Pabai and Paul – First Nations leaders from remote islands in Gudamalulgal in the Torres Strait – are taking the Australian Government to court for failing to prevent climate change.
Wadhuam Pabai and Wadhuam Paul are Traditional Owners whose ancestors have lived in the Torres Strait for more than 65,000 years. Now they are on the frontline of climate change, and face losing their island homes under rising seas.
Australia’s response to climate change is one of the weakest in the world. If the Federal Government doesn’t change course – and fast – then islands in the Torres Strait could become uninhabitable, forcing Torres Strait Islander communities to leave their homes, severing 65,000 years of connection to the land and making them Australia’s first climate change refugees.
The legal arguments
Pabai and Paul have turned to the courts in the hope of protecting their communities from disaster. They are arguing that the Federal Government has a legal responsibility to ensure Torres Strait Islander Peoples are not harmed by climate change. In legal terms, this is called a ‘duty of care’.
Pabai and Paul will argue that by failing to prevent climate change the Australian Government has unlawfully breached this duty of care, because of the severe and lasting harm that climate change would cause to their communities. They are seeking an order from the court requiring the Government to prevent this harm to their communities by cutting greenhouse gas emissions.
Torres Strait Islanders have a long history of fighting for their rights – and some of those battles have transformed the face of modern Australia. Torres Strait Islander man Eddie Mabo, took on the Government through the courts and established that terra nullius was a lie, paving the way for land rights for all First Nations Peoples in Australia.
Building on international success
The Australian Climate Case has been developed in partnership with the Urgenda Foundation, international legal experts who have a proven record of successful climate change litigation.
It all started in 2015, the Urgenda Foundation and 886 people in the Netherlands took the Dutch Government to court for not doing enough to prevent climate change. They won the case in the District Court of the Hague and then won again at the two stages of appeal, with a final victory in the Supreme Court in 2019.
The case was the first to establish that a government has a duty of care to protect people from climate harms. The court ordered the Dutch Government to significantly reduce the Netherlands’ greenhouse gas emissions within 5 years.
As a result of the groundbreaking case, the Netherlands now has some of the strongest climate policies in the world and is closing coal-fired power stations and investing billions in renewable energy and energy efficiency. People in Belgium, Colombia, France, Germany and Ireland have also had success in the courts, and there are plenty of similar cases under way in other countries.
Progress in the Australian courts
In Australia, the courts have started to recognise the Australian Government’s duty to protect people from climate change.
In May 2021, in Sharma vs Minister for the Environment, the Federal Court of Australia found that the Federal Minister for the Environment had a duty to protect young people from the future harm caused by the climate change impacts of a proposed coal mine extension project.
In August 2021, in Bushfire Survivors for Climate Action Incorporated vs Environment Protection Authority, the New South Wales Land and Environment Court found that the NSW Environment Protection Authority has a duty to take serious action on greenhouse gas emissions and climate change.
However, this case is the first time that anyone in Australia has argued that the whole of the Federal Government – not just one Minister or agency – has a duty to protect people from climate harm. If successful, Pabai and Paul won’t just be protecting their communities – they’ll be making us all safer from damaging climate change.