The Australian government has won a landmark climate case against residents of islands under siege from the impacts of climate change.
In 2021, community elders Pabai Pabai and Paul Kabai launched legal action against the then-Liberal government for breaching its duty of care to protect the Torres Strait Islands from the impacts of climate change.
But a Federal Court judge dismissed the case and said climate policy was a matter for parliament, not the courts.
The ruling also found that the government did not owe a duty of care to protect the islands from the impacts of climate change.
The Torres Strait Islands – located between far-north Queensland and Papua New Guinea – are made up of about 270 islands, of which only a few dozen are inhabited.
About 4,000 people live on the islands, according to the latest official figures, with 90% identifying as Indigenous.
In their submission, Uncle Pabai and Uncle Kabai said sea levels in the north of Australia had been rising “significantly higher than the global average”.
Between 1993 and 2019, sea levels in the Torres Strait rose by about 6 cm per decade, the court was told.
The court also heard that the islands are home to a “distinctive customary culture known as Ailan Kastom”, where the residents have a “unique spiritual and physical connection” to the islands and waters.
The case added that by failing to take greater action against climate change in its emissions targets, the islands’ unique culture would be lost, and residents would become climate refugees.
However, Justice Michael Wigney said that while he recognised the “devastating impact” caused to the islands by climate change, current negligence laws in Australia do not allow for compensation where the loss of culture, customs and traditions were the result of a government’s policies.
He acknowledged that while “climate change related flooding and inundation events had damaged their sacred sites and the burial grounds of their ancestors”, matters of “core government policy” such as emissions targets was “ordinarily to be decided through political processes, not by judges”.
He did however recognise that action was needed: “There could be little, if any, doubt that the Torres Strait Islands and their traditional inhabitants will face a bleak future if urgent action is not taken to address climate change and its impacts.”
For Uncle Pabai the decision was devastating.
“My heart is broken for my family and my community,” he said in statement according to local media.