Summary:
In a case modelled on the Dutch Urgenda case, a group of indigenous Torres Strait Islanders living on islands off Australia’s coast initiated domestic class action proceedings before the Federal court of Australia to claim that the Australian government has failed to protect them from climate change, leading to the progressive destruction of their ancestral islands.
This case was brought by two Torres Straits Islanders on behalf of the residents of Torres Strait Islands who have suffered loss and damage due to Australia’s conduct from about 1985. The claim categorically frames the harms allegedly suffered by the group and the risks they face as being caused by Australia’s failure to exercise due care in protecting them from climate-related harms. Apart from sea level rise, extreme weather events, harm to marine ecosystems and increased disease risks, the plaintiffs allege that Australia’s conduct threatens the loss of their distinctive customary culture- Ailan Kastom, which entails a spiritual connection with their land and the practice of marine hunting and fishing.
Context:
In another, separate climate claim, a group of eight Torres Strait islanders took a Communication to the United Nations Human Rights Committee in 2019, alleging that Australia had violated the human rights of low-lying islanders because of its failure to take climate action. On 21 July 2022, the Human Rights Committee adopted its Views in this case, known as the Billy and Others v. Australia case.
Petitioners:
This case was brought by two First Nations leaders on behalf of the remote Torres Strait islands of Boigu and Saibai. They brought the case on their own behalf and “on behalf of all persons who at any time during the period from about 1985 and continuing, are of Torres Strait Islander descent and suffered loss and damage as a result of the conduct of the Respondent”.
Arguments made:
While their claim is essentially based on the Torres Strait Islanders native title rights under the Native Title Act 1993, the plaintiffs also drew upon a wider body of norms regarding the Torres Strait Islanders as well as the environment in and around the Torres Strait Islands, emanating from international law, domestic law and policy commitments.
Based on scientific evidence, the plaintiffs argued that climate change is already threatening their native title rights and distinctive customary culture. They alleged that, due to the progression of climate change and the increasing storms and rising sea levels that result from this, they face an increasing threat of floods and of rising salt concentrations in their soil. Some islands, they argue, could become uninhabitable if the global temperature rises to levels more than 1.5°C above pre-industrial levels. One of the plaintiffs noted that that his people have lived on the islands in question for over 65,000 years.
The plaintiffs alleged that the Australian government owes a duty of care to Torres Strait Islanders. It must, in other words, take reasonable measures to protect them, their environment, their culture and their traditional way of life from the harms caused by climate change. Because current climate action and targets are not consistent with the best available climate science, they argue, they argued that this duty of care has been breached. They invoked the Torres Strait Treaty, which requires the Australian government to protect and preserve the marine environment in the region.
Relief sought:
The plaintiffs sought declarations that Australia owes a duty of care to the Torres Strait Islanders which requires reasonable protective measures aimed at the Islanders, their traditional way of life and the marine environment; and that Australia has breached this duty. They further requested the court to order an injunction requiring Australia to implement both climate adaptation and mitigation measures that are consistent with best available science and the payment of compensation for loss and damage.
The plaintiffs sought both mitigation and adaptation measures and relied on the duty of care recognized in the Sharma case.
Fact-finding:
In 2023, representatives of the Federal Court traveled to the Torres Strait to collect evidence from members of the community.
A hearing of expert evidence was held in this case on the premises of the Federal Court in Melbourne starting in late October 2023.
Ruling of 15 July 2025:
On 15 July 2025, the Federal Court of Australia found that there had been no negligence in this case. In (Pabai v Commonwealth of Australia (No 2) [2025] FCA 796), the court rejected both of the prima facie negligence and their alternative duty of care claims brought by the Torres Strait Islanders, represented by Pabai Pabai and Guy Paul Kabai. The Court found that the applicants failed to prove any of the essential elements of their case: duty, breach, causation, damages. The court orders the parties to confer and within six weeks of the judgment to provide agreed draft orders giving effect to the judgment or in the case of no agreement, competing draft orders and a note as to whether an oral hearing is requested to resolve outstanding issues.
Full text of the petition:
All documents related to the proceedings can be found on the Federal Court of Australia’s website (click here).
Citation:
Pabai v. Commonwealth of Australia (No 2) [2025] FCA 796.
Last updated:
12 September 2025.