Two community elders from the Torres Strait Islands brought a key climate case, which the Australian Federal Court dismissed in a major ruling. They aimed to hold the government responsible for not saving their communities from the growing impacts of climate change. Justice Michael Wigney stated that climate policy is under the control of parliament, not the courts, and that the government did not have a direct duty of care towards the island residents in this situation.
The legal action began in 2021, led by Pabai Pabai and Paul Kabai, leaders from Boigu and Saibai islands. Uncle Pabai mentioned a deep disappointment after the ruling, reflecting on his family’s and community’s heartbreak. The Torres Strait Islands are home to about 4,000 people, with 90% identifying as Indigenous Australians. The court heard that the islands maintain a special cultural tradition known as “Ailan Kastom,” which defines the strong spiritual and physical connection between the residents and their land and waters. The plaintiffs contended that failing to act on emissions targets would lead to an irreversible loss of this culture and potentially displace residents, turning them into climate refugees.
Justice Wigney recognized the “devastating impact” of climate change on the islands. He noted that flooding and other climate-related issues had already harmed sacred sites and ancestral burial grounds. However, he concluded that Australia’s current negligence laws do not allow for compensation for losses related to culture, customs, and traditions caused by government policies. He emphasized that political processes, rather than court rulings, typically determine matters of “core government policy,” such as emissions targets.
Uncle Paul was equally shocked by the decision. He had expected a positive outcome. He mentioned that the pain of the ruling affected everyone, both Indigenous and non-Indigenous, impacted by climate change. He recalled childhood memories of Saibai in the 1970s and 1980s as a “land of plenty,” abundant with barramundi and crabs in inland swamps. However, he informed the court that increased extreme weather events and rising sea levels had caused more saltwater to intrude inland. Combined with less rainfall, these factors had raised salt levels in the swamps, making it hard for fish and crabs to survive. In his judgment, Justice Wigney noted that while the previous government paid little attention to the best available science in setting emissions reductions, the new targets set by the current Labor government were “significantly higher and more ambitious.”
After the ruling, Australia’s Minister for Climate Change and Energy, Chris Bowen, and Minister for Indigenous Australians, Malarndirri McCarthy, issued a joint statement recognizing the vulnerability of the Torres Strait Islands to climate change and the impacts already being felt by many residents. They declared, “Where the former Government failed on climate change, the Albanese Government is delivering – because it’s in the interest of all Australians.”
Legal experts have commented on the ruling’s implications. Riona Moodley from the University of New South Wales’ Institute of Climate Risk and Response described the decision as “definitely a setback” for Torres Strait Islanders but stressed that it does not rule out future changes in the law. She indicated that Australian law needs to change to meet the challenges of climate change. Her colleague, Wesley Morgan, suggested that the court’s findings should push the government to take stronger action on climate policies, urging them to follow scientific advice promoting the most ambitious climate action in the coming decade.
