By Indigenous affairs editor Bridget Brennan and the Specialist Reporting Team's Kirstie Wellauer for ABC
For Paul Kabai and Pabai Pabai, climate change is a daily reality creeping ever higher at their Torres Strait doorstep.
Pabai Pabai (L) and Paul Kabai (R) filed a landmark lawsuit aimed at forcing the government to protect them from climate change through deeper cuts to carbon emissions. Photo: AFP or licensors
Rising sea waters on their islands have pushed them to take an extraordinary step: The pair has just launched legal action against the federal government, in a case never before seen in the Australian courts.
They are suing the Commonwealth, arguing the government has a legal obligation to prevent the loss of their communities to climate change.
"We will lose our culture, our identity, we'll lose everything," Kabai said.
"We'll have nothing. We're not going to survive if the government is not going to help us."
On their low-lying islands, between the mainland and Papua New Guinea, sea levels have been rising due to global warming, and salt water has already infected many of the gardens which were once abundant food sources.
Kabai, a father of eight, has lived on the island of Saibai his entire life, passing down culture, tradition and a way of life he now fears could disappear.
"The families that have stayed here, that is where their heart and souls are," he said.
"We are cultural people, we are worried about the sea level rising.
"Maybe one day we'll be under water."
Kabai said he was deeply worried that his children and grandchildren would be forced off the island, becoming "refugees on our own land".
"There will be no-one to teach them about their culture and to show them the proper way - to show the culture from generations before," he said.
On the adjacent island of Boigu, Pabai has been raising his family, as his ancestors have done before him.
However, so much has changed in recent years, he said, he does not need a scientific report to understand its impact: Global warming has unfolded before his eyes.
"I know that because I've seen that. I've looked at that. I've got my evidence of that. It's getting worse and worse," he said.
Case filed in Federal Court
It's a complex case, but Kabai and Pabai's legal team will argue that the court should require Australia to reduce greenhouse gas emissions to a level that will protect Torres Strait Islanders from harm.
Their case was filed this week in the Federal Court in Victoria.
For many of the traditional owners of the archipelago's islands, the effects of climate change are a daily occurrence, with coastal erosion, storms, floods and king tides all worsening.
As Australia prepares to front the international community at the United Nations COP26 summit in Glasgow, Kabai and Pabai said they have been forgotten by the government.
"What about us here?" Pabai said.
"The role I'm playing now is important in saving my people. For the next generation to come, I don't like to see Boigu under the water."
The landmark class action is being supported by the public interest advocacy group the Grata Fund, legal firm Phi Finney McDonald and the Dutch NGO Urgenda.
Phi Finney McDonald's principal lawyer, Brett Spiegel, said the case would explore how the Australian government had failed Kabai and Pabai's communities.
"Australia's record on climate change is one of the worst of all industrialised nations," Spiegel said.
"Paul and Pabai are following in the steps of Eddie Mabo. They're fighting for Torres Strait Islanders, for First Nations people and for all Australians.
"What we're talking about here is the government setting targets which are reasonable, taking steps which are reasonable, and no longer irrationally ignoring the problem."
Citizens win similar case in the Netherlands
This class action is being modelled on successful climate litigation in the Netherlands.
Environmental experts behind that case, the Urgenda Foundation, are also advising Kabai and Pabai's legal team.
In 2015, 886 Dutch citizens won their case against the Dutch government, arguing it had a legal responsibility to protect them from climate change.
The Dutch government was ordered to cut its greenhouse gas emissions by at least 25 percent by the end of 2020. An appeal by the Dutch government was also rejected.
London-based international climate change lawyer Tessa Khan was involved in the case against the Dutch government and said it had been "transformative".
"The Dutch government shut down coal-fired power plants," she said.
"It slashed the country's emissions at a national level by a significant amount. It's invested billions of euros in a range of other carbon-cutting measures.
"It has completely transformed the way that people talk about climate change in the country."
She said the Federal Court needed to look at whether the steps the government was planning to take in the years to come to mitigate climate change "were sufficient to protect First Nations communities".
Grata Fund executive director Isabelle Reinecke said she hoped the Australian class action would have a similar impact, to avoid what Kabai and Pabai fear could be a "cultural genocide".
"It's a complicated case. It's a big case. But it's worth a shot because its impact is undeniable," Reinecke said.
"We know that, if we don't do anything, the Torres Strait Islands are going to disappear forever."
Net zero by 2050 'too late'
Climate experts say the effects of climate change on the 17 inhabited islands in the Torres Strait are inevitable and are expected to worsen over the next 50 years.
Rising sea levels pose the biggest threat, with increased tropical cyclones, storm surges, erosion and heavy rainfall also predicted to intensify.
Australian National University Emeritus Professor Will Steffen said reducing emissions was essential to ensuring the survival of the Torres Strait Islands, its people and culture.
"If we don't get our emissions down rapidly by mid-century, then it's a pretty horrific future for Torres Strait Islanders," he said.
Australia currently has a 2030 target to reduce greenhouse gas emissions by 26-28 percent of 2005 levels, which has been widely criticised as inadequate.
Professor Steffen has urged Australia to aim higher and wanted to see a more ambitious target of at least a 50 percent reduction by 2030.
He said this target was needed to ensure the global rise of temperatures remained near 1.5 degrees Celsius, which would at least mitigate some of the effects of climate change in the second half of this century.
"Net zero by 2050 is too late," Steffen said.
"We have the renewable resources to be able to do this, and this is what we must aim for if we want to do the best we can to protect the future of the Torres Strait Islands."
The ABC has contacted Minister for Energy and Emissions Reduction Angus Taylor and Minister for Indigenous Australians Ken Wyatt for comment.
- ABC
