CLIMATE JUSTICE ON THE LINE AS FINAL ARGUMENTS HEARD IN CAIRNS FOR THE AUSTRALIAN CLIMATE CASE

Following extraordinary on-Country hearings in Zenadth Kes (Torres Strait) in June 2023, and climate expert evidence given in Naarm (Melbourne) in November, the legal team representing Torres Strait Traditional Owners Uncle Paul Kabai and Uncle Pabai Pabai will make their closing arguments in the Uncles’ last bid to save their homelands, communities and culture from climate disaster. 

Climate change is already causing sea level rise and more frequent and intense storms in the Torres Strait, with local communities at risk of becoming Australia’s first climate change refugees.

Uncle Paul and Uncle Pabai aren’t alone in their fears for their lives and homes - communities around Australia are still reeling from the devastating consequence of fires, floods, overwhelming heatwaves and smoke inhalation. Members of these communities are coming together to throw their support behind this case by sharing their stories and attending the Cairns hearings to stand with Uncle Paul and Uncle Pabai to fight for climate justice.

If successful, this case has the potential to force the Federal Government to rapidly reduce emissions. This could supercharge the transition to a clean economy and could stop new fossil fuel projects; improving climate outcomes for all Australians.

What will happen at the hearings?
The hearings will commence on Monday 29 April with an Opening Ceremony to celebrate the vibrant and ancient Torres Strait Islander culture, dance and storytelling at risk from climate harm. The renowned Muyngu Koekaper Dance Team from Saibai will travel to Cairns to perform a new dance developed in response to the rising tide and effects of climate change.

In Court, the Uncles’ legal team will make their closing arguments; explaining why the Commonwealth owes Torres Strait Islanders a duty of care and how the Commonwealth has breached its duty by failing to protect Torres Strait communities from climate harm. This will tie together the climate science and the evidence given by the Uncles and their communities during the on-Country hearings. 

The Commonwealth’s legal team will also take the Court through their arguments, defending its current climate policies and denying that it owes Torres Strait Islanders a duty of care to protect them from climate harm. The judge will likely reserve his decision at the end of the hearing. A decision might be handed down later this year.

Further cultural events will take place during the week, with an Island Night Community Celebration on Wednesday 1 May featuring updates on the hearings in language (Kalaw Lagaw Ya) plus food, culture and a full set of dances from the Muyngu Koekaper Dance Team and a performance by Christine Anu.
 

What is the backstory to this case?
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 Zenadth Kes people, the impacts of climate change won’t only force them from their island homes, but sever their connection to thousands of  years of culture and deep spiritual connection passed down generation by generation, connection to land, sea, winds and sky and community. 

Uncle Pabai and Uncle Paul are seeking orders from the court that require 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. 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 1.5°C and avert the destruction of Torres Strait Islander communities.

Uncle Paul Kabai says: “It has been a big journey since our case started and now we are at the final hearings. Our message to the Australian Government is that we can’t wait any more years for climate action to stop our islands from going underwater.”

“Our community is here in Cairns standing together and using our voice to ask the Government to protect our homelands, our communities and our culture from climate change for the future generations to come.”

“We are fighting to do everything we can to maintain our connection to thousands of years of culture and deep spiritual connection, passed down through our ancestors.”

Uncle Pabai Pabai says: “We have taken the Australian Government to court so they will listen to us, because we are the people being most affected by climate change.”

“We are witnessing climate change, like erosion and inundation, rapidly getting worse before our eyes. If the Government keeps failing us, we will be forced to leave our homelands, to lose our identity, our culture – everything.

“The message from my community to the Australian Government and everyone listening is that the time for politics must stop, you have a duty of care to take action to urgently protect us from climate harm.”

Torres Strait Elder Dr Aunty McRose Elu says: “Our community brought this case because we are fighting for our very existence and we are not being listened to. We want the Government to act with integrity and hear our voices.”

“The Government has known that they are putting our people and the world in danger for decades but they won’t listen. We know they can be doing so much more to keep us all safe. Our only chance of survival is to act very quickly to put us on the right path and keep the warming below 1.5 degrees. But the scientists say that their commitment to reduce the gases [GHG emissions] by 43 % by 2030 is not enough to save our homelands from climate change.”

“We are standing together strong with climate impacted communities from all around Australia. If we walk together in one spirit, one mind, one strength and wisdom, we will find a way forward together. I’m confident that is how we will get there.”

Uncle Pabai, Uncle Paul and their communities 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, Switzerland and elsewhere; meaning that the pressure is on the Australian government to act now.

Principal Lawyer, Phi Finney McDonald’s Brett Spiegel says: “Phi Finney McDonald are honoured to represent Uncle Pabai, Uncle Paul and Torres Strait Islanders in their fight for climate justice to protect their home, culture and identity.  We look forward to this opportunity to make their closing submissions to the Court.”

“We begin these final hearings with a growing sense of urgency, knowing the time to act to save Uncle Pabai and Uncle Paul’s homeland is diminishing.”

Grata Fund’s Executive Director, Isabelle Reinecke, says: “The tide is turning. Since this case began we have seen a wave of international legal decisions finding that climate action is a matter of law.  Again and again, courts are finding there is a legal limit to how much harm Governments can knowingly cause to their citizens.”

“The Government cannot continue to knowingly ignore what they already know, that 2/3 of Boigu island will be under water in 30 years due to sea level rise from polluting climate emissions.”

“A win could benefit us all – from communities in the Torres Strait Islands, to bushfire and flood affected communities across Australia, to Canberra where our elected representatives would be forced to urgently decide how to rapidly cut emissions in line with the science to limit global warming to 1.5 degrees, just as happened after similar cases won in the Netherlands and Belgium.”

A decision on this case could potentially be handed down later this year.

Key Facts:

SCHEDULE  Monday 29 April MEDIA CALL: Outside Cairns Magistrates Court, 5 Sheridan St, Cairns 8:30am        Welcome to Country, Acknowledgement 8:40am        Press conference; opening comments, interview/pic opps 9:00am        Performance from Muyngu Koekaper Dance Team and Christine Anu   9:45am        Buses depart; transport legal team, plaintiffs and community members to court Cairns Business Hub, 59 McLeod St, Cairns City 10:30am       Court proceedings commence, running until approx. 4:00pm daily from Mon–Fri Wednesday 1 May Island Night Community Celebration - Watson’s Park, Manunda 6:00pm          Pic/interview opps: Ceremonial dances, Christine Anu performance, community updates in language, local food.  Friday 3 May ~4:00pm        Hearings close, with a decision potentially handed down later in 2024

AUSTRALIAN CLIMATE CASE – ADDITIONAL BACKGROUND  1. The plaintiffs Wadhuam (Maternal Uncle) Pabai Pabai, proud Guda Maluyligal man and Traditional Owner Boigu Wadhuam Pabai is in his 50’s and has lived on Boigu island his whole life, like generations and generations before him. He is a Director on the Prescribed Body Corporate which represents the 6 clans on the island. He is extremely concerned about the myriad of climate impacts his community is facing and is proud to be taking on this case. Wadhuam Pabai is a father of five daughters and two sons, aged between 30 and 12, and is bringing this case to ensure they and their children and their grandchildren have continuing connection to Boigu into the future.   Wadhuam (Maternal Uncle) Paul Kabai, proud Guda Maluyligal man and Traditional Owner Saibai Wadhuam Paul is in his 50s and has lived on Saibai since he was born. He is a Director on the Prescribed Body Corporate which represents the 7 clans on the island. Wadhuam Paul is deeply concerned about his island flooding and disappearing beneath the waves. He is also worried about the effects of heatwaves and other climate impacts on people’s health. Paul is a father to two girls and six boys aged between 40 and 10 and he is bringing the case to protect their future and the future of all Saibai Islanders, Guda Maluyligal Peoples and all Australians.   2. About the case 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. 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.   3. Key climate harms in the Torres Strait Zenadth Kes (the Torres Strait Islands) is the frontline of the climate crisis. Sea levels in the Torres Strait are rising at double the global average, and rose 6cm in the last decade. Without urgent action to cut greenhouse gas emissions, sea levels are projected to rise by up to one metre by 2100. The weather would become more extreme, with more intense rain in the wet season, a longer, hotter, drier dry season, more severe cyclones and more frequent and severe storms and flooding, leading to coastal erosion and inundation, which threatens freshwater supplies. Boigu and Saibai are very flat and low-lying islands, about one and a half metres above sea level. They are particularly exposed to sea level rise - more so than many other islands in Zenadth Kes. Both islands are already being regularly flooded by sea water. This is already affecting settlements, infrastructure, important cultural sites and the gardens where people grow vegetables to feed themselves and their families. Gudalmalulgal Kastom governs how Gudalmalulgal Peoples take responsibility for and manage their land and sea country, and how and by whom natural resources are harvested. As the ocean continues to warm, this poses a severe threat to marine life and complex systems of biodiversity, including coral reefs, turtles, dugongs and fish populations. Connection to sea country and marine hunting is integral to Gudalmalulgal Kastom. Marine hunting and fishing are also crucial food sources for Torres Strait Islander Peoples. Irreplaceable cultural heritage and sacred sites will be completely destroyed. Inhabited and uninhabited islands are home to significant sites for ceremonies such as initiation for different clans, burial sites and locations that contain human remains and places that have as much spiritual significance as the Christian concept of heaven. The climate crisis is a health crisis. Heatwaves are already the most deadly form of natural disaster in Australia, and climate change would bring a longer, hotter, drier dry season to the Torres Strait, in which more people become sick or die from heat-related illnesses. Malaria and dengue fever would increase because warmer temperatures and increased rainfall and flooding provide optimal breeding conditions for mosquitos. With very limited options for adapting to climate change, many islands in Guda Maluyligal and the wider Torres Strait will become uninhabitable. Torres Strait Islander Peoples would become Australia’s first climate refugees. Being forcibly removed from their land, place and culture because of Government inaction would form another shocking chapter in Australia’s oppression of First Nations Peoples.   4. About the team Grata Fund Grata Fund advocates for a strong and functioning democracy by using circuit breaking litigation to hold the powerful to account. Grata is Australia’s first specialist non-profit strategic litigation incubator and funder. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms.  Phi Finney McDonald is a specialist litigation firm with offices in Melbourne, Sydney and London. They practice in complex and large-scale litigation, with a focus on class actions and group litigation. Their lawyers have decades of experience seeking justice for those who have suffered loss or injury from corporate or government misconduct. Together with Urgenda, Phi Finney McDonald developed the case and will have conduct of the litigation on the instructions of plaintiffs Paul and Pabai. Fiona McLeod AO SC is a Senior Counsel at the independent Bar in Australia practising in the areas of commercial and public law matters. She represented the Commonwealth of Australia in major cases including leading the legal team in the Victorian Bushfires Royal Commission, Queensland Floods Commission and the Royal Commission into Institutional Child Sex Abuse. She has acted in other notable matters including leading the legal team representing the successful plaintiff in the Murrindindi bushfire class action and the plaintiffs in the Don Dale class action. Fiona has led the Law Council of Australia, Australian Bar Association, Victorian Bar and Australian Women Lawyers. She is the Co-Chair of the Diversity and Inclusion Council and an officer of the Bar Issues Committee of the International Bar Association and a member of the Council of the Commonwealth Lawyers Association. The Urgenda Foundation is a Dutch NGO that is working to promote a fast transition towards a sustainable society. Urgenda views climate change as one of the biggest challenges of our time and looks for solutions to ensure that the earth will continue to be a safe place to live for future generations. Urgenda has helped develop the case and will continue to provide strategic and scientific support.

Contact details:

For more information or to request interviews, contact Terri King at Pitch
on terri@pitchprojects.com or 0488 036 740.

Download images, video footage and audio grabs here. 

Available for interview:

• Uncle Pabai Pabai, Uncle Paul Kabai

• Aunty McRose Elu and other climate leaders from the Torres Strait

• Isabelle Reinecke, Grata Fund

• Brett Spiegel, PFM

• Jo Dodds, NSW bushfire survivor, Noelle Maxwell, Northern Rivers flood survivor & Jade Vivienne, Kangaroo Island bushfire survivor

• Performer Christine Anu

• Jen Robinson, International Human Rights Barrister and Counsel for Vanuatu in the current International Court of Justice Advisory Opinion, Grata Fund board member 

For more information on the Australian Climate Case, visit the website: australianclimatecase.org.au

View the case timeline or read the Federal Court’s simplified summary of the case.