The judgment in Pabai Pabai & Anor v The Commonwealth is a mixed result for the plaintiffs. The judge makes very strong findings of fact about the impacts of climate change in the Torres Strait and the devastation it is causing on the islands of Saibai and Boigu. The judgment identified the clear risk that there will be loss of cultural connection and identity unless strong measures are undertaken to reduce GHG emissions to 1.5 degrees above pre-industrial levels.

Justice Wigney declined to find a duty of care was owed by the Commonwealth government to the Islanders either to prevent harm or to fund effective adaptation infrastructure. Under the common law of negligence, setting GHG targets pursuant to the Paris Agreement were held to be matters of high or core policy government.

While the Judge found that the Commonwealth government did not refer to Best Available science in setting targets in 2015,2019, 2020, this was not a breach of the standard of care due to Australia's small contribution to global emissions. Further, loss of cultural connection was not held to be  the type of damage able to be compensated under negligence law.

The judge did signal that he was bound by the limitations of current negligence law and current causation tests which left the plaintiffs without a legal avenue of redress. He indicated the need for an appellate court to advance the law or for legislative change.

Today’s Federal Court decision in the Pabia Pabia v Commonwealth of Australia case saw Torres Strait Islanders asserting that the Commonwealth Government owed them a duty of care to prevent harm to their way of life from climate change.

Unfortunately, this case joined previous cases heard in Australian courts where the plaintiffs were unsuccessful.

According to the Court, Australia’s common law of negligence does not recognise harm, or provide avenues for compensation for that harm, if caused by government climate change policy.

This was despite the Court’s scathing assessment of Coalition climate change policy and clear recognition of the veracity of the plaintiffs’ claims.

This lack of success of Australian climate change litigation is to be contrasted with decisions in equivalent cases in the Netherlands, Switzerland, South Africa, Pakistan, India, and the Philippines, where a right to life and the right to a clean and healthy environment are enshrined in their national constitutions.

In these countries, citizens have successfully held their governments to account for failing to adequately address climate change mitigation.

However, Australians have no such constitutional rights and no Bill of Human Rights. I think it is about time we did.

While the Federal Court found that the Commonwealth Government did not – as the law presently stands – owe a duty of care in negligence to take reasonable steps to protect Torres Strait Islander peoples from the impacts of climate change, the Court left open the possibility that an Appellate Court could revisit this position. Courts in countries like the Netherlands and Switzerland have already recognised similar duties on the part of States to protect against foreseeable climate harms. Today might not be that day, but Australian law will need to adapt to meet the challenges of climate change and hold decision-makers to account for harm caused by inaction.

Today Justice Michael Wigney in the Federal Court sitting in Cairns gave judgment in a case brought by two Torres Strait Islanders against the Australian government for failing to protect their native homelands from the ravages of climate change, the effects of which are rising sea levels and consequential loss of sacred places, culture and identity. They claimed that this was caused by the failure of successive Australian governments to take reasonable steps to limit greenhouse gas emissions. Justice Wigney ruled that the claim failed. Moreover, he found that the Australian government was not responsible for the failure of a planned seawall remediation program.

The judgment was predictable, given the Full Federal Court judgment in the case of Sharma v Minister for the Environment three years ago where the applicants were unable to link the detrimental effects of a warming planet to a breach of any duty of care owed by the Australian government to its people, demonstrated, as claimed in that case, by the opening of a new coal mine.

It is very clear that Justice Wigney is not a climate change sceptic. He found the factual elements of the environmental ravages in the Torres Strait had been proved, and, yes, all nations, he said, must reduce their greenhouse gas emissions. But he concluded that the current state of the common law of negligence in Australia does not provide a vehicle for claims seeking compensation from the effects of climate change. So, unless and until the High Court moves Mabo-like into this space, all matters regarding compensation, remediation and adaptation will need to move from the parliamentary sphere, not the judicial one.

While the Federal Court dismissed the claim, it also explicitly acknowledged that the Torres Strait faces a 'bleak future' because of climate change. Islands like Boigu and Saibai are already experiencing flooding, erosion, and cultural loss, impacts also experienced in the Pacific by the Tuvalu and Kiribati Islands, while some communities in the Carteret Islands have already been forced to relocate.

These are not projections but the lived reality of climate change. As highlighted in the case, urgent action is needed because it is more than property loss; it is the loss of identity, culture, and ways of living. The dismissal of a legal duty does not remove the responsibility for cutting greenhouse gas emissions in line with the best available science.

While today’s ruling did not establish legal accountability, it reinforced the urgency and established the base for legal, political, and international action as it happened with the Urgenda case in the Netherlands.

A heart-breaking outcome in the Pabai Pabai case where the Federal Court felt unwilling or unable to innovate or intrude on the 'high policy' area of climate adaptation and mitigation policy, despite finding factual merit in claims of climate damage wreaking havoc on the islands. 

The judge also found that the Commonwealth did not rely on the best available science in relation to preventing climate impacts on the islands. It is certainly true that the current state of Australian tort law, in particular, is a difficult vehicle for these sorts of claims, as was seen in the Sharma decision. 

The Commonwealth parliament should finally pass human rights legislation that gives Australians the right to a clean health and safe environment, as well as other rights like the right to family life, which was proposed by the previous parliamentary inquiry. The United Nations Human Rights Committee has already ruled that rights have been breached by Australia in relation to climate impacts in the Torres Strait.

Australia is running out of time for the kind of incremental advocacy and protest that Justice Wigney noted was the only current avenue for reform.

In the case of Pabai Pabai v Commonwealth, Justice Michael Wigney of the Federal Court of Australia acknowledged the various adverse and harmful impacts of climate change upon the Indigenous communities of the Torres Strait Islands. In particular, the court noted that climate change was not only impacting the homelands of Indigenous Communities, but it was interfering with the cultural practices, customs, traditions, cultural knowledge and very identity of the Torres Strait Islanders. Wigney warned: ‘There could be little if any doubt that the Torres Strait Islands face a bleak future if urgent action is not taken.’

The Federal Court of Australia, though, doubted whether the law of negligence was the appropriate vehicle to deal with matters of climate change. The judge held that the Commonwealth did not owe a duty of care to protect the Torres Strait Islands from climate change, and, even if there was such a duty, it had not been breached. The judge also rejected a secondary argument relating to the sea wall project for the Torres Strait. The judge stressed that the question of action in respect of the reduction of greenhouse gases was ultimately a political matter for the Federal Government.

The judge also indicated that reshaping the law of negligence was the preserve of superior courts. It remains to be seen whether the decision of Justice Wigney will be appealed to the Full Court of the Federal Court of Australia, or the High Court of Australia.

The decision of the Federal Court of Australia in Pabai Pabai v Commonwealth can be contrasted with the Torres Strait Eight matter of Daniel Billy and others v Australia – in which the UN Human Rights Committee found that Australia’s failure to adequately protect Torres Strait islanders against adverse climate impacts violated their human rights – in particular their cultural rights, and rights to be free from arbitrary interferences with their private life, and family, and home.

"This decision acknowledges the real risks and impacts of climate change to Torres Strait Islands and communities, which includes the loss of sacred places, culture, traditions and identity. Despite the merits of the applicants’ claims, the cause of action pursued – the tort of negligence – was inadequate to the task of addressing climate harms.

The applicants’ claims focused on their attachments and obligations to place and culture, which have been interpreted as an expression of identity rather than a compensable harm. The decision can be understood, in part, as a lament for the limits of law, where the crises of our times may exceed its frame of reference. To properly address climate harm, we must address both the inertia of government policy and the inflexibility of legal tools."

The judgement is as damning as it is unsurprising.

The Federal Court held that no duty of care was owed to the plaintiffs under common law principles of negligence. As a matter of fact, it determined that adaptation measures were ultimately implemented, and the Commonwealth could not be held solely responsible for any delays or deficiencies in funding.

Importantly, the Court found no evidence directly linking the timing or adequacy of sea wall construction to specific harm or loss suffered by the plaintiffs.

What is most striking is the Court’s candid reflection on the political dimensions of the case. While acknowledging the severe impacts of climate change on Torres Strait Islander communities, the Court invoked the ‘tragedy of the commons' to illustrate the difficulty of attributing causality to Australia’s contribution.

Furthermore, it held that the common law does not recognise cultural loss or disruption of customary practices as compensable damage within negligence claims. As such, the claim failed because negligence law was deemed an inadequate legal pathway for addressing these harms.

The judgment concluded with a clear message: legal redress for such climate-related harms lies not in the courts but with legislative reform. Until the law changes, the appropriate remedy remains political —through advocacy, protest, and the democratic process. The courts' reference to recourse by the ‘ballot box’ is a clear signal to the people of Australia that the redress of such harms suffered by peoples of the Torres Strait (and elsewhere) ultimately falls to them to provide.

Today's judgment from the Federal Court of Australia is disappointing but ultimately not surprising.

His Honour dismissed the Torres Strait Islanders' case that the Federal government owed them a duty of care in negligence to act on climate change. Importantly, his Honour did not dispute the science of climate change and the reality of the harm that Torres Strait islanders face. However, his Honour clearly stated that the common law of negligence as it currently exists in Australia is an inappropriate vehicle to vindicate such claims.

This was not a criticism of the parties nor the merits of the applicants' claim. Rather, it was a statement of the limits of a common law system that does not accommodate findings of such a duty of care at present.

The only way for this to change is either through the progressive development of case law in the appellate courts or law reform. Instead, appropriate ways for action on climate change for claims like the Torres Strait islanders are through other avenues, such as public advocacy and voting.

Today’s decision by the Federal Court displays the need for political leadership on climate justice.

Although the applicants were unsuccessful in this case, the court was clear in its statement that it felt an alternative finding was beyond its mandate. We saw the power of legal appeal in 2022 when the then-government successfully overturned a decision from the Federal Court, which had found that the Minister for the Environment had a duty of care to protect young people from harm caused by climate change.
 
This case should not be viewed as a one-off. It contributes to extensive efforts that have been made globally to utilise legal instruments to ensure governments act in the common good for current and future generations. Next week, the International Court of Justice will hand down its Advisory Opinion on the obligations of nations to address climate change in a case that has been led by students from the Pacific. The opinion will determine how international law frames obligations of states to prevent catastrophic climate change, phase-out fossil fuels and more, including possible reparations to impacted communities.
 
The timing of today’s decision and that of the ICJ next week has extra resonance as Australia woos Pacific states to partner with it on a bid to host the world’s largest climate gathering, COP 31, next year.

How the Australian government responds to this decision may influence the levels of support it receives from the region. Current sentiment is broadly positive; however, dissent has come from respected sources, such as the Pacific Elders Voice.

This ruling is not just about climate litigation, it’s about climate credibility. The Court found that Australia failed to genuinely consider the best available science when setting past emissions targets. As the government now weighs its 2035 target, it must ensure that science guides its decision. How Australia responds will send a powerful signal to our Pacific neighbours about our commitment to climate justice and regional leadership.