Pabai and Kabai v Commonwealth: A duty of care in light of climate change?

Loughlin Gleeson

Pabai and Kabai v Commonwealth of Australia

Following international trends, climate change has recently emerged in a domestic context as both a motivator and subject of litigation. A recent example of this is the class action of Pabai Pabai and Guy Paul Kabai v Commonwealth of Australia,¹ which is currently on foot in the Federal Court, with evidence having recently been heard on country. In essence, the case concerns whether the Federal Government owes, and if so, has potentially breached, a duty of care to the applicants — both Torres Strait Islanders from the Gudamalulgal Nation — by reason of its failure to reduce its total greenhouse gas emissions which has resulted in environmental and cultural harm. 

What is alleged, and denied

The applicants submit that a duty of care is owed to them by the Federal Government, which requires the government to take reasonable steps to mitigate foreseeable risks of harm caused by climate change. They argue this duty arises for a number of reasons, including the Native Title Act 1993 (Cth), their geographical vulnerability and the government’s assumed knowledge of the risks associated with climate change. They also submit that such a duty has been breached, as the government has allegedly legislated in a manner inconsistent with the best available science. Finally, such (in-)action has resulted in loss both in terms of the applicant’s way of life (“Ailan Kastom”) and surrounding natural environment, particularly given rising sea levels around the islands — including the Boigu and Saibai Islands from which applicants derive — comprising the Torres Strait.

The government, for its part, denies each of the elements of the claim. A common thread to its defence is that questions such as whether a duty of care exists is ultimately a matter for public policy. As such, the action is not, in the government’s view, amendable to proper judicial determination.

Cross-roads

On-going as the case is, it remains to be seen whether the applicants’ case will be successful. What is already clear, however, is the public significance of the case — combining an emerging series of climate change litigation (e.g., Gloucester Resources and Waratah Coal), cases with a consideration of the rights of First Nations Australians. As Justice Mortimer opined:

"The reality for the people of the Torres Strait is that they risk losing their way of life, their homes, their gardens, the resources of the sea on which they have always depended and the graves of their ancestors.

"Whether the Commonwealth has legal responsibility for that reality, as the applicants allege in this proceeding, is a different question. […] The applicants, and the Torres Strait Islanders they represent, are entitled to know whether the Commonwealth is legally responsible in the way alleged, or not."

Accordingly, the case may thus be described as representative of where Australia presently finds itself at an historic cross-roads between the demands and opportunities of substantive engagement with climate change and First Nations peoples, on the one hand and acknowledgment of the scope of political value-judgements, on the other hand.

International perspective

It is worth noting that, regardless of the divergent paths down which Australia actually proceeds in this case and more generally, an international perspective has already been brought to bear on the underlying question at issue in Pabai and Kabai. In Daniel Billy et. al v Australia,² the Human Rights Committee established that Australia was in breach of various articles of the International Covenant on Civil and Political Rights (ICCPR), notably articles 17 and 27; its failure to take adequate steps to reduce its greenhouse gas emissions adversely impacting the rights of Torres Strait Islanders. Relevantly, the Committee noted:

The State party has not so far taken any adequate concrete measures to prevent the authors’ islands from becoming uninhabitable, or to address the real and foreseeable threat of the complete loss of the authors’ cultures. The Committee’s jurisprudence supports the notion that environmental harm can lead to violations of fundamental human rights, given the dependence of indigenous minority cultures on a healthy environment, and the strong cultural and spiritual link between indigenous peoples and their traditional land.³

Whether Pabai and Kabai is ultimately resolved in the applicants’ favour, there is arguably mounting international pressure on Australia, as in other respects, to take seriously the impacts of climate change on First Nations peoples in particular.