Pabai Pabai – An analysis of a landmark judgment

In our previous article discussing climate related litigation in Australia we discussed the case of Pabai Pabai; proceedings brought by two First Nations leaders from the Torres Strait Islands against the Australian government. The claim alleged that the government’s failure to reduce greenhouse gas emissions breached a duty of care owed to protect their community from the effects of climate change. 

The claim alleged that the government owed two novel duties of care:

• Mitigation Duty: A duty to take reasonable steps to protect the Islanders and their traditional way of life through mitigating global temperature rise and reducing emissions in accordance with “best available science”.
• Adaptation Duty: A duty to take reasonable care to avoid causing loss to people and property by failing to implement and fund adequate climate adaptation measures.

The Applicants sought declaratory and injunctive relief, as well as damages for cultural and environmental losses.

Judgment 

Judgment was handed down earlier this year, where the Court dismissed the claim. The Court found that the government did not owe (and had not breached) any duty of care to the Torres Strait Islanders in relation to climate change impacts. The key conclusions from the judgment were that:

• Government Policy Is Not Justiciable:  Decisions on emissions targets and adaptation funding were matters of “core or high government policy”, which were unsuitable for judicial determination.
• No Duty of Care: Even if justiciable, the relationship between the Australian government and the Islanders failed the “salient features” test to establish a duty of care. The fact that the Government had control over emissions targets was insufficient to establish a duty of care. Furthermore, the Court ruled that, even if such a duty was owed, and that duty had been breached, it would be difficult to establish a direct and quantifiable link between the emissions and the specific climate impacts on the Torres Strait Islands.
• Standard of Care: The Court rejected the Applicants’ reliance on “best available science” as the sole benchmark in assessing the standard of care owed, given that targets are not set solely based on scientific advice – rather, broader budgetary, economic, and social considerations are involved.
• Cultural Loss: The Court declined to recognise the loss of traditional culture (“Ailan Kastom”) as a “right or interest the loss or harm to which is compensable under the Australian common law of negligence”. 

The Court also addressed the Applicants’ alternative claim concerning the government’s alleged failure to fund the construction of climate adaptation measures; specifically the construction of sea walls. While acknowledging delays and cost overruns, the Court attributed these issues to project administration issues rather than negligence on the part of the government.

Overall, the Court concluded that the case failed “not so much because there was no merit in [the Applicants] factual allegations but because the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims.” The Judge noted that, absent legal reform or appellate development, the Applicants’ only recourse may be “via the ballot box”.

Analysis 

Pabai Pabai represents a landmark climate framework case; seeking to challenge national climate policy, rather than simply individual projects. Whilst the Court accepted a number of the Applicants' factual claims, the judgment demonstrates the limitations of litigation and legal frameworks in Australia in providing recourse to communities who are vulnerable to the effects of climate change. Rather, the reference in the judgment to seeking recourse “via the ballot box” highlights the importance of legislative and regulatory reform as a potential avenue for such communities to achieve their objectives.  

This article is by Nicholas Lee and Christopher Wenn. 

the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims. ... . That will remain the case unless and until the law in Australia changes, ... . Until then, the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box.

https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca0796