The Federal Court of Australia in Cairns is hearing closing arguments this week in what proponents hope will be the first successful challenge to the Commonwealth’s climate policies on behalf of First Nations people.
Traditional owners Uncle Pabai Pabai and Uncle Paul Kabai are suing the Commonwealth over its climate change policies.Justin McManus
The case was brought by two traditional owners from the Torres Strait,Uncle Paul Kabai and Uncle Pabai Pabai,from Saibai and Boigu islands,who have taken the legal action on behalf of their communities seeking orders that Australia cuts its emissions in line with science.
They argue the Commonwealth,by not taking greater,has failed in its duty of care to people in the Torres Strait.
Stephen Lloyd SC,for the Commonwealth,told the court that Australia had no control over global climate change.
“We accept that we control Commonwealth emissions to some extent …[but] the risk of harm[to the islands] is global climate change,” he said.
Traditional owners Uncle Pabai Pabai,left,and Uncle Paul Kabai:“If we have to relocate,it will be very sad for us,” says Kabai. “Very sad.”Justin McManus
“We deny we have any control over that. We may be able to influence Australia’s contribution to that,but if the risk of harm is global climate change we don’t accept that we have control over the risk of harm.”
Lloyd told the Federal Court that the evidence provided by Torres Strait Islanders should be distinguished from that of climate experts.
“While the lay witness can give evidence about what they have observed,that doesn’t prove that it’s a result of climate[change],” he said.
While not criticising the evidence provided by Torres Strait Islanders who described the impacts of climate change on their lands,Lloyd said there was a degree of “generality” in their evidence about changes to the local climate and environments.
‘There’s no case law that says that[losing] a way of life is the harm that gives rise to damages. That is a big step.’
Stephen Lloyd SC,for the Commonwealth
“It’s at a high degree of generality,and we’re saying that affects the usefulness of the evidence,” he said.
“We’re not saying it can’t be relied upon,that sounds like they can’t be relied upon,or they don’t know their own community. That is not any part of the Commonwealth’s case at all.”
Lloyd told the court it was unclear how compensation for alleged negligence in this case could be considered. He said there was no case the Commonwealth was aware of where the loss of a “way of life” itself had been compensated under common law.
“There’s no case law that says that[losing] a way of life is the harm that gives rise to damages. That is a big step.”
The plaintiffs say government inaction on climate change has caused them to lose their way of life.Kate Geraghty
Lloyd acknowledged Torres Strait Islanders could not do “everything” about the effects of climate change on their islands,but said “they can do some things … small things”.
Justice Michael Wigney observed:“There’s a bit of an air of unreality that putting sandbags,or putting tractor tyres out,or building rubble is really something that practically can protect Islanders from climate change.”
According to,the mean sea levels recorded at Thursday Island,also in the Torres Strait,rose from 1.78 metres in 2015 to 2.02 metres this year.
Kabai last week in his lifetime on Saibai Island. As the sea levels rose,saltwater has inundated inland swamps where barramundi and crabs once lived,and rendered vegetable and fruit gardens useless.
Justice Wigney questioned why,as a matter of principle,courts could compensate people for hurt feelings in defamation cases but couldn’t compensate people for the loss of cultural identity and practices.
The hearing continues.
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