By: Amanda Beattie, James Clohesy and Clare McNamara

Justice Wigney delivered his judgment in Pabai Pabai v Commonwealth of Australia (Pabai) yesterday, an important decision in the context of climate change litigation in Australia and for government agencies across the country.

Pabai was brought as a class action on behalf of all Torres Strait Islanders alleging that the Commonwealth Government had a duty of care to take reasonable steps to protect their traditional way of life from current and projected impacts of climate change. The applicants’ claim included allegations that the Commonwealth failed to consider the best available science when it set greenhouse gas emissions reduction targets between 2015 and 2022 and thereby breached the duty of care it owed to Torres Strait Islanders.

As is customary in cases like this, which are considered to be of particular importance to the public interest, Wigney J delivered a detailed summary of his decision in Court. His summary included a detailed explanation of the impacts of climate change on the land and marine environment of the Torres Strait Islands, noting that [t]here could be little, if any, doubt that the Torres Strait Islands and their traditional inhabitants face a bleak future if urgent action is not taken to address climate change and its impacts.

In his judgment, Wigney J found that the applicants succeeded in establishing many of the factual allegations that were the foundation of the case but ultimately found that they had not established the necessary elements of the negligence claim. In particular he found that:

• the Commonwealth did not owe Torres Strait Islanders the alleged duty of care, specifically because the conduct and decisions of governments which involve matters of core policy are not the subject of common law duties of care,
• even if there was a duty which was breached by the Commonwealth, the evidence available was not sufficient to prove the breach materially contributed to the harm suffered by Torres Strait Islanders as a result of the impacts of climate change. In making this finding, he specifically noted that it should not be seen as justifying “the unquestionably modest and unambitious greenhouse gas emissions reduction targets that were set by the Commonwealth in 2015, 2020 and 2021”, and
• the damage claimed (i.e the loss of fulfilment of culture, customs, observances, beliefs and traditions) is not currently a recognised category of damage in tort.

Throughout his summary his Honour made a number of references to decisions of appellate courts (by which he is bound) and also references to the current state of the law, which makes an appeal of the decision likely.

We are considering the decision in detail, including the potential impacts more broadly in the context of climate litigation in Australia and for government agencies. A more detailed note will be issued shortly.