WEBVTT - ‘Mabo didn’t win the first time’: Torres Strait Islanders will continue climate fight

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<v Speaker 1>Hi.

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<v Speaker 2>I'm Ruby Jones and you're listening to seven am. The

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<v Speaker 2>Federal Court has dismissed a landmark class action brought by

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<v Speaker 2>two men, paulk Bye and Bye Bye, two torrest Rate

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<v Speaker 2>Islander men, who argued the Commonwealth owed them a duty

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<v Speaker 2>of care to protect their homelands from climate change, even

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<v Speaker 2>while recognizing the torrest Rate Islands are being ravaged by

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<v Speaker 2>human induced climate change. Justice Michael Wigney said the law

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<v Speaker 2>provides no real or effective legal avenue for communities being

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<v Speaker 2>swallowed by rising seas, but those bringing the case insists

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<v Speaker 2>losing is not an option and they'll keep fighting. Today

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<v Speaker 2>Journalist and contributor to the Saturday Paper Ben Abdangelo on

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<v Speaker 2>how a court recognized the crisis but left the torrest

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<v Speaker 2>Rate to face it alone, and what the government's defense

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<v Speaker 2>reveals about its climate stance. It's Thursday seventeen, So, Ben,

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<v Speaker 2>you were watching as Justice Whigney handed down his decision

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<v Speaker 2>in this case just a couple of days ago. So

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<v Speaker 2>tell me about what it was that he said as

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<v Speaker 2>he made his decision public.

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<v Speaker 1>Well, Justice Michael Wigney ultimately dismissed the action, not because

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<v Speaker 1>there was no merit in the uncle's factual allegations, but because,

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<v Speaker 1>as he said, the common law of negligence in Australia

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<v Speaker 1>was not a suitable vehicle through which the applicants could

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<v Speaker 1>obtain effective relief. So Justice Whigney, when he was handing

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<v Speaker 1>down his decision times felt profoundly at pains I think

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<v Speaker 1>with the verdict and the confines of the law in

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<v Speaker 1>which he was adjudicating within, but also crucially in his findings,

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<v Speaker 1>said that the loss of fulfillment of culture, the customs,

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<v Speaker 1>observances and beliefs, either by an individual or collectively by

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<v Speaker 1>a community, is also not currently a recognized category of

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<v Speaker 1>actionable damage in Australia, and while he says that he

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<v Speaker 1>has considerable sympathy for the uncles that it should be

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<v Speaker 1>protected by law, he ultimately said that his hands were

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<v Speaker 1>effectively tired and that it will be inappropriate for a

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<v Speaker 1>single judge to recognize this for the very first time.

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<v Speaker 1>So the Justices verdict was fascinating in the sense that

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<v Speaker 1>he fundamentally agreed with the facts of the uncle's cases.

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<v Speaker 1>But where the Commonwealth succeeded was not because they had

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<v Speaker 1>the best argument, but because the law in the way

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<v Speaker 1>that it is written gives people like the Torres Straightlanders

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<v Speaker 1>no legal recourse or respite. That itself, I think, from

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<v Speaker 1>my perspective, paints a pretty dire picture. I think for

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<v Speaker 1>the Torreshitlander people who are not only a microcosm or

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<v Speaker 1>a small fraction of the Australian population, but are also

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<v Speaker 1>confronted with a clock that is rapidly ticking.

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<v Speaker 2>Can you tell me more about those men who brought

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<v Speaker 2>the case, why did they do it and what's the

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<v Speaker 2>case that they made? So?

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<v Speaker 1>Uncle Paul Pabai and Uncle Paba pabaei are traditional owners

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<v Speaker 1>from Sabai Island and Boygu Island, which are part of

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<v Speaker 1>the Torres Strait. I suppose in speaking to the uncles

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<v Speaker 1>and some of the community members, it's really evident that

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<v Speaker 1>they are on the brink of no return. Their homelands

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<v Speaker 1>in which they are born out of and belong to

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<v Speaker 1>are at extreme risk of being engulfed by rising seas

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<v Speaker 1>in less than thirty years, and moving inland is really

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<v Speaker 1>simply just not an option.

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<v Speaker 3>The border running through Vimagsglo hopes and all the stuff's

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<v Speaker 3>going to put the hand.

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<v Speaker 1>Pro community Sibi and Boygu Islands slivers of lands that

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<v Speaker 1>exist just above sea level. They're bordered by beautiful mangroves

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<v Speaker 1>and shadowed by blue waters, and forcibly relocating these communities

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<v Speaker 1>is not climate adaptation, as politicians colloquially referred to, but

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<v Speaker 1>another act of dispossession. And they bought the action against

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<v Speaker 1>the Commonwealth in twenty twenty one and alleged that the

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<v Speaker 1>Commonwealth owed them a legal duty of care to protect

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<v Speaker 1>them from the foreseeable harms of climate change, and that

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<v Speaker 1>the Commonwealth breached their duty of care by failing to

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<v Speaker 1>adequately reduce greenhouse gas emissions in line with the best

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<v Speaker 1>available science, and in doing so has caused them significant

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<v Speaker 1>loss and damage.

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<v Speaker 2>How did the Commonwealth respond?

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<v Speaker 1>So the Commonwealth anchored its case around the precedents set

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<v Speaker 1>in the recent Environment Minister versus Sharma sixteen, which was

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<v Speaker 1>a lawsuit that was bought by student climate activists who

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<v Speaker 1>argued that the government had a duty of care. They

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<v Speaker 1>were initially successful in their original case, but it was

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<v Speaker 1>overturned and dismissed upon appeal not too long after. So

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<v Speaker 1>that is the specific judgment and precedent that the government

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<v Speaker 1>hitched its wagon too throughout the four years of litigation.

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<v Speaker 1>But pertinently it argued that no legal duty of care exists.

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<v Speaker 1>It argued that the Toris Schatlanders can protect themselves from

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<v Speaker 1>the impacts of climate change. They argued that it is

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<v Speaker 1>reasonable to not base climate targets on climate science, and

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<v Speaker 1>importantly that there should be no basis for compensating the

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<v Speaker 1>applicants for losing their way of life due to the

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<v Speaker 1>impacts of climate change.

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<v Speaker 2>Okay, so the government ultimately won its case. But as

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<v Speaker 2>you've said, the judge recognized that the Torres Red Islands

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<v Speaker 2>are feeling the effects of human induced climate change, ravaged

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<v Speaker 2>by it. Is it unusual for a judge to make

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<v Speaker 2>big picture statements like this about climate change, and I

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<v Speaker 2>suppose inadequacy of the law to be able to address

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<v Speaker 2>that problem.

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<v Speaker 1>It's a great question. I mean, the judge was really

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<v Speaker 1>clear in the circumstances that are confronting the Tory standers.

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<v Speaker 1>Throughout the four years of hearings, he spent time up

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<v Speaker 1>on sideby on boygu Islands, and you know, he witnessed

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<v Speaker 1>the ways in which the community was being affected. He

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<v Speaker 1>saw the burial grounds that are being impacted by the

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<v Speaker 1>rising seas, how the gardens that harvest traditional foods forever

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<v Speaker 1>and a day are starting to also be impacted. So

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<v Speaker 1>he got a glimpse first hand at the really dire

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<v Speaker 1>circumstances that confront the Torris Stolanders, And in his finding,

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<v Speaker 1>you know, the Justice was really clear that his words were,

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<v Speaker 1>climate change poses an existential threat to the whole of humanity.

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<v Speaker 1>I think another key call out from the case was

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<v Speaker 1>that the Justice did find that the Commonwealth emissions reductions

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<v Speaker 1>targets that they set in twenty fifteen, twenty twenty and

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<v Speaker 1>twenty twenty one weren't underpinned by the best available side giants,

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<v Speaker 1>which to hear that said in such a crisp, specific

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<v Speaker 1>way in a federal court should leave no doubt in

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<v Speaker 1>the way that climate policy has been created in this

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<v Speaker 1>country over the last decade or so.

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<v Speaker 2>So told me a little bit more about the reaction

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<v Speaker 2>than from the men who brought this case when they lost.

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<v Speaker 1>The reaction has been a real cocktail of ingredients many

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<v Speaker 1>things at once. The community, the plaintiffs, they are devastated,

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<v Speaker 1>they're anguished, they're furious, they're frustrated, but also really interestingly,

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<v Speaker 1>throughout the conversations, and I don't think which has been

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<v Speaker 1>picked up by the media just yet, is the optimism

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<v Speaker 1>and the determination to continue fighting because, as the uncles

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<v Speaker 1>have told me, losing is just not an option.

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<v Speaker 3>Not an option.

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<v Speaker 1>We'll think about ourn actual risk to come because all

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<v Speaker 1>all islands, I think you freshtopa.

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<v Speaker 2>Badly.

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<v Speaker 3>Yeah make waiting.

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<v Speaker 1>The global I mean or the climate says, we just

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<v Speaker 1>get worseer. Whilst there is no clarity around what the

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<v Speaker 1>next steps are because the judgment was just handed down

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<v Speaker 1>on Tuesday, it's evident from the conversations that I've had

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<v Speaker 1>with the legal team, you know, with the plaintiffs that

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<v Speaker 1>you know, over the coming days, I'll let the dust settle.

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<v Speaker 1>They they'll take a clear eyed look at the judgment

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<v Speaker 1>itself and then chart a path forward to you know,

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<v Speaker 1>arrest control of greenhouse gas emissions that are putting their

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<v Speaker 1>entire existence at an existential threat.

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<v Speaker 2>After the break what would have to change for a

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<v Speaker 2>duty of care to finally stand up in court? Then,

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<v Speaker 2>after Justice Whitney made his decision on this case, how

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<v Speaker 2>did the federal government respond? Because climate change is undeniably

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<v Speaker 2>affecting the torrest Right Islands, so was that acknowledged.

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<v Speaker 1>Well in a joint statement released straight after the verdict

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<v Speaker 1>was handed down, Minister Chris Bowen and Minister Malander and

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<v Speaker 1>McCarthy said that unlike the former Liberal government, we understand

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<v Speaker 1>that the Torres Strait Islands are vulnerable to climate change

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<v Speaker 1>and many are already filling the impacts. Where the former

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<v Speaker 1>government failed on climate change, the Albanezy government is delivering

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<v Speaker 1>because it's in the interest of all Australians. But crucially

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<v Speaker 1>in the statement, it also says the Albanese Labor Government

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<v Speaker 1>remains committed to both acting to continue to cut emissions

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<v Speaker 1>and adapting to climate impacts we cannot avoid. So I

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<v Speaker 1>think the statement that they have released it's worth noting that,

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<v Speaker 1>you know, they've effectively just wanted to communicate that they

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<v Speaker 1>were better than the alternative, which, if you were to

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<v Speaker 1>read the judge's perviscerating verdict and the in which that

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<v Speaker 1>he confronted the lack of efficacy of emissions reduction targets

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<v Speaker 1>over the prior governments, it doesn't really take much to

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<v Speaker 1>be better than the coalition. But I think what's also

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<v Speaker 1>really interesting is the statement doesn't say that you know,

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<v Speaker 1>the government is going to pursue changing the law so

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<v Speaker 1>vulnerable communities that are being exposed have an avenue for

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<v Speaker 1>redress and recourse.

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<v Speaker 2>Yeah, you said that those who brought this case, some

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<v Speaker 2>of them are talking about continuing to fight. What avenues

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<v Speaker 2>do they have?

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<v Speaker 4>Well.

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<v Speaker 1>In the immediate aftermath of the judges verdict, the principal

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<v Speaker 1>lawyer for the uncle's team, Brett Siegel, said that they

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<v Speaker 1>would review the verdict with a fine tooth comb and

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<v Speaker 1>over the coming days and weeks look to identify potential

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<v Speaker 1>avenues and pathways.

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<v Speaker 3>Forward view that the course is obviously taken, that it's hands,

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<v Speaker 3>in its view are tied, and obviously.

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<v Speaker 4>We don't share that vida.

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<v Speaker 3>And yeah, so it really is a question of just

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<v Speaker 3>reviewing it and then figuring out how to approach that

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<v Speaker 3>with a higher court.

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<v Speaker 1>The uncles took a lot of inspiration, you know, broadly

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<v Speaker 1>from Eddie Koiquimavo and his ability to overturn the live turnalitists.

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<v Speaker 1>But the strategy that underpinned the legal case against the

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<v Speaker 1>government was informed by another successful Dutch case. Since that

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<v Speaker 1>case was adjudicated in twenty nineteen, other plaintiffs in Belgium,

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<v Speaker 1>in France and Germany have followed suit and successfully sued

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<v Speaker 1>their governments along similar lines, and those lines have meant

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<v Speaker 1>that the government has had to slash greenhouse gas emissions

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<v Speaker 1>in line with the best available science because they do

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<v Speaker 1>have a duty of care to their citizens. So that

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<v Speaker 1>case in twenty nineteen has triggered in the Netherlands a

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<v Speaker 1>major transition away from the fossil fuels that were the

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<v Speaker 1>lifeblood of their economy, and that includes closing a major

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<v Speaker 1>coal plant. So the case that the Uncle's bought is

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<v Speaker 1>was not without precedent. But in the coming weeks and

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<v Speaker 1>months there will be you know, a clearer insight into

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<v Speaker 1>how they can come back and you know, and turn

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<v Speaker 1>what was a pretty catastrophic finding into something positive and

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<v Speaker 1>something of substance.

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<v Speaker 2>Right, And I suppose the question is whether or not

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<v Speaker 2>the legal system ultimately has the capacity to address something

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<v Speaker 2>like the threat of climate change.

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<v Speaker 1>Yeah, the legal team for the uncles was really clear

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<v Speaker 1>on that that you know, throughout history, the law has

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<v Speaker 1>continually evolved, and I think, you know, to contextualize that

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<v Speaker 1>Eddie marbo overturned the erroneous live Terranalius that took far

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<v Speaker 1>too long. But I suppose it does show in that

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<v Speaker 1>context that with time, you know, the law or fundamentally

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<v Speaker 1>has to evolve and change to be consistent with the

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<v Speaker 1>contemporary times that it exists within.

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<v Speaker 4>I think, you know the idea that you know marlbo

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<v Speaker 4>didn't with the first time, And these things often can

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<v Speaker 4>be iterative and frustratingly slow processes. But our belief is

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<v Speaker 4>that the hoards can address something as monumental and threatening

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<v Speaker 4>as climate change, because in a way it has to.

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<v Speaker 4>Our hope is very much that you know, there's glude

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<v Speaker 4>and there's not to be taken from misjudgment. But this

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<v Speaker 4>is just the first step.

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<v Speaker 2>I suppose.

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<v Speaker 1>The big question is you know how that iteration and

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<v Speaker 1>evolution will take place, and you know, super importantly for

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<v Speaker 1>people like the Taysha Islanders who have a clock that

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<v Speaker 1>weren't stop, you know when will that happen? Because, as

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<v Speaker 1>Justice Wigney said, you know, climate change poses an existential

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<v Speaker 1>threat to the whole of humanity, so it fundamentally needs

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<v Speaker 1>to evolve to be commensurate with those challenges and the

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<v Speaker 1>context of our times.

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<v Speaker 2>Well, Ben, thank you so much for your time.

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<v Speaker 1>Thank you.

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<v Speaker 2>You can read Ben abbot Angelo's full report in this

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<v Speaker 2>weekend's edition of the Saturday Paper. Also in the news today,

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<v Speaker 2>Prime Minister Anthony Alberesi has been forced to clarify Australia's

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<v Speaker 2>position on Taiwan's independence following a face to face meeting

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<v Speaker 2>with President Chi Jinping. After their meeting in Beijing, Chinese

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<v Speaker 2>state media reported a readout of their conversation that said

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<v Speaker 2>Albanesi had assured President Shee that Australia does not support

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<v Speaker 2>Taiwan's independence. Anthony Albernesi says he hadn't seen the readout

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<v Speaker 2>and the Australia does not support any unilateral action on Taiwan,

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<v Speaker 2>and experts are warning young adults and parents of young

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<v Speaker 2>children to be aware of early symptoms of meninjococcal disease

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<v Speaker 2>as Australia enters its peak season. Doctors say the illness

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<v Speaker 2>is on the rise, with fifty six cases already reported

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<v Speaker 2>this year, and are urging people to watch out for

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<v Speaker 2>symptoms such as fever, severe headache, drowsiness or confusion, severe

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<v Speaker 2>muscle pain and rash. I'm Ruby Jones. This is seven am.

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<v Speaker 2>See you tomorrow,