First Nations leaders from remote islands in Guda Maluyligal in the Torres Strait are taking the Australian Government to court for failing to protect them from climate change.
Uncle Pabai and Uncle Paul are Traditional Owners whose ancestors have lived in the Torres Strait for thousands of years. Now they are on the frontline of the climate crisis, and face losing their island homes under rising seas.
The Torres Strait is particularly vulnerable to climate change, and unless action is taken to prevent global warming of more than 1.5 degrees, their island homes may disappear under the sea along with 65,000 years of custom and culture protected by Native Title. They are asking the Australian Government to take pre-emptive steps to stop climate change and stop the impacts of climate change before they become Australia's first climate refugees.
If successful, Uncle Pabai and Uncle Paul won’t just be protecting their communities – they’ll be making us all safer from climate change.
Wadhuam (maternal uncle) Pabai and Wadhuam Paul have turned to the courts in the hope of protecting their communities from disaster. They are arguing that the Federal Government has a legal responsibility to ensure Torres Strait Islander Peoples are not harmed by climate change. In legal terms, this is called a ‘duty of care’. The duty arises from the common law of negligence, the Torres Strait Treaty (between Australia and Papua New Guinea, providing protection for the way of life of traditional peoples of the Torres Strait Protected Zone), and the Native Title rights of Torres Strait Islander Peoples.
Uncle Pabai and Uncle Paul will argue 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. They are seeking an order from the court requiring the Government to prevent this harm to their communities by cutting greenhouse gas emissions.
In this class action case, Uncle Pabai and Uncle Paul will argue that the Commonwealth owes a duty of care to all Torres Strait Islanders arising from the Torres Strait Treaty, Native Title and common law negligence. The Government has breached its duty by failing to take reasonable steps to prevent or minimise the impacts of climate change. They are arguing that because of this, Torres Strait Islanders have suffered and will continue to suffer harm including degradation of their environment, loss of culture and loss of Native Title rights.
Torres Strait Islanders have a long history of fighting for their rights – and some of those battles have transformed the face of modern Australia. Torres Strait Islander man Eddie Mabo, took on the Government through the courts and established that terra nullius was a lie, paving the way for land rights for all First Nations Peoples in Australia.
Australia’s response to climate change is one of the weakest in the world. If the Federal government doesn’t change course – and fast – then islands in the Torres Strait could become uninhabitable, forcing Torres Strait Islander communities to leave their homes, severing 65,000 years of connection to the land and making them Australia’s first climate change refugees.
This case is the first time that anyone in Australia has argued that the whole of the Federal government – not just one Minister or agency – has a duty to protect people from climate harm.
The Australian Climate Case has been developed in partnership with the Urgenda Foundation, international legal experts who have a proven record of successful climate change litigation.
It all started in 2015, when the Urgenda Foundation helped 886 people in the Netherlands take the Dutch government to court for not doing enough to prevent climate change. They won the case in the District Court of the Hague and then won again at the two stages of appeal, with a final victory in the Supreme Court in 2019.
The case was the first to establish that a government has a duty of care to protect people from climate harms. The court ordered the Dutch government to significantly reduce the Netherlands’ greenhouse gas emissions within 5 years.
As a result of the groundbreaking case, the Netherlands now has some of the strongest climate policies in the world and is closing coal-fired power stations and investing billions in renewable energy and energy efficiency. People in Belgium, Colombia, France, Germany and Ireland have also had success in the courts, and there are plenty of similar cases under way in other countries.
Uncle Pabai and Uncle Paul are represented by class action firm Phi Finney McDonald and are partnering with the Dutch Urgenda Foundation.