Legal ruling can't obscure the brutal reality of climate change for Torres Strait Islanders

The Guardian

7 days ago

As parliament returns for the first time since the May election, talk is focused on productivity, disastrous childcare failures and how Australia should position and prepare itself amid rising global turmoil.
If our leaders are serious, they should also make time to look back on the events of a week ago, when federal court justice Michael Wigney handed down a judgment in Cairns that is likely to echo for years to come – and says just as much about what lies ahead as the latest rhetoric from Washington and Beijing.
Much of the initial reaction to the judgment has understandably focused on the immediate bottom line. Wigney found the federal government did not have a legal responsibility to protect the Torres Strait Islands from a climate crisis that is already being experienced.
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It was a devastating result for Uncle Pabai Pabai and Uncle Paul Kabai, the elders from Boigu and Saibai islands – who brought the case – their communities and the civil society representatives who supported them. But it is unlikely to be the end. And Wigney stressed that, on facts and moral weight, their case was strong.
It is worth sitting with what he said in his summary. Every member of parliament should read it.
Wigney found the evidence showed the Torres Strait Islands, the collection of low-lying coral cays and sand and mud islands between Cape York and Papua New Guinea, are already being ravaged – his word – by the effects of human-induced climate change. Rising sea levels, storm surges and other extreme events are causing flooding and sea-water inundation. Trees are dying and previously fertile areas affected by salination are no longer suitable for growing traditional crops. Beaches are being eroded and tidal wetlands damaged.
The ocean is getting hotter and its chemistry is changing as it absorbs more carbon dioxide from the atmosphere, causing coral bleaching and the loss of seagrass beds. Once abundant totemic sea creatures – dugongs and turtles – are becoming scarce. Seasonal patterns are changing and transforming migratory bird patterns.
In Wigney's words, this has already had a 'profound impact' on the customary way of life in the Torres Strait. Inhabitants and traditional owners are finding it increasingly difficult to practice and observe customs, traditions and beliefs that have sustained them for generations. Sacred ancestral sites, including burial grounds and ceremonial sites, have been damaged and are constantly at risk. Increasingly, the people can not source traditional foods or engage in cultural practices. It is difficult for elders to pass on their knowledge to the next generation.
Consider for a moment how people would respond if these sorts of abrupt changes came to those who live in Australia's major cities – if, within a generation or two, they were losing their homes, their ability to feed their families and protect themselves from the elements
It would at the very least be a constant focus in the national conversation. Our politicians would be asked about it – and motivated to respond to it – every day.
Wigney's assessment of the evidence is that these changes are coming for all of us if swift action isn't taken. He found climate change 'poses an existential threat to the whole of humanity' and that many, if not most, communities in Australia are vulnerable. The people of Boigu and Sabai and neighbouring islands are at the pointy end. Given they are also more socially and economically disadvantaged than many Australians, they often lack access to the resources, infrastructure and services that would help them adapt or protect themselves.
In Wigney's words: 'Unless something is done to arrest global warming and the resulting escalating impacts of climate change, there is a very real risk that the applicants' worst fears will be realised and they will lose their islands, their culture and their way of life and will become climate refugees.'
The justice repeated Pabai's evidence that, if he had to leave Boigu due to it being under water, he would 'be nothing'. 'I will have nothing behind my back,' Pabai said. 'I will not be able to say I'm a Boigu man any more. How will I be able to say where I come from? I will become nobody. I will have no identity.'
On one level, there is no new news here. The plight of residents on low-lying islands has been documented. But the federal court's black-and-white recognition of this evidence is noteworthy – and so is what came after it.
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Outside a legal context, it sounds pretty galling. Wigney found the case had largely succeeded in establishing the facts – particularly, that the former Liberal-National Coalition government failed to engage with, or genuinely consider, what the best available climate science said Australia should do to play its part in meeting the goals of the landmark Paris climate agreement, which it signed up to in 2015.
The justice said the science 'was and is patently clear' and it was 'imperative for every country to take steps to drastically reduce their greenhouse gas emissions'. The climate targets under the Coalition were nothing like up to that job. Wigney said the new 2030 target legislated under Labor after its election in 2022 – a 43% cut below 2005 levels – had 'some regard' to the best available science, but did not go as far as scientists say is necessary.
Despite this, Wigney found the government did not owe Torres Strait Islanders a duty of care to protect them from the climate crisis, primarily because emissions reductions targets are a political decision and not subject to the common law of negligence. He said this meant there was 'no real or effective legal avenue' for people to claim damages for harm they suffer due to government decisions related to core policy – and, crucially, that this would remain the case unless the law was developed or expanded by an appeals court or new laws were introduced to parliament.
There is an obvious risk of reading too much between the lines of a judgement. The Torres Strait case ultimately lost on multiple grounds. Some legal experts were not surprised. But Wigney's summary is also being read as offering encouragement and basis for a potential appeal, or an argument that can bolster future cases. Failing that, the justice said, the applicants' options were 'public advocacy and protest, and ultimately recourse via the ballot box'.
Pabai, Kabai and their supporters are considering their legal options. Isabelle Reinecke, the chief executive of the Grata Fund, the charity that backed the case, says her organisation may support an appeal. She believes there could be echoes of the Gove land rights case that helped pave the way for the landmark Mabo native title high court judgment in 1992, if not Mabo itself. If nothing else, there is some distance still to run on this.
Meanwhile, Anthony Albanese and his cabinet are weighing decisions on a 2035 emissions reduction target, a first-time national climate risk assessment and an adaptation plan. Hopefully, beyond the technocratic detail and the calls from business groups to do next-to-nothing, they are also considering the sort of legacy they want to leave.