Torres Strait Islanders ask court to save island homes

Faced with rising seas and the loss of their homes, two Torres Strait Islander elders have made a final bid to force the Australian government into action.

Pabai Pabai and Paul Kabai have launched legal action in the Federal Court, seeking orders requiring the government to prevent further climate change harm to their communities, including cutting greenhouse gas emissions.

Closing arguments were finalised on Friday after on-country hearings in the Torres Strait in 2023, and the judge has adjourned the case to consider his decision.

Justice Michael Wigney has adjourned the case to consider his decision. (HANDOUT/GRATA FUND)

The Commonwealth argued it was not legally required to consider the best available science or the impacts of climate change when setting emissions reduction targets.

Lawyer Zoe Maud SC said the court couldn’t interrogate the merit or timing of the federal government’s decisions regarding mitigation projects in the Torres Strait, including seawalls, because they are matters of policy.

The Commonwealth pointed to the competing needs of remote communities across the country and the complexities of allocating limited funding to different projects.

But Justice Michael Wigney pointed out governments make complex funding decisions all the time.

“It’s not binary,” he said.

“The government can fix the problems in Tennant Creek and they can fix the problems in Warraber, Iama and Masig if they set their minds to it.”

Commonwealth lawyers argued the lay witnesses from the Torres Strait could only comment on what they had observed in their environment, and those observations weren’t sufficient to prove that climate change was occurring.

But the elders’ lawyers disagreed, saying the witnesses provided their observations with undisputed cultural authority, the result of lifetimes of careful observation and caring for country.

“There should be no question that the quality of this evidence is at least as important and weighty as the expression of expert opinions based upon assumed facts, recorded data and expert analysis,” lawyer Fiona McLeod SC said.

During on-country hearings in 2023, witnesses described how devastating their loss of culture, including Ailan Kastom (island customs), due to climate change had been.

The Commonwealth dismissed the special connection to country and argued the loss of Ailan Kastom would be just the loss of a “way of life” which everyone had.

Barrister Stephen Lloyd SC compared the loss of Ailan Kastom to the sadness of someone watching a car accident, which he said wouldn’t warrant compensation under the law.

But for the uncles Ailan Kastom are everything: their homelands, their people, their ancestors and their future.

“I believe that whatever we do in our communities is for the future generations to come, to live the better livelihoods,” Mr Pabai said.