Last week’s Federal Court judgment in the case brought by Torres Strait Islanders over the impact of climate change found not only that the Australian Government does not owe a duty of care to protect the islands from climate change but also that there ought to be no compensation for cultural loss.
Applicants Uncle Pabai and Uncle Paul sought legal protection of the cultural and customary rights of Torres Strait Islanders, on the basis of a “distinctive customary culture, known as Ailan Kastom, which creates a unique spiritual and physical connection with the Torres Strait Islands and surrounding waters”.
It was for Justice Michael Wigney to reckon with climate change’s harm to Ailan Kastom, to thousands of years of cultural connection. “While I have some considerable sympathy for the applicants’ contention that Ailan Kastom should be recognised as capable of protection by law,” Wigney wrote, “I do not consider that it is open to me, sitting as a single judge of this Court, to recognise, apparently for the first time, that participation in, or enjoyment or observance of, customs, traditions, observances and beliefs, can constitute or comprise rights or interests capable of protection by law”.
While the decision makes sense within the constraints of the Australian legal system, it also underscores the law’s shortsightedness and ultimate betrayal of the aspirations of Indigenous people. It may also have significant negative warping effects on future climate change litigation and policy for all of us.
A familiar legal trap
The judgment acknowledged that climate change had a disproportionate impact on Indigenous peoples, particularly in the Torres Strait. It also acknowledged that there is a real risk of loss of culture. But, in finding that there is no compensable damage, it undermines its own finding on culture.
This type of trap is common to cases involving Indigenous peoples. The legal system insists that Indigenous peoples prove their culture (and cultural distinctiveness) in order to assert rights, to even be seen by the law. But then the legal system leaves culture at the door when deliberating cultural harm.
When Indigenous peoples are before the legal system for consideration, their culture often means at best just a ticket to admission that is mostly inconsequential to how we treat them.
The cultural needs of Indigenous peoples get outweighed by the economic needs of an unspecified majority, and we go ahead with mining on Indigenous lands.
At worst, culture can count against Indigenous peoples. For instance, we allow ourselves, as non-Indigenous people, to scrutinise whether an Indigenous person is “sufficiently traditional”, “authentic”, or some similarly offensive and gate-keeping term.
The effect of these uses of culture in the legal system can be devastating in the medium- to long-term.
Policy meant to protect Indigenous peoples, or any other population for that matter, stops looking after culture, and just looks after people’s immediate survival.
As we do that, culture, the glue that holds society together weakens and washes off. Social cohesion disappears, and communities have a harder time bouncing back from increasingly frequent disasters.
Of course, immediate survival is very important. People need food, shelter, healthcare. But they also need to feel human, feel connected to each other – and culture is the best pathway to do so.
It is not an “either / or” question. We should not have to choose between culture and immediate survival. But the legal system’s blind spots when it comes to the consideration of culture sends that message – or at least allows policy to be developed in spite of culture.
Culture and community
These effects exist not only in Indigenous communities, but across the board. Massive disruption – whether caused by climate change, forced migration, or conflict – unsettles human societies of all types, including ours. When we welcome forced migrants and refugees to Australia, for instance, everyone benefits when their cultural practices are supported. Newcomers settle in more quickly, find community, and are less traumatised, therefore needing less government support over time and enriching the broader Australian culture and society.
Where there is a wrong, there ought to be law. Where there is law, there ought to be a remedy. Yet somehow, our legal system attempts to deal with the wrong with the law, but neglects to offer a remedy.
When delivering the Torres Strait Islander case judgment, Justice Wigney commented that there “could be little if any doubt that the Torres Strait Islands and their inhabitants face a bleak future if urgent action is not taken”. The judge considered that urgent action lay in the realm of government rather than the judiciary.
The lack of a judicial and legal remedy leaves the system incomplete, abandoning societies and social cohesion. In doing so, we are not only undercutting Indigenous peoples, we are also failing ourselves. In the words of Uncle Pabai, “I can’t imagine being forced to leave Boigu because this island is me and I am this island.”
