Indigenous elders lose landmark climate battle against Australian government

The Australian government has won a landmark climate case against residents of islands under siege from the impacts of climate change.

In 2021, community elders Pabai Pabai and Paul Kabai launched legal action against the then-Liberal government for breaching its duty of care to protect the Torres Strait Islands from the impacts of climate change.

But a Federal Court judge dismissed the case and said climate policy was a matter for parliament, not the courts.

The ruling also found that the government did not owe a duty of care to protect the islands from the impacts of climate change.

"My heart is broken for my family and my community," Uncle Pabai, a community leader from Boigu island, said in statement to local media.

The Torres Strait Islands - located between far-north Queensland and Papua New Guinea - are made up of about 270 islands, of which only a few dozen are inhabited. They are part of Australia, and the islands' residents are Australian citizens.

About 4,000 people live on the islands, according to the latest official figures, with 90% identifying as Indigenous.

In their submission, Uncle Pabai and Uncle Paul said sea levels in the north of Australia had been rising "significantly higher than the global average".

Between 1993 and 2019, sea levels in the Torres Strait rose by about 6cm per decade, the court was told.

The court also heard that the islands are home to a "distinctive customary culture known as Ailan Kastom", where the residents have a "unique spiritual and physical connection" to the islands and waters.

The case added that by failing to take greater action against climate change in its emissions targets, the islands' unique culture would be lost, and residents would become climate refugees.

However, Justice Michael Wigney said that while he recognised the "devastating impact" caused to the islands by climate change, current negligence laws in Australia do not allow for compensation where the loss of culture, customs and traditions were the result of a government's policies.

He acknowledged that while "climate change related flooding and inundation events had damaged their sacred sites and the burial grounds of their ancestors", matters of "core government policy", such as emissions targets, was "ordinarily to be decided through political processes, not by judges".

He did, however, recognise that action was needed: "There could be little, if any, doubt that the Torres Strait Islands and their traditional inhabitants will face a bleak future if urgent action is not taken to address climate change and its impacts."

In his submission to the court, Uncle Pabai described the deep spiritual connection he and other locals have with the waters and land, especially the cemeteries. "Talking to my ancestors is a big part of my culture," he wrote.

"If Boigu was gone, or I had to leave it, because it was underwater, I will be nothing."

Uncle Paul, the other elder behind the court action, was equally stunned by the findings.

"I thought that the decision would be in our favour, and I'm in shock," he said.

"This pain isn't just for me, it's for all people Indigenous and non-Indigenous who have been affected by climate change. What do any of us say to our families now?"

During earlier court hearings, Uncle Paul had described his childhood memories of Saibai in the 1970s and 1980s, when it was a "land of plenty", with an abundance of barramundi, a type of fish, and crabs in inland freshwater swamps.

But now, more extreme weather events and higher sea levels meant an increase in saltwater coming inland, and coupled with less rain, the higher salt levels in the swamps have made it impossible for fish and crabs to survive, he said.

He told the court about a seawall - built around 2017 - that was breached by a king tide in 2000, destroying crops and flooding homes.

"If the water keeps on rising, in the way it has in the last 10 years or so, the seawall will not be able to protect Saibai at all," he said in his submission.

"My country would disappear. I would lose everything: my home, my community, my culture, my stories, my identity. Without Saibai, I do not know who I would be," the court heard.

In handing down his decision, Justice Wigney said that while the previous government "paid scant if any regard to the best available science" in setting emissions reductions, the new targets set by Labor were "significantly higher and more ambitious".

In a joint statement following the court decision, Australia's Minister for Climate Change and Energy Chris Bowen and Minister for Indigenous Australians Malarndirri McCarthy, said they "understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts".

"Where the former Government failed on climate change, the Albanese Government is delivering – because it's in the interest of all Australians," the statement said.

Riona Moodley, from the University of NSW's Institute of Climate Risk and Response said while the decision was "definitely a setback" for Torres Strait Islanders, it does not mean the law can not change.

"The reality is that Australian law will need to adapt to meet the challenges of climate change," she told the BBC.

Her colleague Wesley Morgan said the court's finding should also propel greater action from government on its climate policies.

"It must listen to the science telling us we need to be as ambitious as possible in the decade ahead," he said.