An EDO legal analysis: Pabai v Commonwealth of Australia (No 2) [2025] FCA 796

On July 15, 2025, the Federal Court found against submissions that the Commonwealth of Australia owed and breached a duty of care to all Torres Strait Islanders to protect them, their way of life, and the environment from the growing harm and destruction arising from climate change.

The case was brought by Uncles Pabai Pabai and Guy Paul Kabai, both from the Guda Maluyligal Nation, on behalf of the traditional inhabitants of the Torres Strait Islands.

They submitted that the Commonwealth had a duty to prevent or mitigate the impacts of climate change on the Torres Strait Islands, which it breached by failing to take reasonable steps to address climate change with regard to the best available science.

The case contemplated the imposition of novel duties of care, including whether the Commonwealth owes a duty of care to mitigate the impact of climate change and whether the loss of fulfilment of Ailan Kastom, the body of customs, traditions and beliefs of the Torres Strait Islanders, is compensable under negligence law.

Background

The Torres Strait Islands are disproportionately affected by climate change compared with the rest of Australia. This includes rising sea levels, extreme weather events, flooding and seawater inundation, ocean acidification, and ocean warming.

These impacts detrimentally affect biodiversity in the area, causing coral bleaching, loss of seagrass beds, and a decline in prevalence of totemic sea creatures like dugongs and turtles.

Increased salinity in the soil from flooding and inundation kills plant life and prevents crop growth.  Changes in seasonal patterns have altered the migratory patterns of bird life.

Furthermore, it is increasingly difficult for the Torres Strait Islander people to practice Ailan Kastom.

Rising seawater and flooding have damaged sacred sites, including burial and ceremonial sites.

Traditional foods to be used in cultural ceremonies are increasingly difficult to source. The numbers of totem animals are dwindling.

The totality of these impacts creates hardship in maintaining connection to country and in passing on traditional knowledge to future generations.

Uncle Pabai Pabai and Uncle Kabai witnessed these impacts firsthand. Uncle Pabai Pabai lives on the small island of Boigu. Uncle Kabai lives on the island of Saibai.

Both elders fear that they will lose their connection to country, their culture, and their identity, due to the devastating impacts of climate change.

They contended that the Commonwealth’s approach to mitigating climate change has been inadequate to properly protect the Torres Strait Islands and their inhabitants from these impacts.

The Claim

The Uncles advanced two similar but alternative negligence claims. Both required a finding that the Commonwealth owed a duty of care, failed to meet the standard of care required, and that this failure resulted in loss or damage to the Uncles and the Torres Strait Islanders as a whole.

Both claims hinged on the proposition that the Commonwealth owes a duty of care to take reasonable steps to prevent or mitigate the impacts of climate change.

The first claim argued that the Commonwealth’s greenhouse gas (GHG) emissions reduction targets that were set and communicated to the United Nations Framework Convention on Climate Change (UNFCCC) in 2015, 2020, 2021, and 2022 were insufficient to meet the duty of care, as they failed to regard the best available science. 

The Uncles argued that the targets would not allow Australia to achieve the reductions necessary consistent with holding the global average temperature increase to 1.5°C.

The alternative claim argued that the approach taken to funding and constructing seawalls on vulnerable islands (Seawalls Project) was insufficient to meet the standard due to delayed, unpredictable and inadequate funding to complete the project.

Both claims alleged that the Commonwealth materially contributed to the loss of fulfilment of Ailan Kastom on the impacted islands. The Uncles were seeking compensation for this loss.

The Proceedings

The proceedings commenced on October 26, 2021. Several hearings occurred throughout June, November and December 2023, and April and May 2024. During this time, evidence was given that the emissions reduction targets did not conform to the best available science.

The Federal Court visited both Boigu and Saibai, hearing about and witnessing the devastating impacts climate change has had on the land and its people.

The court observed coastal erosion and damage to sacred sites. It also heard the testament of affected community members, including Uncle Pabai Pabai who stated that:

“If Boigu was gone, or I had to leave it, because it was underwater, I will be nothing… I will become nobody. I will have no identity.”

The Decision

Justice Wigney ultimately found that the Commonwealth did not owe, and therefore did not breach, a duty of care to the Torres Strait Islanders. In reaching this conclusion, His Honour considered:

  • Whether the Commonwealth owed a duty of care to take reasonable steps to mitigate or prevent the impacts of climate change (The Duty of Care);
  • If there is a duty of care, whether the standard of care was met, with reference to the best available science for the first claim, and to the timeliness, predictability and adequacy of funding and construction of the Seawalls Project for the second (The Standard of Care); and
  • If the standard of care was breached, whether the Commonwealth caused material harm to the fulfilment of Ailan Kastom, and whether that harm is compensable under negligence (The Harm Caused).

The Duty of Care

Justice Wigney found that there was no duty for the Commonwealth to take reasonable steps to prevent or mitigate climate change. He noted that at common law, decisions involving governmental policy are not subject to duties of care. Courts cannot determine the reasonableness of such decisions, as there is no appropriate legal criterion for doing so. This finding was fatal to both claims.

The first claim concerned Australia’s international obligations and the setting of emissions reduction targets. The second concerned the allocation of funding. Justice Wigney found that both involved high-level policy decisions, and that the court could not impose a duty of care in such contexts.

The Standard of Care

The Court found that, had a duty of care been imposed, the standard of care would be met in both claims.  

In the first claim, the Uncles argued that the setting of emissions targets breached the standard of care, as the targets failed to reflect the best available science.

Justice Wigney acknowledged that the targets did not reflect the best science but held that this did not render them unreasonable, given that the decisions also considered political, economic, and social factors.

In the second claim, the Uncles argued that the Seawalls Project was delayed, unpredictable, and inadequate.

Justice Wigney found that while the Commonwealth did not act urgently, it did provide funding and was not wholly responsible for the delay.

He also found that the funding was not unpredictable, and that the inadequacy of the funding was largely due to the management of the relevant Council rather than the Commonwealth’s carelessness.

The Harm Caused

Even if a breach had been found, Justice Wigney concluded that the Commonwealth did not materially cause the harm, and that the loss of fulfilment of Ailan Kastom is not compensable under negligence law.

Regarding the emissions resulting from low target settings, the court found the Commonwealth’s contribution would have led only to an extremely small rise in temperature.

While this would increase the negative effects of climate change, it could not be said that the additional emissions materially contributed to the harms experienced on the Torres Strait Islands within the relevant timeframe.

Similarly, the shortcomings of the Seawalls Project were not found to materially contribute to the alleged harm.

Justice Wigney further held that the loss of fulfilment of Ailan Kastom is not a category of harm recognised by the common law of negligence and thus could not be compensable.

Significance of the Decision

Justice Wigney rejected the proposition that a duty of care should be imposed on the Commonwealth to protect the Torres Strait Islands from the impacts of climate change.

He also held that Ailan Kastom is not capable of protection under common law negligence.

However, he did make two things abundantly clear.

First, the Commonwealth’s emissions targets were not ambitious. He was particularly critical of the 2015, 2020 and 2021 targets, noting that they paid no regard to the best available science.

Second, Justice Wigney acknowledged the real and devastating impacts of climate change.

He remarked: “The applicant’s primary case against the Commonwealth failed not so much because there was no merit in their factual allegations… it failed essentially because the common law of negligence in Australia was not a suitable legal vehicle.”

(Note: The Environmental Defenders Office did not act for any of the parties in this matter.)