Hearings for the potentially groundbreaking Australian Climate Case will take place On Country in the Torres Strait (Zenadth Kes), 5-19 June. Guda Maluyligal plaintiffs Uncle Pabai Pabai and Uncle Paul Kabai from the islands of Boigu and Saibai will give evidence of the climate harms experienced by these communities on the frontline of Australia’s impending climate disaster.
Faced with rising sea levels and distressing inaction on climate change, in October 2021 Uncle Pabai and Uncle Paul filed the Australian Climate Case against the Australian Government for failing to prevent climate change. The homes of people in the Torres Strait could disappear beneath the rising seas, making them Australia’s first climate change refugees.
In this significant next step of the landmark case, hearings will take place on Boigu, Badu and Saibai islands and in Cairns. Community members will give evidence and the court will tour the islands to witness the climate damage already occurring; the cultural sites, food supplies, homes and ways of life already in jeopardy. The Court will hear from Zendath Kes witnesses about their connection to their islands and the consequences if their homelands are lost.
For Guda Maluyligal communities and Zenadth Kes people, the impacts of climate change won’t only force them from their island homes, but sever their connection to thousands of years of culture and deep spiritual connection passed down generation by generation, connection to land, sea, winds and sky and community.
Uncle Pabai says ‘I was born to Boigu. I belong to Boigu. I will lose everything if I am removed from my own Country. I am taking this case for the betterment of my Country, the betterment for my family and my community. it’s not only for me, it's for the ancestors and the land that I am born to.”
Uncle Paul says “We have to bring this case because our islands are sinking. We have to do it for our younger generations, otherwise we will become climate refugees. We want to hold onto our own land, because our culture and identity stays there, if our islands go under we will be nothing.”
Uncle Pabai and Uncle Paul are seeking orders from the court that requires the Federal Government to take steps to prevent this harm to their communities, including cutting greenhouse gas emissions in line with the best available science. The Australian Government currently has a 2050 ‘net zero’ emissions target, which experts say will not be enough to prevent disaster in the Torres Strait. In fact, leading climate scientists on the Climate Targets Panel calculate that Australia’s greenhouse emissions need to be reduced by 74% by 2030 (from 2005 levels) and to net zero by 2035 to keep global heating to below 1.5C and avert the destruction of Torres Strait Islander communities.
Uncle Pabai, Uncle Paul and the group members are represented by Phi Finney McDonald. The Australian Climate Case is supported by Grata Fund and the Urgenda Foundation, and is backed by a strong international precedent. In 2015, the Urgenda Foundation and 886 people took the Dutch government to court for not doing enough to prevent climate change and won. The courts ordered the Dutch government to take immediate steps to cut greenhouse gas emissions and thanks to this groundbreaking legal action, the Netherlands now has some of the strongest climate policies in the world. This case triggered a groundswell of litigation internationally, with more than 80 similar cases filed around the world resulting in real-world emissions reductions in Germany, the Netherlands and elsewhere; meaning that the pressure is on the Australian government to act now.
Grata Fund’s Executive Director, Isabelle Reinecke says “Uncle Pabai and Uncle Paul’s case is another chapter in the nation shaping leadership of First Nations communities, it has the transformative potential that Mabo’s case did in the 90s. We’re seeing more and more communities around the world exercise their democratic rights by bringing cases like this against their Governments asking them to answer to these serious legal issues in the realm of facts, not politics.
The tide is turning, and as more courts are asked to hear these cases we are seeing a wave of legal decisions finding that climate action is no longer a matter of politics in Australia, it’s a matter of law. Success in this case, or a case that follows is simply inevitable. ”
This case is the first time that anyone in Australia has argued that the whole of the Federal government has a duty to protect people from climate change, and if successful has the potential to make all Australians safer from climate harm.
Principal Lawyer, Phi Finney McDonald’s Brett Spiegel says “The Commonwealth owes a duty to Uncle Pabai, Uncle Paul and all Torres Strait Islanders to take reasonable steps to preserve their islands and culture from climate change. We are pleased that the Court will have the opportunity to hear from Uncle Pabai, Uncle Paul and other Torres Strait witnesses on their own country and see what is at stake for them.”
This case is a nation-shaping moment for Australia. Torres Strait Islander Peoples have a proud history of fighting for their rights through the courts. Eddie Mabo, from Murray (Mer) Island, famously debunked the classification of Australia as terra nullius, a pivotal step in land rights for Aboriginal and Torres Strait Islander peoples. Uncle Pabai and Uncle Paul are proud to follow in his footsteps.
Hearing dates, for community lay-evidence:
- Boigu 5-7 June
- Badu 8-9 June
- Saibai 12-14 June
- Cairns 15 June - TBC
The next hearing of expert evidence will be held at the Australian Federal Court in Melbourne between 31 October and 20 November. A decision is anticipated in 2024.
MEDIA ENQUIRIES
Uncle Pabai and Uncle Paul and other members of their communities are available for interview after they have given evidence. Other community members are also available for interview.
Isabelle Reinecke from Grata Fund and members of the legal team are available for interview.
For more information or to request interviews, please contact Terri King at Pitch Projects on [email protected] or 0488 036 740.
For more information on the Australian Climate Case, visit the website: australianclimatecase.org.au
View the case timeline
Read the Federal Court’s simplified summary of the case
Download images, video footage and audio grabs here.
See below for additional background information.
AUSTRALIAN CLIMATE CASE – ADDITIONAL BACKGROUND
The plaintiffs
Wadhuam (Maternal Uncle) Pabai Pabai, proud Gadamalulgal man and Traditional Owner Boigu.
Wadhuam Pabai is in his 50’s and has lived on Boigu island his whole life, like generations and generations before him. He is a Director on the Prescribed Body Corporate which represents the 6 clans on the island. He is extremely concerned about the myriad of climate impacts his community is facing and is proud to be taking on this case. Wadhuam Pabai is a father of five daughters and two sons, aged between 30 and 12, and is bringing this case to ensure they and their children and their grandchildren have continuing connection to Boigu into the future.
Wadhuam (Maternal Uncle) Paul Kabai, proud Gadamalulgal man and Traditional Owner Saibai
Wadhuam Paul is in his 50s and has lived on Saibai since he was born. He is a Director on the Prescribed Body Corporate which represents the 7 clans on the island. Wadhuam Paul is deeply concerned about his island flooding and disappearing beneath the waves. He is also worried about the effects of heatwaves and other climate impacts on people’s health. Paul is a father to two girls and six boys aged between 40 and 10 and he is bringing the case to protect their future and the future of all Saibai Islanders, Gudamalulgal Peoples and all Australians.
About the case
In the class action, filed on 26 October 2021, plaintiffs Wadhuam Paul and Wadhuam Pabai are arguing that the Commonwealth has a legal ‘duty of care’ towards Torres Strait Islander Peoples, arising both from negligence law (torts) and the Torres Strait Treaty and Native Title. [Paul and Pabai] are arguing that by failing to prevent climate change the Australian Government has unlawfully breached this duty of care, because of the severe and lasting harm that climate change would cause to their communities.
This landmark case is modelled on one of the most successful climate cases in history. In 2015, environmental group the Urgenda Foundation supported 886 Dutch people to bring a case against their Government, arguing that it had a legal responsibility to reduce greenhouse gas emissions to protect them from climate change. On 24 June 2015, the District Court of The Hague ruled in favour of Urgenda and ordered the Government to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The Government appealed, but in December 2019 the Dutch Supreme Court found in favour of Urgenda and confirmed the original court order. This led to the rapid closure of coal fired power stations and billions of euros of investment in renewable energy and energy efficiency. More information about the Urgenda Climate Case can be found on the Urgenda Foundation’s website.
Key climate harms in the Torres Strait
Zenadth Kes (the Torres Strait Islands) is the frontline of the climate crisis. Sea levels in the Torres Strait are rising at double the global average, and rose 6cm in the last decade. Without urgent action to cut greenhouse gas emissions, sea levels are projected to rise by up to one metre by 2100. The weather would become more extreme, with more intense rain in the wet season, a longer, hotter, drier dry season, more severe cyclones and more frequent and severe storms and flooding, leading to coastal erosion and inundation, which threatens freshwater supplies.
Boigu and Saibai are very flat and low-lying islands, about one and a half metres above sea level. They are particularly exposed to sea level rise - more so than many other islands in Zenadth Kes. Both islands are already being regularly flooded by sea water. This is already affecting settlements, infrastructure, important cultural sites and the gardens where people grow vegetables to feed themselves and their families.
Gudalmalulgal Kastom governs how Gudalmalulgal Peoples take responsibility for and manage their land and sea country, and how and by whom natural resources are harvested. As the ocean continues to warm, this poses a severe threat to marine life and complex systems of biodiversity, including coral reefs, turtles, dugongs and fish populations. Connection to sea country and marine hunting is integral to Gudalmalulgal Kastom. Marine hunting and fishing are also crucial food sources for Torres Strait Islander Peoples.
Irreplaceable cultural heritage and sacred sites will be completely destroyed. Inhabited and uninhabited islands are home to significant sites for ceremonies such as initiation for different clans, burial sites and locations that contain human remains and places that have as much spiritual significance as the Christian concept of heaven.
The climate crisis is a health crisis. Heatwaves are already the most deadly form of natural disaster in Australia, and climate change would bring a longer, hotter, drier dry season to the Torres Strait, in which more people become sick or die from heat-related illnesses. Malaria and dengue fever would increase because warmer temperatures and increased rainfall and flooding provide optimal breeding conditions for mosquitos.
With very limited options for adapting to climate change, many islands in Gudamalulgal and the wider Torres Strait will become uninhabitable. Torres Strait Islander Peoples would become Australia’s first climate refugees. Being forcibly removed from their land, place and culture because of Government inaction would form another shocking chapter in Australia’s oppression of First Nations Peoples.
About the legal team
Grata Fund Grata Fund advocates for a strong and functioning democracy by using circuit breaking litigation to hold the powerful to account. Grata is Australia’s first specialist non-profit strategic litigation incubator and funder. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms.
Phi Finney McDonald is a specialist litigation firm with offices in Melbourne, Sydney and London. They practice in complex and large-scale litigation, with a focus on class actions and group litigation. Their lawyers have decades of experience seeking justice for those who have suffered loss or injury from corporate or government misconduct. Together with Urgenda, Phi Finney McDonald developed the case and will have conduct of the litigation on the instructions of plaintiffs Paul and Pabai.
Fiona McLeod AO SC is a Senior Counsel at the independent Bar in Australia practising in the areas of commercial and public law matters. She represented the Commonwealth of Australia in major cases including leading the legal team in the Victorian Bushfires Royal Commission, Queensland Floods Commission and the Royal Commission into Institutional Child Sex Abuse. She has acted in other notable matters including leading the legal team representing the successful plaintiff in the Murrindindi bushfire class action and the plaintiffs
in the Don Dale class action. Fiona has led the Law Council of Australia, Australian Bar Association, Victorian Bar and Australian Women Lawyers. She is the Co-Chair of the Diversity and Inclusion Council and an officer of the Bar Issues Committee of the International Bar Association and a member of the Council of the Commonwealth Lawyers Association.
The Urgenda Foundation is a Dutch NGO that is working to promote a fast transition towards a sustainable society. Urgenda views climate change as one of the biggest challenges of our time and looks for solutions to ensure that the earth will continue to be a safe place to live for future generations. Urgenda has helped develop the case and will continue to provide strategic and scientific support.