Clifford Chance
Pabai v the Commonwealth: where to from here?
In a highly anticipated decision, the Federal Court has declined to find that the Australian Government owed or breached a duty of care to Torres Strait Islanders to take steps to address the impacts of climate change. The decision adds to an increasing number of climate-change related court decisions, both domestically and internationally.
The case
The Torres Strait Islands are a cluster of generally low-lying islands, located off the north coast of Australia between Cape York and Papua New Guinea. Recently, the Islands have been severely ravaged by climate change.
Mr Pabai Pabai and Mr Guy Paul Kabai are Torres Strait Islands elders, both from the Guda Maluyligal nation. Together (Applicants), they brought proceedings against the Commonwealth Government of Australia (Commonwealth) on their own behalf and on behalf of the Torres Strait Islanders. Their claim involved allegations that the Commonwealth owed, and had breached, a common law duty of care to address the impacts of climate change on the Torres Strait Islands.
The Applicants advanced their case in two ways.
1. The Applicants' primary contention was that the Commonwealth:
- owed a duty to take reasonable steps to protect Torres Strait Islanders, their traditional way of life and the Torres Strait from the impacts of climate change; and
- had breached that duty by failing to identify, and implement measures to achieve, greenhouse gas emission reduction targets (based on the 'best available science') which would prevent or minimise the impacts of climate change on the Torres Strait Islands.
2. The Applicants' alternative case focussed on the immediate physical impacts of climate change on the Islands, contending that the Commonwealth owed a duty of care to prevent property damage and impacts on the ability of Torres Strait Islanders to fulfil traditional customs. The Commonwealth was alleged to have breached that duty by failing to implement funding for the construction of seawalls (known as the Seawalls Project) for six of the Torres Strait Islands.
The judgment
Justice Wigney found that the Commonwealth did not owe and, in any case, did not breach, the duties of care alleged.
On the existence of the alleged duties of care, the Court held (in keeping with previous appellate authority) that government conduct and decisions concerning "matters of high or core government policy" were not matters subject to a common law duty of care. Even if that were not fatal to the claims, the Court found that the "salient features" analysis used in determining whether a party owes a novel duty of care weighed heavily against the recognition of the alleged duties.
In relation to breach on the Applicants' primary claim, the Court found that the standard of care alleged by the Applicants (being a requirement for the Commonwealth to set emission reduction targets exclusively by reference to the 'best available science') was simply inappropriate. Not only would a reasonably developed international state actor in the Commonwealth's position give "careful and earnest consideration and weight" to the best available science in setting emissions reductions targets, but it would also consider the broader economic, social and political implications of such a target.
The Applicants' alternative case on breach failed because the Commonwealth, while not approaching the task of funding the Seawalls Project with urgency, did provide the requested funding in a way that enabled the completion of the Project.
Completing the wholesale rejection of the Applicants' claims, the Court did not accept that the alleged breaches caused or contributed to recoverable loss. On the Applicants' primary case, that rejection was due to the impossibility of establishing the direct and quantifiable causal relationship between a reduction in greenhouse gas emissions and global temperature, and the corresponding climate change impact on the Torres Strait Islands.
Domestic and international perspectives
Pabai follows the decision of the Full Federal Court in Sharma1, which saw the Court refuse to recognise that the Minister for the Environment owed a duty of care to Australian children to protect them from the effects of climate change. Reflecting this now-growing body of authority, the Court's concluding observation in Pabai was that "the only recourse that those in the position of the applicants [have]… is recourse via the ballot box".
Though the decision in Pabai was decided against the Applicants, a local environmental group (DAMS HEG Inc) has had more success in a recent decision by the NSW Court of Appeal2 handed down on 24 July 2025.
In this case, DAMS HEG Inc challenged the judicial review decision by the Land and Environment Court (LEC) to uphold a decision by the NSW Independent Planning Commission (IPC) to extend Mach Energy Australia's development consent for the Mount Pleasant Coal Mine for 22 years (Project). DAMS HEG Inc argued that the LEC failed to give mandatory consideration under section 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) by not:
- considering whether conditions could be imposed to minimise scope 3 emissions resulting from the Project (Ground 1); and
- considering the likely environmental impacts of the Project on the natural and built environment in the locality (Ground 2).
The Court found against DAMS HEG Inc on Ground 1, but in its favour for Ground 2. In relation to Ground 2, the Court found that there was nothing in the IPC's reasons for extending the development consent that considered the impact of climate change specifically on the locality of the Project. The IPC did not discharge this consideration by "general references to the effects of global warming on the planet generally". In relation to Ground 1, the Court found that the IPC, by accepting that scope 3 emissions were regulated and accounted for via various national policies and international agreements, considered that there was no need to impose minimisation conditions for scope 3 emissions. Ultimately, the Court remitted the matter back to the LEC to determine whether orders should be made which would validate the development consent.
Internationally, Pabai appears to be a move away from recent international rulings. Most recently, on 23 July 2025, the International Court of Justice (ICJ) clarified that countries have a duty under international law to ensure the protection of the climate system from greenhouse gas emissions, a breach of which constitutes an "internationally wrongful act". You can read more about the ICJ's decision as discussed by Clifford Chance in this recent blog post.
Further, Pabai differs to the international rulings by the Courts in the Netherlands and Switzerland.
- In Urgenda,3 the Supreme Court of Netherlands required the Netherlands to reduce its greenhouse gas emissions by at least 25% compared with 1990 levels by the end of 2020 (under Articles 2 and 8 of the European Convention on Human Rights (ECHR) which protected the right to life and the right to respect for private and family life).
- In KlimaSeniorinnen,4 the European Court of Human Rights ruled that Switzerland had also breached Article 8 of the ECHR by failing to mitigate the impacts of climate change.
Key takeaways for businesses
Though the cases against Pabai (and others) were against governments (and in the case of DAMS HEG Inc, against the IPC), corporates should not be complacent in the role they play in mitigating against the risks of climate change. Climate change litigants have, and will continue to, bring claims against companies seeking declarations in their favour.
Companies not only have to be aware of claims being brought against them by climate change litigants, but also by regulators. Related climate change litigation like greenwashing continues to be a strategic priority for ASIC. As discussed by Clifford Chance in this recent blog post, in only the past year, ASIC has obtained civil penalties in the Federal Court against three separate companies for greenwashing, cumulatively worth $35m. There is no indication that ASIC will stop these strategic prosecutions anytime soon.
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1 Minister for the Environment v Sharma (No 2) [2022] FCAFC 65
3 Urgenda Foundation v. State of the Netherlands [2015] HAZA C/09/00456689
4 Verein KlimaSeniorinnen Schweiz & Ors v. Switzerland (Application No. 53600/20)
