Court finds no duty of care owed to Torres Strait Islanders over climate change
Judge Michael Wigney ruled Australia's greenhouse gas emissions targets are matters of "core government policy" which should be decided by the parliament, not the courts.
"My heart is broken for my families and my community," Guda Maluyligal traditional owner Uncle Pabai Pabai said after the decision was handed down.
The judge also rejected the Torres Strait Islanders' claims that their cultural loss should be compensated under negligence law.
Uncle Paul Kabai and Uncle Pabai Pabai — from the islands of Saibai and Boigu — brought the case and travelled almost 900 kilometres from their ancestral homes to the Federal Court in Cairns to hear the outcome.
Despite the finding, the judge also said the Uncles had proven many of the factual elements of their case, including that Australia's emissions targets between 2015 and 2021 were not consistent with the best available science to hold global temperatures to 1.5 degrees.
He found the Commonwealth "did not engage with or give real or genuine consideration to the best available science" when setting those targets.
The judge said the Torres Strait Islander peoples' case did not fail because there was no merit in their allegations, but rather because negligence law does not allow compensation for matters of government policy.
Supporters wearing colourful dresses gathered in a separate room in the courthouse to watch the judgement, singing songs from their homeland, and waving Torres Strait Islander flags.
Judge Wigney acknowledged the Torres Strait Islands "have in recent years been ravaged by the impacts of human-induced climate change … rising sea levels, storm surges and other extreme water level events".
"The Torres Strait Islands and their inhabitants are, however, undoubtedly far more vulnerable to the impacts of climate change than other communities in Australia," he said.
"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."
This is the first time an Australian court has ruled on whether the Commonwealth has a legal duty of care to protect their citizens from the impacts of climate change, and whether cultural loss from climate change should be compensated.
The landmark litigation has been financed through the NGO the Grata Fund, and modelled on a successful case from the Netherlands.
As part of the case the Federal Court visited the islands of Boigu and Saibai, about 6 kilometres from the shores of Papua New Guinea, and Badu.
Evidence of coastal erosion, destruction of ancestral graves and soil salinity that prevents crops from growing was presented to the court.
It also heard of extreme weather events, including storms that cause intense flooding and inundate the islands, which lie at just 1.6 metres above sea level.
The court heard sea levels in the Torres Strait were rising at double the rate of the rest of the world and that inaction on climate change may cause irreversible impacts for First Nations people in the Torres Strait.
The plantiffs' legal team argued the Guda Maluyligal people risked losing their culture if rising sea levels, caused by climate change, forced them to leave their homes.
The court heard breaching the 1.5 degrees global emissions limit would cause irreversible damage to small and low-lying islands, including those in the Torres Strait.
Judge Wigney said today's findings "should not be construed as somehow sanctioning or justifying being the unquestionably modest and unambitious greenhouse gas emissions reduction targets that were set by the Commonwealth in 2015, 2020 and 2021".
"Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicant's 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," he said.
This is not the first time Torres Strait Islanders have taken the federal government to court over their long connection to Country.
The decade-long Mabo case led by Meriam man Eddie Koiki Mabo dispelled the legal notion of terra nullius — land belonging to no-one and recognised the land of his people. It also led to the development of the Native Title Act.
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