Hearings for the potentially game changing Australian Climate Case are taking place on Country in the Torres Strait (Zenadth Kes) from Monday 5 June to around 19 June, 2023.
Guda Maluyligal plaintiffs Uncle Pabai Pabai and Uncle Paul Kabai from the islands of Boigu and Saibai are giving evidence of the climate harms experienced by these communities on the frontline of Australia’s impending climate disaster.
In this significant next step of the landmark case, hearings will take place on Boigu, Badu and Saibai islands and in Cairns.
The Court will hear from Zenadth Kes witnesses about their connection to their islands and the consequences if their homelands are lost.
Community members will give evidence and the court will tour the islands to witness the climate damage already occurring; the cultural sites, food supplies, homes and ways of life already in jeopardy.
Hearing dates, for community lay-evidence:
- Boigu 5-7 June
- Badu 8-9 June
- Saibai 12-14 June
- Cairns 15 June – TBC
The next hearing of expert evidence will be held at the Australian Federal Court in Melbourne between 31 October and 20 November. A decision is anticipated in 2024.
The court proceedings will be (audio-only) live streamed. The livestream link for the hearing will be posted on the Federal Court website’s daily list on the day of the hearing.
Details will be made available here: fedcourt.gov.au/court-calendar/daily-court-lists
See also: Court challenges Government for not considering climate impacts of new coal
Remember Eddie Mabo
It seems only fitting that these hearings commence immediately after the Torres Strait and broader Australian communities remembered the nation-shaping work of Eddie Mabo during Mabo Day on Saturday 3 June.
Uncle Paul and Uncle Pabai continue a proud Torres Strait history of fighting for their rights through the courts.
Uncle Pabai and Uncle Paul are seeking orders from the court that requires the Federal Government to take steps to prevent this harm to their communities, including cutting greenhouse gas emissions in line with the best available science.
Uncle Pabai says
‘I was born to Boigu. I belong to Boigu. I will lose everything if I am removed from my own Country. I am taking this case for the betterment of my Country, the betterment for my family and my community.
It’s not only for me, it’s for the ancestors and the land that I am born to.”
Uncle Paul says
“We have to bring this case because our islands are sinking. We have to do it for our younger generations, otherwise we will become climate refugees.
We want to hold onto our own land, because our culture and identity stays there, if our islands go under we will be nothing.”
Faced with rising sea levels and distressing inaction on climate change, in October 2021 Uncle Pabai and Uncle Paul filed the Australian Climate Case against the Australian Government for failing to prevent climate change.
The homes of people in the Torres Strait could disappear beneath the rising seas, making them Australia’s first climate change refugees.
For Guda Maluyligal communities and Zenadth Kes people, the impacts of climate change won’t only force them from their island homes, but sever their connection to 65,000 years of culture and deep spiritual connection passed down generation by generation, connection to land, sea, winds and sky and community.
The Australian Government currently has a 2050 ‘net zero’ emissions target, which experts say will not be enough to prevent disaster in the Torres Strait.
In fact, leading climate scientists on the Climate Targets Panel calculate that Australia’s greenhouse emissions need to be reduced by 74% by 2030 (from 2005 levels) and to net zero by 2035 to keep global heating to below 1.5C and avert the destruction of Torres Strait Islander communities.
Uncle Pabai, Uncle Paul and the group members are represented by Phi Finney McDonald. The Australian Climate Case is supported by Grata Fund and the Urgenda Foundation, and is backed by a strong international precedent.
In 2015, the Urgenda Foundation and 886 people took the Dutch government to court for not doing enough to prevent climate change and won.
The courts ordered the Dutch government to take immediate steps to cut greenhouse gas emissions and thanks to this groundbreaking legal action, the Netherlands now has some of the strongest climate policies in the world.
This case triggered a groundswell of litigation internationally, with more than 80 similar cases filed around the world resulting in real-world emissions reductions in Germany, the Netherlands and elsewhere; meaning that the pressure is on the Australian government to act now.
Grata Fund’s Executive Director, Isabelle Reinecke says
“Uncle Pabai and Uncle Paul’s case is another chapter in the nation shaping leadership of First Nations communities, it has the transformative potential that Mabo’s case did in the 90s.
We’re seeing more and more communities around the world exercise their democratic rights by bringing cases like this against their Governments asking them to answer to these serious legal issues in the realm of facts, not politics.
The tide is turning, and as more courts are asked to hear these cases we are seeing a wave of legal decisions finding that climate action is no longer a matter of politics in Australia, it’s a matter of law.
Success in this case, or a case that follows is simply inevitable.”
This case is the first time that anyone in Australia has argued that the whole of the Federal government has a duty to protect people from climate change, and if successful has the potential to make all Australians safer from climate harm
Principal Lawyer, Phi Finney McDonald’s Brett Spiegel says
“The Commonwealth owes a duty to Uncle Pabai, Uncle Paul and all Torres Strait Islanders to take reasonable steps to preserve their islands and culture from climate change.
We are pleased that the Court will have the opportunity to hear from Uncle Pabai, Uncle Paul and other Torres Strait witnesses on their own country and see what is at stake for them.”
This case is a nation-shaping moment for Australia. Torres Strait Islander Peoples have a proud history of fighting for their rights through the courts. Eddie Mabo, from Murray (Mer) Island, famously debunked the classification of Australia as terra nullius, a pivotal step in land rights for Aboriginal and Torres Strait Islander peoples. Uncle Pabai and Uncle Paul are proud to follow in his footsteps.
International legal precendent
This landmark case is modelled on one of the most successful climate cases in history.
In 2015, environmental group the Urgenda Foundation supported 886 Dutch people to bring a case against their Government, arguing that it had a legal responsibility to reduce greenhouse gas emissions to protect them from climate change.
On 24 June 2015, the District Court of The Hague ruled in favour of Urgenda and ordered the Government to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels).
The Government appealed, but in December 2019 the Dutch Supreme Court found in favour of Urgenda and confirmed the original court order.
This led to the rapid closure of coal fired power stations and billions of euros of investment in renewable energy and energy efficiency.
More information about the Urgenda Climate Case can be found on the Urgenda Foundation’s website
In the class action, filed on 26 October 2021, plaintiffs Wadhuam Paul and Wadhuam Pabai are arguing that the Commonwealth has a legal ‘duty of care’ towards Torres Strait Islander Peoples, arising both from negligence law (torts) and the Torres Strait Treaty and Native Title.
Paul and Pabai are arguing 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.
For more information on the Australian Climate Case, visit the website: australianclimatecase.org.au
View the case timeline
Read the Federal Court’s simplified summary of the case
