Shock result handed down in Torres Strait climate case

News.com.au

3 days ago

The Australian government has no duty of care over the people or the islands of the Torres Strait with regard to climate change, despite admitting 'devastating impacts' were being felt by the region, the Federal Court of Australia has found.
In 2021, two Torres Strait Islander men sued the federal government for what they said was a 'breach of duty of care' over their islands, which continue to be ravaged by rising sea levels and other climate change-related damages.
Uncle Paul Kabai and Uncle Pabai Pabai are elders on their respective home islands of Saibai and Boigu, both of which are under significant environmental stresses induced by man-made climate change.
Coastal erosion, erratic weather conditions, and rapid depletion of sea life populations are just some of the phenomena which, the pair said, the Government had a duty to protect the islands against.
In submissions to the court, Uncle Paul Kabai said the people of the Torres Strait were nothing without their island homes.
'We won't have our culture … if Sabai goes under water, we lose everything. Our culture, our identity, our livelihood. It will all be gone,' he said.
Uncle Pabai Pabai echoed this sentiment in his own submission.
'If Boigu was gone, or I had to leave it because it was under water, I will be nothing. I will have nothing … I will become nobody.'
Handing down his judgement on Tuesday afternoon, Justice Michael Andrew Wigney said he accepted 'many of the factual allegations' upon which the case was based.
'I've accepted the scientific evidence … concerning the devastating impacts that human-induced climate change has had, and continues to have, on the Torres Strait Islands and on the traditional inhabitants … their culture and way of life,' Justice Wigney said.
'Severe erosion, the salination of wetlands and previously arable land, the degradation of fragile ecosystems … has become more frequent and more severe in recent times,' he said.
'There is a very real risk that the worst fears of the applicants will be realised.'
Despite his sympathy towards the plight of the Torres Strait Islands and their people, Justice Wigney ultimately ruled in favour of the Commonwealth, bringing the four-year journey of Uncles Kabai and Pabai to a muted conclusion.
He found the Commonwealth 'did not, and does not owe Torres Strait Islanders the duty of care alleged by the applicants'.
'The reasonableness of decisions of this nature are … to be decided through political processes, not by judges.'
In his closing remarks, Justice Wigney said his judgement, though not in favour of the applicants, was 'not intended to be a criticism of the applicants or their case or their legal advisers'.
'The reality is that the law in Australia, as it currently stands, provides no real or effective legal avenue through which individuals and communities … can claim damages or other relief,' he said.
'That will remain the case unless, and until, the law in Australia changes … until then, the only real avenue available to those in the position of the applicants … involves public advocacy and protest.'
Energy Minister Chris Bowen said people in the Torres Strait were 'already feeeling the impacts' of climate change.
He added the government was in the final stages of a plan which would 'help all communities understand climate risk and build a more resilient country for all Australians'.