Climate change is everyone's enemy. However, as Gavin Choong of the Grata Fund elucidates, some First Nations and Torres Strait Islander communities are directly threatened by rising sea levels.
While spending the majority of his adult life on mainland Australia, Eddie Koiki Mabo’s cultural identity remained deeply rooted in Meriam custom even from a young age. As a child, Mabo was greatly influenced by his primary school teacher, Robert Miles, who not only taught him to speak fluent English, but encouraged his students to speak their own languages in class. Importantly, during his teenage years, Mabo was taught the laws of Malo as well as customary dances and songs, some of which played an important role in his landmark legal case.
It was Mabo’s mastery of two cultures - his confident use of language, understanding of mainland politics, and traditional knowledge - which culminated in his successful claim for land ownership in Mabo v Queensland (No 2). Here, the High Court overturned the legal fiction of terra nullius, as well as paved the way to a native title framework and greater land rights for First Nations people across the country.
The Queensland Government at the time was a fierce opponent to First Nations land claims, even going as far as enacting legislation that attempted to retrospectively extinguish any land rights that the Meriam peoples may have had. It was for this reason the case spanned a decade, with Mabo tragically passing away months before the historic finding was announced.
Thirty years on, in the nearby Guda Maluyligal Nation and across the Torres Strait, rising sea levels are creeping towards homes, poisoning fertile soil, and submerging ancestral sites. Land rights fought for decades ago are being eroded due to irreversible climate change.
Left with no other choice, Uncle Pabai and Uncle Paul, Traditional Owners of Boigu Island and Saibai Island respectively, have turned to the courts to protect their communities from disaster. They argue the Commonwealth has unlawfully breached its duty of care to protect the people, islands, and culture of the Torres Strait. This arises in part from the Torres Strait Treaty between Australia and Papua New Guinea, signed in 1978, which established a Protected Zone to preserve the ‘‘traditional way of life and livelihood of traditional inhabitants.” Now, climate change is threatening many Torres Strait Islanders’ way of life and may render some islands uninhabitable.
To remedy this breach, Uncle Pabai and Uncle Paul are seeking an order from the court requiring the Government to do more to prevent this harm to their communities.
"Climate change is already here: storm surges are getting worse, and the seasons have changed as well. Our gardens now get flooded with salt water, and our homes, cemetery, school, and community centre are all at risk. There are also a lot more mosquitoes, so the risk of catching malaria is greater"
- Uncle Paul Kabai, applicant in the Australian Climate Case (pictured right)
For decades, scientists have agreed that sea level rise is accelerating, and at twice the global average in the Torres Strait. When will the Australian Government take urgent action to protect Uncle Pabai and Uncle Paul’s island homes? It is a race against the clock, and the time for action is now. If the Government forces First Nations people in the region to wait a decade like Mabo, the fate of their islands would be sealed.
This case has been developed in partnership with the Urgenda Foundation, a team of international legal experts who have a proven record of successful climate change litigation. In 2019, in determining a legal challenge brought by Urgenda, the Dutch Supreme Court found the “Government of the Netherlands [had] binding legal obligations, based on international human rights law,” to undertake greater reductions in the emissions of greenhouse gases.
As a result of the ground-breaking case, the Netherlands now has some of the strongest climate policies in the world. Urgenda’s case has become an inspiration for people around the world fighting for climate action through the courts.
Uncle Pabai and Uncle Paul are represented by class action firm Phi Finney McDonald. This case is supported by Grata Fund, a not-for-profit that removes the financial barriers that prevent public interest cases like this one from going ahead and supports communities to advocate for their legal rights.
Mabo's case was successful because of his leadership and tenacity, as well as support from non-indigenous allies (such as Ron Castan QC) and their mobilisation of significant resources required for the decade-long legal challenge.
Uncle Pabai and Uncle Paul are also calling for support from the broader community for their case. Since the case was filed, people around the country are standing behind Uncle Pabai and Uncle Paul by submitting stories about the climate impacts they are witnessing in their own communities, from bushfires to floods, coastal erosion, heatwaves, mental health impacts and seasonal changes. By sharing their stories, Australians are showing the Government that climate change is already at our doorstep, affecting people around the country. You can join the movement by sharing your climate story here.
Find out more about the case and how you can stand behind Uncle Pabai and Uncle Paul at australianclimatecase.org.au
Gavin is a fifth-year law student at Monash University studying a Bachelor of Laws (Honours) and Biomedical Science. Currently a Volunteer Associate at Grata Fund and global youth spokesperson at Amnesty International, Gavin is a passionate climate justice advocate. He hopes to raise awareness surrounding the Australian Climate Case through his work.