No case of negligence established. Precise orders would be decided based on parties' suggestions.

On October 26, 2021, Wadhuam Paul and Wadhuam Pabai, First Nations’ leaders from the Gudamalulgal nation of the Torres Strait Islands, filed a case challenging Australia’s failure to cut emissions and asserting that the government’s inaction will force their communities to migrate to new areas. Torres Strait Islander communities face an existential threat due to rising sea levels from climate change. If global temperatures rise more than 1.5oC many of the islands will become uninhabitable. The sea level in the Torres Strait (also known as Zenadth Kes) has risen about six centimeters over the past decade. Without deep emissions cuts, sea levels are projected to rise to a meter or more above present day levels by 2100. The plaintiffs claim that as the ocean rises it will flood and destroy their irreplaceable cultural heritage and sacred sites. This includes burial sites, locations that contain human remains and places that have a spiritual significance.

The applicants plaintiffs present scientific evidence proving that the following climate change-induced impacts already threaten their native title rights and Ailan Kastom, the Torres Strait people's distinctive customary culture: (i) higher temperature, (ii) ocean acidification and higher ocean temperature, (iii) sea-level rise and associated flooding and erosion, (iv) increase in the frequency, size and/or intensity of extreme weather events such as terrestrial and marine heatwaves, severe storms, and flooding, (v) harm and destruction of terrestrial and marine ecosystems and non-human species - coral reefs, and (vi) harm to human health. A continued failure to act is likely to result in the triggering of so-called tipping points making the Torres Strait uninhabitable. 

The applicants allege that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their culture and traditional way of life, and their environment from harms caused by climate change, and that the government has breached this duty as the targets are not consistent with the best available science. Additionally, they argue that the government has breached this duty, including by failing to identify an emissions reduction target and take the as the targets are not consistent with the best available science and implement such measures as are necessary to reduce Australia’s emissions consistent with that target. Pursuant to the Torres Strait Treaty, Australia is indeed require to take legislative and other action to protect and preserve the marine environment in and in the vicinity of the protected zone, and/or take measures for the prevention and control of pollution or other damage to the marine environment from all sources and activities under its jurisdiction or control. The applicants seek an order requiring the federal government to reduce greenhouse gas emissions and prevent the inundation of islands in the Torres Strait through the implementation of necessary measures to protect their land and marine environment, cultural and customary rights. 

Justice Wigney delivered the judgment of the Federal Court of Australia on July 15, 2025. The Justice concluded that the applicants had failed to bring any negligence case against the Commonwealth. Although the Court acknowledged the Australian government's failure "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" in limiting the global temperature under the Paris Agreement, and found that "[t]here could be no doubt that the Torres Strait Islands have been, and continue to be, ravaged by the impacts of human-induced climate change," the Court held that the elements to establish a case of negligence were not present. Along with the failure to find a harm of compensable type, the Court emphasized that the governmental conducts at issue are not the subject of common law duties of care. After analyzing the decisions of higher courts, the Court concluded that it may not judge on the reasonableness of the Commonwealth's actions concerning matters of high or core government policy and political judgment. In the same context, the Court held that it may not find the Commonwealth unreasonable for merely failing to reference the best available science in decision-making, because broader economic, social, and political considerations were involved.

In his summary, Justice Wigney underscored that "[the case] failed essentially because the common law of negligence in Australia was not a suitable legal vehicle through which the applicants could obtain effective relief in respect the type of harm they claim to have suffered as a result of the type of governmental action or inaction which was in issue in this case," and that the Australian law "currently stands provides no real or effective legal avenue through which individuals and communities . . . can claim damages or other relief in respect of harm . . . as a result of governmental decisions and conduct which involve matters of high or core government policy, including in respect of the responses to climate change and its impacts." 

Instead of dismissing the case, Justice Wigney decided to hear from the parties on the precise terms of the orders. The parties were directed to provide the Court with either a draft order agreed upon or short submissions in respect of the competing proposed orders.

On November 11, 2025, Uncle Pabai Pabai and Uncle Paul Kabai filed an appeal in the Full Federal Court. The appeal argues that the Commonwealth of Australia does owe a duty of care to Torres Strait Islanders in relation to climate change, the Commonwealth’s additional emissions are a legal cause of harm to Torres Strait Islanders, and cultural harm is a legally recognized harm and is compensable under Australian law. The appeal was heard from July 28 to 31, 2026. Judgment has been reserved.

Pabai Pabai and Guy Paul Kabai v. Commonwealth of Australia

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Pabai Pabai and Guy Paul Kabai v. Commonwealth of Australia - judgment

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An aim to achieve a quantifiable outcome within a given time-frame, set by an institution such as a national government.

Policy instruments are techniques or tools used by governing authorities to promote certain policies in order to achieve predetermined goals. Put simply, instruments are how a government tries to achieve its goals, with this taxonomy being focused on national policy instruments.

Risk is the potential for adverse consequences resulting from the dynamic interplay between (climate-related) hazards, exposure, and vulnerability of affected human or ecological systems.

Groups  of people who are adversely affected by climate change or the response to it

A set of principles, processes, and practices that build economic and political power to shift from an extractive economy to a regenerative economy.

Justice is the ethical and political framework that addresses fairness, including issues of responsibility, rights, and structural inequity.

Renewable energy means all forms of energy produced from renewable sources in a sustainable manner.

Fossil fuel is a generic term for non-renewable energy sources such as coal, fossil gas, and oil (including crude oil, and petroleum products), that can be used for electricity and heat generation. Fossil fuels are hydrocarbons formed from pressurised and heated organic material buried over millions of years.

Molecules in the atmosphere that play a key role in the greenhouse effect by trapping heat radiating from Earth’s surface.

Area of the economy in which actors engage in identical or related activities.

In human systems, the process of adjustment to actual or expected climate change and its effects, in order to moderate harm, increase resilience or exploit beneficial opportunities. In natural systems, the process of adjustment to actual climate change and its effects; human intervention may facilitate adjustment to expected climate change and its effects.

The management and allocation of funds, assets and investments to meet various objectives

People who are less able to respond to the effects of climate change due to having limited financial or physical assets

Financial support to help individuals manage the effects of unexpected events, securing their livelihoods and increasing the resilience of people and businesses to the changing climate. It’s especially vital in developing regions where everyday risks, climate-related weather extremes, or crop failures can push people into poverty. Without insurance, people may have to resort to selling assets or cutting consumption to cope with losses.

Zoning and spatial planning are both methods for guiding the distribution of people and activities in a space, and are regulatory restriction.

The processes through which enterprises can identify, prevent, mitigate and account for how they address their actual and potential adverse impacts. Due diligence is the idea that reasonable precautions should be taken to avoid causing harm to people, the environment, or society. It also involves identifying and mitigating risks before they occur.

An integrated system of hazard monitoring, forecasting and prediction, that enables individuals, communities, governments, businesses and others to take timely action to reduce disaster risks in advance of hazardous events.

Financial actors and resources that are primarily directed towards climate change mitigation, adaptation and compensation.

A target to reduce the prevalence of a greenhouse gas over a specific time frame

A commitment to balance GHG emissions with removal by a certain point in time, effectively reducing the net emissions to zero

Either money or something of monetary value is transferred between two or more organisations, people or countries.

Conditions that enhance the feasibility of adaptation options. Enabling conditions include finance, technological innovation, strengthening policy instruments, institutional capacity, multi-level governance and changes in human behaviour and lifestyles.

Actions or measures to adapt terrestrial systems to climate change.

Actions or measures to adapt freshwater systems to climate change.

Actions to adapt human health, healthcare systems and well-being to climate change.

Actions to adapt and increase the resilience of rural and urban infrastructure and settlements to climate change.

Coastal zone and marine-related actions and measures to adapt and increase resilience to climate change

Actions or measures to adapt freshwater, coastal and marine systems to climate change.

Hot temperature extremes are daily maximum temperatures  that were exceeded on average once in a decade or once in 50 years, and includes heatwaves.

The release of heat-trapping gases, primarily from human activities such as burning fossil fuels, agriculture and industry.

A long-lived, colourless gas, chiefly emitted from fossil fuel combustion, deforestation and cement production.

A potent, short-lived greehouse gas, largely released from livestock, fossil fuel extraction and waste management.

Actions to reduce emissions in energy generation and supply.

Risks to the ecosystem health of the marine environment, including ocean warming, ocean acidification, and ocean deoxygenation, harming biodiversity, species health, ecosystem services, and coastal community livelihoods.

Extreme weather refers to events where a weather variable exceeds (or falls below) a threshold. Meaning it is significantly different from the average or usual weather pattern.

A drought is an extended period of unusually dry weather marked by a significant and sustained lack of precipitation, falling below a specific threshold over a large area for more than a month

Terrestrial means "of the earth" and relates to the risks to ecological system that includes all living organisms and their interactions within land-based environments, such as forests, grasslands, and deserts.

Air pollution involves harmful contaminants in the air, affecting both indoor and outdoor environments. It can lead to health issues like respiratory diseases and heart problems, and climate impacts such as global warming. Pollutants can damage plants, trees, habitats, and water bodies like rivers and lakes.

Social protection systems consist of policies that help people manage social risks in order to prevent poverty and maintain decent incomes and living standards

Social inclusion is the process of improving the terms on which individuals and groups take part in society—improving the ability, opportunity, and dignity of those disadvantaged on the basis of their identity.

Oil is a combustible liquid fossil fuel composed mainly of hydrocarbons, occurring as crude oil and refined into petroleum products such as petrol, diesel and kerosene.

Fossil gas, commonly known as natural gas, is a fossil fuel consisting chiefly of methane with smaller amounts of other hydrocarbons and trace gases, found in underground deposits.

Coal is a combustible sedimentary rock formed from carbonised plant matter, rich in carbon and hydrocarbons, and occurring in several main types including hard coal and brown coal.

People with different national or cultural traditions from the dominant population

Social and cultural groups that share collective ancestral ties to the lands and natural resources where they live, occupy or from which they have been displaced

Jobs that contribute to preserving or restoring the environment. We include jobs which require a high amount of green skills or which spend much of their time on green activities, as well as jobs transforming polluting industries.

woman and genders outside of the gender binary

Any compulsory, unrequited payment to the government levied on corporations or individuals. This can be for environmental reasons, such as introducing a Carbon tax to set a price that emitters must pay for the greenhouse gases they emit.

Activities of industries that extract natural resources, such as mining, oil, and gas, for commercial use.

The activities of industries that transforms raw materials into finished goods through industrial processes.

The activities of industries involved in the production, distribution, and sale of energy, including electricity, gas, and renewables.

This sector involves managing waste treatment, sanitation, pollution control and environmental cleanup.

Activities that involve planning, designing and building infrastructure, residential, and commercial structures.

This sector involves activities to move goods and people, alongside the storage of products.

This sector involves activities that impart knowledge and skills to individuals, including formal schooling, vocational training and educational support.

Activities of government agencies and institutions that provide public services, enforce laws and manage public resources.

This sector includes firms and individuals offering specialised expertise in fields such as law, accounting, consulting, science and engineering.

Activities that involve the cultivation of crops and raising of livestock for food, fibre, and other products essential for human life and industry.

Activities that relate to the production of goods and services from forests.

Activities involving the catching, processing, and selling of fish for food, recreation, and industry.

This sector involves the distribution, treatment, and conservation of water resources.

Climate change can have a range of impacts on technological system. Extreme weather events can cause infrastructure failures like power outages or damage to roads and bridges, as well as the impacts from waste following natural disasters. Human activities also cause technological impacts, such as the risks posed by oil spillage and leaks.

Any substance with chemical properties that can cause physical harm to people or damage the environment, including ammonia, carbon monoxide, phosphine, chlorine, arsenic, cadmium, mercury, pesticides, dioxins, microplastics, benzene, asbestos, aflatoxins, fluoride, methanol, and toxins from marine sources.

Climate change impacts our society by disrupting the natural, economic and social systems we depend on. Physical hazards and underlying vulnerabilities can lead to increased resource competition for food and water, which can heighten the risk of conflict.

Slow onset events evolve gradually from incremental changes over many years or from increased frequency or intensity of recurring events. As defined in the Cancun Adaptation Framework (2010), slow onset events include risks and impacts from rising temperatures, desertification, biodiversity loss, land and forest degradation, glacial retreat, ocean acidification, sea level rise, and salinization.

Heavy precipitation refers to any form of weather where substances fall from the sky, including rain, snow, sleet, or hail.

The cryosphere is the frozen part of the Earth—it includes sea ice, glaciers, snow, and ice sheets. It helps regulate the climate and weather by reflecting sunlight. Rising temperatures are causing melting, leading to sea ice loss, glacier collapse, and glacier landslides and avalanches. This threatens the livelihoods of around 700 million people who rely on the cryosphere for food, water security, and cultural practices.

Geohazards are adverse geological phenomenon's that are capable of causing widespread damage or loss to property, life and the environment, such as earthquakes, volcano eruptions and tsunamis. Climate change can increase the frequency and severity of some geohazards, such as landslides, and soil erosion.

On October 26, 2021, Wadhuam Paul and Wadhuam Pabai, First Nations’ leaders from the Gudamalulgal nation of the Torres Strait Islands, filed a case challenging Australia’s failure to cut emissions and asserting that the government’s inaction will force their communities to migrate to new areas. Torres Strait Islander communities face an existential threat due to rising sea levels from climate change. If global temperatures rise more than 1.5oC many of the islands will become uninhabitable. The sea level in the Torres Strait (also known as Zenadth Kes) has risen about six centimeters over the past decade. Without deep emissions cuts, sea levels are projected to rise to a meter or more above present day levels by 2100. The plaintiffs claim that as the ocean rises it will flood and destroy their irreplaceable cultural heritage and sacred sites. This includes burial sites, locations that contain human remains and places that have a spiritual significance.

The applicants plaintiffs present scientific evidence proving that the following climate change-induced impacts already threaten their native title rights and Ailan Kastom, the Torres Strait people's distinctive customary culture: (i) higher temperature, (ii) ocean acidification and higher ocean temperature, (iii) sea-level rise and associated flooding and erosion, (iv) increase in the frequency, size and/or intensity of extreme weather events such as terrestrial and marine heatwaves, severe storms, and flooding, (v) harm and destruction of terrestrial and marine ecosystems and non-human species - coral reefs, and (vi) harm to human health. A continued failure to act is likely to result in the triggering of so-called tipping points making the Torres Strait uninhabitable. 

The applicants allege that the Commonwealth owes a duty of care to Torres Strait Islanders to take reasonable steps to protect them, their culture and traditional way of life, and their environment from harms caused by climate change, and that the government has breached this duty as the targets are not consistent with the best available science. Additionally, they argue that the government has breached this duty, including by failing to identify an emissions reduction target and take the as the targets are not consistent with the best available science and implement such measures as are necessary to reduce Australia’s emissions consistent with that target. Pursuant to the Torres Strait Treaty, Australia is indeed require to take legislative and other action to protect and preserve the marine environment in and in the vicinity of the protected zone, and/or take measures for the prevention and control of pollution or other damage to the marine environment from all sources and activities under its jurisdiction or control. The applicants seek an order requiring the federal government to reduce greenhouse gas emissions and prevent the inundation of islands in the Torres Strait through the implementation of necessary measures to protect their land and marine environment, cultural and customary rights. 

Justice Wigney delivered the judgment of the Federal Court of Australia on July 15, 2025. The Justice concluded that the applicants had failed to bring any negligence case against the Commonwealth. Although the Court acknowledged the Australian government's failure "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" in limiting the global temperature under the Paris Agreement, and found that "[t]here could be no doubt that the Torres Strait Islands have been, and continue to be, ravaged by the impacts of human-induced climate change," the Court held that the elements to establish a case of negligence were not present. Along with the failure to find a harm of compensable type, the Court emphasized that the governmental conducts at issue are not the subject of common law duties of care. After analyzing the decisions of higher courts, the Court concluded that it may not judge on the reasonableness of the Commonwealth's actions concerning matters of high or core government policy and political judgment. In the same context, the Court held that it may not find the Commonwealth unreasonable for merely failing to reference the best available science in decision-making, because broader economic, social, and political considerations were involved.

In his summary, Justice Wigney underscored that "[the case] failed essentially because the common law of negligence in Australia was not a suitable legal vehicle through which the applicants could obtain effective relief in respect the type of harm they claim to have suffered as a result of the type of governmental action or inaction which was in issue in this case," and that the Australian law "currently stands provides no real or effective legal avenue through which individuals and communities . . . can claim damages or other relief in respect of harm . . . as a result of governmental decisions and conduct which involve matters of high or core government policy, including in respect of the responses to climate change and its impacts." 

Instead of dismissing the case, Justice Wigney decided to hear from the parties on the precise terms of the orders. The parties were directed to provide the Court with either a draft order agreed upon or short submissions in respect of the competing proposed orders.

On November 11, 2025, Uncle Pabai Pabai and Uncle Paul Kabai filed an appeal in the Full Federal Court. The appeal argues that the Commonwealth of Australia does owe a duty of care to Torres Strait Islanders in relation to climate change, the Commonwealth’s additional emissions are a legal cause of harm to Torres Strait Islanders, and cultural harm is a legally recognized harm and is compensable under Australian law. The appeal was heard from July 28 to 31, 2026. Judgment has been reserved. 

Pabai Pabai and Guy Paul Kabai v. Commonwealth of Australia - judgment

Target

Policy instrument

Risk

Impacted group

Just transition

Renewable energy

Fossil fuel

Greenhouse gas

Economic sector

Adaptation/resilience

Finance