Elders continue legal battle to protect island homes

By KEIRA JENKINS

The Elders behind a landmark climate case against the Federal government say they have to appeal a Federal court’s decision for the future of their children.

Uncle Paul Kabai and Uncle Pabai Pabai first brought the case against the Commonwealth government in 2021, fearing for their homes on Boigu and Saibai islands.

They sought orders from the court that would require the government to take steps to prevent harm to their communities, including cutting greenhouse gas emissions in line with the best available science.

Mr Kabai said he felt he had no choice but to appeal a Federal Court decision, which ruled the Commonwealth did not owe Torres Strait Islanders a duty of care to protect them from climate harm.

Boigu and Saibai islands are bracing for floods when the Torres Strait experiences king tides.

“If we do nothing, there will be no future for our kids, or the next generation,”  he said.

The case was not just about the two men but their entire communities and other Australians who had been affected by climate change, Mr Kabai added.

“Most of the community weren’t satisfied with the decision so they keep asking us when are you appealing.”

King tides expected

Mr Pabai said his community was preparing for flooded homes next summer as the Torres Strait experiences king tides.

“The scientists have told us we could have less than 30 years before we lose our islands, our homes, our connection to everything,” he said.

Climate-related damage such as erosion could lead to Torres Strait Islanders becoming refugees.

“I can’t just turn away from my children and my ancestors and give up – every one of us must stand as one and do everything in our power to help.”

In July, Federal Court Justice Michael Wigney found that unless something was done to address the impacts of climate change, there was a “very real risk” the Uncles’ worst fears could be realised, and Torres Strait Islanders could lose their islands, culture, way of life, becoming climate refugees.

The case failed because negligence law does not allow compensation when it comes to government policy decisions, Justice Wigney said.

Duty of care

In their appeal, the Uncles’ legal team argues the government owes a duty of care to Torres Strait Islander people, the Commonwealth’s additional emissions are a legal cause of harm to Torres Strait Islanders, and cultural harm is compensable under Australian law.

“We hope that the Full Court of the Federal Court of Australia will recognise that the Commonwealth owes a duty of care to Torres Strait Islanders in relation to climate change and that the Commonwealth’s breaches of that duty of care have contributed to the harms being suffered by Uncle Pabai, Uncle Paul and other Torres Strait Islanders, including enormous cultural loss,” Phi Finney McDonald principal lawyer Brett Speigel, who is part of the men’s legal team, said.

AAP