Torres Strait Islander climate change decision by Fed Court at odds with UN
16 July 2025 QUT legal expert Professor Mathew Rimmer is available to speak on the yesterday’s decision: · Judge doubted negligence law appropriate vehicle to deal with climate change matters · Judge said action on climate change a political matter for Fed Govt · The judge maintained Torres Strait Islanders’ only recourse was via ‘the ballot box’.” · An appeal court could further explore comparative international developments in climate litigation. In the landmark case of Pabai Pabai v Commonwealth, Justice Michael Wigney of the Federal Court of Australia doubted whether the law of negligence was the appropriate vehicle to deal with matters of climate change. QUT legal expert Professor of Intellectual Property and Innovation Matthew Rimmer said that judge held that the Commonwealth did not owe a duty of care to Torres Strait Islanders to protect them from climate change. “Judge Wigney acknowledged that the Commonwealth’s response to the threat of climate change to the Torres Strait Islands and their traditional inhabitants has been wanting,” Professor Rimmer said. “However, Judge Wigney stressed that the question of action on the reduction of greenhouse gases was ultimately a political matter for the Federal Government. “The judge warned there could be little, if any, doubt that the Torres Strait Islands face a bleak future if urgent action is not taken. The judge maintained that the only recourse that Torres Strait Islanders have is via ‘the ballot box’.” Professor Rimmer said that the case recognised that the Torres Strait Islands had been ravaged by the impacts of climate change. “The judge also noted that climate change is having ‘a devastating impact on the traditional way of life of Torres Strait Islanders and their ability to practices Ailan Kastom, their unique and distinctive body of customs, traditions, observances and beliefs.’ “The judge doubted, though, the applicants could obtain relief — ‘in respect of their loss of fulfilment of Ailan Kastom’. Professor Rimmer said the protection of traditional knowledge, cultural heritage, and Indigenous intellectual property warranted greater consideration. “The judge showed a significant amount of judicial humility, maintaining that a single judge of the Federal Court of Australia could not change the law. “The judge did observe that the law could change through ‘the incremental development or expansion of the common law by appellate courts, or by the enactment of legislation.’ “The judge said the plaintiffs could take this case further to the Full Court of the Federal Court of Australia, and ultimately, the High Court of Australia (which has previously engaged in judicial innovation in the Mabo case).’ Professor Rimmer said an appeal could explore the consistency of the decision with comparative law and international law. “An appeal court could further explore comparative developments in climate litigation.” Professor Rimmer said yesterday’s decision was also at odds with the successful 2019 Urgenda decision in the Netherlands in which the Dutch Supreme Court held that the Dutch government had an obligation to urgently reduce greenhouse emission in line with its human rights obligations. The decision of the Federal Court of Australia in Pabai Pabai v Commonwealth could be contrasted with the decision of 2022 Torres Strait Eight case of Daniel Billy and others v Australia. Professor Rimmer said that in the Torres Strait Eight case the UN Human Rights Committee found that Australia’s failure to adequately protect Torres Strait Islander people from adverse climate impacts violated their human rights. “The Committee found that under the UN’s Covenant on Civil and Political Rights, which Australia ratified in 1980, Australia had violated their human rights, in particular their cultural rights, and rights to be free from arbitrary interferences with their private life, and family, and home,” Professor Rimmer said. Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 Decision — https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca0796 Summary — https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2025/2025fca0796/summaries/2025fca0796-summary For reactions of defendants, see The Hon Chris Bowen MP, Minister for Climate Change and Energy, and the Hon Malarndirri McCarthy, Minister for Indigenous Australians, Senator for the Northern Territory, ‘Joint statement on Pabai Pabai v Commonwealth’, Australian Government, 15 July 2025https://minister.dcceew.gov.au/bowen/media-releases/joint-statement-pabai-pabai-v-commonwealth For reactions of plaintiffs, see Joseph Gunzier, ‘‘My Heart is Broken’: Climate Case Dismissed Despite Findings of Cultural Loss’, National Indigenous Times, 16 July 2025, https://nit.com.au/15-07-2025/19140/my-heart-is-broken-climate-case-dismissed-despite-findings-of-cultural-loss Niki Widdowson, ‘Torres Strait Islander climate change decision by Fed Court at odds with UN’, Media Alert, QUT,16 July 2025, https://drrimmer.medium.com/torres-strait-islander-climate-change-decision-by-fed-court-at-odds-with-un-4d1da4c805a2
