July 16, 2025 • 15 mins
The Federal Court has dismissed a landmark class action brought by Uncles Paul Kabai and Pabai Pabai – two Torres Strait Islander men who said Canberra owed them a duty of care to safeguard their homelands from rising seas.
Justice Michael Wigney accepted the islands are being “ravaged by human-induced climate change,” yet ruled the law offers “no real or effective” path to relief – and the Commonwealth argued Torres Strait Islanders can “protect themselves” by moving.
The Uncles insist losing is not an option and vow to keep fighting.
Today, Gunaikurnai and Wotjobaluk writer and contributor to The Saturday Paper Ben Abbatangelo on how a court recognised the crisis but left the Torres Strait to face it alone – and what the government’s defence reveals about its climate stance.
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Guest: Gunaikurnai and Wotjobaluk writer and contributor to The Saturday Paper, Ben Abbatangelo.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:01):
Hi.
Speaker 2 (00:01):
I'm Ruby Jones and you're listening to seven am. The
Federal Court has dismissed a landmark class action brought by
two men, paulk Bye and Bye Bye, two torrest Rate
Islander men, who argued the Commonwealth owed them a duty
of care to protect their homelands from climate change, even
(00:24):
while recognizing the torrest Rate Islands are being ravaged by
human induced climate change. Justice Michael Wigney said the law
provides no real or effective legal avenue for communities being
swallowed by rising seas, but those bringing the case insists
losing is not an option and they'll keep fighting. Today
Journalist and contributor to the Saturday Paper Ben Abdangelo on
(00:46):
how a court recognized the crisis but left the torrest
Rate to face it alone, and what the government's defense
reveals about its climate stance. It's Thursday seventeen, So, Ben,
you were watching as Justice Whigney handed down his decision
(01:10):
in this case just a couple of days ago. So
tell me about what it was that he said as
he made his decision public.
Speaker 1 (01:17):
Well, Justice Michael Wigney ultimately dismissed the action, not because
there was no merit in the uncle's factual allegations, but because,
as he said, the common law of negligence in Australia
was not a suitable vehicle through which the applicants could
obtain effective relief. So Justice Whigney, when he was handing
down his decision times felt profoundly at pains I think
(01:39):
with the verdict and the confines of the law in
which he was adjudicating within, but also crucially in his findings,
said that the loss of fulfillment of culture, the customs,
observances and beliefs, either by an individual or collectively by
a community, is also not currently a recognized category of
actionable damage in Australia, and while he says that he
(02:01):
has considerable sympathy for the uncles that it should be
protected by law, he ultimately said that his hands were
effectively tired and that it will be inappropriate for a
single judge to recognize this for the very first time.
So the Justices verdict was fascinating in the sense that
he fundamentally agreed with the facts of the uncle's cases.
(02:24):
But where the Commonwealth succeeded was not because they had
the best argument, but because the law in the way
that it is written gives people like the Torres Straightlanders
no legal recourse or respite. That itself, I think, from
my perspective, paints a pretty dire picture. I think for
the Torreshitlander people who are not only a microcosm or
(02:45):
a small fraction of the Australian population, but are also
confronted with a clock that is rapidly ticking.
Speaker 2 (02:52):
Can you tell me more about those men who brought
the case, why did they do it and what's the
case that they made? So?
Speaker 1 (03:00):
Uncle Paul Pabai and Uncle Paba pabaei are traditional owners
from Sabai Island and Boygu Island, which are part of
the Torres Strait. I suppose in speaking to the uncles
and some of the community members, it's really evident that
they are on the brink of no return. Their homelands
(03:20):
in which they are born out of and belong to
are at extreme risk of being engulfed by rising seas
in less than thirty years, and moving inland is really
simply just not an option.
Speaker 3 (03:32):
The border running through Vimagsglo hopes and all the stuff's
going to put the hand.
Speaker 1 (03:42):
Pro community Sibi and Boygu Islands slivers of lands that
exist just above sea level. They're bordered by beautiful mangroves
and shadowed by blue waters, and forcibly relocating these communities
is not climate adaptation, as politicians colloquially referred to, but
(04:03):
another act of dispossession. And they bought the action against
the Commonwealth in twenty twenty one and alleged that the
Commonwealth owed them a legal duty of care to protect
them from the foreseeable harms of climate change, and that
the Commonwealth breached their duty of care by failing to
adequately reduce greenhouse gas emissions in line with the best
(04:23):
available science, and in doing so has caused them significant
loss and damage.
Speaker 2 (04:31):
How did the Commonwealth respond?
Speaker 1 (04:33):
So the Commonwealth anchored its case around the precedents set
in the recent Environment Minister versus Sharma sixteen, which was
a lawsuit that was bought by student climate activists who
argued that the government had a duty of care. They
were initially successful in their original case, but it was
overturned and dismissed upon appeal not too long after. So
(04:57):
that is the specific judgment and precedent that the government
hitched its wagon too throughout the four years of litigation.
But pertinently it argued that no legal duty of care exists.
It argued that the Toris Schatlanders can protect themselves from
the impacts of climate change. They argued that it is
reasonable to not base climate targets on climate science, and
(05:20):
importantly that there should be no basis for compensating the
applicants for losing their way of life due to the
impacts of climate change.
Speaker 2 (05:29):
Okay, so the government ultimately won its case. But as
you've said, the judge recognized that the Torres Red Islands
are feeling the effects of human induced climate change, ravaged
by it. Is it unusual for a judge to make
big picture statements like this about climate change, and I
(05:53):
suppose inadequacy of the law to be able to address
that problem.
Speaker 1 (05:59):
It's a great question. I mean, the judge was really
clear in the circumstances that are confronting the Tory standers.
Throughout the four years of hearings, he spent time up
on sideby on boygu Islands, and you know, he witnessed
the ways in which the community was being affected. He
saw the burial grounds that are being impacted by the
(06:20):
rising seas, how the gardens that harvest traditional foods forever
and a day are starting to also be impacted. So
he got a glimpse first hand at the really dire
circumstances that confront the Torris Stolanders, And in his finding,
you know, the Justice was really clear that his words were,
(06:40):
climate change poses an existential threat to the whole of humanity.
I think another key call out from the case was
that the Justice did find that the Commonwealth emissions reductions
targets that they set in twenty fifteen, twenty twenty and
twenty twenty one weren't underpinned by the best available side giants,
(07:01):
which to hear that said in such a crisp, specific
way in a federal court should leave no doubt in
the way that climate policy has been created in this
country over the last decade or so.
Speaker 2 (07:13):
So told me a little bit more about the reaction
than from the men who brought this case when they lost.
Speaker 1 (07:21):
The reaction has been a real cocktail of ingredients many
things at once. The community, the plaintiffs, they are devastated,
they're anguished, they're furious, they're frustrated, but also really interestingly,
throughout the conversations, and I don't think which has been
picked up by the media just yet, is the optimism
(07:43):
and the determination to continue fighting because, as the uncles
have told me, losing is just not an option.
Speaker 3 (07:53):
Not an option.
Speaker 1 (07:54):
We'll think about ourn actual risk to come because all
all islands, I think you freshtopa.
Speaker 2 (08:02):
Badly.
Speaker 3 (08:02):
Yeah make waiting.
Speaker 1 (08:08):
The global I mean or the climate says, we just
get worseer. Whilst there is no clarity around what the
next steps are because the judgment was just handed down
on Tuesday, it's evident from the conversations that I've had
with the legal team, you know, with the plaintiffs that
you know, over the coming days, I'll let the dust settle.
They they'll take a clear eyed look at the judgment
(08:28):
itself and then chart a path forward to you know,
arrest control of greenhouse gas emissions that are putting their
entire existence at an existential threat.
Speaker 2 (08:44):
After the break what would have to change for a
duty of care to finally stand up in court? Then,
after Justice Whitney made his decision on this case, how
did the federal government respond? Because climate change is undeniably
affecting the torrest Right Islands, so was that acknowledged.
Speaker 1 (09:08):
Well in a joint statement released straight after the verdict
was handed down, Minister Chris Bowen and Minister Malander and
McCarthy said that unlike the former Liberal government, we understand
that the Torres Strait Islands are vulnerable to climate change
and many are already filling the impacts. Where the former
government failed on climate change, the Albanezy government is delivering
(09:29):
because it's in the interest of all Australians. But crucially
in the statement, it also says the Albanese Labor Government
remains committed to both acting to continue to cut emissions
and adapting to climate impacts we cannot avoid. So I
think the statement that they have released it's worth noting that,
(09:50):
you know, they've effectively just wanted to communicate that they
were better than the alternative, which, if you were to
read the judge's perviscerating verdict and the in which that
he confronted the lack of efficacy of emissions reduction targets
over the prior governments, it doesn't really take much to
be better than the coalition. But I think what's also
(10:12):
really interesting is the statement doesn't say that you know,
the government is going to pursue changing the law so
vulnerable communities that are being exposed have an avenue for
redress and recourse.
Speaker 2 (10:25):
Yeah, you said that those who brought this case, some
of them are talking about continuing to fight. What avenues
do they have?
Speaker 4 (10:33):
Well.
Speaker 1 (10:33):
In the immediate aftermath of the judges verdict, the principal
lawyer for the uncle's team, Brett Siegel, said that they
would review the verdict with a fine tooth comb and
over the coming days and weeks look to identify potential
avenues and pathways.
Speaker 3 (10:50):
Forward view that the course is obviously taken, that it's hands,
in its view are tied, and obviously.
Speaker 4 (11:02):
We don't share that vida.
Speaker 3 (11:06):
And yeah, so it really is a question of just
reviewing it and then figuring out how to approach that
with a higher court.
Speaker 1 (11:14):
The uncles took a lot of inspiration, you know, broadly
from Eddie Koiquimavo and his ability to overturn the live turnalitists.
But the strategy that underpinned the legal case against the
government was informed by another successful Dutch case. Since that
case was adjudicated in twenty nineteen, other plaintiffs in Belgium,
(11:36):
in France and Germany have followed suit and successfully sued
their governments along similar lines, and those lines have meant
that the government has had to slash greenhouse gas emissions
in line with the best available science because they do
have a duty of care to their citizens. So that
case in twenty nineteen has triggered in the Netherlands a
(11:58):
major transition away from the fossil fuels that were the
lifeblood of their economy, and that includes closing a major
coal plant. So the case that the Uncle's bought is
was not without precedent. But in the coming weeks and
months there will be you know, a clearer insight into
(12:19):
how they can come back and you know, and turn
what was a pretty catastrophic finding into something positive and
something of substance.
Speaker 2 (12:28):
Right, And I suppose the question is whether or not
the legal system ultimately has the capacity to address something
like the threat of climate change.
Speaker 1 (12:39):
Yeah, the legal team for the uncles was really clear
on that that you know, throughout history, the law has
continually evolved, and I think, you know, to contextualize that
Eddie marbo overturned the erroneous live Terranalius that took far
too long. But I suppose it does show in that
context that with time, you know, the law or fundamentally
(13:00):
has to evolve and change to be consistent with the
contemporary times that it exists within.
Speaker 4 (13:07):
I think, you know the idea that you know marlbo
didn't with the first time, And these things often can
be iterative and frustratingly slow processes. But our belief is
that the hoards can address something as monumental and threatening
(13:32):
as climate change, because in a way it has to.
Our hope is very much that you know, there's glude
and there's not to be taken from misjudgment. But this
is just the first step.
Speaker 2 (13:48):
I suppose.
Speaker 1 (13:49):
The big question is you know how that iteration and
evolution will take place, and you know, super importantly for
people like the Taysha Islanders who have a clock that
weren't stop, you know when will that happen? Because, as
Justice Wigney said, you know, climate change poses an existential
threat to the whole of humanity, so it fundamentally needs
(14:11):
to evolve to be commensurate with those challenges and the
context of our times.
Speaker 2 (14:18):
Well, Ben, thank you so much for your time.
Speaker 1 (14:20):
Thank you.
Speaker 2 (14:22):
You can read Ben abbot Angelo's full report in this
weekend's edition of the Saturday Paper. Also in the news today,
Prime Minister Anthony Alberesi has been forced to clarify Australia's
position on Taiwan's independence following a face to face meeting
(14:44):
with President Chi Jinping. After their meeting in Beijing, Chinese
state media reported a readout of their conversation that said
Albanesi had assured President Shee that Australia does not support
Taiwan's independence. Anthony Albernesi says he hadn't seen the readout
and the Australia does not support any unilateral action on Taiwan,
(15:04):
and experts are warning young adults and parents of young
children to be aware of early symptoms of meninjococcal disease
as Australia enters its peak season. Doctors say the illness
is on the rise, with fifty six cases already reported
this year, and are urging people to watch out for
symptoms such as fever, severe headache, drowsiness or confusion, severe
muscle pain and rash. I'm Ruby Jones. This is seven am.
(15:28):
See you tomorrow,
Hi.
Speaker 2 (00:01):
I'm Ruby Jones and you're listening to seven am. The
Federal Court has dismissed a landmark class action brought by
two men, paulk Bye and Bye Bye, two torrest Rate
Islander men, who argued the Commonwealth owed them a duty
of care to protect their homelands from climate change, even
(00:24):
while recognizing the torrest Rate Islands are being ravaged by
human induced climate change. Justice Michael Wigney said the law
provides no real or effective legal avenue for communities being
swallowed by rising seas, but those bringing the case insists
losing is not an option and they'll keep fighting. Today
Journalist and contributor to the Saturday Paper Ben Abdangelo on
(00:46):
how a court recognized the crisis but left the torrest
Rate to face it alone, and what the government's defense
reveals about its climate stance. It's Thursday seventeen, So, Ben,
you were watching as Justice Whigney handed down his decision
(01:10):
in this case just a couple of days ago. So
tell me about what it was that he said as
he made his decision public.
Speaker 1 (01:17):
Well, Justice Michael Wigney ultimately dismissed the action, not because
there was no merit in the uncle's factual allegations, but because,
as he said, the common law of negligence in Australia
was not a suitable vehicle through which the applicants could
obtain effective relief. So Justice Whigney, when he was handing
down his decision times felt profoundly at pains I think
(01:39):
with the verdict and the confines of the law in
which he was adjudicating within, but also crucially in his findings,
said that the loss of fulfillment of culture, the customs,
observances and beliefs, either by an individual or collectively by
a community, is also not currently a recognized category of
actionable damage in Australia, and while he says that he
(02:01):
has considerable sympathy for the uncles that it should be
protected by law, he ultimately said that his hands were
effectively tired and that it will be inappropriate for a
single judge to recognize this for the very first time.
So the Justices verdict was fascinating in the sense that
he fundamentally agreed with the facts of the uncle's cases.
(02:24):
But where the Commonwealth succeeded was not because they had
the best argument, but because the law in the way
that it is written gives people like the Torres Straightlanders
no legal recourse or respite. That itself, I think, from
my perspective, paints a pretty dire picture. I think for
the Torreshitlander people who are not only a microcosm or
(02:45):
a small fraction of the Australian population, but are also
confronted with a clock that is rapidly ticking.
Speaker 2 (02:52):
Can you tell me more about those men who brought
the case, why did they do it and what's the
case that they made? So?
Speaker 1 (03:00):
Uncle Paul Pabai and Uncle Paba pabaei are traditional owners
from Sabai Island and Boygu Island, which are part of
the Torres Strait. I suppose in speaking to the uncles
and some of the community members, it's really evident that
they are on the brink of no return. Their homelands
(03:20):
in which they are born out of and belong to
are at extreme risk of being engulfed by rising seas
in less than thirty years, and moving inland is really
simply just not an option.
Speaker 3 (03:32):
The border running through Vimagsglo hopes and all the stuff's
going to put the hand.
Speaker 1 (03:42):
Pro community Sibi and Boygu Islands slivers of lands that
exist just above sea level. They're bordered by beautiful mangroves
and shadowed by blue waters, and forcibly relocating these communities
is not climate adaptation, as politicians colloquially referred to, but
(04:03):
another act of dispossession. And they bought the action against
the Commonwealth in twenty twenty one and alleged that the
Commonwealth owed them a legal duty of care to protect
them from the foreseeable harms of climate change, and that
the Commonwealth breached their duty of care by failing to
adequately reduce greenhouse gas emissions in line with the best
(04:23):
available science, and in doing so has caused them significant
loss and damage.
Speaker 2 (04:31):
How did the Commonwealth respond?
Speaker 1 (04:33):
So the Commonwealth anchored its case around the precedents set
in the recent Environment Minister versus Sharma sixteen, which was
a lawsuit that was bought by student climate activists who
argued that the government had a duty of care. They
were initially successful in their original case, but it was
overturned and dismissed upon appeal not too long after. So
(04:57):
that is the specific judgment and precedent that the government
hitched its wagon too throughout the four years of litigation.
But pertinently it argued that no legal duty of care exists.
It argued that the Toris Schatlanders can protect themselves from
the impacts of climate change. They argued that it is
reasonable to not base climate targets on climate science, and
(05:20):
importantly that there should be no basis for compensating the
applicants for losing their way of life due to the
impacts of climate change.
Speaker 2 (05:29):
Okay, so the government ultimately won its case. But as
you've said, the judge recognized that the Torres Red Islands
are feeling the effects of human induced climate change, ravaged
by it. Is it unusual for a judge to make
big picture statements like this about climate change, and I
(05:53):
suppose inadequacy of the law to be able to address
that problem.
Speaker 1 (05:59):
It's a great question. I mean, the judge was really
clear in the circumstances that are confronting the Tory standers.
Throughout the four years of hearings, he spent time up
on sideby on boygu Islands, and you know, he witnessed
the ways in which the community was being affected. He
saw the burial grounds that are being impacted by the
(06:20):
rising seas, how the gardens that harvest traditional foods forever
and a day are starting to also be impacted. So
he got a glimpse first hand at the really dire
circumstances that confront the Torris Stolanders, And in his finding,
you know, the Justice was really clear that his words were,
(06:40):
climate change poses an existential threat to the whole of humanity.
I think another key call out from the case was
that the Justice did find that the Commonwealth emissions reductions
targets that they set in twenty fifteen, twenty twenty and
twenty twenty one weren't underpinned by the best available side giants,
(07:01):
which to hear that said in such a crisp, specific
way in a federal court should leave no doubt in
the way that climate policy has been created in this
country over the last decade or so.
Speaker 2 (07:13):
So told me a little bit more about the reaction
than from the men who brought this case when they lost.
Speaker 1 (07:21):
The reaction has been a real cocktail of ingredients many
things at once. The community, the plaintiffs, they are devastated,
they're anguished, they're furious, they're frustrated, but also really interestingly,
throughout the conversations, and I don't think which has been
picked up by the media just yet, is the optimism
(07:43):
and the determination to continue fighting because, as the uncles
have told me, losing is just not an option.
Speaker 3 (07:53):
Not an option.
Speaker 1 (07:54):
We'll think about ourn actual risk to come because all
all islands, I think you freshtopa.
Speaker 2 (08:02):
Badly.
Speaker 3 (08:02):
Yeah make waiting.
Speaker 1 (08:08):
The global I mean or the climate says, we just
get worseer. Whilst there is no clarity around what the
next steps are because the judgment was just handed down
on Tuesday, it's evident from the conversations that I've had
with the legal team, you know, with the plaintiffs that
you know, over the coming days, I'll let the dust settle.
They they'll take a clear eyed look at the judgment
(08:28):
itself and then chart a path forward to you know,
arrest control of greenhouse gas emissions that are putting their
entire existence at an existential threat.
Speaker 2 (08:44):
After the break what would have to change for a
duty of care to finally stand up in court? Then,
after Justice Whitney made his decision on this case, how
did the federal government respond? Because climate change is undeniably
affecting the torrest Right Islands, so was that acknowledged.
Speaker 1 (09:08):
Well in a joint statement released straight after the verdict
was handed down, Minister Chris Bowen and Minister Malander and
McCarthy said that unlike the former Liberal government, we understand
that the Torres Strait Islands are vulnerable to climate change
and many are already filling the impacts. Where the former
government failed on climate change, the Albanezy government is delivering
(09:29):
because it's in the interest of all Australians. But crucially
in the statement, it also says the Albanese Labor Government
remains committed to both acting to continue to cut emissions
and adapting to climate impacts we cannot avoid. So I
think the statement that they have released it's worth noting that,
(09:50):
you know, they've effectively just wanted to communicate that they
were better than the alternative, which, if you were to
read the judge's perviscerating verdict and the in which that
he confronted the lack of efficacy of emissions reduction targets
over the prior governments, it doesn't really take much to
be better than the coalition. But I think what's also
(10:12):
really interesting is the statement doesn't say that you know,
the government is going to pursue changing the law so
vulnerable communities that are being exposed have an avenue for
redress and recourse.
Speaker 2 (10:25):
Yeah, you said that those who brought this case, some
of them are talking about continuing to fight. What avenues
do they have?
Speaker 4 (10:33):
Well.
Speaker 1 (10:33):
In the immediate aftermath of the judges verdict, the principal
lawyer for the uncle's team, Brett Siegel, said that they
would review the verdict with a fine tooth comb and
over the coming days and weeks look to identify potential
avenues and pathways.
Speaker 3 (10:50):
Forward view that the course is obviously taken, that it's hands,
in its view are tied, and obviously.
Speaker 4 (11:02):
We don't share that vida.
Speaker 3 (11:06):
And yeah, so it really is a question of just
reviewing it and then figuring out how to approach that
with a higher court.
Speaker 1 (11:14):
The uncles took a lot of inspiration, you know, broadly
from Eddie Koiquimavo and his ability to overturn the live turnalitists.
But the strategy that underpinned the legal case against the
government was informed by another successful Dutch case. Since that
case was adjudicated in twenty nineteen, other plaintiffs in Belgium,
(11:36):
in France and Germany have followed suit and successfully sued
their governments along similar lines, and those lines have meant
that the government has had to slash greenhouse gas emissions
in line with the best available science because they do
have a duty of care to their citizens. So that
case in twenty nineteen has triggered in the Netherlands a
(11:58):
major transition away from the fossil fuels that were the
lifeblood of their economy, and that includes closing a major
coal plant. So the case that the Uncle's bought is
was not without precedent. But in the coming weeks and
months there will be you know, a clearer insight into
(12:19):
how they can come back and you know, and turn
what was a pretty catastrophic finding into something positive and
something of substance.
Speaker 2 (12:28):
Right, And I suppose the question is whether or not
the legal system ultimately has the capacity to address something
like the threat of climate change.
Speaker 1 (12:39):
Yeah, the legal team for the uncles was really clear
on that that you know, throughout history, the law has
continually evolved, and I think, you know, to contextualize that
Eddie marbo overturned the erroneous live Terranalius that took far
too long. But I suppose it does show in that
context that with time, you know, the law or fundamentally
(13:00):
has to evolve and change to be consistent with the
contemporary times that it exists within.
Speaker 4 (13:07):
I think, you know the idea that you know marlbo
didn't with the first time, And these things often can
be iterative and frustratingly slow processes. But our belief is
that the hoards can address something as monumental and threatening
(13:32):
as climate change, because in a way it has to.
Our hope is very much that you know, there's glude
and there's not to be taken from misjudgment. But this
is just the first step.
Speaker 2 (13:48):
I suppose.
Speaker 1 (13:49):
The big question is you know how that iteration and
evolution will take place, and you know, super importantly for
people like the Taysha Islanders who have a clock that
weren't stop, you know when will that happen? Because, as
Justice Wigney said, you know, climate change poses an existential
threat to the whole of humanity, so it fundamentally needs
(14:11):
to evolve to be commensurate with those challenges and the
context of our times.
Speaker 2 (14:18):
Well, Ben, thank you so much for your time.
Speaker 1 (14:20):
Thank you.
Speaker 2 (14:22):
You can read Ben abbot Angelo's full report in this
weekend's edition of the Saturday Paper. Also in the news today,
Prime Minister Anthony Alberesi has been forced to clarify Australia's
position on Taiwan's independence following a face to face meeting
(14:44):
with President Chi Jinping. After their meeting in Beijing, Chinese
state media reported a readout of their conversation that said
Albanesi had assured President Shee that Australia does not support
Taiwan's independence. Anthony Albernesi says he hadn't seen the readout
and the Australia does not support any unilateral action on Taiwan,
(15:04):
and experts are warning young adults and parents of young
children to be aware of early symptoms of meninjococcal disease
as Australia enters its peak season. Doctors say the illness
is on the rise, with fifty six cases already reported
this year, and are urging people to watch out for
symptoms such as fever, severe headache, drowsiness or confusion, severe
muscle pain and rash. I'm Ruby Jones. This is seven am.
(15:28):
See you tomorrow,
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