EXPERT REACTION: Landmark Australian Climate Case ruling

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.

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.

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.