Climate Case in Australia: Implications of the Pabai Pabai Verdict for the Climate and Cultural Rights of Indigenous Peoples

In a landmark decision, the Australian Federal Court has ruled that the common law of negligence is not yet capable of compensating for the loss of identity and an ancient way of life caused by climate change. The case, known as Pabai v Commonwealth of Australia, was filed in October 2021 by two elders of the Gudamlulgal Nation.

The plaintiffs 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. They relied on the Commonwealth's entry into the Torres Strait Treaty with Papua New Guinea in 1978 and its later entry into the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), both of which contained provisions imposing obligations to protect the way of life of Torres Strait Islanders.

However, Wigney J did not find a "special protective relationship" between the Commonwealth and Torres Strait Islanders, nor did he conclude that the loss of cultural practices, such as Ailan Kastom, was compensable under the law of negligence. The Court did not recognize the loss of traditional culture as a compensable head of damage in negligence, which would have broadened the scope of actions available to First Nations people for culture loss.

The Court's decision is a significant setback for the Torres Strait Islands, which have been and continue to be ravaged by the impacts of human-induced climate change. The lead applicants argued that their vulnerability and relative disadvantage in terms of protecting themselves from the ravages of climate change means that they are a group of people who could reasonably be considered to be deserving of particular protection from the impacts of climate change by those that govern them, including the Commonwealth.

The case was the first in Australian history to consider the existence of a standalone, novel duty of care owed by the Commonwealth to Torres Strait Islanders to set emissions targets in line with "best available science" on climate change. While the decision may not have been in favour of the applicants, it has opened up a conversation about the responsibilities of the Australian government towards its Indigenous communities in the face of climate change.

The Australian government was sued in the Pabai Pabai judgment on July 15, 2025, and the case was unsuccessful as the Court concluded that the alleged duty of care related to matters of core or high government policy, which are unsuitable for assessment by courts.

Despite this setback, the fight for climate justice continues. 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 outcome of this case is yet to be determined, but it serves as a testament to the resilience and determination of those seeking to hold those in power accountable for their actions on climate change.

As the impacts of climate change continue to be felt across the world, it is clear that the law must evolve to meet the challenges of this new reality. The Pabai Pabai case may not have resulted in the compensation sought by the applicants, but it has underscored the need for a more robust legal framework to protect the rights of Indigenous communities and ensure that their voices are heard in the fight against climate change.

Climate Case in Australia: Implications of the Pabai Pabai Verdict for the Climate and Cultural Rights of Indigenous Peoples