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First Nations climate case against the Government in final stage

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Two First Nations men have made legal arguments the Government has a legal obligation to protect them from climate change harms.
Two First Nations men have made legal arguments the Government has a legal obligation to protect them from climate change harms.

Two First Nations Traditional Owners are making their final arguments in a climate lawsuit against the Federal Government this week.

Torres Strait Islands’ men Uncle Paul Kabai and Uncle Pabai Pabai argue the Government has a legal obligation to protect Torres Strait Islanders from climate harm.

They’ve argued the Government has failed in this duty.

The case

Uncle Paul Kabai and Uncle Pabai Pabai are native title holders of the Boigu and Saibai Islands — two low-lying islands along the Torres Strait off the northern tip of Queensland.

The men launched legal action against the government in 2021 in the Federal Court.

They claim adverse impacts of greenhouse gas emissions are threatening local communities, noting a recent spike in flooding events.

Greenhouse gases

The men have argued the Government has not taken adequate action to tackle climate change. They said this has directly failed Torres Strait Islanders and puts the region at risk of becoming “uninhabitable”.

Greenhouse gases released by industrial activities like burning fossil fuels become trapped in the atmosphere, causing hotter temperatures on Earth.

The two men are arguing the Government must further reduce greenhouse gas emissions.

“If the Government keeps failing us, we will be forced to leave our homelands, to lose our identity, our culture — everything”.

Uncle Pabai Pabai, Torres Strait Islander and Traditional Owner

Government response

The Government has acknowledged Torres Strait Islander peoples face “some impacts of climate change”, such as rising sea levels.

However, it has defended its climate policies and argued that it can’t practically enforce a duty of care.

It also pointed to a ruling that was overturned in the Federal Court in 2022 about the government’s duty of care to young Australians when considering fossil fuel projects.

Elsewhere

Lawyers for the men pointed to a recent international case, which saw a senior women’s group successfully challenge the Swiss Government in the European Human Rights Court.

The women argued Switzerland’s inaction to address climate change negatively impacted their health and lifestyles.

The court determined Switzerland violated the European Convention on Human Rights, and ordered the government to pay more than $AU131,000 in compensation to the women’s group.

Next steps

Three years after the men launched legal action against the Federal Government, closing arguments are expected to end tomorrow.

The federal court is due to hand down its decision later this year.

If they win, the men’s lawyers said it would set a legal precedent meaning “activities that threaten the pathway to an emissions reduction goal – like new coal, oil, or gas projects – could be challenged in a court.”

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