Boigu Island, Torres Strait. IMAGE: RealCommercial
Saibai Island, Torres Strait. IMAGE: KimWirth Photographer
TheGuardian, 24 April 2023:
A former Pacific Island president has backed a Torres-Strait Islander-led legal case to hold the Australian government accountable for climate crisis inaction.
On Monday, Anote Tong, the former president of Kiribati, signed a statement of solidarity with Paul Kabai and Pabai Pabai, who have taken the government to court, demanding further emissions reductions in line with science.
The two Torres Strait Islander men hail from the Boigu and Saibai communities on two of Australia’s northernmost inhabited islands. Low-lying Saibai is just four kilometres from Papua New Guinea, and both islands are regularly flooded by seawater.
The pair are leading a landmark class action on behalf of their island communities, arguing the commonwealth of Australia is acting unlawfully in failing to stop climate change that, if unchecked, will destroy their homelands.
Tong lent his support and said Australia needed to do more to cut emissions.
“The Australian government is stepping up with cutting domestic emissions and committing to a zero emission level by 2050, which is good – but of course the real challenge has always been the exported fossil fuels, oil and gas which are essentially a lot more substantial than what would be emitted domestically. So that is the real challenge,” he said.
“The [Australian] government sometimes feels that it’s not their problem. It’s the problem of the importing country but nevertheless, it still contributes to global emissions.”
Tong backed the case after a week-long visit to the two Indigenous communities.
“We find a great deal of similarity with the situation that these people are facing with our own situation in our part of the world,” he said….
BACKGROUND
The words of Gudamalulgal man from the island of Boigu in Zenadth Kes (the Torres Strait), Pabai Pabai, in "Rights-holders from Torres Strait sue Commonwealth over climate change" [2022] NativeTitle Nlr 1; (2022) 1 Native Title Newsletter 2.
The matter so far…..
Pabai v Commonwealth of Australia [2022] FCA 836 (18 July 2022), Orders, excerpt:
MORTIMER J:
1. These reasons explain why the Court has made the orders it has today, which do not reflect entirely what either party to this proceeding has sought. However, they reflect what the Court considers to be the appropriate case management for this proceeding, so as to focus on the real issues in dispute between the parties and advance the matter to trial in a cost effective, proportionate and efficient manner.
2.This is a representative proceeding under Part IVA of the Federal Court of Australia Act 1976 (Cth). The applicants identify as Torres Strait Islanders from the Gudamalulgal Nation. They seek relief on their own behalf and on behalf of all persons of Torres Strait Islander descent who they contend, at any time during the period from about 1985 and continuing, have suffered loss and damage as a result of the conduct of the Commonwealth. They contend that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect:
(a) Torres Strait Islanders; and/or
(b) Torres Strait Islanders’ traditional way of life, including taking steps to preserve ‘Ailan Kastom’ (defined in the statement of claim as the body of customs and traditions of Torres Strait Islanders generally, or of a particular community or group of Torres Strait Islanders, including connection to country, cultural ceremonies, burial rites, visiting sacred sites and hunting and fishing); and/or
(c) the marine environment in and around the protected zone (a term defined in the applicants’ current statement of claim to be an area defined by a treaty between Australia and Papua New Guinea regarding the Torres Strait Islands), including the Torres Strait Islands, from the current and projected impacts of climate change in the Torres Strait Islands.
3. The applicants contend the Commonwealth has breached, and remains in breach of that duty of care.
4. The applicants seek an injunction on their own behalf and on behalf of group members requiring the Commonwealth to implement such measures as are necessary to:
(a) protect the land and marine environment of the Torres Strait Islands and the cultural and customary rights of the Torres Strait Islanders from greenhouse gas emissions into the Earth’s atmosphere;
(b) reduce Australia’s greenhouse gas emissions consistent with the best available science target (a term defined in the current statement of claim to be the amount of greenhouse gases that can be emitted before the average global temperature rises by 1.5 degrees Celsius); and
(c) otherwise avoid injury and harm to Torres Strait Islanders from greenhouse gas emissions into the Earth’s atmosphere.
5. They also seek damages for:
(a) degradation of the land and marine environment, including life and coral reef systems;
(b) loss of Ailan Kastom;
(c) damage to their native title rights; and
(d) physical and psychological injury.
6. They contend all or some of these losses are ongoing, due to the ongoing breaches of the Commonwealth’s alleged duty of care, and this is why they also seek injunctive relief.
……...
10. On 17 March 2022 and following a judicial case management hearing, the Court listed the proceeding for trial, commencing on 6 June 2023 with an estimate of four weeks…..
17….
(e) The June 2023 trial dates should be maintained, but only for the hearing of lay evidence from both parties.
(f) The lay evidence should be given by affidavit with the parties being able to request that certain evidence in chief be given orally if it is said to be significantly contentious.
(g) Programming orders should be made for the lay evidence.
(h) The hearing of expert evidence should occur in a separate tranche, in the second half of 2023.
(i) The entire trial should be completed, and judgment reserved, by the end of 2023. Consistently with the expectations the Court has imposed on the parties, the Court will take all reasonable steps to hand down judgment as expeditiously as practicable, in the first few months of 2024.
