The Federal Court has dismissed a class action lawsuit brought by Torres Strait Islanders against the Australian government, alleging it breached a duty of care by failing to properly address climate change.
In a summary of the landmark decision delivered to a court in Cairns on Tuesday, Justice Michael Wigney found that climate change was “an existential threat to the whole of humanity.”
The judge said the Australian government had failed to properly engage with climate science when setting emissions targets in 2015, 2020 and 2021, and that climate change was battering the islands in the Torres Strait where the applicants lived.
The two lead applicants, Uncle Pabai Pabai and Uncle Paul Kabai, live in Zenadth Kes (the name in language for the Torres Strait and the people who live there) where climate change induced sea level rise is swallowing the islands.
In some areas, low-lying food producing areas have already been inundated and members of the community have described having to dive to recover the remains of their ancestors after a king tide. Left unchecked, the communities on these islands will be forced to leave their homes as climate refugees, severing their connection to their thousands-year-old culture.
Unlike other recent cases that argue individual fossil fuel producers owe liability for climate harms arising when the oil, gas and coal they produce is burned, Pabai Pabai v The Commonwealth took aim at the government for failing to act.
The case alleged the Australian government had acted negligently when it failed to take meaningful action on climate change, by setting emissions reductions targets too low and failing to properly engage with the science.
Over the course of the hearings, the court heard from climate scientists and government officials.
In one hearing in Melbourne, lawyers for the applicants cross examined a public servant, Kelly Pearce, who led a taskforce to advise the Australian government on options for emissions reduction targets in anticipation of negotiations in Paris that would become the Paris Climate Agreement.
Pearce confirmed in evidence that the taskforce did not consider the impacts of climate change on the Torres Strait, or any other community, apart from broadly acknowledging that there would be some sort of impact from extreme weather events.
Justice Wigney said he accepted the evidence about the scale and reality of climate change, the harm it was causing to the Torres Strait and ruled the government had failed to engage with the science on climate change when setting climate policy.
He found that the government’s engagement showed “scant, if any, regard to the best available science” and that its failure to address the threat, particularly for the Torres Strait Islands, “has been wanting”.
“The main reason for the failure of the applicant’s primary case was not that they were unable to prove the main factual elements of their case against the Commonwealth,” Wigney said.
“Indeed, as I have already explained, I have accepted many of the key factual allegations upon which the applicant’s case was based.”
Justice Wigney said the law prevented him from ruling in the applicant’s favour, saying the law currently “provides no real or effective legal avenue through which individuals and communities like those in the Torres Strait Islands can claim damages or other relief” for harms from climate change that were the result of government policy.
In particular, he said, the harm claimed – the collective loss of culture – did not form a “recognised compensable loss or damage under the Australian common law of negligence.”
“That will remain the case unless and until the law in Australia changes, either by the incremental development or expansion of the common law by appellate courts or by the enactment of legislation,” he said.
“The only real avenue available to those in the position of the applicants and other Torres Strait Islanders, involves public advocacy and protest and ultimately recourse via the ballot box.”
Members of the community had travelled to Cairns to be present and said they were heartbroken by the decision after a five-year long fight.
“My heart is broken for my family and my community. Love has driven us on this journey for the last five years, love for our families and communities. That love will keep driving us,” Uncle Pabai Pabai said.
Uncle Paul Kabai said: “I thought that the decision would be in our favour, and I’m in shock. This pain isn’t just for me, it’s for all people Indigenous and non-Indigenous who have been affected by climate change. What do any of us say to our families now?”
The community’s legal team said they are considering an appeal.
In a joint statement released after the decision, federal climate minister Chris Bowen and minister for Indigenous Australians, Malarndirri McCarthy, said the government was “carefully considering the judgement” as it worked to “turn around a decade of denial and delay on climate, embedding serious climate targets in law and making the changes necessary to achieve them.”
“Australia is now producing record renewable electricity, and energy emissions are lower than when we took office. We’re on track to achieve our ambitious but achievable targets of 43 per cent emissions reduction by 2030,” the statement said.
The decision comes a week before the International Court of Justice is expected to deliver its provisional advice on the obligations of governments to address climate change, and after a recent decision in German courts brought by a Peruvian farmer found individual fossil fuel producers were liable in nuisance for climate harms.
Hearings into a separate matter filed by Doctors for the Environment Australia, seeking to challenge approvals granted to Woodside for its Scarborough gas development, began in the Federal Court on Monday.
