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

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

Filed

Australia

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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

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.

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.

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.

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

People who have left their homes, whether through force, voluntarily, or a mixture of both

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

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.

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

Risk

Impacted group

Greenhouse gas

Economic sector

Adaptation/resilience