Climate Action in Australia: The Pabai Pabai Verdict and Its Implications for Indigenous Climate and Cultural Preservation Rights

In a landmark decision, the Federal Court of Australia has dismissed a climate change case filed by two elders of the Gudamlulgal Nation, marking a significant setback for climate activists. The case, Pabai v Commonwealth of Australia, was the first of its kind in Australian history, seeking to hold the government accountable for its contribution to climate change and its impact on Torres Strait Islanders.

Filed in October 2021, the case was a "climate framework case" that challenged the ambition and implementation of the government's overall climate policy response. The lead applicants argued that the Commonwealth owed a duty to Torres Strait Islanders to set greenhouse gas (GHG) emissions reduction targets in line with the "best available science" on climate change. The case was modelled off the successful cause of action argued in the Urgenda Foundation v The State of Netherlands case.

The Applicants argued that Torres Strait Islanders have a special vulnerability to the effects of climate change, with their islands being highly exposed to harm and the damaging consequences being "catastrophic in scale" for them. Climate change has and will continue to cause harm to their practice of Ailan Kastom, their traditional culture.

However, Justice Wigney, in his judgement, found that the Commonwealth did not have the requisite level of control over the source of harm to the Applicants. Any change in emissions due to an emissions target in line with the "best-available science" would have only a small effect on global emissions. Furthermore, the Court found that the alleged duty of care related to matters of core or high government policy, which are unsuited to assessment by courts and thus cannot form the subject of a duty of care.

In a separate case, Sharma v Minister for the Environment (Sharma), a group of young climate activists brought a claim alleging that the Minister for the Environment owed a duty of care to all Australians under 18 to exercise care to avoid the risk of injury or death in exercising her power to approve an extension to a coal mine. The Minister's appeal against the decision was upheld by the Full Court of the Federal Court, which found unanimously that the duty should not be imposed on the Minister.

Meanwhile, in the Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) case, the Queensland Land Court found that approving a contested mine would limit various human rights under the Queensland Human Rights Act 2019, including the right to life for all people in Queensland, the cultural rights of First Nations people, and the rights of children. However, the Court declined to recognise the loss of traditional culture as a compensable head of damage in negligence.

Following the judgement in Pabai Pabai, it's likely that Australia may see fewer "climate framework cases" and future climate litigation may follow formulae that have been successful in previous litigation, such as greenwashing cases, challenges to decisions to approve certain developments, and cases founded on native title rights.

The organization primarily representing the case, Pabai v Commonwealth of Australia, was the Environmental Defenders Office (EDO). The EDO, a non-profit legal organisation, continues to advocate for environmental protection and climate action in Australia. Despite the setback, the case has highlighted the urgent need for governments to address climate change and its impact on vulnerable communities.

Climate Action in Australia: The Pabai Pabai Verdict and Its Implications for Indigenous Climate and Cultural Preservation Rights