Draft:Pabai v Commonwealth

Torres Strait Islands

The Torres Strait Islands are a cluster of islands off the northern coast of Australia. They have traditionally been inhabited by the Torres Strait Islander people. The islands have been subject to impacts arising from climate change, including sea level rise, impacts on marine environments, flooding, erosion, property damage, coral bleaching, displacement, and loss of food sources.^[2][3]: 3 The impacts of sea level rise are particularly acute, occurring twice as fast as the global average, coupled with the low-lying nature of some islands.^[4] Pabai's island is low-lying and has been identified as being subject to climate-related hazards.^[5]: 1206

Ailan Kastom

Ailan Kastom (Island Custom) is a tradition that is passed down by Torres Strait Islander people that preserves their connection to Country.^[6]: 20 It is defined in Queensland law as:

"the body of customs, traditions, observances and beliefs of Torres Strait Islanders generally or of a particular group of Torres Strait Islanders, and includes any such customs, traditions, observances and beliefs relating to particular persons, areas, objects or relationships."^[7]

Ailan Kastom impacts the management of the land and marine environment, and incorporates elements such as roles of marine species, including turtles and dugongs.^[8]: 4–5 Climate change has the potential to adversely impact cultural activities of the Torres Strait Islanders in various ways, including harm to cultural sites, impacts to burial grounds and graves, loss of food resources, mental health impacts, and reduced access to animals that have cultural importance from changing populations and migration patterns, undermining the "healthy ecosystem" that has a key role in Ailan Kastom.^{[9]: 75 [5]: 1630 [10]: 197}

Previous legal decisions

The United Nations Human Rights Committee had previously decided in 2022 that there has been a failure to protect certain rights of the Torres Strait Islander people under the International Covenant on Civil and Political Rights, due to inadequate measures to protect them from the impacts of climate change.^[11]

The Full Court of the Federal Court of Australia previously held in the 2022 case of Minister for the Environment v Sharma^[12] that the Minister did not owe a duty of care relating to climate change when approving projects under the Environment Protection and Biodiversity Conservation Act 1999, in part due to it relating to issues of 'core policy'.^[13]

Litigants

The case was brought by two Guda Maluyligal traditional owners from the Torres Strait Islands, Uncles Pabai Pabai and Paul Kabai, from the islands of Boigu and Saibai respectively.^[14] It was brought as a representative proceeding on behalf of all Torres Strait Islanders who have suffered damage.^[15] They were represented by Phi Finney McDonald.^[16][1] The defendant was the Commonwealth of Australia, represented by the Australian Government Solicitor.^[1]

Procedure

In an interlocutory decision, Justice Mortimer stated that "there is no denying the unremitting march of the sea onto the islands of the Torres Strait", and accepted the applicants' claim that evidence ought to be taken in the Torres Strait.^{[17]: [28], [32]}

Hearings were held in June, November, and December 2023, and April–May 2024.^[1] These occurred at locations in the Torres Strait Islands, Melbourne, and Cairns.^[18]

Judgment

The decision was handed down by Justice Wigney on 15 July 2025^[1] in Cairns.^[19]

Wigney declined to find either of the alleged duties of care or their respective breaches. On the primary case, Wigney found that the Commonwealth does not owe a duty of care to Torres Strait Islanders or their way of life from the current and projected impacts of climate change, and that this was not breached by the Commonwealth failing to enact greenhouse gas emission targets in accordance with the "best available science", being a limit of 2 °C above pre-industrial temperatures. On the alternative case, Wigney found that the Commonwealth does not owe a duty of care to Torres Strait Islanders to protect them from property damage or loss of fulfilment of Ailan Kastom through climate change adaptation, and that this was not breached by insufficient funding for seawalls on six islands in the Torres Strait Islands, including Boigu.^{[20][21]: 4 [22][23][24]}

Wigney accepted many of the scientific claims made relating to climate change, its consequences, and the potential future of the Torres Strait Islands,^{[23][21]: 4–5} much of which was not challenged by the Commonwealth.^[1]: [54] He also found that in setting various emission targets, the Commonwealth "failed to engage with or give any real or genuine consideration to what the best available science indicated was required for Australia to play its part" as required by the Paris Agreement, describing that science as "patently clear".^[20][23] He noted that the change in government resulted in a new approach which was "more ambitious". He concluded that the evidence did not show that, given Australia's relatively minor contribution to climate change, that excess emissions "materially contributed to any harm".^{[20][25]: 817}

Regarding Ailan Kastom, Wigney said he had "considerable sympathy" to the applicants but went on to say that it was not open to him "sitting as a single judge of this Court" to find that the loss of fulfilment of Ailan Kastom was compensable in negligence.^{[1]: [1131]–[1132] [20][21]: 5}

The argument that colonialism created a "special protective relationship" between the Torres Strait Islanders and the Commonwealth above that of the general public was rejected, as were arguments relating to the Torres Strait Treaty.^{[21]: 4–5}

Appeal

Following the applicants' dissatisfaction with the decision,^[26] an appeal to the Full Court of the Federal Court of Australia was filed on 11 November 2025.^[27] Hearings are expected to occur in late July 2026 in Melbourne.^[28]