Tide Turning on Australia’s Inadequate Climate Policy? A Challenge from First Nations Peoples in the Torres Strait

by | Mar 13, 2024

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About Madeleine McGregor

Madeleine is a current BCL student at the University of Oxford, studying Comparative Human Rights Law and International Environmental Law.

The low-lying islands of Zendath Kes (Torres Strait) are the frontlines of the climate crisis. Without action, climate change will soon make these islands uninhabitable, rendering First Nations Guda Maluyligal people Australia’s first climate refugees and extinguishing thousands of years of traditional culture. Meanwhile, Australia remains among the world’s the highest GHG emitters per capita, despite the 2022 Human Rights Committee decision that Australia’s failure to adapt to climate change constitutes a violation of Torres Strait Islanders’ rights under the ICCPR.

Traditional Owners of the Boigu and Saibai islands, Uncle Pabai Pabai and Uncle Paul Kabai (Applicants), have filed a class action in the Federal Court against the Commonwealth Government for failure to protect them from climate change. Success would be ground-breaking for raising Australia’s climate mitigation efforts, yet hurdles remain, including in determining the role of science and the role of courts in climate change litigation.

The Case

The Applicants claim the Australian Government has breached a duty of care to take reasonable steps to protect the inhabitants of Zendath Kes, their traditional way of life, and the surrounding marine environment from the current and projected impacts of climate change. The claim emphasises the protection of traditional culture, known as Ailan Kastom – a spiritual and physical connection to the land and waters in Zendath Kes, which is existentially threatened by climate change.

The Applicants seek declaratory and injunctive relief in order to require the Government to reduce Australia’s greenhouse gas (GHG) emissions in line with the “best available science” targets.

Climate litigation in context

“Climate framework cases”, like Pabai Pabai v Commonwealth, challenge a government’s overall efforts to reduce GHG emissions. The first successful framework case was Urgenda in the Netherlands, with two other successful cases – Klimaatzaak (Belgium, on appeal), and Neubauer (Germany). These cases have drawn on fundamental human rights (in addition to a duty of care). However, if successful, the Australian case would be the first to rely on solely on a tortious claim, in absence of Federal human rights protections.

The Role of Science

The Federal Government’s current climate policy is to cut GHG emissions by 43% (below 2005 levels) by 2030 and net-zero emissions by 2050. The Applicants argue that “best available science” requires Australia to cut its GHG emissions by 74% by 2030 (from 2005 levels) and achieve net-zero emissions by 2035, to keep global warming below 1.5 degrees. The Applicants claim that holding the global temperature increase to 1.5 degrees would prevent the most significant projected climate harms, in line with the Paris Agreement.

The role of science will likely be a contested issue in the case, including what science is considered the “best available” and how situations of scientific uncertainty should be addressed.

The Government’s Defence raises scientific uncertainty as one basis for dismissing the Applicants’ claim. This includes disputing whether “tipping points” for climate harm in Zendath Kes will occur at 1.5 degrees, and not 2 or 3 degrees warming. Furthermore, the Government argues there is scientific uncertainty as to the causal nexus between its emissions target and the impacts of climate change in Zendath Kes. It remains to be seen whether the Federal Court will appeal to the “precautionary principle”, a pillar of international environmental law, to justify obligations on the Government where scientific uncertainty exists and grave harms are at stake.

Finally, the “fair share” of GHG emission reductions to be undertaken by Australia, as opposed to other countries, is contested. Scientific and other methodologies differ on the calculation. The IPCC reports, generally taken as “best available science” do not address country-specific allocations, only a global average rate of reduction.

Role of Courts

Another anticipated tension in the case will be the role of courts in assessing Government action on climate change. The Applicants seek relief to require the Government to reduce GHG emissions, in line with “best available science”. How the Government meets these higher targets would remain a matter of policy. The Government argues a judicial ruling on Australia’s GHG emissions targets involves “questions of policy-making unsuited to judicial determination”.

The previous Minister  for the Environment v Sharma case sought to impose a duty of care on the Minister to take reasonable care to avoid future climate harms on young people, when approving a new coal project. The duty was dismissed on appeal. One basis (central to Chief Justice Allsop’s reasoning) was that the duty would require consideration of questions of policy “unsuitable for the judicial branch to resolve.”

Relevantly, Sharma concerned a specific exercise of the Environment Minister’s decision-making power, whilst Pabai seeks the Courts to enforce an overall emissions target, without judicial comment on policy implementation. As such, questions of policy-making in Sharma and Pabai seem distinguishable and not settled by Sharma.

How the Australian Federal Court addresses these questions on the role of science and the role of courts will likely be influential for other countries facing similar cases on state climate inaction, and significant for the lives and continued culture of First Nations people in the Zendath Kes. The judgment is expected in late 2024.

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