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- An important climate case
It’s been a very charged, chaotic week (aren’t they all?) so you may have missed a very important story unfolding in the Federal Court: the Australian Climate Case. In 2021, Uncle Pabai and Uncle Paul from the Torres Strait filed a lawsuit against Australian federal government claiming it has breached its duty of care to protect the islands from the impacts of the climate crisis. It is the first case to be brought against the government as a whole (rather than an individual Minister). This week, the court heard the closing arguments for both sides… and it’s the arguments made by our government that I reckon we all need to hear.
Arguments by the Uncles:
The Commonwealth and Uncles Paul and Pabai agree on the fundamentals of the climate crisis – what causes it and what measures would limit global heating to 1.5ºC. They made two specific arguments.
That the Commonwealth has a duty of care to Torres Strait Islanders
The Commonwealth has frequently spoken about the fact that Torres Strait Islanders are uniquely vulnerable to the impacts of climate change – Prime Ministers, federal Ministers and various representatives have spoken about this on the international stage and in visits to the Torres Strait Islands. This, combined with official documents like the Torres Strait Treaty, shows there is a special relationship between the Commonwealth and Torres Strait islanders. The fact that one party is completely reliant on the other for protection (it is impossible for Torres Strait Islanders to have any impact on global heating) amounts to a legal obligation… a Duty of Care.The Commonwealth has repeatedly failed this Duty of Care
Despite being fully informed of the best available science to combat global heating, Australia’s climate ‘action’ plan has not been formed with this in mind. Refusing to use the expertise available means it breached the duty of care: “It did so in 2015 when it set that initial…2030 target…again in 2020 when it reaffirmed that target, in 2021 when it set the 2050 target, and then in 2022 and ongoingly when it set an updated 2030 target.” Even if the 2030 emissions reductions target is met, heating won’t stay under 1.5ºC – with direct, catastrophic impacts for the Torres Strait Islands.
The stakes for failing this duty of care are very, very high. The sea level rise beyond 1.5ºC will make the Torres Strait Islands uninhabitable by 2050. The Uncles argue that mass forced migration will also cause the death of Ailan Kastom: the unique spiritual and physical connection to the Islands and surrounding waters built up over thousands of years. It is irreplaceable.
Arguments by Commonwealth:
The Australian federal government is, of course, not having a bar of any of this. Some of the key points they made in their closing arguments:
They don’t have a duty of care because we all individually contribute to emissions in small ways, and if the Commonwealth can be sued for failing to reduce emissions then anyone can be sued for it.
They believe that means Torres Strait Islanders could protect themselves by using ‘small strategies’. Justice Michael Wigney called this out as a very weak argument: “There’s a bit of an air of unreality that putting sandbags, or putting tractor tyres out, or building rubble is really something that practically can protect Islanders from climate change… They are talking about beaches and trees are being washed away. Soil is being salinated to the point they can’t grow anything.”
That the Commonwealth should do ‘what it can’ but has no responsibility to prevent the most serious impacts of climate change. It says the 1.5ºC target in the Paris Agreement that Australia signed on to is just “something to aim for”, not an obligation.
There is nothing special about Ailan Kastom – everyone has a ‘way of life’, and First Nations peoples’ connection to land and culture is no different to the attachment anyone else has to their daily life. It said as there is no way to value Ailan Kastom, Torres Strait Islanders cannot be compensated for it.
Why this case matters:
‘Climate litigation’ is being used more frequently as a tool to force governments to act, right around the world. If the Australian Climate Case succeeds in establishing that the Commonwealth does have a duty of care to protect Torres Strait Islanders from climate change, this could be used to force the government to update the current inadequate emissions reductions target (42% by 2030) to the science-backed 75% by 2030 required to keep global heating at 1.5ºC. A ruling in favour of Uncle Pabai and Uncle Paul could be the catalyst for a ban on new fossil fuel projects, accelerating the shift to renewables and more broadly moving Australia towards a green economy, because these are what’s required to protect the Torres Strait Islands. Nothing less will do.
The Australian Climate Case could be the domino we need to fall. A judgement will be made later this year.
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