Woodside North West Shelf Gas project which will release 4.4 billion tonnes of climate pollution over its lifetime – it will be responsible for emissions greater than dozens of countries and many of the world’s biggest companies.”
“The court was not yet ready to take the step we all need it to and hold the Australian Government accountable for it’s role in creating the climate crisis. However, the court made extraordinarily strong factual findings in agreement with Uncle Pabai and Uncle Paul, including that the Australian Government knows that Torres Strait communities are being ravaged by climate change and had “scant if any regard” to climate science in setting emissions reduction targets. The government is continuing to make choices, open-eyed, to prioritise the vested interests of fossil fuel companies and political donations over the people it is supposed to serve.”
“The government didn’t see this case coming and they never thought people would have the determination and bravery to see it through. By bringing this case and seeing it through, the Uncles have rattled the major political parties and Australian government that think they can continue to fuel the climate crisis with impunity. Our communities will continue to fight back through the courts, and the streets, and the halls of power until we win a future where our communities are cared for.”
Uncle Pabai and Uncle Paul’s case has brought to light a series of significant legal questions, and a win on any of these matters is an historic victory. They will consider grounds for appeal on the other issues with their legal team.
Brett Spiegel, Principal Lawyer, Phi Finney McDonald, said:
“Today His Honour found that Uncle Pabai, Uncle Paul and Torres Strait Islanders face an existential crisis. He accepted the testimony of Uncle Pabai, Uncle Paul and the other Torres Strait fact witnesses about the harm to their homes and to Ailan Kastom from climate change. He also found that the Commonwealth government set emissions targets that did not “give real or genuine consideration to the best available science.” Nevertheless, His Honour found that as a trial court judge, it wasn’t “currently” open him to find that the government owed a duty of care to Torres Strait Islanders. We will review the judgment with Uncle Pabai and Uncle Paul and consider all options for appeal.”
MEDIA ENQUIRIES:
Please contact Terri King at Pitch on 0488 036 740 or terri@pitchprojects.com
IMAGES/VIDEO:
Images/footage from today’s court appearance and press conference, as well as on the islands and throughout the case, are available here.
AVAILABLE FOR INTERVIEW:
- Uncle Pabai Pabai, lead plaintiff, Traditional owner and community leader, Boigu
- Uncle Paul Kabai, lead plaintiff, Traditional owner and community leader, Saibai
- Aunty McRose Elu, Torres Strait Islands Elder
- Isabelle Reinecke, founder and executive director, Grata Fund
- Brett Spiegel, Principal Lawyer, Phi, Finney McDonald; Ben Phi, Director, Phi Finney McDonald
- Prof Ove Hoegh-Guldberg, Climatologist
CLIMATE COUNCIL SPOKES AVAILABLE FOR INTERVIEW:
Separate to the case, the Climate Council has spokespeople available to comment on climate science and energy transition.
Greg Bourne, Director and Councillor of the Climate Council, has worked at the nexus of climate change, energy business and policy for over 30 years. He is available to speak about the energy transition.
Professor Lesley Hughes, climate expert, former Australian Federal Climate Commissioner and Lead Author in the IPCC’s 4th and 5th Assessment Report.
Media contact: Jaqui Street, 0498 188 528
DECISION SUMMARY
In the case Pabai Pabai & Anor v Commonwealth of Australia, the Federal Court found that while the Torres Strait Islands, people and culture are being “ravaged by human induced climate change” and that climate change poses “an existential threat to the whole of humanity”, the Australian Government does not have a legal duty of care to protect Torres Strait people from climate harm.
Justice Wigney found that Uncle Pabai and Uncle Paul and their community proved the severe climate change harms being experienced on the Torres Strait Islands, the particular vulnerability of Torres Strait Islanders to the impacts of climate change and the inadequacy of the Australian Government’s emissions reduction targets set in 2015, 2020 and 2021.
Justice Wigney noted, “The Torres Strait Islanders are, both literally and figuratively, a world away from Canberra, the home of the Commonwealth Parliament. That is where many of the most important decisions are made about the nation’s response to climate change and its impacts. While there may have been, and perhaps still are, some climate change doubters and deniers among the politicians and bureaucrats who are responsible for making those decisions, it is tolerably clear that the Commonwealth Government has for some time known about the perils of, and ongoing risks posed by, climate change.”
Uncle Pabai and Uncle Paul had argued that loss of culture, or Ailan Kastom should be compensable. Justice Wigney, while having considerable sympathy for this argument found that the law in Australia currently does not recognise loss of culture as compensable.
Justice Wigney noted that Uncle Pabai and Uncle Paul succeeded in proving many of the factual aspects of their claim, including the scientific evidence about the devastating impacts that human-induced climate change has had, and continues to have, on the Torres Strait and Torres Strait Islanders, and their way of life.
In his judgment summary, Justice Wigney observed, “The projected future impacts of climate change in the Torres Strait Islands also paint a very bleak picture indeed. The Torres Strait Islands and their traditional inhabitants are quite literally at the very frontline of climate change and its devastating impacts. Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicants’ 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.”
Justice Wigney found that when the Commonwealth set Australia’s greenhouse gas emissions reduction targets in 2015, 2020 and 2021, the government failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part in reducing greenhouse gas emissions and the most dangerous impacts of climate change. Justice Wigney found that the targets set by the government in those years were not based on, and were not consistent with, what the science said about the size of the emissions reduction that would be necessary for Australia to play its part in meeting the global objective of keeping global warming to 1.5°C in line with the Paris Agreement.
The Federal Court found that the Government does not owe a duty of care to Torres Strait Islanders in relation to mitigating climate harms or providing funding for adaptation measures on the Torres Strait Islands. Justice Wigney noted that the law of negligence in Australia did not allow him to find a duty of care was owed by the Government, or was breached.
Uncle Pabai, Uncle Paul, their communities and their legal team will now closely read the judgment and consider whether to lodge an appeal.
Link to summary and full judgment.
CASE BACKGROUND:
Faced with rising sea levels and distressing inaction on climate change, in October 2021 Uncle Pabai and Uncle Paul filed the Australian Climate Case against the Australian Government for failing to take reasonable steps to prevent climate change.
The homes of people in the Torres Strait could disappear beneath the rising seas, making them Australia’s first climate change refugees. For Zenadth Kes (Torres Strait islands) people, the impacts of climate change won’t only force them from their island homes, but sever their connection to thousands of years of culture and deep spiritual connection passed down generation by generation, connection to land, sea, winds and sky and community.
Uncle Pabai and Uncle Paul are seeking orders from the court that require the Federal Government to take steps to prevent this harm to their communities, including cutting greenhouse gas emissions in line with the best available science.
The Australian Government currently has a 2050 ‘net zero’ emissions target, which experts say will not be enough to prevent disaster in the Torres Strait. In fact, leading climate scientists on the Climate Targets Panel calculate that Australia’s greenhouse emissions need to be reduced by 75% by 2030 (from 2005 levels) and to net zero by 2035 to keep global heating to below 1.5°C and avert the destruction of Torres Strait Islander communities.
ADDITIONAL INFORMATION:
1. The plaintiffs
Wadhuam (Maternal Uncle) Pabai Pabai, proud Guda Maluyligal man and Traditional Owner Boigu. Wadhuam Pabai is in his 50’s and has lived on Boigu island his whole life, like generations and generations before him. He is a Director on the Prescribed Body Corporate which represents the 6 clans on the island. He is extremely concerned about the myriad of climate impacts his community is facing and is proud to be taking on this case. Wadhuam Pabai is a father of five daughters and two sons, aged between 30 and 12, and is bringing this case to ensure they and their children and their grandchildren have continuing connection to Boigu into the future.
Wadhuam (Maternal Uncle) Paul Kabai, proud Guda Maluyligal man and Traditional Owner Saibai
Wadhuam Paul is in his 50s and has lived on Saibai since he was born. He is a Director on the Prescribed Body Corporate which represents the 7 clans on the island. Wadhuam Paul is deeply concerned about his island flooding and disappearing beneath the waves. He is also worried about the effects of heatwaves and other climate impacts on people’s health. Paul is a father to two girls and six boys aged between 40 and 10 and he is bringing the case to protect their future and the future of all Saibai Islanders, Guda Maluyligal Peoples and all Australians.
2. About the case
In the class action, filed on 26 October 2021, plaintiffs Wadhuam Paul and Wadhuam Pabai are arguing that the Commonwealth has a legal ‘duty of care’ towards Torres Strait Islander Peoples, arising both from negligence law (torts) and the Torres Strait Treaty and Native Title. [Paul and Pabai] are arguing that by failing to prevent climate change the Australian Government has unlawfully breached this duty of care, because of the severe and lasting harm that climate change would cause to their communities.
This landmark case is modelled on one of the most successful climate cases in history. In 2015, environmental group the Urgenda Foundation supported 886 Dutch people to bring a case against their Government, arguing that it had a legal responsibility to reduce greenhouse gas emissions to protect them from climate change. On 24 June 2015, the District Court of The Hague ruled in favour of Urgenda and ordered the Government to cut its greenhouse gas
emissions by at least 25% by the end of 2020 (compared to 1990 levels). The Government appealed, but in December 2019 the Dutch Supreme Court found in favour of Urgenda and confirmed the original court order. This led to the rapid closure of coal fired power stations and billions of euros of investment in renewable energy and energy efficiency measures.
3. Key climate harms in the Torres Strait
Zenadth Kes (the Torres Strait Islands) is the frontline of the climate crisis. Sea levels in the Torres Strait are rising at double the global average, and rose 6cm in the last decade. Without urgent action to cut greenhouse gas emissions, sea levels are projected to rise by up to one metre by 2100. The weather would become more extreme, with more intense rain in the wet season, a longer, hotter, drier dry season, more severe cyclones and more frequent and severe storms and flooding, leading to coastal erosion and inundation, which threatens freshwater supplies.
Boigu and Saibai are very flat and low-lying islands, about one and a half metres above sea level. They are particularly exposed to sea level rise – more so than many other islands in Zenadth Kes. Both islands are already being regularly flooded by sea water. This is already affecting settlements, infrastructure, important cultural sites and the gardens where people grow vegetables to feed themselves and their families.
Gudalmalulgal Kastom governs how Gudalmalulgal Peoples take responsibility for and manage their land and sea country, and how and by whom natural resources are harvested. As the ocean continues to warm, this poses a severe threat to marine life and complex systems of biodiversity, including coral reefs, turtles, dugongs and fish populations. Connection to sea country and marine hunting is integral to Gudalmalulgal Kastom. Marine hunting and fishing are also crucial food sources for Torres Strait Islander Peoples.
Irreplaceable cultural heritage and sacred sites will be completely destroyed. Inhabited and uninhabited islands are home to significant sites for ceremonies such as initiation for different clans, burial sites and locations that contain human remains and places that have as much spiritual significance as the Christian concept of heaven.
The climate crisis is a health crisis. Heatwaves are already the most deadly form of natural disaster in Australia, and climate change would bring a longer, hotter, drier dry season to the Torres Strait, in which more people become sick or die from heat-related illnesses. Malaria and dengue fever would increase because warmer temperatures and increased rainfall and flooding provide optimal breeding conditions for mosquitos.
With very limited options for adapting to climate change, many islands in Guda Maluyligal and the wider Torres Strait will become uninhabitable. Torres Strait Islander Peoples would become Australia’s first climate refugees. Being forcibly removed from their land, place and culture because of Government inaction would form another shocking chapter in Australia’s oppression of First Nations Peoples.
4. About the team
Grata Fund Grata Fund advocates for a strong and functioning democracy by using circuit breaking litigation to hold the powerful to account. Grata is Australia’s first specialist non-profit strategic litigation incubator and funder. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms.
Phi Finney McDonald is a specialist litigation firm with offices in Melbourne, Sydney and London. They practice in complex and large-scale litigation, with a focus on class actions and group litigation. Their lawyers have decades of experience seeking justice for those who have suffered loss or injury from corporate or government misconduct. Together with Urgenda, Phi Finney McDonald developed the case and have conduct of the litigation on the instructions of plaintiffs Uncle Paul and Uncle Pabai.
Fiona McLeod AO SC is a Senior Counsel at the independent Bar in Australia practising in the areas of commercial and public law matters. She represented the Commonwealth of Australia in major cases including leading the legal team in the Victorian Bushfires Royal Commission, Queensland Floods Commission and the Royal Commission into Institutional Child Sex Abuse. She has acted in other notable matters including leading the legal team representing the successful plaintiff in the Murrindindi bushfire class action and the plaintiffs in the Don Dale class action. Fiona has led the Law Council of Australia, Australian Bar Association, Victorian Bar and Australian Women Lawyers. She is the Co-Chair of the Diversity and Inclusion Council and an officer of the Bar Issues Committee of the International Bar Association and a member of the Council of the Commonwealth Lawyers Association.
Tomo Boston KC is a highly regarded trial and appellate advocate, who has advised and represented a broad range of clients in business critical litigation and regulatory investigations across a range of markets and industries. He is focused on working collaboratively with clients and solicitors to develop the most cost effective strategy to secure the best commercial and legal results while minimising legal, reputational and commercial risks. He has been recognised in The Legal 500 Asia Pacific (Commercial Disputes) and Best Lawyers in Australia.
The Urgenda Foundation is a Dutch NGO that is working to promote a fast transition towards a sustainable society. Urgenda views climate change as one of the biggest challenges of our time and looks for solutions to ensure that the earth will continue to be a safe place to live for future generations. Urgenda has helped develop the case and provided strategic and scientific support.
