Torres Strait leaders sue federal government over climate change

Two Torres Strait community leaders are taking the Australian government to the Federal Court, alleging it failed to protect First Nations traditional owners living on the front line of catastrophic climate change.

In the first Australian climate class action brought on behalf of First Nations people, the Gudamalulgal traditional owners from the remote, low-lying islands of Boigu and Saibai say the government’s failure to reduce emissions will force their communities to become Australia’s first climate-change refugees.

Pabai Pabai (left) and Paul Kabai on the jetty in Boigu, a low-lying island in the Torres Strait. They are taking the government to court, insisting it exercise its duty of care to them and prevent catastrophic climate change and sea level rise.

Wadhuam Paul Kabai and Wadhuam Pabai Pabai say the climate crisis is causing sea levels to rise, their precious cultural sites to be washed away and the islands’ soil to be ruined by salt and become unsuitable for growing crops.

“Becoming climate refugees means losing everything: our homes, our culture, our stories and our identity. If you take away our homelands we don’t know who we are,” says Mr Kabai.

“We have a cultural responsibility to make sure that doesn’t happen and to protect country and our communities, culture and spirituality from climate change.”

Torres Strait Islander communities face an existential challenge due to rising sea levels from climate change. If global temperatures rise more than 1.5 degrees many of the islands will become uninhabitable.

Boigu â€" the northernmost inhabited island in Australia â€" and neighbouring Saibai sit about 1½ metres above sea level and are already regularly flooded.

The sea level in the Torres Strait (also known as Zenadth Kes) has risen about six centimetres over the past decade. Without deep emissions cuts, sea levels are projected to rise to a metre or more above present day levels by 2100.

The plaintiffs say that as the ocean rises it will flood and destroy their irreplaceable cultural heritage and sacred sites. This includes burial sites, locations that contain human remains and places that have a spiritual significance akin to the Christian concept of heaven, the court will be told.

With less than a week to go until the crucial COP climate summit begins in Glasgow, Prime Minister Scott Morrison on Tuesday released the government’s plan to reach net zero emissions by 2050 and updated Australia’s 2030 projection to cut emissions by between 30 per cent and 35 per cent. The plan has been criticised for lacking detail on how those cuts will be achieved.

The low-lying island of Boigu from the air.

This landmark Torres Strait climate action is modelled on one of the most successful global climate cases in history, in which the Urgenda Foundation supported 886 people to bring a case in 2015 against the government of the Netherlands.

A Dutch District Court ordered the government to cut its greenhouse gas emissions by at least 25 per cent by the end of 2020 (from 1990 levels). This led to the rapid closure of coal-fired power stations and billions of euros of investment in renewable energy and energy efficiency.

Urgenda has helped develop the Torres Strait case and will continue to provide strategic advice.

Mr Kabai and Mr Pabai are seeking an order from the Federal Court that requires the federal government to cut greenhouse gas emissions and prevent the inundation of islands in the Torres Strait.

Pabai Pabai and Paul Kabai looking at the sea next to the seawall in Boigu.

“If you take us away from this island then we’re nothing. It’s like the Stolen Generation, you take people away from their tribal land, they become nobodies,” Mr Pabai said.

The two men follow in the footsteps of their countryman Eddie Koiki Mabo, a Meriam man from the island of Mer whose successful court action against the federal government overturned the doctrine of terra nullius.

Mr Pabai has seven children, has always lived on Boigu and directs the body that represents the six clans on the island.

“It’s very important for us to speak to the people from all around Australia, for our story to be brought out to the wider world, for people to see what we are facing,” he said.

A seawall has been built at Boigu to try to reduce inundation but residents say it doesn’t always work.

Similarly Mr Kabai, who has six children, has always lived on Saibai and directs the body that represents the seven clans on the island. He said he was taking action for the future of his children, and their children.

Specialist law firm Phi Finney McDonald is conducting the litigation on behalf of the two men, with support from Urgenda and Grata Fund, a public-interest organisation that supports marginalised people to advocate for their legal rights.

Lawyer Brett Spiegel said his clients were acting on behalf of all Torres Strait Islanders.

“At the time a lot of people didn’t think that Mabo’s case would succeed and here we are,” Mr Spiegel said.

The cemeteries on the islands have previously been flooded and the plantiffs have talked about their fears of having to move their ancestors.

The Torres Strait Islanders’ case differs from the recent class action brought on behalf of Australian children against Environment Minister Sussan Ley. That class action related to a singular decision, Mr Spiegel said, whereas Mr Kabai and Mr Pabai’s matter seeks to test the broader duty of care owed by the Commonwealth to the Torres Strait Islands.

Grata Fund founder and executive director Isabelle Reinecke said the two men had a strong case they hoped would make history.

“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,” Ms Reinecke said.

The federal government declined to comment.

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