First Nations leaders from the remote islands of Boigu and Saibai in Guda Maluyligal in the Torres Strait (Zenadth Kes) are taking the Australian Federal Government to court in a bid to prevent the destruction of their communities by climate change. [1]
In a landmark class action case Wadhuam (Maternal Uncle) Paul Kabai and Wadhuam Pabai Pabai are arguing that the Federal Government has a legal responsibility to ensure Torres Strait Islander Peoples are not harmed by the climate crisis. [2] This is the first climate class action brought by First Nations Peoples in Australia.
If successful, this case has the potential to not only protect Guda Maluyligal and all Zenadth Kes communities, but also to help avert the climate crisis before it devastates communities across Australia.
“Our ancestors have lived on these islands for more than 65,000 years. But the Government’s failure to prevent the climate crisis means our islands could be flooded, our soils ruined by salt and our communities forced to leave. Becoming climate refugees means losing everything: our homes, our culture, our stories and our identity. If you take away our homelands, we don’t know who we are. We have a cultural responsibility to make sure that doesn’t happen and to protect Country and our communities, culture and spirituality from climate change,” said plaintiff Paul Kabai.
“I can’t imagine being forced to leave Boigu because this island is me and I am this island. There are 65,000 years of wealth and experience here. Losing Boigu will mean losing that. If you take us away from this island then we’re nothing. It’s like the Stolen Generation, you take people away from their tribal land, they become nobodies,” said plaintiff Pabai Pabai.
Torres Strait Islander communities are on the frontline of the climate crisis and face an existential challenge due to rising sea levels driven by the burning of coal, oil and gas. [3] If global temperatures rise by more than 1.5C then the islands in Guda Maluyligal will become uninhabitable. Torres Strait Islander Peoples would become Australia’s first climate refugees.
Traditional Owners Pabai and Paul are seeking an order from the court that requires the Federal Government to take steps to prevent this harm to their communities by cutting greenhouse gas emissions.
The Australian Government has just set 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 who form 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.
Torres Strait Islander Peoples have a proud history of fighting for their rights through the courts. 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.
The litigation is being supported by public interest advocacy organisation, Grata Fund and international climate law experts at the Urgenda Foundation. The case will be conducted by specialist class action and public interest law firm, Phi Finney McDonald, and the plaintiffs will represented in court by Fiona McLeod SC. [4]
“People across the country, and in particular First Nations communities, are already being harmed by the Government’s failure to take the climate crisis seriously. We’re proud to support Paul and Pabai as they take a stand on behalf of their communities. Everyone is entitled to defend their rights in court and we believe they have a great case that could make history,” said Isabelle Reinecke, Founder and Executive Director, Grata Fund.
“The Australian Government owes a legal duty to Paul, Pabai and all Torres Strait Islanders not to destroy their land, culture and identity. Paul and Pabai bring this action to require Australia to reduce greenhouse gas emissions to a level that will prevent Torres Strait Islanders from becoming climate refugees. Phi Finney McDonald are proud to represent Paul and Pabai in their fight to save their homeland,” said Brett Spiegel, Principal Lawyer, Phi Finney McDonald.
“When we launched our litigation in the Netherlands there was a view that a case like this was impossible and had no chance of success. Instead we won, and this led the Government to adopt a sweeping set of policies to reduce emissions including, significantly, the closure of coal-fired power stations and billions of euros of investment in renewable energy and energy efficiency. We’re very optimistic that the same can be achieved in Australia,” said Dennis Van Berkel, Legal Counsel, the Urgenda Foundation.
ENDS
Notes to editors
More information about the case can be found at www.australianclimatecase.org.au.
Photos of the plaintiffs and the affected islands will be available here: https://www.dropbox.com/sh/2dnfyvfm18qpb43/AAD7OgeyL86GuNI7HfckAFmBa?dl=0
1. 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 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, Guda Maluyligal Peoples and all Australians.
2. 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.
3. 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.
Guda Maluyligal Kastom governs how Guda Maluyligal 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 Guda Maluyligal 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, the 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.
4. About the legal team
Grata Fund is a charity that supports marginalised people and communities to advocate for their legal rights. Grata Fund removes the financial barriers that prevent public interest test cases from going ahead. Grata Fund has supported successful cases on issues related to First Nations housing and water rights, Freedom of Information, refugee detention, climate change and disability rights.
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 actionFiona 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.