Back

2PM TODAY - DECISION ON UNCLE PAUL & UNCLE PABAI'S LANDMARK AUSTRALIAN CLIMATE CASE

Pitch Projects

A historic moment for Australia's climate future and for First Nations communities experiencing cultural loss to be decided in Cairns Federal Court today.

 

SCHEDULE  

DECISION - 2PM
(Uncles will arrive at around 1.15pm)
The decision will be handed down in Courtroom 1, Federal Circuit and Family Court of Australia, Commonwealth Centre, Level 4, 104 Grafton Street, Cairns.  
The livestream of the court proceedings will appear on the Federal Court of Australia YouTube channel listed as Pabai Pabai & Anor v The Commonwealth. LINK HERE 

Note: Seating in the courtroom will be limited to plaintiffs, families, witnesses and the Uncles and Commonwealth's litigation teams.  The court has arranged additional rooms in the building where the decision will be live-streamed; these will be open to media and Torres Strait community. 

DOORSTOP:
Immediately after the decision Uncle Paul, Uncle Pabai and Aunty McRose Elu will come out to make some very brief initial comments. No questions at this time.

PRESS CONFERENCE - approx 3.30PM TBC
(with dances from Saibai/Boigu dance teams beforehand)
A press conference will follow shortly afterwards on the green space at the Shield St exit of Federal Court (on Shield St, closest corner Grafton). Uncle Paul Kabai, Uncle Pabai Pabai, Aunty McRose Elu, the Phi Finney McDonald legal team and Isabelle Reinecke from Grata Fund will all speak, and there will be performances by both the Saibai and Boigu dance teams. The press conference will be live-streamed on Facebook and Instagram at @gratafund and @australianclimatecase

A press release and legal explainer will be issued as well.
The Uncles and other spokespeople will be available for interview after the press conference.

IMAGES/FOOTAGE/RELEASES all available in this MEDIA ASSETS folder
NOW: Images/footage from the islands and throughout the case are available now in this folder.
1.15PM TUES: Images of the Uncles and their legal team walking into court available
4.15PM TUES: Footage/images from the press conference available

 

---

Having filed their case against the Australian government in October 2021 in fear for their homelands, Torres Strait Traditional Owners Uncle Paul Kabai and Uncle Pabai Pabai will now hear the Federal Court's decision on the fate of their homes, communities and culture at risk from climate disaster.

Climate change is already causing sea level rise and more frequent and intense storms in the Torres Strait, with local communities at risk of becoming Australia’s first climate change refugees. The court heard evidence that communities on Boigu and Saibai could have less than 30 years left before their islands become uninhabitable. 

Uncle Paul and Uncle Pabai aren’t alone in their fears for their lives and homes - communities around Australia are reeling from the devastating consequences of fires, floods and drought.

The Uncles are seeking orders from the court that require the government to take steps to prevent this harm to their communities, including cutting greenhouse gas emissions in line with the best available science.

If successful, this case has the potential to force the Federal Government to rapidly reduce emissions. The Climate Council says that all emissions from fossil fuel projects are incompatible with the science and a safe future, and that the Australian Government must stop approving or expanding new coal, gas and oil projects and rapidly transition to a clean economy.

What is the backstory to this case?

Faced with rising sea levels and distressingly inadequate action on climate change, in October 2021 Uncle Pabai and Uncle Paul filed the Australian Climate Case against the Australian Government for failing to protect the Torres Strait from climate change.

The homes of people in the Torres Strait could disappear beneath the rising seas, making them Australia’s first climate change refugees. For Zenadth Kes (Torres Strait Islands) Peoples, the impacts of climate change won’t only force them from their island homes, but sever their connection to thousands of years of culture and deep spiritual connection passed down generation by generation through connection to land, sea, winds and sky and community.

Uncle Pabai and Uncle Paul are seeking orders from the court that require the Federal Government to take steps to prevent this harm to their communities, including cutting greenhouse gas emissions in line with the best available science.

The Australian Government currently has a 2050 ‘net zero’ emissions target, which experts say will not be enough to prevent disaster in the Torres Strait. In fact, leading climate scientists on the Climate Targets Panel calculate that Australia’s greenhouse emissions need to be reduced by 74% by 2030 (from 2005 levels) and to net zero by 2035 to keep global heating to below 1.5°C and avert the destruction of Torres Strait Islander communities.

 

---

AUSTRALIAN CLIMATE CASE – ADDITIONAL BACKGROUND 

1. The plaintiffs

Wadhuam (Maternal Uncle) Pabai Pabai, proud Guda Maluyligal man and Traditional Owner Boigu
Wadhuam Pabai is in his 50’s and has lived on Boigu island his whole life, like generations and generations before him. He is a Director on the Prescribed Body Corporate which represents the 6 clans on the island. He is extremely concerned about the myriad of climate impacts his community is facing and is proud to be taking on this case. Wadhuam Pabai is a father of five daughters and two sons, aged between 30 and 12, and is bringing this case to ensure they and their children and their grandchildren have continuing connection to Boigu into the future.
 

Wadhuam (Maternal Uncle) Paul Kabai, proud Guda Maluyligal man and Traditional Owner Saibai
Wadhuam Paul is in his 50s and has lived on Saibai since he was born. He is a Director on the Prescribed Body Corporate which represents the 7 clans on the island. Wadhuam Paul is deeply concerned about his island flooding and disappearing beneath the waves. He is also worried about the effects of heatwaves and other climate impacts on people’s health. Paul is a father to two girls and six boys aged between 40 and 10 and he is bringing the case to protect their future and the future of all Saibai Islanders, Guda Maluyligal Peoples and all Australians.
 

2. About the case

In the class action, filed on 26 October 2021, plaintiffs Wadhuam Paul and Wadhuam Pabai are arguing that the Commonwealth has a legal ‘duty of care’ towards Torres Strait Islander Peoples, arising both from negligence law (torts) and the Torres Strait Treaty and Native Title. [Paul and Pabai] are arguing that by failing to prevent climate change the Australian Government has unlawfully breached this duty of care, because of the severe and lasting harm that climate change would cause to their communities.

This landmark case is modelled on one of the most successful climate cases in history. In 2015, environmental group the Urgenda Foundation supported 886 Dutch people to bring a case against their Government, arguing that it had a legal responsibility to reduce greenhouse gas emissions to protect them from climate change. On 24 June 2015, the District Court of The Hague ruled in favour of Urgenda and ordered the Government to cut its greenhouse gas emissions by at least 25% by the end of 2020 (compared to 1990 levels). The Government appealed, but in December 2019 the Dutch Supreme Court found in favour of Urgenda and confirmed the original court order. This led to the rapid closure of coal fired power stations and billions of euros of investment in renewable energy and energy efficiency. More information about the Urgenda Climate Case can be found on the Urgenda Foundation’s website.
 

3. Key climate harms in the Torres Strait

Zenadth Kes (the Torres Strait Islands) is the frontline of the climate crisis. Sea levels in the Torres Strait are rising at double the global average, and rose 6cm in the last decade. Without urgent action to cut greenhouse gas emissions, sea levels are projected to rise by up to one metre by 2100. The weather would become more extreme, with more intense rain in the wet season, a longer, hotter, drier dry season, more severe cyclones and more frequent and severe storms and flooding, leading to coastal erosion and inundation, which threatens freshwater supplies.

Boigu and Saibai are very flat and low-lying islands, about one and a half metres above sea level. They are particularly exposed to sea level rise - more so than many other islands in Zenadth Kes. Both islands are already being regularly flooded by sea water. This is already affecting settlements, infrastructure, important cultural sites and the gardens where people grow vegetables to feed themselves and their families.

Gudalmalulgal Kastom governs how Gudalmalulgal Peoples take responsibility for and manage their land and sea country, and how and by whom natural resources are harvested. As the ocean continues to warm, this poses a severe threat to marine life and complex systems of biodiversity, including coral reefs, turtles, dugongs and fish populations. Connection to sea country and marine hunting is integral to Gudalmalulgal Kastom. Marine hunting and fishing are also crucial food sources for Torres Strait Islander Peoples.

Irreplaceable cultural heritage and sacred sites will be completely destroyed. Inhabited and uninhabited islands are home to significant sites for ceremonies such as initiation for different clans, burial sites and locations that contain human remains and places that have as much spiritual significance as the Christian concept of heaven.

The climate crisis is a health crisis. Heatwaves are already the most deadly form of natural disaster in Australia, and climate change would bring a longer, hotter, drier dry season to the Torres Strait, in which more people become sick or die from heat-related illnesses. Malaria and dengue fever would increase because warmer temperatures and increased rainfall and flooding provide optimal breeding conditions for mosquitos.

With very limited options for adapting to climate change, many islands in Guda Maluyligal and the wider Torres Strait will become uninhabitable. Torres Strait Islander Peoples would become Australia’s first climate refugees. Being forcibly removed from their land, place and culture because of Government inaction would form another shocking chapter in Australia’s oppression of First Nations Peoples.
 

4. About the team

Grata Fund Grata Fund advocates for a strong and functioning democracy by using circuit breaking litigation to hold the powerful to account. Grata is Australia’s first specialist non-profit strategic litigation incubator and funder. Grata develops, funds, and builds sophisticated campaign architecture around high impact, strategic litigation brought by people and communities in Australia. We focus on communities, cases and campaigns that have the potential to break systemic gridlocks across human rights, climate action and democratic freedoms. 

Phi Finney McDonald is a specialist litigation firm with offices in Melbourne, Sydney and London. They practice in complex and large-scale litigation, with a focus on class actions and group litigation. Their lawyers have decades of experience seeking justice for those who have suffered loss or injury from corporate or government misconduct. Together with Urgenda, Phi Finney McDonald developed the case and will have conduct of the litigation on the instructions of plaintiffs Paul and Pabai.

Fiona McLeod AO SC is a Senior Counsel at the independent Bar in Australia practising in the areas of commercial and public law matters. She represented the Commonwealth of Australia in major cases including leading the legal team in the Victorian Bushfires Royal Commission, Queensland Floods Commission and the Royal Commission into Institutional Child Sex Abuse. She has acted in other notable matters including leading the legal team representing the successful plaintiff in the Murrindindi bushfire class action and the plaintiffs in the Don Dale class action. Fiona has led the Law Council of Australia, Australian Bar Association, Victorian Bar and Australian Women Lawyers. She is the Co-Chair of the Diversity and Inclusion Council and an officer of the Bar Issues Committee of the International Bar Association and a member of the Council of the Commonwealth Lawyers Association.

The Urgenda Foundation is a Dutch NGO that is working to promote a fast transition towards a sustainable society. Urgenda views climate change as one of the biggest challenges of our time and looks for solutions to ensure that the earth will continue to be a safe place to live for future generations. Urgenda has helped develop the case and will continue to provide strategic and scientific support.

Contact details:

MEDIA ENQUIRIES

For more information or to request interviews, contact: 
Terri King at Pitch on [email protected] or 0488 036 740 

For more information on the Australian Climate Case visit australianclimatecase.org.au