Federal court rules against Commonwealth duty of care claim over climate change impacts for Torres Strait Islanders
Justice Michael Wigney's decision on Tuesday found the applicants - Guda Maluyligal nation men Pabai Pabai and Guy Paul Kabai – had not been successful in producing a case of negligence against the Commonwealth.
Mr Pabai and Mr Kabai asserted that the Commonwealth had responded inadequately and had fallen short in protecting Torres Strait Islanders from the impacts of climate change, claiming it had breached an owed duty of care.
In the decision's summary, Judge Wigney said though he accepted many 'factual allegations' put forward by the men, current Australian law did not allow a 'real or effective avenue' for them to pursue their claims.
His decision stated there is 'no doubt' the Torres Strait Islands have been and are being 'ravaged by the impacts of human-induced climate change'.
'The islands themselves have been, and continue to be, eroded and inundated by rising seas and increasingly severe extreme sea level and weather events,' the judgment said.
Judge Wigney also found that previous governments' efforts to reduce climate change and its impacts had been lacking.
'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 global effort to moderate or reduce climate change and its impacts,' the decision said.
Mr Pabai and Mr Kabai lack of success in their case was not due to their arguments having no merit, the judge added.
'Rather, it failed because the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims,' the decision said.
'In particular, the common law of negligence in Australia was an unsuitable legal vehicle through which the applicants could obtain relief in respect of the type of governmental action or inaction which was in issue in this case, or relief in respect of their loss of fulfilment of Ailan Kastom.'
The judge ordered Mr Pabai and Mr Kabai and the Commonwealth provide the court with either an agreed draft orders or supply their own differing draft orders regarding the judgement to the court within the next six weeks.
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