Federal Court hears closing arguments in Torres Strait Islanders' climate change case

Saibai women including Zipporah Anu, Christine Anu and Aunty McRose Elu say they worry the islands will be lost to climate change (ABC Far North: Conor Byrne)

Traditional owners say Torres Strait islands that have been populated by First Nations people for tens of thousands of years and were Australia’s frontline during WWII are being swallowed by the sea.

A team of lawyers and supporters, working on behalf of plaintiffs Uncle Pabai Pabai and Uncle Paul Kabai, has for four years argued that the federal government has failed to protect their island home from rising sea levels and the impacts of climate change.

The closing arguments of their landmark Federal Court case were heard in a rented office space on the outskirts of the Cairns CBD this week.

The court then adjourned for the judge to consider his verdict, to be delivered at a later date.

Rusty tools, broken washing machines

During the hearings, Commonwealth lawyers told the court the effects of climate change in the Torres Strait were not directly linked to Australian emissions, and that the courts were not the place for such an issue.

Stephen Lloyd SC told Justice Michael Wigney that Australia’s emissions could not be seen as “material”, as the country was not a high emitter compared to other nations.

“This is one area where it could fairly be said that Australia, to use what is often referred to in a sporting context, punches above its weight,” Justice Wigney replied.

Mr Lloyd said there were many contributors to climate change.

He said tort law didn’t say any one of them should be held liable for the consequences of all of the harm done.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act.

Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state

Mr Lloyd told the court that resolving matters of climate change was a political process.

“Not torts law,” he said. “That, in essence, is our case.”

Mr Lloyd said the federal Labor government had legislated emissions reductions targets when elected in 2022.

“It’s hard to imagine a clearer case of a claimant wanting a court to pose a duty of care that overrides policymaking,” he said of the uncles’ claim.

Mr Lloyd said the only documented damage to property evidenced in the case was some tools and a washing machine damaged by the sea.

“They’re really not talking about tools or washing machines, they’re talking about the fact that their beaches have been washed away, their trees are being washed away, their land is becoming salinated to the point that they can’t grow anything,” Justice Wigney replied.

Hell or high water

At a nearby park, sheltering from the unseasonal rain, senior elder, Saibai woman, and family member of the two plaintiffs, Aunty McRose Elu, said her and her family’s identity depended on the islands of the Torres Strait.

“Our heritage is based on these islands,” she said.

“Above the islands, in the ocean, beneath the ocean, the stars, the skies, the moon, the current, the waves.

“That is all about our identity.

“By looking at the islands more or less disappearing in our vision, it’s heartbreaking.”

She said the government had a duty of care to the people on the island.

She said her people would continue fighting, regardless of the court result.

“I don’t think our people will give up,” she said.

My island home

Performer and Saibai woman Christine Anu said Torres Strait Islanders wanted to continue passing sacred knowledge of the islands to future generations.

“This has been our home long before I was even thought about, and I hope that the judge realises just exactly how important that is, for now and for the future generations,” she said.

Her daughter, Zipporah Anu, said she wanted to be able to keep sharing her origin and culture with her future children.

“If there’s nowhere to take them back to, who are we without our land, and our stories and our people,” she said.

The court’s word

Grata Fund director Isabelle Reinecke said a government couldn’t ignore a ruling if the court ruled in the uncles’ favour.

Her fund organised funding for the case.

“There are steps that the court can take to make sure that the government does obey what it says,” she said.

“It would be quite extraordinary and truly unprecedented for a court to issue an order like that, and the government not to follow it.”

A spokesperson for the Department of Climate Change, Energy, the Environment and Water declined to comment as the case was before the courts.