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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.
The Guardian
16-07-2025
- Politics
- The Guardian
Torres Strait leaders lost their landmark case. How can governments be held to account on climate?
In the hours after the federal court delivered its judgment in a landmark climate case on Tuesday, the two Torres Strait Islands community leaders who brought the proceedings, and their supporters, expressed their shock and dismay. The court had agreed with much of the factual evidence about climate impacts on the Torres Strait Islands but the case still failed. In respect of negligence law, it found the federal government did not owe Torres Strait Islanders a duty of care to protect them from global heating. One question ringing in the aftermath: what is the road ahead for people who want Australian governments held to account for their actions related to the climate crisis? Sue Higginson, an upper house Greens MP in New South Wales, is an environmental lawyer and former chief executive and principal solicitor of the Environmental Defenders Office who has litigated in high-profile climate cases. 'The judge made clear, the factual basis here is very real and live but he was limited and constrained by decades of laws around duty of care that don't factor in climate change and the future,' Higginson said. 'So we are unfortunately in a self-serving circle of inaction on climate change.' Higginson said governments could act on the judgment by taking steps to fill the void. 'Actually legislate, create a legal instrument that actually makes climate action a legal obligation, a legal reality that is enforceable where governments are holding themselves to account,' she said. 'It's likely until we see such action, we will continue to see people take to the streets and demand that action directly.' Sign up to get climate and environment editor Adam Morton's Clear Air column as a free newsletter Justice Michael Wigney's judgment found that in respect of negligence law, he was bound by past decisions by appeals courts that found matters involving 'high or core government policy' were to be decided through political processes. He said unless the law changed, people and communities seeking damages or other relief for harm suffered as a result of government policies on climate change had to rely on public advocacy, protest and the ballot box for recourse. A change in law would require either legislation by government or 'the incremental development or expansion of the common law by appellate courts'. Dr Riona Moodley, a lawyer and a lecturer and researcher at the University of New South Wales's Institute for Climate Risk and Response, said while Tuesday's decision presented an obstacle for anyone seeking redress for climate harm through the law of negligence, it was not necessarily insurmountable. She noted the judgment had explicitly left one possibility open: 'If this matter went back to an appeals court, they would have the power to revisit the current state of the law and decide to change it.' Moodley said the decision was also unlikely to stem the tide of Australian climate litigation calling for government accountability and that courts and Australian common law 'will need to evolve to adapt to addressing climate change and the impacts of it'. Dr Wesley Morgan, a fellow of the Climate Council and colleague of Moodley's at the Institute for Climate Risk and Response, said Australia had seen a series of high-profile unsuccessful climate litigation cases in recent years, such as the Living Wonders case and the Sharma proceedings. Sign up to Clear Air Australia Adam Morton brings you incisive analysis about the politics and impact of the climate crisis after newsletter promotion But he said the dam wall would eventually have to break. 'This is how legal norms change. When they are challenged repeatedly by those who are impacted by the deepening climate crisis, legal norms will need to shift to meet that need,' Morgan said. Isabelle Reinecke is the head of Grata Fund, a charity that supported the lead plaintiffs, Uncle Pabai Pabai and Uncle Paul Kabai. Reinecke said she felt 'disappointed in our legal system' after the outcome, but was encouraged by the strength of the factual findings, which could form the basis for future litigation – whether by appeal in this case or in other cases. 'Our cause is just and the court didn't say that it's impossible,' Reinecke said. 'I think while the judge said that the law does not currently support the Uncles' claims, that does not mean that the law can't or won't change. 'It has changed before.' She flagged cases that had lost and won on appeal, or paved the way for subsequent wins – 'for example the Gove land rights case that came before [Eddie] Mabo's case'. Reinecke said while Wigney's remarks about protest and the ballot box were true, people advocating for climate change action had tried those measures for decades. 'I don't think it's correct or good enough for a court to say strong words of 'This is an existential threat to humanity but you have to talk to parliament',' Reinecke said. 'What is the point of a court if it isn't to hold those responsible for an existential threat to humanity accountable in a democracy?'
The Independent
16-07-2025
- Politics
- The Independent
Australia's Indigenous elders lose landmark environment case over Torres Strait Islands
Australia's Federal Court has ruled that the national government owes no legal duty to protect the Torres Strait Islands or their Indigenous inhabitants from the effects of climate change, in a landmark judgment that campaigners say exposes critical gaps in the country's legal framework. Justice Michael Wigney dismissed the claim brought by two Torres Strait Islander elders, Paul Kabai and Pabai Pabai, who argued that the federal government had been negligent in failing to cut carbon emissions or take meaningful adaptation measures to safeguard their ancestral lands. 'The Commonwealth did not and does not owe Torres Strait Islanders the duty of care alleged by the applicants,' said Justice Wigney on Tuesday, according to SBS News. While he accepted the scientific evidence of 'devastating' climate impacts on the islands, he concluded that decisions on emissions targets fell squarely within the realm of government policy, not judicial oversight. The case was the first of its kind in Australia to argue that the federal government owed a specific legal duty to protect its citizens from climate harm under the law of negligence. The Torres Strait Islands, a group of around 270 islands scattered between the northern tip of Queensland and Papua New Guinea, are home to about 4,000 people – more than 90 per cent of whom are Indigenous Australians. Only a few dozen islands are inhabited. The claimants, both community leaders from the low-lying islands of Saibai and Boigu, warned that rising sea levels, saltwater intrusion, and stronger storm surges are already destroying homes, sacred burial grounds and food sources, threatening both the physical and cultural survival of their communities. 'We won't have our culture... if Saibai goes under water, we lose everything. Our culture, our identity, our livelihood. It will all be gone,' said Mr Kabai in his submission to the court, reported Mr Pabai, whose home island Boigu is also facing rapid environmental decline, told the court, 'If Boigu was gone, or I had to leave it because it was under water, I will be nothing. I will become nobody.' Sea levels in the Torres Strait region have risen by approximately 6cm per decade between 1993 and 2019, the court was told. Despite accepting these facts, Justice Wigney said that while the damage was undeniable, it did not create a cause of action under current Australian negligence law. He cited binding precedent and concluded: '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' for the consequences of government inaction on climate. He added that the only available recourse for those in the plaintiffs' position was 'public advocacy and protest, and ultimately, recourse via the ballot box', reported Although the court found the Commonwealth had 'paid scant, if any, regard to the best available science' in setting emissions targets under previous Coalition governments, the judge noted that the current Labor administration had set 'significantly higher and more ambitious' goals, reported BBC. The court acknowledged that Torres Strait Islanders would likely face catastrophic losses if urgent action is not taken. '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,' said Justice Wigney. The ruling has triggered deep disappointment among the claimants and their communities. 'My heart is broken for my family and my community,' said Mr Pabai after the judgment. 'This pain isn't just for me – it's for all people, Indigenous and non-Indigenous, who have been affected by climate change.' 'This is emotional,' said Mr Kabai. 'We're not going to stop here.' From Cairns, several hundred kilometres from his home, Mr Kabai called on Australians to unite in demanding government action. 'Sea level is rising and our communities – Boigu and Saibai – they are about 1.3m above sea level, so we are sinking. It's time now for us to keep knocking at the government's door.' The plaintiffs, supported by the Grata Fund – a legal charity that financed the litigation – said they are considering an appeal. Isabelle Reinecke, the fund's executive director, said the case was only the beginning. 'The court did not say that accountability is impossible under the law, it just said that it is not ready yet,' she said according to the Australian Broadcasting Corporation. 'I have a lot of hope that the law will and can develop.' She compared the case to the historic Mabo ruling, which established Indigenous land rights after a decade-long legal battle. Ms Reinecke welcomed the government's post-ruling commitment to adaptation and urged it to commission studies on what those measures might entail for the Torres Strait. Legal experts say the verdict reflects how Australia's laws have not yet caught up with the complex realities of climate change and human rights. Riona Moodley, a researcher at the University of New South Wales 's Institute for Climate Risk and Response, told BBC News that the ruling 'was definitely a setback', but added: 'The reality is that Australian law will need to adapt to meet the challenges of climate change.' Her colleague Wesley Morgan said the case should galvanise political leaders. The government 'must listen to the science telling us we need to be as ambitious as possible in the decade ahead.' Energy minister Chris Bowen and Minister for Indigenous Australians Malarndirri McCarthy acknowledged the significance of the case, saying in a joint statement: 'We understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts.' Criticism was also directed at the previous government. The judge found the Coalition's emissions targets in 2015, 2020 and 2021 failed to engage with the best scientific advice. However, opposition spokesperson Dan Tehan defended the former administration, saying it had reduced emissions by 28 per cent from 2005 levels by 2021–22, and accused the Labor government of failing to present a credible implementation plan.
SBS Australia
16-07-2025
- Health
- SBS Australia
NITV Radio - News 16/7/2025
The Federal Court dismiss landmark case arguing the federal government breached duty of care to protect Torres Strait Islands from climate change. Researchers found a link between strain of chronic Hepatitis B in Indigenous Australians and liver damage. Coalition of 32 countries calls for global boycott of Israel over Gaza war.
Irish Times
15-07-2025
- Politics
- Irish Times
Indigenous leaders in ‘deepest pain imaginable' as Australian court dismisses climate case
Two Torres Strait community leaders say they are shocked and devastated after the federal court dismissed a landmark case that argued the Australian government breached its duty of care to protect the Torres Strait Islands from climate change . The lead plaintiffs, Uncle Pabai Pabai and Uncle Paul Kabai from the islands of Boigu and Saibai, sought orders requiring the government to take steps to prevent climate harm to their communities, including by cutting greenhouse gas emissions at the pace climate scientists say is necessary. In delivering the decision, Justice Michael Wigney noted: 'There could be little if any doubt that the Torres Strait Islands and their inhabitants face a bleak future if urgent action is not taken.' In a statement on Tuesday afternoon, Uncle Paul said: 'I thought that the decision would be in our favour, and I'm in shock. This pain isn't just for me, it's for all people Indigenous and non-Indigenous who have been affected by climate change. What do any of us say to our families now?' READ MORE He added later: 'Mr [Anthony] Albanese [Australia's prime minister] and his expensive government lawyers will stand up and walk away ... They go home and sleep soundly in their expensive beds. We go back to our islands and the deepest pain imaginable.' The class action, filed in 2021, argued the government had a legal duty of care towards Torres Strait Islander peoples and that it had breached this duty by failing to prevent or deal with damage in the Torres Strait linked to global heating. Wigney's summary said the applicants' case had failed 'not so much because there was no merit in their factual allegations' but because the common law of negligence 'was not a suitable legal vehicle'. He said the reality was that current law 'provides no real or effective legal avenue through which individuals and communities like those in the Torres Strait Islands' can claim damages or other relief for harm they suffer as a result of government policies related to climate change. Wigney said that would remain the case unless the law changed. 'Until then, the only real avenue available ... involves public advocacy and protest and, ultimately, recourse via the ballot box,' he said. 'My heart is broken for my family and my community,' Uncle Pabai said after the judgment. 'I'll keep fighting and will sit down with my lawyers and look at how we can appeal.' Brett Spiegel, principal lawyer at Phi Finney McDonald, the firm representing Uncle Pabai, Uncle Paul and their communities, said the legal team 'will review the judgment ... and consider all options for appeal'. Hearings in the case were held in 2023 in Melbourne and on Country in the Torres Strait to allow the court to tour the islands and view the impacts of climate change. On Saibai Island, homes were already being inundated by king tides, the cemetery had been affected by erosion and sea walls had been built. The legal challenge is supported by the Urgenda Foundation and Grata Fund, a public interest organisation that helps individuals access the courts. It was modelled on the Urgenda climate case against the Dutch government – the first case in the world in which citizens established their government had a legal duty to prevent dangerous climate change. [ Sally Hayden: Climate change is human made, but not all humans have played same role in it Opens in new window ] In the judgment summary, released on Tuesday, Wigney said 'the applicants succeeded in establishing many of the factual allegations that underpinned their primary case'. In particular, the court found that when the federal government set climate targets in 2015, 2020 and 2021 – when a coalition was in power – 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 to meet the goals of the Paris climate agreement. The court found 'when the Commonwealth, under a new government, reset Australia's emissions reduction target in 2022, it did have some regard to the best available science'. Wigney found that the Torres Strait Islands 'have been, and continue to be, ravaged by climate change and its impacts'. He agreed the evidence indicated this damage had become more frequent in recent times, 'including the flooding and inundation of townships, extreme sea level and weather events, severe erosion, the salination of wetlands and previously arable land, the degradation of fragile ecosystems, including the bleaching of coral reefs, and the loss of sea life'. Despite this, Wigney found the applicants had not succeeded in making their primary case related to negligence. He found the government did not owe Torres Strait Islanders a duty of care because, in respect to the law of negligence, courts had established that matters involving 'high or core government policy' were to be decided through political processes. Isabelle Reinecke, the founder and executive director of Grata Fund, said 'the court was not yet ready to take the step we all need it to and hold the Australian government accountable for it's role in creating the climate crisis'. But she said it had made strong findings that the 'Australian government knows that Torres Strait communities are being ravaged by climate change'. In a joint statement, the climate change minister, Chris Bowen, and the minister for Indigenous Australians, Malarndirri McCarthy, said: 'Unlike the former Liberal government, we understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts.' Bowen and McCarthy said the government 'remains committed to both acting to continue to cut emissions, and adapting to climate impacts we cannot avoid'. 'We are finalising Australia's first national climate risk assessment and national adaptation plan to help all communities understand climate risk and build a more resilient country for all Australians,' they said. - Guardian
