The Federal Court has ruled the Government does not owe two Torres Strait Islander Traditional Owners and their communities a duty of care to protect them from climate change.
In his judgment, Justice Michael Wigney said there are no legal remedies for climate harms caused as a result of high-level policies.
However, he noted the evidence shows the Torres Strait faces a “bleak future if urgent action is not taken to address climate change and its impacts.”
The Government has noted the ruling, saying it has set “ambitious” climate targets.
Torres Strait
The Torres Strait lies between Cape York, the northernmost tip of mainland Australia, and Papua New Guinea.
Its 270 islands are home to more than 4,500 First Nations people, and have rich marine biodiversity.
There are various cultural and language groups across the Torres Strait, including Gudang, Kaiwalagal, and Kemerkemer Meriam Nations.
Most nations comprise native title holders, which is a legal recognition of ownership, possession, and use of land and waterways.
The case
Uncle Paul Kabai and Uncle Pabai Pabai are native title holders of the Boigu and Saibai Islands.
The pair first filed a lawsuit against the Federal Government in 2021, arguing it owed a duty of care to protect the islands from the impacts of climate change.
The legal submission extensively cited international peer-reviewed research, including from the UN official body of the International Panel on Climate Change (IPCC), showing how warmer temperatures threaten biodiversity and life in the Torres Strait.
Uncle Pabai Pabi and Uncle Paul Kabai noted recent floods in the Torres Strait as evidence of the impact of global warming on their communities.
The IPCC-cited research shows burning fossil fuels, like coal, gas, and oil, release carbon emissions into the atmosphere, which in turn increases earth’s temperatures.
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The men argued the government hasn’t taken adequate steps to tackle climate change.
The Government didn’t dispute the science on climate. Instead, it argued that there is no specific legal duty to which it is bound.
Decision
Justice Michael Wigney handed down his decision today, capping off the three-and-a-half-year-long case.
He accepted evidence showing the Torres Strait Islands have been “ravaged by the impacts of human-induced climate change.”
He said Traditional Owners “are finding it increasingly difficult to practise and observe the body of customs, traditions, and beliefs,” including sourcing traditional foods, holding culturally-appropriate burials, and performing ceremonies.
Wigney ruled the Government could not be held legally liable for the climate harms experienced on the Torres Strait Islands.
In 2022, the Federal Court overturned a landmark ruling that found the Government owed a duty of care to young Australians when considering the long-term climate impacts of approving fossil fuel projects.
Wigney said he was bound by this previous decision.
His judgment says: “The Torres Strait Islands and their traditional inhabitants face a bleak future if urgent action is not taken to address climate change”.
Response
The decision was handed down in Cairns on Tuesday. Outside the court, Uncle Pabai Pabai told reporters: “My heart is broken for my family and my community.”
Uncle Paul Kabai said he was “in shock,” saying he had believed the ruling would be in the community’s favour.
In a joint statement, Climate Change Minister Chris Bowen and Indigenous Australians Minister Malandirri McCarthy said the Government had set an “ambitious” target of 43% emissions reduction by 2030. They noted “there is always more to do” on climate.
