Harry Stewart: When the Law Fails Country

My Opinion on the Court’s Pabai Decision and the Limits of Justice

I. Background: A Landmark Climate Case for First Nations

In 2021, Torres Strait Islander leaders Uncle Pabai Pabai and Uncle Paul Kabai filed a landmark class-action lawsuit against the Commonwealth of Australia. They argued that the federal government has a duty of care under negligence law to protect Torres Strait Islander people, their lands, and culture from the impacts of climate change.

The plaintiffs come from the low-lying islands of Boigu and Saibai, which are already suffering frequent flooding, erosion, and salinization due to rising seas. They warned that without stronger climate action (like deep emissions cuts and adaptation measures), their islands could become uninhabitable within decades – severing a connection to Country and culture that has lasted millennia.

In bringing this case, the Torres Strait Islanders sought legal recognition of the government’s responsibility to prevent climate harms and of the cultural loss they are experiencing (known as Ailan Kastom, their unique traditions, and customs).

II. The Federal Court’s Judgment: No Duty of Care

On 15 July 2025, the Federal Court (Justice Michael Wigney) delivered its decision in Pabai Pabai & Kabai v Commonwealth.

The Court dismissed the claim, finding that Australia’s government does not owe a duty of care to protect Torres Strait Islanders from climate change impacts.

Justice Wigney ruled that setting national greenhouse gas targets or funding climate adaptation are matters of “high or core government policy” – decisions for Parliament and the Executive, not courts.

Therefore, the novel duty of care proposed by the plaintiffs could not be recognized under current negligence law.

This outcome echoes the reasoning of the Full Federal Court’s 2022 decision in Minister for Environment v Sharma, which had similarly held that climate policy decisions are outside the scope of common-law duties of care.

As Justice Wigney put it, there is “no real or effective legal avenue” for people to claim damages over government inaction on climate change unless the law is changed by higher courts or legislation.

III. Legal Reasoning: Separation of Powers and Policy Matters

The Court’s reasoning centred on the constitutional separation of powers and the limits of tort law in reviewing policy.

Justice Wigney emphasised that assessing the “reasonableness” of national emissions targets or funding for seawalls would draw the judiciary into core policy judgments involving economic, social, and political considerations – a role unsuited for courts. Deciding how much to reduce emissions, and how to balance climate action against other policy goals, involves “value judgments, policy choices, and political judgments” reserved for elected governments.

The judge noted that allowing a negligence claim in this arena would effectively ask the court to second-guess national policy, which Australian courts are reluctant to do.

This deference to Parliament echoes Chief Justice Allsop’s view in the Sharma appeal that climate change “can only be addressed by global coordinated policy and action” and that it is the role of elected government – not the judiciary via tort law – to make those decisions.

In sum, the common law of negligence was deemed an inappropriate vehicle to challenge governmental climate inaction, absent clear legislative or appellate direction to expand such duties.

IV. Causation and Cultural Harm: Additional Hurdles

Justice Wigney also found that, even if a duty of care had existed, the claim would falter on other elements. Notably, the plaintiffs faced causation challenges inherent in climate litigation.

The Court accepted consensus scientific evidence that Australia’s share of global emissions is relatively small, and that more ambitious Australian targets would only have caused an “extremely small” and unobservable reduction in global temperature rise.

Because climate change results from cumulative worldwide emissions, it was difficult to prove Australia’s failures materially contributed to the local harms in the Torres Strait.

This highlights the steep hurdle of attributing specific damage to one nation’s conduct in a global problem.

Furthermore, the judge held that the primary harm alleged – the loss of fulfilment of Ailan Kastom (the inability to practise and sustain cultural traditions due to climate impacts) – is not a recognised category of compensable damage in negligence. He expressed “considerable sympathy” with the Islanders’ argument for cultural loss to count as legal damage, but as a single judge he felt it was not “open to him” to newly extend the law to protect such cultural rights.

In short, Australian tort law has not yet evolved to protect cultural or spiritual loss, and any change on that front would require appellate courts or legislation.

V. Impact on Torres Strait Islanders and Indigenous Perspectives

Although the plaintiffs lost the case, the judgment forcefully acknowledged the reality of the climate crisis facing Torres Strait Islanders.

Justice Wigney devoted much of his 272-page judgment to detailing how these low-lying islands “have in recent years been ravaged by the impacts of human-induced climate change” – including rising sea levels, frequent inundation, erosion of coastlines, dying crops, and damage to sacred sites.

He found that climate change poses an “existential threat to the whole of humanity,” with the Torres Strait at the “pointy end” due to its particular vulnerability. Inhabitants are already struggling to source traditional foods and observe cultural practices and face a “bleak future” of possibly losing their islands and becoming “climate refugees” if warming continues unabated.

These stark factual findings gave weight to the plaintiffs’ cause. Indeed, the judge noted the case did not fail for lack of merit on the facts – the Islanders’ fears and injuries were real – but because the law as it stands offers them no remedy for government policy choices.

The defeat was heartbreaking for the communities involved. “My heart is broken for my families and my community,” said Uncle Pabai after the verdict.

Another Torres Strait elder described the outcome as “a moral loss for the government, not for us,” vowing that “we will keep fighting”. Supporters noted that, in moral terms, the litigation succeeded in forcing the government’s climate record under scrutiny and securing judicial recognition of the Islanders’ plight.

But without a legal victory, the immediate situation remains that Torres Strait Islanders continue to face escalating climate threats with no court-ordered protections.

The onus now shifts back to the political realm – as Justice Wigney pointed out, their recourse may have to be through “public advocacy and protest, and ultimately via the ballot box” rather than the courts.

VI. Implications for Climate Litigation and Future Avenues

The Pabai decision is a sobering precedent for climate litigation in Australia. It reinforces that, under current law, broad tort claims against the government for inadequate climate action are unlikely to succeed.

Australian courts have now twice (in Sharma and Pabai) confirmed a reluctance to impose novel duties of care on policy-making authorities in the climate sphere.

This signals that litigants cannot easily use negligence suits to compel stronger climate targets or adaptation measures – at least not without overcoming the “core policy” barrier and showing a special duty relationship.

The outcome may channel climate advocates toward alternative legal strategies. For example, future cases may target private emitters or corporations, since in some jurisdiction’s courts have been more willing to find duties of care owed by companies to those harmed by climate change.

Indeed, climate liability for private entities is a dynamically evolving area internationally (e.g., recent cases holding corporations to account for emissions), even if imposing specific emissions targets remains novel.

Another likely shift is toward statutory and human rights-based claims. The failure of common-law negligence in this context highlights the gaps in Australia’s legal framework.

Legal experts point to the need for legislative reform to bridge these gaps. One proposal is a federal climate duty of care statute: notably, Independent Senator David Pocock introduced a private member’s bill in 2023 to impose a duty on decision-makers to consider those vulnerable to climate harm, though it did not pass.

Another avenue is a federal Human Rights Act that could ground climate litigation in protected rights. In fact, outside Australia there have been significant wins using human rights law – including a petition brought by the “Torres Strait 8” to the UN Human Rights Committee, where in 2022 the committee found Australia had violated the Islanders’ rights to culture and family life by failing to act on climate threats.

At the state level, courts have also started integrating human rights into climate decisions (for instance, Queensland’s Land Court recommended blocking a coal mine due to rights impacts on youth and First Nations, under that state’s Human Rights Act).

These developments suggest that rights-based climate claims might succeed where negligence claims have stumbled, especially if Australia enacts stronger human rights protections at the federal level.

Finally, the Pabai case may yet move to higher courts. Justice Wigney himself acknowledged that the common law could evolve “by incremental development or expansion … by appellate courts”. The plaintiffs have indicated they are considering an appeal.

Any appeal to the Full Federal Court or the High Court would give those courts an opportunity to reconsider the existence of a climate duty of care – potentially making new law if they see fit.

Some observers draw parallels to historic Indigenous rights cases: the Pabai claim, though unsuccessful at first instance (like the Gove land rights case in 1971), could lay groundwork for a future breakthrough in a higher court, akin to the Mabo decision of 1992 that finally recognised native title. In other words, this defeat could be an initial step in a longer legal journey.

Even if Australian courts remain cautious, the pressure for climate accountability is only growing, and creative litigants will continue to test new strategies.

VII. Conclusion

The Federal Court’s refusal to impose a duty of care in the Torres Strait climate case underscores the current limits of Australian law in addressing climate justice for vulnerable communities.

It was a deeply disappointing outcome for Indigenous Australians on the frontline of the climate crisis. Yet the judgment also made plain that the crisis is real, urgent, and gravely damaging – effectively urging other branches of government to act. Moving forward, the fight will likely shift to other forums: political advocacy, appeals to higher courts, and pushes for legislative change or human rights frameworks.

As one legal commentator noted, it is a question of “when, rather than if, the law will adapt to deal with climate impacts,” because the pressure of climate change on existing legal rights will become “too extreme for the law to resist”.

In the meantime, Torres Strait Islander leaders and their allies remain steadfast, treating this legal setback not as the end, but as motivation to continue campaigning for stronger climate action and the protection of their communities for generations to come.

• Harry Stewart is a Walbunja man, Juris Doctor candidate and MBA graduate from UNSW who serves on the board of the Indigenous Reading Project. A senior manager in Australia’s banking sector. Drawing on his experience in strategy and his deep commitment to First Nations economic empowerment, Harry writes sharp, accessible analysis at the intersection of law, politics, business and Indigenous affairs. He also hosts the “Capital and Country” newsletter and the “YARNS.” podcast, where he interviews leaders from politics, finance and community to spotlight ideas that move Australia toward a fairer, more prosperous future.