The Australian Climate Case: The Pabai Pabai Decision and what it means for First Nations climate and cultural rights

Introduction

On 15 July 2025, the Federal Court of Australia handed down its long-awaited judgment in Pabai v Commonwealth of Australia (Pabai Pabai).¹

The lead applicants, two elders of the Gudamlulgal Nation, Uncle Pabai Pabai and Uncle Guy Paul Kabai (the Applicants), first filed the case in October 2021. The Applicants argued, in essence, that the Commonwealth owed a duty to Torres Strait Islanders to set greenhouse gas (GHG) emissions reduction targets in line with the “best available science” on climate change, and that the Commonwealth breached that duty of care when setting its targets in 2015, 2020, 2021, and 2022. The Applicants contended that this breach had occasioned significant harm to their connection with their homelands, presenting evidence that if present trends continue, they will be forced to leave their home and will lose everything – their homes, culture and their sense of who they are.

Pabai Pabai was the first case in Australian history to consider the existence of a standalone, novel duty of care owed by the Commonwealth to Torres Strait Islanders to set emissions targets in line with “best available science” on climate change.

Ultimately, the Court concluded that the Applicants’ case failed on a number of bases, but primarily because the alleged duty of care related to matters of core or high government policy, which are unsuited to assessment by courts and thus cannot form the subject of a duty of care. The Honourable Justice Wigney J (Wigney J) also declined to recognise the loss of traditional culture as a compensable head of damage in negligence. Had he done so, this would have broadened the scope of actions available to First Nations people for culture loss, across a range of matters, not just climate related.

This article provides a summary of the broader issues underpinning the submissions advanced by the parties as to the alleged primary duty to set emissions reduction targets in line with the best-available science, and the Court’s ultimate decision, particularly in relation to the question of whether the loss of Ailan Kastom (the body of customs, traditions, observances and beliefs of the people of Zenadth Kes (the Torres Strait Islands) amounts to a compensable head of damages in tort.

The judgment Explained

The Applicants, from Boigu and Saibai Islands in Zenadth Kes, argued on behalf of Torres Strait Islanders that the Commonwealth owed concurrent duties in tort to the inhabitants of the Torres Strait to:

1. Set national GHG emissions targets to a level consistent with best available science.
2. provide predictable and sufficient funding for appropriate adaptation measures (specifically, seawalls to protect against sea level rise).

In failing to set GHG emissions targets in line with the best available science and to provide adequate funding for adaptation measures, the Applicants alleged, the Commonwealth, knowing the extreme and serious risks posed by climate change to the people of the Torres Strait, ignored the dire and existential threat posed by a failure to limit GHG emissions and therefore breached these duties, causing loss and damage to Torres Strait Islanders’ capacity to fulfil Ailan Kastom.

Whilst the Applicants did not succeed in their arguments on the legal issues, Wigney J made a number of factual findings in favour of the Applicants, including that:

1. In setting emissions reduction targets in 2015, 2020, and 2021, the Commonwealth “failed to engage or give genuine consideration to” climate science or to the risks of climate change to Torres Strait Islanders.²
2. The Torres Strait Islands “have been, and continue to be, ravaged by the impacts of human-induced climate change”.
3. The “best available science” was that temperature increase must be kept below 2 degrees Celsius above pre-industrial levels to avoid the worst impacts of climate change, and the emissions reduction targets of 2015, 2020, and 2021 were “plainly not consistent with those objectives”.³

Ultimately, however, Wigney J found in favour of the Commonwealth on the questions of law at issue between the parties, concluding:

1. As a threshold issue, the Commonwealth did not owe the duty of care alleged by the Applicants because the imposition of such a duty would require courts to consider matters of core or high government policy which require weighing competing interests and values and as such are unsuited to judicial determination.⁴
2. Even if the alleged duty of care were justiciable, it would fail under a “salient features” analysis of the relationship between Torres Strait Islanders and the Commonwealth, notably because “the Commonwealth’s ability to set emissions reductions targets does not give it any materially relevant control in respect of the risk of harm”.⁵
3. If such a duty were to exist, the standard of care would not require the Commonwealth to set targets in line with the “best available science”, as alleged by the Applicants. Rather, the standard would need to incorporate other factors that an international actor acting reasonably would consider in setting emissions targets.⁶
4. No compensable damage could lie in the Applicants’ loss of ability to practice and live by Ailan Kastom, even though Wigney J accepted that as a matter of fact, climate change has and will continue to cause harm to the Applicants in this respect.

However, Wigney J did recognise that the Applicant’s case did not necessarily lack merit as to the factual matters at issue. Instead, the law as it stands in Australia just hasn’t got there yet. Specifically, at the close of the judgment he noted that the Applicants’ case failed:

“not so much because there was no merit in their factual allegations concerning the Commonwealth’s emissions reduction targets. Rather, it failed because the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims […] Until then, the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box”.

Factual findings: Climate Change in Zenadth Kes – vulnerability of Torres Strait Islanders

Climate change is usually spoken of in terms of probability, temperature levels, and long-term time horizons, such that its consequences can appear remote and abstract to many.

For Torres Strait Islanders, however, the harms of climate change are a phenomenon of the present, and are only escalating in their severity. Inhabitants of the Torres Strait, like many residing on small islands in the Indo-Pacific, face the prospect of becoming the world’s first climate refugees, due to rising sea levels and the increased occurrence of severe weather catastrophes.

Like all refugees, this would mean the loss of home not only in the physical sense, but in a cultural, social, and spiritual sense. Ailan Kastom describes the way of life of the traditional owners of the Torres Strait, and is a term that encompasses spirituality, rituals, traditional food, dwellings, and culture. Above all, Ailan Kastom reflects a way of life that is inextricably linked with the physical world – its seasons, the land, and the sea.

Uncle Laurie, who gave evidence during the trial, when reflecting on the oneness of culture, land, and people described Ailan Kastom as:

”We are the body, soul, and spirit of Saibai. The details of my culture are depicted in songs. I call language the soul of Saibai; all of these things are locked in the language”.⁷

Wigney J accepted that climate change threatens to jeopardise many different aspects of Zenadth Kes’ inhabitants’ practice of Ailan Kastom. During hearings conducted on the island of Saibai, the Court viewed a traditional gravesite containing ancestral remains that had been repeatedly inundated with ever-higher tides. Uncle Pabai explained the harm to the cemetery in Boigu as:

“Flooding and erosion of the cemetery causes a lot of sadness in the community. If we do not know where our ancestors are, we cannot talk to them properly. We are worried that our ancestors won’t be safe to rest in the future. One of the saddest things for me is that the old people, who are asleep now, are being made weak by the erosion. That's why we hold on to them. … I always say esso (thank you) because I'm walking forward and need them to show me things.”⁸

The Applicants’ closing submissions described not only the primary effects of climate change on these aspects of traditional life, but also the second and third order effects. For example, increased sea levels and changing seasonal patterns combine to make it difficult for the inhabitants of Saibai to plant and grow traditional food, resulting in an increased reliance on food from the mainland which tends to be much more unhealthy than traditional foods grown on the islands. A further dimension of this loss is the severing of the chain of ancient knowledge, passed from elders to young people in the community.

The Applicants in this case therefore occupied a unique position, in that the losses caused by climate change are not (only) to property, nor do they take the form of personal injury, nor are they economic in nature. Rather, they involve the loss of identity, and an ancient way of life.

Wigney J accepted the Applicants’ evidence that the current and future effects of climate change will continue to have, a destructive effect on the practice of Ailan Kastom. The decision in Pabai Pabai, however, demonstrates that the Australian common law of negligence is not (yet) capable of compensating for such loss.

History of climate change litigation in Australia & internationally

Pabai Pabai is a “climate framework case” because it seeks to “challenge the ambition or implementation of a government’s overall climate policy response”, in this case alleging a tortious cause of action.⁹ This strategy has been successfully used in litigation in Europe, including in the recent Klima Seniorinnen and ors. v Switzerland, which involved a successful claim against the Swiss government in the European Court of Human Rights.¹⁰ In particular, Pabai Pabai was modelled off the cause of action successfully argued by the applicants in the Urgenda Foundation v The State of Netherlands¹¹case (Urgenda), which was a class action brought against the Dutch Government in 2015 for failing to take adequate action to mitigate climate change. Urgenda became the first case globally to establish that a national government owes a duty of care to protect people from climate-related harm. In Urgenda, the applicants sought declaratory judgment and an injunction limiting GHG emissions. The Supreme Court of the Netherlands ultimately upheld the lower courts’ findings that the Dutch Government owed a duty of care to its citizens to reduce GHG emissions given the likelihood of the risks of climate change eventuating, and their severity. As a result, the Netherlands now has some of the strongest climate policies in the world.

In his judgment, Wigney J briefly dealt with the European authorities relied on by the Applicants.¹² In relation to Urgenda, Wigney J found that its usefulness in illustrating the application of concepts of negligence “is significantly undermined or limited by the fact that there is no basis for finding that the concepts of duty of care and negligence […] have any relevant resemblance to the Australian concept of negligence”, and “that there was no evidence that the European authorities generally were “relevantly analogous” to the Australian common law of negligence such as to support the novel duty of care alleged by the Applicants.¹³

Climate Litigation in Australia

Before Pabai Pabai, climate change litigation in Australia largely consisted of challenges to specific proposed oil, gas and coal projects. In Queensland, in the decision in Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC, the Queensland Land Court found that the Queensland Human Rights Act 2019 (HR Act) meant that the Court was bound to decide in a manner consistent with the human rights of the applicants as well as those of all residents of Queensland. In doing so, the Court concluded that approving the contested mine, and the resulting emissions would limit various human rights under the HR Act, including the right to life for all people in Queensland, the cultural rights of First Nations people, and the rights of children.¹⁴

In Pabai Pabai, the Applicants submitted that, consistent with the decision in Waratah Coal, “holding the Commonwealth responsible for its contribution to the impacts of climate change is therefore consistent with the protection and promotion of those human rights under the statute law of Queensland”.¹⁵ Contrary to Waratah Coal, however, the Applicants were careful to expressly state that they did not seek to advance an argument that the Court was a public entity bound by s 58 of the HR Act to make a decision compatible with human rights.

In Sharma v Minister for the Environment (Sharma)¹⁶, a group of young climate activists brought a claim alleging that the Minister for the Environment owed a duty of care to all Australians under 18 to exercise care to avoid the risk of injury or death in exercising her power to approve an extension to a coal mine under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). The claim was successful at first instance in the Federal Court; however, the Minister’s appeal against the decision was upheld by the Full Court of the Federal Court, which found unanimously (although on different bases) that the duty should not be imposed on the Minister. All of the judges, however, accepted the primary judge’s findings on the science pointing to the risks of climate change.

The Applicants in Pabai Pabai had partial success in seeking to distinguish their claim from that in Sharma in part by arguing that Torres Strait Islanders have a special vulnerability to the effects of climate change, on two axes – the islands’ high exposure to harm, and the especially damaging consequences of the harm, that is “existential” and “catastrophic in scale” for the Applicants.¹⁷ In Sharma, by contrast, Allsop CJ found that the duty on the Minister should not be imposed because the applicants were “in the same position as everyone in the world” in relation to climate change.¹⁸

Notwithstanding his finding that the Commonwealth did not owe a duty of care to Torres Strait Islanders, Wigney J nevertheless accepted that there were factors that distinguished the Applicants in Pabai Pabai from the broader Australian population (unlike in Sharma), and notably provided that:

“their vulnerability and relative disadvantage in terms of protecting themselves from the ravages of climate change means that they are a group of people who could reasonably be considered to be deserving of particular protection from the impacts of climate change by those that govern them, including the Commonwealth.”¹⁹

No duty of care to set emissions targets consistent with the “best-available science”

The Applicants argued that an analysis of the relationship between the Commonwealth and Torres Strait Islanders as a whole, as well as a specific analysis of its “salient features” established that the relationship is one which “falls within the legal concept of neighbourhood” such as to support the existence of the alleged novel duties.²⁰ In considering factors relevant to a salient features, Wigney J notably:

1. Rejected the Commonwealth’s argument that the risk of harm to the Applicants was not reasonably foreseeable in setting emissions targets, noting that the risk of harm was “real not remote and supported by the best available science”, and “the Commonwealth was aware […] that Torres Strait Islanders were particularly vulnerable to climate change and its impacts and were likely to suffer harm if those impacts were exacerbated.”²¹
2. Found that Torres Strait Islanders were especially vulnerable to the risks of climate change, and generally less able to protect themselves from the harm of climate change than the broader Australian population.²²
3. Crucially, however, found that the Commonwealth did not have the requisite level of control over the source of harm to the Applicants, because any change in emissions due to an emissions target in line with the “best-available science” would have only a small effect on global emissions, and thus “could not be said to give the Commonwealth any significant or material control over […] the relevant harm suffered by Torres Strait Islanders as a result of climate change.²³

The history of colonialism and the paternalistic role historically assumed by the Commonwealth were central to the Applicants’ arguments as to whether the relationship “properly fits the category of a ‘special protective relationship’ recognised by law, and was a point on which the Applicants distinguished the alleged duties of cares from those rejected by the Full Court of the Federal Court of Australia in Sharma.²⁴ The Applicants sought to evidence the historic features of the relationship through colonial proclamations that referenced the “duty” held by the executive governments of the colonies to provide “sanctuary” and “protection” to First Nations people, as well as legislation such as the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld).²⁵

The Applicants also relied on the subsequent development of the common law in cases such as Mabo²⁶, Wik²⁷, and Love²⁸, in which Nettle J in Love recognised “the unique obligation of permanent protection” owed by the Commonwealth to First Nations peoples, all of which, taken together, the Applicants argued, “the common law might more readily discern a relationship of neighbourly obligation between the Commonwealth and a particular group of Indigenous people whose connection to Australian land and waters is in danger of being severed”.²⁹

In support of this argument, the Applicants pointed to the Commonwealth’s entry into the Torres Strait Treaty with Papua New Guinea in 1978 and its later entry into the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), both of which contained provisions imposing obligations to protect the way of life of Torres Strait Islanders, as historical facts indicating the Commonwealth’s acknowledgement of its special obligations.³⁰

In relation to the “special vulnerability” of Torres Strait Islanders, the Applicants contended that there were two axes on which their vulnerability should be understood: first, the high risk of harm, and second, the severity of the harm should it crystallise, in that it is “catastrophic in scale”.³¹ Whilst Wigney J rejected the Commonwealth’s submission to the effect that the relationship between the Commonwealth and Torres Strait Islanders was or is essentially no more than a relationship between the governing and the governed, he did not go so far as to conclude that the relationship was or is a “special protective relationship” as the Applicants contended.³²

Further, Wigney J concluded that even if he had found that a duty of care existed , the appropriate standard of such a duty would not be to set the emissions target in line with the best-available science, on the basis that it would be both inappropriate and impractical for the Court to assess the reasonableness of the Commonwealth’s actions in setting and communicating the relevant emissions reduction targets.³³

The loss of culture as compensable harm

A key issue in the proceedings, and one that is likely to shape future development of tort law in this area, was whether the Applicants could be compensated for loss that was non-economic in nature – specifically, the loss of their ability to practise their traditions and cultural obligations. In this respect, Wigney J was not persuaded that harm constituted by the loss of fulfilment or the ability to practise Ailan Kastom is compensable under the law of negligence.³⁴

The Applicants had argued that a core aspect of the loss caused to them as a result of the Commonwealth’s breach of the alleged duty of care was the “severance of connection to land that will be erased or irrevocably damaged” by the impacts of climate change, as well as the loss of sacred sites, biodiversity, impact of severe weather and changes in seasonal patterns on core cultural practices.³⁵

Previously, different forms of compensation for cultural loss to First Nations plaintiffs had been awarded in varying legal contexts. Such cases were relied on by the Applicants in Pabai Pabai to support their contention that such harm is compensable. For example, in a string of motor vehicle personal injury decisions in the late 20th century, courts awarded sums of damages to plaintiffs who, as a result of their injury, were no longer able to participate in cultural practices. In these cases, the award of damages was characterised as compensation for “loss of amenity”, which took a particular form in the plaintiffs’ cultural context. However, Wigney J found that that the precedential value of each of the cases were limited to their specific factual and legal circumstances.

For example, in a string of motor vehicle personal injury decisions in the late 20^th century, courts awarded sums of damages to plaintiffs who, as a result of their injury, were no longer able to participate in cultural practices. In these cases, the award of damages was characterised as compensation for “loss of amenity”, which took a particular form in the plaintiffs’ cultural context.³⁶

Similarly, in Milpurrurru v Indofurn Pty Ltd, Bethune, King & Rylands³⁷, the Federal Court found that “losses resulting from tortious wrongdoing experienced by Aboriginals in their particular environments are properly to be brought to account³⁸”, in awarding damages for cultural loss in breach of copyright proceedings to First Nations artists whose work had been misappropriated and printed on carpets. The Court accepted that the loss experienced by the artists as a result of the breach was magnified by the grief and embarrassment caused by the unsanctioned sharing of traditional knowledge and stories, and that this aspect of the plaintiffs’ loss was compensable.³⁹

Finally, in 2019, the High Court in Northern Territory v Griffiths (Timber Creek)⁴⁰ approved an award of $1.3 million in native title compensation for non-economic/cultural loss of the Ngaliwurru and Nungali Peoples for infringement to native title rights and associated loss of cultural fulfillment. In that case, the Court found that the task of assessing cultural loss required it ‘to translate the spiritual hurt from compensable acts into compensation’⁴¹. The test involved an assessment of ‘the amount which society would rightly regard as an appropriate award for the loss’.

In Timber Creek, the Court also found that the award was consistent with community expectations and accepted that loss of connection to country is a spiritual loss and cannot be equated with other concepts such as loss of enjoyment, or other personal injury concepts, as: “those expressions do not go near to capturing the breadth and depth of what is spiritual connection with land”⁴². When referring to the decision in Timber Creek, and distinguishing this case where the Applicants’ claimed that they and other Torres Strait Islanders are entitled to compensation for loss of fulfilment of Ailan Kastom, Wigney J found that the Applicant’s claim must be considered separately from, and without any regard to, any claim that they may have had in respect of the loss, diminution, impairment or other effect of an act on their native title rights and interests.⁴³ Wigney J also made a point of noting that whilst Torres Strait Islanders have native title rights under the Native Title Act 1993 (Cth) (NTA) over or in respect of much of the Torres Strait, including the inhabited islands, the Applicant’s claim does not directly concern an native title rights under the NTA.⁴⁴

Where to from here?

The closing remarks of Wigney J and the failure of the case (which followed a formula which has been successful in other jurisdictions) suggest that the common law of negligence in Australia is not the correct vehicle to provide redress for communities like those of Applicants. This is particularly so in circumstances where, clearly, “recourse via the ballot box” has produced outcomes which are, in Wigney J’s own words, “plainly not consistent” with the course required to mitigate serious climate-related harm to Torres Strait Islanders.

This case also raises questions as to the extent to which the law can and should assign liability to governments for climate-related decisions, as well as to provide compensation for the loss of traditional ways of life.

The recognition of a duty of care to take steps to mitigate and adapt to the effects of climate change would have undoubtedly reshaped the tort of negligence as it applies to environmental harm, not only in relation to failures by public authorities, but also potentially for commercial entities and other actors. Further, the recognition of cultural loss as a form of compensable harm would have created a significantly broader scope for First Nations plaintiffs to commence actions in tort based on harm to cultural heritage.

Pabai Pabai is likely to inform the approach taken by First Nations groups in attempting to use strategic litigation to push for sharper action to combat climate change. Absent a successful appeal, it is likely that Australia may now see fewer so-called “climate framework cases”. Instead, future climate litigation may follow formulae that have been successful in previous litigation, such as greenwashing cases, challenges to decisions to approve certain developments, and potentially, cases founded on native title rights.

Following the judgement in Pabai Pabai, Dr Wesley Morgan, a fellow of the Climate Council noted that Australia had seen a series of high-profile unsuccessful climate litigation in recent years, but the dam wall would eventually have to break. He said “this is how legal norms change. When they are challenged repeatedly by those who are impacted by the deepening climate crisis, legal norms will need to shift to meet that need⁴⁵”.

It’s clear that whilst not successful Pabai Pabai hasn’t closed the door to climate litigation in Australia. Avenues remain open for prospective plaintiffs to: (1) appeal to higher courts hoping to expand the common law, (2) push for federal law reform, especially under human rights frameworks (3) strategic follow up complaints to United Nations bodies (4) more cases using human rights legislation (5) strategic litigation using established legal principles, such as greenwashing claims under Australian consumer-protection legislation. In summary, at the moment it’s “watch this space”.