News
A major blow in Federal Court won’t stop Torres Strait Islanders fighting to prove the government’s duty of care over climate change. By Ben Abbatangelo.
‘Mabo didn’t win the first time’: Torres Strait climate fight isn’t over
Despite recognising that the Torres Strait Islands, its people and culture are being “ravaged by human induced climate change”, the Federal Court has dismissed a landmark class action brought against the Commonwealth government by Uncle Paul Kabai and Uncle Pabai Pabai.
The Uncles, who hail from Saibai and Boigu islands in the Torres Strait, mounted a case four years ago alleging that the Commonwealth owed a legal duty of care to protect them from the foreseeable harms of climate change. They contended that the government breached that duty of care by failing to adequately reduce greenhouse gas emissions in line with the best available science and, in doing so, caused them significant loss and damage.
The case was equal parts litigation and testimony. In the courtroom, lawyers discussed megatonnes, emissions pathways and intergovernmental protocols. Outside, the Uncles spoke of songlines, of their burial grounds absorbed by surging tides, of grandchildren who may never know the rhythm of language spoken in the salty winds.
In his verdict on Tuesday, Justice Michael Wigney said the Uncles “succeeded in establishing many of the factual allegations that underpinned their primary case”. He ultimately dismissed their action not because those allegations lacked merit but rather because “the common law of negligence in Australia was not a suitable legal vehicle through which the applicants could obtain effective relief”.
The legal parameters of the case ultimately favoured the Commonwealth’s arguments that no “legal duty of care” exists; that Torres Strait Islanders can protect themselves from the impacts of climate change; that the world bears responsibility for climate change, not a single nation; that it is reasonable to not base climate targets on climate science; and that there should be no basis for compensating the applicants for losing their way of life due to the impacts of climate change.
Justice Wigney found that “the loss of fulfilment of culture, customs, observances, beliefs and traditions, either by an individual or collectively by a community, is not currently a recognised category of actionable damage in tort in Australia”.
Until the law changes, he said, the only real avenue available to those in the position of the applicants “involves public advocacy and protest, and ultimately recourse via the ballot box”.
Speaking to The Saturday Paper in the hours after the judgement, the Uncles were devastated yet optimistic, saying they will continue fighting because there is nowhere else to go.
“Losing is not an option,” says Uncle Paul Kabai, with a vow to “keep the fire burning”.
For the communities who face having their home engulfed by rising seas in fewer than 30 years, simply moving inland is not possible. Saibai and Boigu are slivers of land just above sea level, bordered by mangroves and shadowed by water. Forcibly relocating these communities is not “climate adaptation”, as politicians call it, but another act of dispossession.
“We can’t protect ourselves,” said Uncle Pabai. “If the government won’t reduce that [emissions], then Boigu, my community, my island, will be going under the water.
“When we lose that, how are we going to survive? We don’t want to be climate change refugees … [to have] the government take us from our land and to drop us anywhere in Australia. We’re losing our identity and it’s everything … our ancestors.
“This is our livelihood, we live out on the islands.”
In a joint statement following the decision, ministers Chris Bowen and Malarndirri McCarthy said that “unlike the former Liberal government, we understand that the Torres Strait Islands are vulnerable to climate change, and many are already feeling the impacts ... The Albanese Labor government remains committed to both acting to continue to cut emissions and adapting to climate impacts we cannot avoid.”
Speaking with The Saturday Paper following the verdict, Saibai Elder Aunty McRose Elu called the minister for climate change a “liar”.
“Come and sit with me on Saibai and look those kids in the eyes, and you tell them that your government is doing enough when they have 30 years left on their islands. Your government just approved an extension of another massive fossil fuel project in WA that will drown us. Stop lying to us.”
The government’s arguments for the case were “deeply embarrassing”, said Isabelle Reinecke, founder of the Grata Fund, a non-profit strategic litigation firm that supported the plaintiffs.
Speaking ahead of the verdict, she told The Saturday Paper, “In a courtroom, you can’t just yell at your opponent across the parliament floor, you can’t sidestep a journalist’s question, you actually have to answer directly, and in a factual way that you’ll be held accountable for if you’re wrong, and you have to say it plainly.
“The government conceding in open court that they did not consider the actual harms on Australian communities when setting emissions reduction targets is quite shocking.”
Reinecke said it was galling to hear a government argue that it doesn’t owe a legal duty of care to the plaintiffs considering the way in which it has forcefully imposed itself on First Nations communities over the centuries under the guise of “care”.
“There is an inherent tension in working within a legal system to secure justice and accountability when that very legal system has a terrible history of providing the opposite to a particular group of people,” says Reinecke.
Aunty McRose remains confident that this week’s ruling is “another step forward” and that it will ultimately offer them new legal pathways.
“Really good vibes they gave us ... in a way to say: ‘We don’t stop.’ We continue this fight for victory. It might not happen in my time, my dear, but I hope that I stay longer to see the victory.”
In 2023, Justice Wigney travelled to Saibai, Boigu and Badu islands to walk the lands that are being claimed by the tides. He heard the stories of submerged burial grounds, of yam gardens being washed away and of people quickly becoming collateral damage in a warming world.
“I took the Federal Court out to Boigu, in the way Eddie Koiki Mabo did,” says Uncle Pabai.
The landmark case was inspired by and follows in the footsteps of Eddie Koiki Mabo, who overturned the erroneous lie of terra nullius. But it was the legal precedent set by Marjan Minnesma, who first sued the Dutch government to enact specific preventive measures against climate change, that informed their approach.
In 2019, the Dutch Supreme Court held that the government had a legal obligation to protect its citizens from climate change and ordered it, by the end of 2020, to slash greenhouse gas emissions by 25 per cent below 1990 levels. Plaintiffs in Belgium, France and Germany have since successfully sued their governments along similar lines.
Minnesma, who at the time of the case was director of the Institute for Transitions at Erasmus University in Rotterdam, says that the Netherlands government knew about the “enormous consequences of inaction”, as one of the founding signatories of the United Nations Framework Convention on Climate Change, whose objective is to stabilise greenhouse gas concentrations.
“So the Dutch government couldn’t say, well, we disagree, because they had already agreed on it,” Minnesma says.
Australia is among the 200 countries collaborating on the Intergovernmental Panel on Climate Change within the UN framework.
She says that the government left her and 886 co-plaintiffs, which consisted of “very normal people, from teachers and nurses to professors and grandfathers and everything in between” no choice but to litigate.
“We first did everything that you have to do, like talking to ministers, talking to parliament. We had meetings, in which we invited all ministers, parliament and journalists, and a couple of Dutch scientists in the Hague.”
When lawmakers continued to drag their feet, she says, “we thought, well, we have done everything that you need to do before you can start a court case, so now let’s start a court case”.
The litigation took almost eight years, with the Dutch government never once denying that climate change was a major threat. “They would say, ‘It is a big threat, but still we want to do less, not enough to do what’s necessary,’ ” Minnesma says.
Interestingly, since the finding in their favour, Minnesma and her colleagues have dedicated themselves to supporting the Dutch government to meet the target imposed by the courts, which includes the phasing out of coal plants. “We called it a court case out of love.
“We have never been in a fighting mood.”
Minnesma says the action has also transformed the relationship between the Dutch public and the government, and provided ongoing legal leverage if the government falls short of the court’s ruling through negligence.
“One year, they were a bit above [the emissions threshold]. I spoke with the minister at the time and told him, ‘Well, you’re now above it … I could go back to court, but you can also promise me that next year you will do more.’ He promised that and he did that.”
After winning the first case in 2015, which the Dutch government appealed until its highest court upheld the verdict in 2019, Minnesma travelled to Australia to see her sister in Cairns, which is where Justice Wigney handed down his verdict this week.
“The people wanted to know if they could do a legal case in Australia. Most legal people thought it was impossible. And I had to tell them, well that’s the same as what people said in the Netherlands.”
The Australian legal community posed many of the same arguments that the legal minds back in the Netherlands did – arguments, Minnesma says, that she had heard time and again. Through her Urgenda Foundation she has continued to support the Uncles’ legal team throughout their process.
Brett Spiegel, the principal lawyer representing the Uncles, said following the ruling the courts will ultimately have to reckon with climate change. “If we look at the evolution of the common law going all the way back to the Industrial Revolution, it is built to adapt to changing facts, changing technological eras,” he said.
“And for the courts to continue to effectively function, they are going to need to be able to engage with climate change, since it is one of if not the biggest threat of our era.
“And our hope is very much that there’s good and there’s bad to be taken from this judgement, but this is just the first step.
“Mabo didn’t win the first time.”
This article was first published in the print edition of The Saturday Paper on July 19, 2025 as "‘Mabo didn’t win the first time’".
For almost a decade, The Saturday Paper has published Australia’s leading writers and thinkers. We have pursued stories that are ignored elsewhere, covering them with sensitivity and depth. We have done this on refugee policy, on government integrity, on robo-debt, on aged care, on climate change, on the pandemic.
All our journalism is fiercely independent. It relies on the support of readers. By subscribing to The Saturday Paper, you are ensuring that we can continue to produce essential, issue-defining coverage, to dig out stories that take time, to doggedly hold to account politicians and the political class.
There are very few titles that have the freedom and the space to produce journalism like this. In a country with a concentration of media ownership unlike anything else in the world, it is vitally important. Your subscription helps make it possible.
Subscriber exclusive
Send this article to a friend for free.
Share this subscriber exclusive article with a friend or family member using share credits.
