Torres Strait Islander Climate Change Ruling by Federal Court at Odds with UN Findings

In a landmark judgment in Pabai Pabai v Commonwealth, Justice Michael Wigney of the Federal Court of Australia ruled that the Commonwealth does not owe a duty of care to Torres Strait Islanders to protect them from the impacts of climate change, casting doubt on whether negligence law is the right legal path for addressing such matters.

Legal expert Professor Matthew Rimmer of QUT highlighted that while Justice Wigney acknowledged the Australian government’s inadequate response to climate threats in the Torres Strait, he emphasized that decisions about greenhouse gas reductions fall under the remit of elected officials, not the courts.

“Justice Wigney warned that the Torres Strait Islands face a grim future without urgent action,” said Professor Rimmer. “But he concluded that such action is ultimately for the Federal Government to determine. For now, the only recourse for the Torres Strait Islanders lies at the ballot box.”

The judgment did acknowledge the severe impacts of climate change on the region and its people. The court noted how rising seas and environmental degradation are damaging the traditional lifestyle and practices—known as Ailan Kastom—of Torres Strait Islanders. However, the court was unconvinced that legal remedies could be granted for such cultural losses under current law.

Professor Rimmer said the decision raises broader issues about the legal protection of Indigenous culture, knowledge, and heritage. “The judge displayed judicial restraint, noting that meaningful changes to the law must come through higher courts or new legislation,” he said.

The case could now move to the Full Federal Court or the High Court of Australia, which in the Mabo case famously redefined Indigenous land rights. Any appeal may delve deeper into international legal precedents and the growing field of climate litigation worldwide.

Rimmer noted that the decision contrasts sharply with the Dutch Supreme Court’s 2019 Urgenda ruling, which found the Netherlands had a legal obligation to cut greenhouse gas emissions in accordance with its human rights commitments.

It also appears at odds with the 2022 UN Human Rights Committee finding in the Torres Strait Eight case, which concluded that Australia’s failure to protect Torres Strait Islanders from climate-related harm violated their rights under the International Covenant on Civil and Political Rights.

“As climate litigation grows globally, future appellate courts in Australia may take a broader view of the legal responsibilities governments owe to frontline communities,” Rimmer added.