Torres Strait Islanders are awaiting the ruling in a landmark climate case today — one that, if successful, could have a significant impact on the future of their islands and culture.
Guda Maluyligal traditional owners Uncle Paul Kabai and Uncle Pabai Pabai — from the islands of Saibai and Boigu — have travelled almost 900 kilometres from their ancestral homes to the Federal Court in Cairns to hear the outcome.
For the past four years, they have led the case on behalf of all Torres Strait Islander peoples, arguing the Commonwealth has neglected its duty of care to take proper steps to protect their communities from the impacts of rising seas and climate change.
Today, Federal Court Justice Michael Wigney will hand down his judgement.
A landmark case
The first of its kind in Australia, the landmark litigation has been financed through the NGO the Grata Fund, and modelled on a successful case from the Netherlands.
In 2023, the federal court visited the islands of Boigu and Saibai, about 6 kilometres from the shores of Papua New Guinea, and Badu.
Evidence of coastal erosion, destruction of ancestral graves and soil salinity that prevents crops from growing was presented to the court.
It also heard of extreme weather events, including storms that cause intense flooding and inundate the islands that lie at just 1.6 meters above sea level.
The uncles also travelled more than 3,000 kilometres to attend Federal Court hearings in Melbourne in November 2023.
The court heard that sea levels in the Torres Strait were rising at double the rate of the rest of the world and that inaction on climate change may cause irreversible impacts for First Nations people in the Torres Strait.
Australia is the world's 11th highest per capita emitter of greenhouse gases, according to the CSIRO, contributing just over 1 per cent of global emissions. It's also among the largest fossil fuel exporters in the world.
Climate scientist Malte Meinshausen, an expert in carbon budgets, told the court there were three "accepted methodologies" for determining each country's fair share of global emissions.
Based on these, he said Australia needed to make deeper emissions cuts than its current 2030 targets if it wanted to be consistent with the global aim of limiting warming to 1.5 degrees.
The court heard breaching this 1.5 degree limit would cause irreversible damage to small and low-lying islands, including those in the Torres Strait.
The Commonwealth has acknowledged the Torres Strait Islands are vulnerable to the effects of climate change, but it argues Australia can't prevent or mitigate these effects on its own.
It also said the question of its emissions target is for the parliament to decide, not the courts.
"There is no consensus as to how GHG [greenhouse gas] emissions should be divided and in any case the question is one of policy and not climate science," it argued.
The plaintiffs seek an order requiring the government to take action to prevent further harm to their communities, including by making deeper emissions cuts and implementing adaptation measures.
If successful, the legal challenge could set an international precedent for how governments are held accountable for climate change impacts on vulnerable communities.
Cultural loss
At the heart of the case was the deep connection between Torres Strait Islanders and their land and what would be lost if the low-lying islands were claimed by the sea.
The plantiffs' legal team argued the Guda Maluyligal people risked losing their culture if rising sea levels, caused by climate change, forced them to leave their homes.
Uncle Pabai fears they will become "climate refugees".
"The role I'm playing now is important in saving my people. For the next generation to come, I don't like to see Boigu under the water," he said.
The case heard testimony from a number of elders and community members documenting sacred sites and cultural practices that have been handed down thousands of years, all at risk of being lost.
Knowledge regarding the changing of the environment over time, including seasons shifting and animal migration times changing was part of the evidence.
Whatever the outcome of the case, islanders vow they will continue to fight to protect their homelands.
"We're not going to stop. If we stop, Saibai will be underwater," said Uncle Paul.
"I'll have no land, I'll have no culture, I'll have nothing."
