Following extraordinary On-Country hearings in Zenadth Kes (Torres Strait) in June, further hearings for the landmark Australian Climate Case will resume at the Australian Federal Court in Naarm (Melbourne) from 8–27 November.
This crucial next phase will see the Court hear from leading climate science experts on the impacts of climate change and sea level rise experienced in the Torres Strait. The court will also address Australia’s contribution to global carbon dioxide and greenhouse gas emissions. Guda Maluyligal plaintiffs Uncle Pabai Pabai and Uncle Paul Kabai from the Torres Strait islands of Boigu and Saibai will make the journey to Melbourne to hear more about the science behind the climate harms experienced by their communities.
BACKGROUND: 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. 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 Paul Kabai says:
"We are here in Court in Melbourne because we have a responsibility to protect our homelands, our communities and our culture from climate change for the future generations to come.”
“We want the Government to face the truth about what will happen if they don’t listen to us and to the science. The experts will show them that they have to act much more quickly to save our islands from going underwater.”
"Every day we witness the changes on our islands, to our livelihoods. We live on the frontlines of climate change, just like our brothers and sisters in the Pacific.”
“Right now, our Pacific brothers and sisters are in the Cook Islands also fighting to save their island homes. The Australian Government is telling them they are listening but how can they say this when they don’t take action that will stop our islands from going underwater.”
“Our message to the Australian Government is that we can’t wait any more years for climate action. If all they do is continue to talk and not listen to the scientists, our communities will disappear and we will lose everything.”
Uncle Pabai Pabai says:
“We have already shown the Court our homelands in the Torres Strait and now they will hear strong evidence from expert scientists that will show that we are telling the truth about how climate change is affecting our islands.”
“Our islands are already being damaged by rising seas. On Boigu, the land is being eroded, our soil is being ruined by salt and the storms are becoming worse. If the Government continues to fail us, we will be forced to leave our homelands.”
“From the land, to the sky, to the seas - we are the people of the culture. If we are forced to leave our homelands, we will lose everything. Our identity, our culture - everything.”
“I’m happy to be here to deliver a message from my community to the Australian Prime Minister and everyone listening. I say to them, help us. I say to them, the time for politics must stop, you must take action urgently to protect us from climate change. If you don’t, we'll lose everything.”
From 8 November the Federal Court in Melbourne will hear from expert witnesses addressing the climate harms being experienced by Torres Strait communities on the frontline of Australia’s impending climate disaster. Expert witnesses include:
- Professor David Karoly (world leader in atmospheric climate science)
- Professor Linda Selvey (health expert)
- Terry Hughes (marine biology expert)
- John Church (sea level rise expert)
- Professor Malte Meinshausen (evidence about Australia’s contribution to global carbon dioxide and greenhouse gas emissions)
- Stuart Bettington (evidence on current and future impacts of climate change in the Torres Strait and adaptation options in the Torres Strait).
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.
LEGAL COUNSEL/INTERNATIONAL PRECEDENT: Uncle Pabai, Uncle Paul and their communities 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:
"Today marks the start of expert witness hearings in the Federal Court that lift the conversation about Australia’s climate action out of the murky depths of politics and spin, and up into the realm of facts based on the best available climate science.”
“The tide is turning, and as more courts are asked to hear these cases we are seeing the beginnings of a wave of legal decisions that are forcing governments to face the facts on climate change. The Courts are very well positioned to get to the truth about Australia’s climate action - for one, they’re designed to focus on facts not political spin and two - the science on climate change is so well established that there’s nowhere for the Government to hide.”
Principal Lawyer, Phi Finney McDonald’s Brett Spiegel says:
"The stakes couldn't be higher for Paul, Pabai and all Torres Strait Islanders who are fighting to protect their land, culture and identity - for their very existence.
"At this crucial juncture in the case the Court will hear the best available science from an eminent panel of independent scientific experts. They will provide evidence about greenhouse gas emissions reductions required to prevent Torres Strait Islanders from becoming climate refugees.
"Even in the short period of time between the Court’s on-country hearing in the Torres Strait and the start of the hearing in Melbourne, scientific evidence has emerged showing that the climate risks are even greater and that the time to act to save Pabai and Paul’s homeland has diminished.
COMMUNITY SUPPORT: Each year, millions of Amnesty International supporters around the world take part in Write for Rights, to use their collective voices to call for the protection of human rights. This year they are proud to be working in partnership with Grata Fund and to have the global Amnesty International community actively supporting Uncle Pabai and Uncle Paul in this year’s Write for Rights as they challenge Australia’s government to protect the human rights of Torres Strait Islanders from catastrophic impacts of climate change.
Amnesty International campaigner Rose Kulak says, “Climate change is a human rights crisis of unprecedented proportions, affecting health, food, water, housing, livelihoods and life itself. Amnesty International calls on the public to join the Write for Rights campaign to support Uncle Pabai and Uncle Paul as they fight to protect their ancestral lands and the Torres Strait Islander peoples from this fast approaching human rights catastrophe."
A NATION-SHAPING MOMENT: 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.
The next hearings will take place in Cairns in April and a decision is anticipated later in 2024.
Available for interview:
- Uncle Pabai and Uncle Paul and other members of their communities
- Isabelle Reinecke from Grata Fund and members of the legal team
- Climate science experts TBC
- Anote Tong, Former President of Kiribati
For more information or to request interviews, please contact Terri King at Pitch Projects on [email protected] or 0488 036 740.
More about Amnesty International’s Write for Rights support here.
See below for additional background information.
AUSTRALIAN CLIMATE CASE – ADDITIONAL BACKGROUND
Plaintiffs: Wadhuam (Maternal Uncle) Pabai Pabai, proud Guda Maluyligal 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.
Plaintiffs: Wadhuam (Maternal Uncle) Paul Kabai, proud Guda Maluyligal 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, Guda Maluyligal 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 Guda Maluyligal 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.