In the hours after the federal court delivered its judgment in a landmark climate case on Tuesday, the two Torres Strait Islands community leaders who brought the proceedings, and their supporters, expressed their shock and dismay.
The court had agreed with much of the factual evidence about climate impacts on the Torres Strait Islands but the case still failed. In respect of negligence law, it found the federal government did not owe Torres Strait Islanders a duty of care to protect them from global heating.
One question ringing in the aftermath: what is the road ahead for people who want Australian governments held to account for their actions related to the climate crisis?
Sue Higginson, an upper house Greens MP in New South Wales, is an environmental lawyer and former chief executive and principal solicitor of the Environmental Defenders Office who has litigated in high-profile climate cases.
“The judge made clear, the factual basis here is very real and live but he was limited and constrained by decades of laws around duty of care that don’t factor in climate change and the future,” Higginson said.
“So we are unfortunately in a self-serving circle of inaction on climate change.”
Higginson said governments could act on the judgment by taking steps to fill the void.
“Actually legislate, create a legal instrument that actually makes climate action a legal obligation, a legal reality that is enforceable where governments are holding themselves to account,” she said.
“It’s likely until we see such action, we will continue to see people take to the streets and demand that action directly.”
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Justice Michael Wigney’s judgment found that in respect of negligence law, he was bound by past decisions by appeals courts that found matters involving “high or core government policy” were to be decided through political processes.
He said unless the law changed, people and communities seeking damages or other relief for harm suffered as a result of government policies on climate change had to rely on public advocacy, protest and the ballot box for recourse.
A change in law would require either legislation by government or “the incremental development or expansion of the common law by appellate courts”.
Dr Riona Moodley, a lawyer and a lecturer and researcher at the University of New South Wales’s Institute for Climate Risk and Response, said while Tuesday’s decision presented an obstacle for anyone seeking redress for climate harm through the law of negligence, it was not necessarily insurmountable.
She noted the judgment had explicitly left one possibility open: “If this matter went back to an appeals court, they would have the power to revisit the current state of the law and decide to change it.”
Moodley said the decision was also unlikely to stem the tide of Australian climate litigation calling for government accountability and that courts and Australian common law “will need to evolve to adapt to addressing climate change and the impacts of it”.
Dr Wesley Morgan, a fellow of the Climate Council and colleague of Moodley’s at the Institute for Climate Risk and Response, said Australia had seen a series of high-profile unsuccessful climate litigation cases in recent years, such as the Living Wonders case and the Sharma proceedings.
But he said the dam wall would eventually have to break.
“This is how legal norms change. When they are challenged repeatedly by those who are impacted by the deepening climate crisis, legal norms will need to shift to meet that need,” Morgan said.
Isabelle Reinecke is the head of Grata Fund, a charity that supported the lead plaintiffs, Uncle Pabai Pabai and Uncle Paul Kabai.
Reinecke said she felt “disappointed in our legal system” after the outcome, but was encouraged by the strength of the factual findings, which could form the basis for future litigation – whether by appeal in this case or in other cases.
“Our cause is just and the court didn’t say that it’s impossible,” Reinecke said.
“I think while the judge said that the law does not currently support the Uncles’ claims, that does not mean that the law can’t or won’t change.
“It has changed before.”
She flagged cases that had lost and won on appeal, or paved the way for subsequent wins – “for example the Gove land rights case that came before [Eddie] Mabo’s case”.
Reinecke said while Wigney’s remarks about protest and the ballot box were true, people advocating for climate change action had tried those measures for decades.
“I don’t think it’s correct or good enough for a court to say strong words of ‘This is an existential threat to humanity but you have to talk to parliament,’” Reinecke said.
“What is the point of a court if it isn’t to hold those responsible for an existential threat to humanity accountable in a democracy?”
