In doing so, Justice Wigney made a number of findings with significance for future climate-related litigation in Australia, including the following:
a. The Commonwealth does not owe Torres Strait Islanders a duty of care to take reasonable steps to follow the best available science in setting greenhouse gas emissions targets.
b. Enjoyment of custom, tradition, and beliefs is not a right capable of being protected under the Australian common law.
The Pabai decision is the latest in a series of Australian decisions that demonstrate the challenges of establishing negligence against the Commonwealth government in relation to climate inaction. In line with the Full Federal Court’s previous decision in Sharma1, the Pabai decision emphasizes that government decisions and conduct involving matters of high or core government policy are not properly or appropriately made the subject of common law duties of care.
Background
The parties
The applicants before the Federal Court were Mr. Pabai Pabai and Mr. Guy Paul Kubai. Mr. Pabai and Kubai are both from the Guda Maluyligal nation and live on the Torres Strait Islands. They commenced the proceedings on their own behalf, and on behalf of broader members of the Torres Strait Islander community.
Mr. Pabai and Mr. Kubai brought a claim against the Commonwealth contending that their response is inadequate to protect the Torres Strait Islanders from the impacts of climate change.
The claim
The claim was brought under the common law tort of negligence.
It was accepted before the court that the Torres Strait Islands had been detrimentally impacted by human-induced climate change, including rising sea levels, storm surges, other extreme water level events, impacts on wetlands and beaches, and on animals in the area. It was similarly accepted that these changes have had a profound impact on the customary way of life of the inhabitants and traditional owners of the Torres Strait Islands.
The question before the court was whether the Commonwealth owed any duty of care to the Torres Strait Islander peoples to prevent this harm, and if so whether this had been breached in the circumstances.
The applicants asserted that the Commonwealth owed them two duties:
a. A duty of care to take reasonable steps to set greenhouse gas targets which, having regard to the best available science, would prevent or minimize the impacts of climate on the Torres Strait Islands (the primary case).2
b. A duty to Torres Strait Islanders to take reasonable steps to adequately implement adaptation measures to prevent or minimize the impacts of climate change on the Torres Strait Islands (the secondary case).3
The primary case alleged that the Commonwealth breached its duty of care to Torres Strait Islanders by setting greenhouse gas emissions targets in 2015, 2020, 2021, and 2022, that were not based on or in accordance with the best available science and therefore would not prevent or minimize the impacts of climate change on the Torres Strait Islands, therefore falling below the standard of care. This project was aimed at mitigating the effect of climate change, including coastal inundation and erosion on low-lying coastal communities.
The secondary case alleged that the Commonwealth breached its duty of care to Torres Strait Islanders by failing to take reasonable steps in funding the Seawalls Project in the Torres Strait.
The alleged loss and damage suffered under the primary and secondary case was a loss of fulfillment of Ailan Kastom (being the body of customs, traditions and beliefs of Torres Strait Islanders) arising from damage to or degradation of the land and marine environment.4
The applicants sought:
- damages for the harm caused
- declarations that the Commonwealth had both a duty of care to take reasonable steps to protect Torres Strait Islanders, their traditional way of life, and the marine environment from current and projected impacts of climate change, and that the Commonwealth had breached that duty of care
- an injunction compelling the Commonwealth to protect the land and marine environment of the Torres Strait Islanders, reduce Australia’s greenhouse gas emissions consistent with the “best available scientific target,” and otherwise avoid injury and harm to Torres Strait Islanders.5
The decision of the Federal Court
No duty to prevent climate change related harm
The court held that the Commonwealth had no duty to take reasonable steps to set greenhouse gas targets according to the best available science.6 This finding turned on the finding that the targets were matters of “core government policy” reserved for government, not the judiciary.
Freedom of government to set targets on climate change
By their claim, the applicants requested the court to pass judgment on the reasonableness of the Commonwealth’s actions concerning the settings of emissions reduction targets. Specifically, the setting of emissions targets in 2015, 2020, 2021 and 2022 as part of Australia’s obligations under the UN Framework Convention on Climate Change. The applicants had submitted that the Commonwealth’s actions were unreasonable because they did not reflect the best available science on climate change, and the need for Australia to reduce its emissions as part of a global effort.
The court accepted that the Commonwealth’s actions in 2015, 2020, and 2021 did not reflect the best available science.7 However, this finding did not ultimately assist the applicants, as the court held that the Commonwealth had no duty to set targets according to the best available science. This was because the decision to set emissions could not be evaluated by only the standard of “best available science.” A reasonable state actor in the position of the Commonwealth would also have regard to “national budgetary, economic or social considerations” when making that decision.8 As there is no criteria for a court to measure reasonableness against, it would be “inappropriate and impractical” for the court to pass judgment on the reasonableness of the Commonwealth’s decision.9 For that reason, the court refused to impose a duty.
The court also considered, in the event such a duty did exist, what standard of care the Commonwealth would have hypothetically owed the applicants. The applicants submitted that the standard of care was acting to “minimize or prevent harm” to Torres Strait Islanders, in effect by following the best available scientific evidence. The court did not accept this submission.10 At highest, the court said that the Commonwealth’s standard of care would be to determine the best available scientific evidence. However, the Commonwealth would still have to be afforded scope to consider non-scientific factors in its target setting, such as “economic considerations and the economic and social impact that aggressive emissions reduction targets … might have on other people, entities and communities in Australia.”11
Relevantly, the court has taken the opportunity to preserve the Commonwealth’s ability to make decisions on climate change that reflect many considerations, with the scientific evidence only being one. The court has made clear that the proper avenue for recourse against such decisions is the ballot box, not the in the courts.12
No material harm to the applicants
In the alternative, the court considered whether a hypothetical breach caused any harm to the applicants. The court found that even if a duty of care existed and was breached, the Applicants could not prove that this breach materially contributed to their loss, in the context of broader global climate impacts.
There were three issues raised along the chain of causation: (i) whether the Commonwealth’s targets had an impact on emissions; (ii) whether increased emissions directly caused harm or only contributed to the risk of harm; and (iii) whether the increased emissions led to any material harm.
The court found that low Commonwealth emissions targets did not necessarily lead to higher emissions, as targets are a “floor, not a ceiling.”13 Emitters can choose to decarbonize at a faster rate, regardless of the government position.14 Further, the targets were only in place for a short period of time, and the lag between target setting and policy implementation means they would have had little effect.15
Under the common law of Australia, mere contribution to the risk of harm is not recognized as compensable.16 Unlike in Minister for the Environment v Sharma,17 the applicants alleged that they had in fact suffered harm as a result of the alleged breach of duty,18 and that any causation being “indirect” did not mean that the increased emissions only contributed to the risk of harm.19 Ultimately, the court did not make a finding on this point (as it was unnecessary to do so), but the reasoning suggests that emissions could be found to cause climate-change related harms in some circumstances.
The court found that “every greenhouse gas emission contributes to global warming.”20 The issue was whether the Commonwealth’s hypothetical breach caused any climate change that materially impacted on the Torres Strait Islands. The evidence was that the change in temperature due to the Commonwealth’s breach was so extremely small that it could not be measured.21 Thus, the impact of the Commonwealth’s breach is so insignificant that it cannot be said that it materially contributed to the harm suffered by the Torres Strait Islanders.22
Loss of fulfilment to Ailan Kastom
The applicants alleged that the Commonwealth’s actions caused harm to the applicants and other Torres Strait Islanders by a loss of fulfilment of their traditional beliefs and customs, called Ailan Kastom. This loss of fulfilment occurred through the erosion of important cultural sites due to climate change, preventing certain traditions from being practiced or forcing them to be modified.
The issue was whether the loss of fulfilment of culture was a recognizable damage. It was uncontroversial that the harm has not previously been found to fall into any existing head of damage.23 Therefore, the court either had to recognize a new separate actionable form of damage or analogize to currently recognized losses.
The court considered that none of the cases raised by the applicants were analogous.24 On the question of a separate form of actionable damage, the court found it turned on whether the right to Ailan Kastom, or more broadly the enjoyment of customs, can be a right recognized as capable of protection by law. The court decided, in the absence of authority on matter, that it was not open for it to recognize for the first time that enjoyment of customs can constitute a right capable of protection.25 The court only briefly considered this question in obiter and given its reasoning it is available to be reconsidered in greater depth by appellate courts.
The effect of this finding is that, in the case that the Commonwealth had breached its duty to the applicants, any harm caused to Ailan Kastom is not compensable.
Comparison to the recent decision of the Inter-American Court of Human Rights and the International Court of Justice
Inter-American Court of Human Rights
The Inter-American Court of Human Rights recently handed down an advisory opinion on Climate Change Emergency and Human Rights.26 Relevantly, the decision considered the obligations of states under international law to vulnerable groups, including indigenous peoples. The decision also considered states’ duty to adapt to climate change.27
The obligations to indigenous peoples centered around a differentiated responsibility to vulnerable groups, containing duties to incorporate indigenous people in environmental decision making and to take measures to reduce inequality.28
Interestingly, these obligations are more concerned with due diligence in decision making, not an absolute duty to make decisions according to the best available science.29 This is similar to Wigney J’s finding that any potential duty would have the standard of care of determining and considering the best available science.30
The Inter-American Court of Human Rights considered several specific and general obligations that fell under the “duty to adapt.” Generally, states are obliged to progressively enhance adaptive capacity through a cycle of (1) risk assessment; (2) adaptation strategies; (3) implementation adaptation measures; (4) monitoring and evaluating their outcomes; (5) adjusting and improving the implementation of adaptation measures. 31
The secondary argument in Pabai was concerned with climate adaptation and the Commonwealth’s responsibility for implementing insufficient adaptation assistance to the Torres Strait Islands. While the adaptation measures were allegedly ineffective,32 the Commonwealth did provide funding for the Seawalls project, arguably meeting their obligations for adaptation.
International Court of Justice
The Court of Justice handed down its Advisory Opinion on the Obligations of States in respect of Climate Change on July 23, 2025.33 The court held that under climate treaties and customary international law, states have climate related obligations. These obligations extend to both signatories and non-signatories of climate treaties.
In contrast to the Pabai decision, the Advisory Opinion outlined that states can be found to be in breach of their obligations by failing to protect a climate system from greenhouse gases by way of fossil fuel production, consumption and granting of exploration licenses.
Further reading
Read the full judgment here: Pabai v Commonwealth of Australia (No 2) [2025] FCA 796
More information about the International Court of Justice decision: The ICJ and the climate crisis - A&O Shearman
Footnotes
1. Minister for the Environment v Sharma (2022) 291 FCR 311.
2. Pabai v Commonwealth (No 2) [2025] FCA 796, [32].
3. Pabai v Commonwealth (No 2) [2025] FCA 796, [45].
4. Pabai v Commonwealth (No 2) [2025] FCA 796, [44] – [47].
5. Pabai v Commonwealth (No 2) [2025] FCA 796, [50] – [53]
6. Pabai v Commonwealth (No 2) [2025] FCA 796, [977].
7. Pabai v Commonwealth (No 2) [2025] FCA 796, [1035].
8. Pabai v Commonwealth (No 2) [2025] FCA 796, [862].
9. Pabai v Commonwealth (No 2) [2025] FCA 796, [977].
10. Pabai v Commonwealth (No 2) [2025] FCA 796, [1010].
11. Pabai v Commonwealth (No 2) [2025] FCA 796, [1008].
12. Pabai v Commonwealth (No 2) [2025] FCA 796, [865].
13. Pabai v Commonwealth (No 2) [2025] FCA 796, [1059].
14. Pabai v Commonwealth (No 2) [2025] FCA 796, [1060].
15. Pabai v Commonwealth (No 2) [2025] FCA 796, [1061].
16. Bendix Mentix Pty Ltd v Barnes (1997) 42 NSWLR 307, 315.
17. Minister for the Environment v Sharma (2022) 291 FCR 311.
18. Pabai v Commonwealth (No 2) [2025] FCA 796, [1070.
19. Pabai v Commonwealth (No 2) [2025] FCA 796, [1074].
20. Pabai v Commonwealth (No 2) [2025] FCA 796, [1083].
21. Pabai v Commonwealth (No 2) [2025] FCA 796, [1084].
22. Pabai v Commonwealth (No 2) [2025] FCA 796, [1086].
23. Pabai v Commonwealth (No 2) [2025] FCA 796, [1120].
24. Pabai v Commonwealth (No 2) [2025] FCA 796, [1122].
25. Pabai v Commonwealth (No 2) [2025] FCA 796, [1131].
26. Climate Change Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, Series A No 32, May 29, 2025).
27. Climate Change Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, Series A No 32, May 29, 2025) [380]-[457].
28. Climate Change Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, Series A No 32, May 29, 2025) [605]-[613].
29. Climate Change Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, Series A No 32, May 29, 2025) [236].
30. Pabai v Commonwealth (No 2) [2025] FCA 796, [1008].
31. Climate Change Emergency and Human Rights (Advisory Opinion) (Inter-American Court of Human Rights, Series A No 32, May 29, 2025) [381].
32. Pabai v Commonwealth (No 2) [2025] FCA 796, [1150].
33. Obligations of States in respect of Climate Change (Advisory Opinion) (International Court of Justice, July 23, 2025).
