The Federal Court of Australia has dismissed a landmark class action brought by two Torres Strait community leaders who argued the Australian government had a legal duty of care to protect their islands from climate change. The lead plaintiffs, Uncle Pabai Pabai and Uncle Paul Kabai, sought orders requiring the government to cut greenhouse gas emissions and prevent climate harm to their communities.
In his decision, Justice Michael Wigney acknowledged that the Torres Strait Islands and their inhabitants face a bleak future without urgent action, but ruled that the common law of negligence was not a suitable vehicle for the claim. He noted that current law provides no effective legal avenue for individuals or communities to seek relief for harm caused by government climate policies.
Uncle Paul Kabai expressed shock and devastation, stating that the pain extends beyond Indigenous communities to all affected by climate change. He criticised Prime Minister Anthony Albanese and the government's legal team, saying they can walk away, while the Torres Strait Islanders return to their homes with 'the deepest pain imaginable'.
The court found that when the previous Coalition government set climate targets in 2015, 2020 and 2021, it failed to consider the best available science. However, it noted that the current government did have some regard to science when resetting the emissions target in 2022. The court agreed that the islands have been ravaged by climate change, with flooding, erosion, and sea walls already affecting communities.
The legal team, represented by Phi Finney McDonald, confirmed they will review the judgment and consider an appeal. The case, supported by the Urgenda Foundation and Grata Fund, was modelled on the successful Dutch Urgenda case, but Australia’s court ruled that without changes to the law, the only avenues for action are public advocacy and the ballot box.
