Indigenous Elders Face Setback in Climate Battle Against Australian Government

A federal judge's ruling highlights the urgent need for effective climate action as Indigenous elders express profound disappointment.

The Australian government has triumphed in a pivotal climate case brought forth by Indigenous elders from the Torres Strait Islands, facing significant challenges from the encroaching effects of climate change. In 2021, community leaders Uncle Pabai Pabai and Uncle Paul Kabai initiated legal proceedings against the then-Liberal government, claiming it had violated its duty of care to safeguard the islands from climate-related impacts. However, a Federal Court judge ultimately dismissed their case, ruling that climate policy falls under the purview of parliament, not the judiciary, and concluded that the government held no legal obligation to protect the islands from climate change's repercussions.

The Torres Strait Islands, located between northern Queensland and Papua New Guinea, consist of nearly 270 islands, of which only a small fraction are inhabited. Home to approximately 4,000 individuals, around 90% of the population identifies as Indigenous. In their legal argument, Pabai and Kabai emphasized that sea levels along northern Australia have risen at rates significantly surpassing the global average. They provided evidence indicating that from 1993 to 2019, sea levels in the Torres Strait increased by approximately 6 cm per decade.

During the court proceedings, it was highlighted that the islands are home to a distinct culture known as Ailan Kastom, which embodies a profound spiritual and physical connection to the land and waters. The elders argued that the failure to enact more robust climate initiatives has put this unique identity at risk, potentially leading to a loss of culture and climate displacement for residents. Despite acknowledging the detrimental impacts of climate change, Justice Michael Wigney noted that existing negligence laws in Australia do not permit compensation for losses related to culture, customs, and traditions stemming from governmental policies.

Justice Wigney recognized the grim outlook for the Torres Strait Islands and their inhabitants if immediate action is not taken against climate change. "It is evident that without urgent measures, the future of the Torres Strait Islands and their traditional people will be bleak," he stated. Uncle Pabai expressed his heartbreak over the ruling. "My heart is broken for my family and my community," he stated, emphasizing the spiritual ties the community has with their lands, particularly their ancestral cemeteries. His counterpart, Uncle Paul, was also disheartened, indicating a shared sense of loss and pain felt across Indigenous and non-Indigenous communities affected by climate change.

Reflecting on his experiences, Uncle Paul recounted fond childhood memories of Saibai Island, contrasting it with the current threats posed by rising sea levels and extreme weather conditions. He raised concerns over the seawall constructed in 2017, which has already been compromised by severe tides, leading to flooding and destruction of crops. "If the water continues to rise as it has, that seawall will not provide adequate protection. My country would vanish. I would lose my home, culture, and identity," he warned during the proceedings.

Justice Wigney's decision acknowledged the inadequacies of past government practices regarding emissions reduction, while the new Labor administration has committed to setting more ambitious targets. Following the ruling, Australia's Minister for Climate Change and Energy, Chris Bowen, alongside Minister for Indigenous Australians, Malarndirri McCarthy, expressed their awareness of the region's vulnerability to climate change, highlighting the government's renewed dedication to address these challenges.

Riona Moodley, associated with the University of NSW's Institute of Climate Risk and Response, affirmed that the ruling signifies a setback for Torres Strait Islanders. Nonetheless, she emphasized the law's potential to evolve to tackle the ongoing realities of climate change. Her colleague, Wesley Morgan, called for a more responsive government approach to scientific guidance on climate policy during this critical decade ahead.