Torres Strait Islander Elders are heartbroken by Tuesday's Federal Court loss in the Australian Climate Case – but they are not defeated and have vowed to fight on.
Worried about the alarming effects climate change and rising sea levels were having on their islands, in 2021 Uncle Pabai Pabai and Uncle Paul Kabai launched court action against the Commonwealth, claiming the Australian Government had failed in its duty of care to them by not taking strong enough action to curb carbon emissions.
On Tuesday Federal Court Judge Michael Wigney ruled against the Uncles, saying the law, as it stands, wasn't able to support their case.
But the judge was sympathetic to the Islanders' argument that the Australian Government had not taken the best available science into account when it set emissions reduction targets in 2015, 2020 and 2021 and that their homelands face a bleak future due to human-induced climate change.
Uncle Pabai told NITV they were disappointed by the decision but they are looking to the next opportunity to fight for their islands.
"I'm still feeling emotional, because when I was looking at all the families around us, they supported us and gave us the encouragement to go through this journey," he said.
Uncle Paul said he was feeling overwhelmed but the decision wasn't the end of their journey, just one step on it.
"We've taken the judge to see what's happening on our islands," he said.
"The Australian Government is not doing enough, they are not listening to us.
"Our young generation is telling them it is time now to have our say to the government.
"The world is already watching us now and they know about how our islands are sinking – we will be climate change refugees."
Uncle Pabai said his main focus during the case had been his two-year-old son, and that was who he would keep fighting for.
"For the love of my son and for all the people in our community in the Torres Strait, for the bushfire and flood survivors, the farmers, kids and grandkids," he said.
"I’ll keep fighting and will sit down with my lawyers and look at how we can appeal.”
Lawyers who worked on the Uncles' case, Brett Spiegel and Isabelle Reineke, both told NITV that, while the judgment was disappointing, there were positives to be taken from the case.
"I have very mixed emotions," Mr Spiegel said.
"On the one hand we were encouraged that his Honour recognised that there is an existential threat to the Torres Strait and that the Government's actions have been insufficient and not connected to science ...
"It was disappointing that he ultimately reached the conclusion that didn't have the power as a single judge at the trial level to be able to find a duty of care."
Ms Reineke pointed out that one of the Uncles' heroes, Eddie Koiki Mabo, had losses in court until the High Court decision that bears his name – Mabo No. 2 – overturned the myth of terra nullius (land belonging to no-one) and recognised that the Meriam people had land rights.
"Often, the system takes multiple steps, and today is definitely just the next step in a pathway to justice," she said.
"The Uncles really stand on the incredible legacy of Uncle Koiki and other Torres Strait Islander leaders like him.
"They are confident that they can continue to pursue justice, both within court and hopefully achieve, ultimately, a victory like Uncle Koiki did in the High Court – and, if not in the court, on the streets."
Following the decision Climate Change Minister Chris Bowen and Indigenous Australians Minister Malarndirri McCarthy released a statement saying they understood the Torres Strait Islands are vulnerable to climate change and that the Commonwealth was considering the judgment.
"Where the former Government failed on climate change, the Albanese Government is delivering – because it’s in the interest of all Australians," the statement said.
"That’s why we’re continuing to turn around a decade of denial and delay on climate, embedding serious climate targets in law and making the changes necessary to achieve them."
But Dr Aunty McRose Elu, a Senior Torres Strait Elder who gave evidence during the case, accused the Albanese Government of hypocrisy, referencing Environment Minister Murray Watt's recent provisional approval of Woodside's North-West Shelf gas project.
"I understand that since the decision Mr Bowen has already said he understands the impacts of climate change and he thinks the government is delivering," she said.
"I say he's a liar.
"Come and sit with me on Saibai and look those kids in the eyes and you tell them that your government is doing enough when they have 20 years left in their islands.
"Your government just approved an extension of another massive fossil fuel project in Western Australia – that will drown us.
"Stop lying to us."
Aunty McRose said she had a message for the Prime Minister, Minister Bowen and Minister Watt:
"We see you; how dare you!" she said.
"Wake up, the world is watching, our fearless ancestors are watching.
"We will cry together and, after crying, together we will rise.
"We will not fail, we will have that victory."
