On October 26, 2021, Wadhuam Paul and Wadhuam Pabai, First Nations’ leaders from the Gudamalulgal nation of the Torres Strait Islands, filed a case challenging Australia’s failure to cut emissions and asserting that the government’s inaction will force their communities to migrate to new areas. Torres Strait Islander communities face an existential threat due to rising sea levels from climate change. If global temperatures rise more than 1.5oC many of the islands will become uninhabitable. The sea level in the Torres Strait (also known as Zenadth Kes) has risen about six centimeters over the past decade. Without deep emissions cuts, sea levels are projected to rise to a meter or more above present day levels by 2100. The plaintiffs claim that as the ocean rises it will flood and destroy their irreplaceable cultural heritage and sacred sites. This includes burial sites, locations that contain human remains and places that have a spiritual significance. The plaintiffs present scientific evidence proving that the following climate change-induced impacts already threaten their native title rights and Ailan Kastom, the Torres Strait people's distinctive customary culture: (i) higher temperature, (ii) ocean acidification and higher ocean temperature, (iii) sea-level rise and associated flooding and erosion, (iv) increase in the frequency, size and/or intensity of extreme weather events such as terrestrial and marine heatwaves, severe storms, and flooding, (v) harm and destruction of terrestrial and marine ecosystems and non-human species - coral reefs, and (vi) harm to human health. A continued failure to act will result in the triggering of so-called tipping points making the Torres Strait becoming uninhabitable. The applicants plaintiffs allege that the following climate change-induced impacts already threaten their native title rights and Ailan Kastom, the Torres Strait people's distinctive customary culture: (i) higher temperature, (ii) ocean acidification and higher ocean temperature, (iii) sea-level rise and associated flooding and erosion, (iv) increase in the frequency, size and/or intensity of extreme weather events such as terrestrial and marine heatwaves, severe storms, and flooding, (v) harm and destruction of terrestrial and marine ecosystems and non-human species - coral reefs, and (vi) harm to human health. A continued failure to act is likely to result in the triggering of so-called tipping points making the Torres Strait uninhabitable. The applicants allege that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their culture and traditional way of life, and their environment from harms caused by climate change, and that the government has breached this duty as the targets are not consistent with the best available science. Additionally, they argue that the government has breached this duty, including by failing to identify an emissions reduction target and take the as the targets are not consistent with the best available science and implement such measures as are necessary to reduce Australia’s emissions consistent with that target. Pursuant to the Torres Strait Treaty, Australia is indeed require to take legislative and other action to protect and preserve the marine environment in and in the vicinity of the protected zone, and/or take measures for the prevention and control of pollution or other damage to the marine environment from all sources and activities under its jurisdiction or control. The applicants seek an order requiring the federal government to reduce greenhouse gas emissions and prevent the inundation of islands in the Torres Strait through the implementation of necessary measures to protect their land and marine environment, cultural and customary rights.

Key environmental legal questions:

Whether the Australian government owes a duty of care to Torres Strait Islanders to take reasonable steps to protect Torres Strait Islanders, their traditional way of life and the marine environment in and around the Torres Strait Islands from climate change impacts. Further, whether the Australian government has breached the alleged duty by failing to implement measures to reduce Australia’s greenhouse gas emissions.