Last week, the final statements and testimonies in Pabai Pabai & Anor v Commonwealth of Australia were heard in the Federal Court. The plaintiffs, two Torres Strait Islanders from the Gudamalulgal Nation, contended that the government had failed in their obligation to protect the islands from climate change. That is, the case examines whether the Federal Government has a duty of care to the applicants, and – if they do – whether it was breached by the government’s failure to reduce total greenhouse gas emissions.
The applicants allege that the current emissions have resulted in cultural and environmental harm – a harm that will only worsen through intransigent legal and policy decisions. It is argued that this duty arises through the Native Title Act 1993 (Cth), the geographical vulnerability of the applicants, and the government’s knowledge of the risks associated with climate change. It has also been submitted that the government has enacted legislation that is inconsistent with known science. The closing arguments were heard by Justice Michael Wigney, who will deliver the findings at a later date.
Such a landmark Australian case asks us to consider the nature of climate change litigation and its origins.
The Paris Agreement and the international norm
Australia is party to the Paris Agreement, an international treaty aiming to strengthen the global response to climate change. The agreement binds countries to make and communicate a domestic emissions target. That is, the legal duties set out in the Paris Agreement are procedural and administrative. While there is no legal obligation to achieve the target set out, by encouraging states to write the target into policy, litigants can – potentially – hold governments and corporations responsible for emission and pollutive industries that do not accord with the agreement.
However, even if this is the case, the Paris Agreement is a clear indication of a shifting global norm towards climate action. Such a standard extends the influence and applicability of international decisions and perspectives into the Australian sphere.
Regardless of how Pabai Pabai is held, the underlying issue has already been highlighted and emphasised in the international domain. In Daniel Billy et. al v Australia the United Nations Human Rights Committee held that Australia breached various articles – markedly articles 17 and 27 – of the International Covenant on Civil and Political Rights. That is, that Australia failed to take adequate action against greenhouse gas emissions that adversely impact Torres Strait Islanders. Given this, it is clear that there is already significant international pressure on Australia to seriously consider the impacts of the climate on First Nations peoples.
What now?
To date, cases in Australia have determined that courts are generally unwilling to delve into policy questions or decision-making processes that can – supposedly – be better dealt with by Parliament. Unsurprisingly, this directly parallels the approaches taken by English courts in deciding similar cases. European courts are still by and far more willing to accept novel arguments for a duty to arise in the course of climate justice related claims.
Globally, the cumulative number of cases dealing with climate change is increasing, having more than doubled between 2015 and 2022. While successes in climate change litigation have been variable in jurisdictions across the world, every decision has directly and actively contributed to a growing range of global jurisprudential approaches and methodologies. Each ‘wave’ of climate litigation in Australia has readily built upon and diversified from the last, leaving hope for future novel claims to be taken into account.
Already, there is international pressure on Australia to legally acknowledge the disproportionate climate burden laid upon Indigenous Australians. In both a tortious and human rights sense, there are legal avenues for novel argumentation and consideration.
It is now with bated breath we await the decision and the direction of future climate litigation in Australia.
Image credit: Abbie O'Brien
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