Elders continue legal battle to protect island homes
Torres Strait Elders appeal to the Federal Court over groundbreaking climate cases.
Uncle Paul Kabai and Uncle Pabai Pabai first filed the lawsuit against the Commonwealth government in 2021, fearing the loss of their homes on the islands of Boigu and Saibai.
They asked the court for orders requiring the government to take steps to prevent harm to their communities, including reducing greenhouse gas emissions in accordance with the best available scientific data.
Mr Kabai said he felt he had no choice but to appeal the Federal Court’s decision, which found that the Commonwealth did not owe a duty of care to Torres Strait Islanders to protect them from climate damage.
“If we do nothing, there will be no future for our children or future generations,” he told AAP.
Mr Kabai said the case was not just about the two men, it was about their entire community and other Australians affected by climate change.
“A lot of the community wasn’t happy with the decision, so they kept asking us when you were going to appeal,” he said.
Mr Pabai said his community was preparing for homes to be flooded next summer as major tides hit the Torres Strait.
“Scientists have told us we may have less than 30 years before we lose our islands, our homes, our connection to everything,” he said.
“I cannot turn my back on my children and my ancestors and give up; each of us must stand together and do everything we can to help.”
In July, Federal Court Judge Michael Wigney found that unless something was done to address the effects of climate change, there was a “very real risk” the Uncles’ worst fears could come true and Torres Strait Islanders could lose their island, their culture, their way of life and become climate refugees.
Judge Wigney said the case failed because the law of negligence did not allow compensation when government policy decisions were involved.
In their appeal, the uncles’ legal team argues that the government owes a duty of care to Torres Strait Islanders, that the Commonwealth’s additional emissions are a legal cause of harm to Torres Strait Islanders, and that cultural damage is recoverable under Australian law.
Phi Finney McDonald lead lawyer Brett Speigel, who is part of the men’s legal team, said: “We hope that the Full Court of the Federal Court of Australia will recognize that the Commonwealth owes a duty of care to Torres Strait Islanders in relation to climate change and that the Commonwealth’s breach of that duty of care contributed to the harm suffered by Uncle Pabai, Uncle Paul and other Torres Strait Islanders, including enormous cultural loss.” he said.
