Last month, Pabai Pabai (First Nations leader) and Paul Kabai (First Nations leader) filed a landmark class actionThe Australian government should be held accountable for failing to protect the Torres Strait communities from climate change.
First Nations communities in Torres Strait face an array of challenges. existential threatAs the planet warms. Rising seas are already flooding infrastructure and cultural sites, and some island may become uninhabitable before the end of this century, causing severe harm to Torres Strait Islander Peoples (Torres Strait Islander Peoples) and Ailan Kastom cultures.
Mr. Pabai, Mr. Kabai, have experienced the effects firsthand. They filed their class action in order to protect over 65,000 years worth of land connection. Mr. Kabai has describedThe class action as a response to their responsibility towards community and culture
We have a cultural responsibility to protect our communities, our culture and spirituality from climate change – for our ancestors and future generations.
Mr. Kabai and Mr. Pabai are part of a proud tradition of Torres Strait Islander Peoples fighting to protect their rights through the courts. They draw from the legacy of Eddie Mabo, and his co-plaintiffs James Rice & David Passi who took on government and established that terra nullius was a lieThis was the beginning of Native Title recognition as we know today.
Mr. Kabai as well as Mr. Pabai are part of the foundational tradition for First Nation stewardship land and water. Their knowledge and protection of Country are vital for tackling climate change.
This has been a truth that Indigenous Peoples have known since childhood. For countless generations, our communities have thrived and adapted together, caring for the country. Only recently has the scientific community caught up.
2019 will be the year of the Intergovernmental Panel on Climate ChangeRecognized Indigenous Peoples, our knowledge rights to land and water are crucial to combating climate change.
Pabai and Kabai’s case
Mr. Pabai, and Mr. Kabai will argue that the Australian government is bound to protect the culture, people, and islands of the Torres Strait. The common law of negligence, which is the basis of the duty, provides the legal basis. Torres Strait Treaty(between Australia & Papua New Guinea, providing protection to the way of life for traditional peoples of Torres Strait Protected Zone), as well as the Native Title rights of Torres Strait Islander Populations.
The legal rights Torres Strait Islander Peoples hold as Traditional Owners of their lands and waters are central to Mr. Kabai and Mr. Pabai’s case. Their deep spiritual and personal connections to the islands are also central to their case.
Mr. Kabai has more detailed that if the government’s climate failure continues they will lose everything.
Being a climate refugee means losing everything: Our homes, culture, stories, identity, and even our identities […] If you take us away from this island then we’re nothing. It’s like the Stolen Generation, you take people away from their tribal land, they become nobodies.
The Australian government’s responsibility to Torres Strait Islander Peoples comes from the particular vulnerability of their communities to climate harms like sea level rise. Similar argumentsTo protect their rights as part climate change mitigation, the Sami people in Norway made and won these agreements. Despite being in different legal and political contexts both Indigenous rights as well as climate action are structural priorities.
Mr. Pabai and Mr. Kabai will argue the government’s failure to reduce emissions will extinguish the Native Title rights of Torres Strait Islander Peoples as their traditional lands are lost beneath rising seas.
In court, they will urge the government to take pre-emptive steps to stop climate change impacts from destroying their islands – and with them, over 65,000 years of custom and culture protected by Native Title.
The government’s responsibility to act is also said to come from legal protections provided by the Torres Strait Treaty. After grassroots political pressure by Getano Lui Snr and Torres Strait Islander leaders Getano Lui, Australia entered the Treaty With Papua New Guinea (Treaty) in 1978.
The Treaty created a protected region to recognize and preserve the traditional way of living of Torres Strait Islander Peoples. The Australian government must also protect the marine environment of Torres Strait.
These protections are intended to preserve the deep spiritual bond First Nations communities have with their islands and water.
The High Court recognized the importance of this connection with Country. The court ruled that the Northern Territory government was ineffective in 2019. responsible for spiritual hurtNgaliwurru native title holders Nungali by the construction roads and infrastructures on their traditional lands.
It is this combination of legal rights – unique to Torres Strait Islander Peoples – that Mr. Pabai and Mr. Kabai will rely on to ask the court to create a new duty of care.
What climate change activists can learn from First Nations campaigns against the fossil fuel industry
The inauguration of the Federal Court foundA novel duty of care to prevent climate harm to young people. The Court ruled that the minister of the environment was responsible for taking reasonable care to prevent harm to children from greenhouse gas emissions when she exercised her power to approve new coal mines.
Mr. Pabai and Mr. Kabai’s case is the first of its kind because it argues a far broader case: that the Australian government has a duty to protect the Torres Strait from climate harm.
Although this may sound daunting, these types of cases have been successful before. This is most notable in the Netherlands where the Urgenda Foundation and 886 people took the Dutch government to court for climate inaction – and won.
The Urgenda FoundationHe has partnered with Mr. Kabai and Mr. Pabai to help them. The circumstances are similar. Both communities live on land at high risk of rising sea levels, and face severe climate change impacts.
If governments fail to act, can the courts save our planet?
A legacy of nation-building
First Nations communities have a long history of bringing legal cases that are crucial to the development and advancement of Australian law. Sometimes, it is against all odds.
Mabo’s legal victory placed the Torres Strait at the centre of a transformation in the way the Australian nation places itself in a long history of Indigenous ownership and connection. This legacy inspires Mr. Kabai as well as Mr. Pabai.
As world leaders meet in Glasgow for the COP26 climate summit, billed as a “last chance” for real climate action, Mr. Pabai and Mr. Kabai are asking the Australian government to step up and stop causing harm.
Their collective action could help prevent extreme climate harm for all Torres Strait Islander Populations, and all Australians.
This is a crucial case. It is also an act taken by traditional owners, which highlights our continued commitment towards country over countless generations. This is a commitment proven to provide for all of life.