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

Litigation

Sabin

Sabin Litigation

application

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

petition

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

order

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

judgment

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

Filing Year For Action

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.

Pabai Pabai and Guy Paul Kabai v. Commonwealth of Australia