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ABC News
24-07-2025
- Politics
- ABC News
As Torres Strait battles rising seas, Canberra has been put on notice
To the beat of ancient drums, in the language of their ancestors, dancers from Australia's northernmost islands share a modern story. Outside the federal court in Cairns, Torres Strait Islander dancers wear grass skirts and the traditional headdresses of their warriors; their movements depict the rising of the seas and the strengthening of the currents. It's the story of climate change. Across the globe, outside the world's highest court in the Netherlands, our Pacific Island neighbours shared a similar dance about their culture and traditions. Together, they send a message to the world of what stands to be lost if leaders don't take serious action on climate change. Last week, the federal court found Australia does not owe a duty of care to protect Torres Strait Islander people and their culture from the impacts of climate change. In its wake, the International Court of Justice declared that states do have a "duty to cooperate" on addressing climate change or they risk breaching international law. It raises the question — will the Australian government heed the warning? Not many get to visit Australia's northernmost islands, but as one of the lucky ones, I witnessed firsthand the devastating impacts climate change is having on these small island communities, their livelihood, and culture. It is not a distant threat; it's happening now. Their loved ones' gravestones have been destroyed, beaches once used for camping eroded, and food is unable to be grown due to salty earth. Lead applicants for the case, Uncle Paul Kabai and Uncle Pabai Pabai, explained how the seasons have changed and the migration of traditional food sources, turtles and dugongs, has shifted — generations of passed-down knowledge are being lost. As some of the lowest emitters contributing to the global carbon footprint, they are also amongst the most vulnerable to the impacts of the imposing climate frontline. Sea levels in the Strait are estimated to be rising at about twice the global average. Scientists predict that in 25 years, the islands will be uninhabitable. This is the reality we face as a nation — the severing of our connection to some of the world's oldest traditions and culture. Justice Michael Wigney accepted these facts in court last week but found the case failed not because it had no merit but because negligence law doesn't apply to 'core government policy', nor does it acknowledge the loss of culture. While sympathetic, he ultimately determined it was up to parliament to make decisions on climate policy, not the courts. "Until the law in Australia changes … the only real avenue for those in the position of the applicants and other Torres Strait Islanders involves public advocacy and protest or ultimately recourse via the ballot box," Justice Wigney said. This is little comfort for First Nations people who have been protesting environmental degradation and heritage destruction for decades, and are a minority at the ballot box. Three thousand kilometres away from the Torres Strait in Canberra, where the impacts of climate change are arguably not so visible, our leaders make the decisions on how Australia will participate in its global responsibility to address climate change. As Justice Wigney noted, "perhaps still are some climate change doubters and deniers among the politicians and bureaucrats." The landmark case put under the microscope the government's willingness to address the impacts of climate change and found that in the past, it hadn't been doing enough. The Commonwealth argued Australia was not the biggest emitter of greenhouse gases, at 1.3 per cent, and therefore has little impact on a global scale. But the Torres Strait Islanders argued Australia — a high-emitting country in per capita terms — was not contributing its fair share to the global effort to reduce emissions, based on the best available science. If you include exports, Australia accounts for 4.5 per cent of global fossil fuel carbon dioxide emissions, with 80 per cent of those emissions from exports, according to the Climate Analytics Institute. Justice Wigney acknowledged the current Labor government has set "significantly higher and more ambitious goals" than the previous government. But Traditional Owners, environmental groups, and scientists were dismayed when it green-lit the controversial expansion of Woodside's Northwest Shelf gas project until 2070, despite their continued protests about the degradation of 50,000-year-old sacred rock art as well as its impact on emissions. Like the Torres Strait, our Pacific Island neighbours maintain ancient traditions and a deep connection to the land and sea. They are also on the climate change frontline. This week, the International Court of Justice (ICJ) declared that states have a legal obligation to address climate change, and if they don't, it may constitute "an internationally wrongful act". It was a campaign started in 2019 by students and youth organisations from Vanuatu, which is amongst the nations that are most vulnerable to climate change impacts. The 500-page opinion is not legally binding, but advocates and lawyers hope the world's highest court will hold some weight amongst the largest carbon emitters. Australia was one of 132 member states that requested the opinion in 2023, but in hearings, it argued that nations have no legal obligations on climate change beyond those in existing pacts like the Paris Agreement. This diverged from the views of the Pacific Islands and put into question Australia's role and responsibility as a key strategic partner in the Pacific. Could and should Australia be doing more to encourage other nations to do more to stop our neighbours from sinking beneath the tide? The historic ruling could pave the way for reparations for nations harmed by climate change and create a moral responsibility for Australia to take more action to reduce greenhouse gas emissions. But, as determined in the uncles' climate case, it will be up to the Commonwealth to decide whether it will listen to the international court, its Pacific neighbours, and its own people to do more. Uncle Paul Kabai and Uncle Pabai Pabai fear their people will become Australia's first 'climate refugees', and it's a fear shared by Tuvaluans. Australia has already made a resettlement agreement with Tuvalu to take in their people as the seas rise. Tuvalu's former prime minister criticised the agreement as a way to "buy Tuvalu's silence over Australia's coal exports" in an opinion piece published by Radio New Zealand in 2023. In other words, planning for the worst rather than working to prevent it. Last year at Garma, I sat in the audience as Tuvalu's Minister for Climate Change Mania Talia spoke of the devastation his island nation faces from the rising seas. Something that stuck with me was his final comment expressing his admiration for the strength and resilience of First Nations people. "Despite all the difficulties, the problem that you're facing, you are able to dance and dancing in the face of despair is literally telling us that we have hope in the future," he said. "That's the message I'm going to take and tomorrow we'll also continue to dance our fidelity, our traditional dance, despite climate change." As the prime minister next week heads back to Garma, one of the country's largest Indigenous gatherings, will climate policy be on the agenda? The international court has made its decision, and vulnerable communities have made their plea, but will Australia act?
The Guardian
21-07-2025
- Politics
- The Guardian
Legal ruling can't obscure the brutal reality of climate change for Torres Strait Islanders
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. Sign up for Guardian Australia's breaking news email 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. Sign up to Clear Air Australia Adam Morton brings you incisive analysis about the politics and impact of the climate crisis after newsletter promotion 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.
SBS Australia
17-07-2025
- Politics
- SBS Australia
Heartbroken but not defeated: Elders vow to fight on despite loss in climate case
Torres Strait Islander Elders are heartbroken by Tuesday's Federal Court loss in the Australian Climate Case – but they are not defeated and have vowed to fight on. Worried about the alarming effects climate change and rising sea levels were having on their islands, in 2021 Uncle Pabai Pabai and Uncle Paul Kabai launched court action against the Commonwealth, claiming the Australian Government had failed in its duty of care to them by not taking strong enough action to curb carbon emissions. On Tuesday Federal Court Judge Michael Wigney ruled against the Uncles, saying the law, as it stands, wasn't able to support their case. But the judge was sympathetic to the Islanders' argument that the Australian Government had not taken the best available science into account when it set emissions reduction targets in 2015, 2020 and 2021 and that their homelands face a bleak future due to human-induced climate change. Uncle Pabai told NITV they were disappointed by the decision but they are looking to the next opportunity to fight for their islands. "I'm still feeling emotional, because when I was looking at all the families around us, they supported us and gave us the encouragement to go through this journey," he said. Uncle Paul said he was feeling overwhelmed but the decision wasn't the end of their journey, just one step on it. "We've taken the judge to see what's happening on our islands," he said. "The Australian Government is not doing enough, they are not listening to us. "Our young generation is telling them it is time now to have our say to the government. "The world is already watching us now and they know about how our islands are sinking – we will be climate change refugees." Uncle Pabai said his main focus during the case had been his two-year-old son, and that was who he would keep fighting for. "For the love of my son and for all the people in our community in the Torres Strait, for the bushfire and flood survivors, the farmers, kids and grandkids," he said. "I'll keep fighting and will sit down with my lawyers and look at how we can appeal.' Lawyers who worked on the Uncles' case, Brett Spiegel and Isabelle Reineke, both told NITV that, while the judgment was disappointing, there were positives to be taken from the case. "I have very mixed emotions," Mr Spiegel said. "On the one hand we were encouraged that his Honour recognised that there is an existential threat to the Torres Strait and that the Government's actions have been insufficient and not connected to science ... "It was disappointing that he ultimately reached the conclusion that didn't have the power as a single judge at the trial level to be able to find a duty of care." Ms Reineke pointed out that one of the Uncles' heroes, Eddie Koiki Mabo, had losses in court until the High Court decision that bears his name – Mabo No. 2 – overturned the myth of terra nullius (land belonging to no-one) and recognised that the Meriam people had land rights. "Often, the system takes multiple steps, and today is definitely just the next step in a pathway to justice," she said. "The Uncles really stand on the incredible legacy of Uncle Koiki and other Torres Strait Islander leaders like him. "They are confident that they can continue to pursue justice, both within court and hopefully achieve, ultimately, a victory like Uncle Koiki did in the High Court – and, if not in the court, on the streets." Following the decision Climate Change Minister Chris Bowen and Indigenous Australians Minister Malarndirri McCarthy released a statement saying they understood the Torres Strait Islands are vulnerable to climate change and that the Commonwealth was considering the judgment. "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. "That's why we're continuing to turn around a decade of denial and delay on climate, embedding serious climate targets in law and making the changes necessary to achieve them." "I understand that since the decision Mr Bowen has already said he understands the impacts of climate change and he thinks the government is delivering," she said. "Come and sit with me on Saibai and look those kids in the eyes and you tell them that your government is doing enough when they have 20 years left in their islands. "Your government just approved an extension of another massive fossil fuel project in Western Australia – that will drown us. "Stop lying to us." Aunty McRose said she had a message for the Prime Minister, Minister Bowen and Minister Watt: "We see you; how dare you!" she said. "Wake up, the world is watching, our fearless ancestors are watching. "We will cry together and, after crying, together we will rise. "We will not fail, we will have that victory."
The Independent
16-07-2025
- Politics
- The Independent
Australia has no duty to protect Indigenous group from climate change, court finds
Australia 's Federal Court ruled the government owes no legal duty to protect Torres Strait Islanders from climate change, dismissing a landmark case. Justice Michael Wigney stated that decisions on carbon emissions and climate protection fall within government policy, not judicial oversight, despite accepting scientific evidence of "devastating" impacts. The case was brought by two Torres Strait Islander elders, Paul Kabai and Pabai Pabai, who argued the government was negligent in failing to safeguard their ancestral lands from rising sea levels and other climate harms. Experts said the ruling exposed critical gaps in Australia's laws, with the judge noting current law provides no effective avenue for individuals to claim relief for climate inaction. The claimants expressed profound disappointment but are considering an appeal, while legal experts emphasised the need for Australian law to adapt to the realities of climate change.
The Advertiser
16-07-2025
- Politics
- The Advertiser
Climate ruling exposes gap in government duty of care
A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say. Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai. Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care. Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case. "It's a bit emotional because we were expecting a good outcome," he told AAP. The uncles weren't the only ones expecting a win. Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law. "About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said. "Then he said 'however' and my heart sank." Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands. "That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said. Ms Storer said it is time for the law to change. "This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said. "As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent." In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time. The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step". "When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said. The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said. Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said. Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable". A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say. Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai. Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care. Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case. "It's a bit emotional because we were expecting a good outcome," he told AAP. The uncles weren't the only ones expecting a win. Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law. "About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said. "Then he said 'however' and my heart sank." Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands. "That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said. Ms Storer said it is time for the law to change. "This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said. "As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent." In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time. The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step". "When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said. The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said. Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said. Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable". A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say. Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai. Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care. Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case. "It's a bit emotional because we were expecting a good outcome," he told AAP. The uncles weren't the only ones expecting a win. Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law. "About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said. "Then he said 'however' and my heart sank." Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands. "That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said. Ms Storer said it is time for the law to change. "This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said. "As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent." In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time. The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step". "When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said. The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said. Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said. Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable". A court ruling in a landmark climate case has drawn attention to a gap in Australian law, legal experts say. Uncle Pabai Pabai and Uncle Paul Kabai first brought the case against the Commonwealth government, fearing for the future of their homelands on the islands of Boigu and Saibai. Federal Court Justice Michael Wigney on Tuesday ruled the Commonwealth did not owe the Torres Strait Islanders a duty of care. Uncle Paul Kabai said he was shocked at the decision, and had been expecting to win the case. "It's a bit emotional because we were expecting a good outcome," he told AAP. The uncles weren't the only ones expecting a win. Keenly watching the judgment was Judi Storer, a casual academic at Flinders University's college of business, government and law. "About halfway through I was actually in tears because from what the justice was saying I thought they were going to win," she said. "Then he said 'however' and my heart sank." Justice Wigney ruled negligence law does not allow compensation when it comes to government policy decisions, despite accepting many of the key factual elements of the uncles' case including the impact of climate change on their islands. "That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellant courts or by the enactment of legislation," he said. Ms Storer said it is time for the law to change. "This is a real gap in our law because it basically says our government can make terrible policy that hurts people, that harms people and the government doesn't actually owe any duty of care to those people," she said. "As citizens of Australia we have no recourse against our government for making decisions that turn out to be negligent." In handing down his decision, Justice Wigney said he did not consider it open to him to rule otherwise, nor to recognise loss of culture as compensable in law for the first time. The uncles have not ruled out appealing but Mr Kabai said they will take their next move "step by step". "When we take the next step, the government will have to listen to not only us in the Torres Strait but people all around Australia," he said. The court has left open the possibility to revisit whether a duty of care is owed by the government, University of NSW Institute for Climate Risk and Resilience researcher Riona Moodley said. Courts in countries such as the Netherlands and Switzerland have recognised similar duties and Australian law will need to adapt, she said. Ms Storer can only envisage change on this polarising issue coming through the courts, because "I just cannot see how parliament will legislate to make themselves more accountable".
