Torres Strait Islanders Court Case and Climate Change
Judgment in the federal court case involving traditional owners of islands in the Torres Strait against the Australian Government has recently been handed down. The decision by Justice Michael Wigney has attracted considerable media comment (and a stunning cartoon by Wilcox, 17/7/25 in SMH). Here I aim to provide some background while looking forward to what could happen next. I recommend Liz Hicks article in The Conversation entitled “Federal Court rules Australian Government doesn’t have a duty of care to protect Torres Strait Islanders from climate change” (17 July, 2025). This is an excellent summary of the case. It complements Justice Wigney’s detailed summary statement and full details of his findings to be found online Pabai Pabai v Commonwealth of Australia (no 2) [2025] FCA 796.
Studies of sea-level rise and shoreline erosion on islands of Torres Strait by several geomorphologists are known to me. Dave Hanslow, who used to work with the NSW Government and is now at the University of Newcastle, was once seconded to the Torres Strait Regional Authority. He was involved in coordinating the Coastal Management Committee in development of the first Torres Strait Climate Change Strategy 2013 (since updated) working with Kevin Parnell and Scott Smithers (James Cook University) amongst others. They consulted and learnt from local groups in understanding what was happening to coastal environments and settlements. The following links provide documentation of their important contributions to coastal processes and risks associated with climate change.
Torres Strait Climate Change Strategy 2010-2013
Case Study: Adapting to sea-level rise in the Torres Strait
An article appeared in The Age (8/11/2023) by Miki Perkins with the challenging title “Where will we go?: First Nations court bid to force federal action on climate”. My colleague in the Wentworth Group, Emeritus Professor David Karoly, as a climate scientist appeared before Justice Wigney in support of Torres Strait community leaders Uncle Pabai Pabai and Uncle Paul Kabai. David was one of several climate scientists to give evidence, including Dr. John Church on sea-level change. Transcripts of evidence provide an incredible trove of documents highlighting both presentation of evidence and cross-examination on details relevant to climate change science and impacts on the islands in contention in this case.
David discussed principles of climate science in relation to increasing greenhouse gas concentrations in the atmosphere. He also provided examples of tipping points. I enjoyed his interaction with the barrister representing the Commonwealth who asked whether he was a climate “advocate”. To this David said he had been primarily advocating the science of climate change and “If that makes me a climate change advocate, then yes”. Justice Wigney in his judgment carefully reviewed the points being made by the experts and their responses to questions.
The case brought by the islanders involved two legal claims. First, that the Commonwealth Government has a duty to protect them from climate change when setting national emissions-reduction targets, arguing that the government breached that duty by not setting targets in line with the “best available science”. And second, that the government has a duty to protect property, traditional customs and health and life from climate impacts.
Justice Wigney recognised the threat of climate change referring to a “bleak future” facing the islanders and found that the islands in recent years had been “ravaged” by rising sea levels and storm surges leading to inundation events on many islands. He documented an array of impacts that “ unless something is done to arrest global warming and the resulting impacts of climate change, there is a very real risk that the applicant’s worst fears will be realised and they will lose their islands, their culture, and their way life and will become as it were, climate refugees”.
In his judgment he accepted the Government’s argument that setting emissions targets and allocating funding for protective infrastructure involves considerations of “policy” on which the court cannot make decisions. The Government, in committing to the Paris Agreement, was not a sufficient legal standard for the court to be bound by the “best available science”. Hicks in her The Conversation article asked when do governments owe a duty of care to climate vulnerable groups? Her answer: “Courts are more willing to find a government owes a duty of care where the government is merely applying a policy, or where it can measure the government’s behaviour against clear standards”. This was not what Justice Wigney could do in this case.
Over time it has become clear that Australian federal law is not fit for purpose when it comes to climate change related cases. It is too difficult for courts to use common law to decide whether the government has met legal standards of behaviour. Reform of national environmental law has been on the Labor Government’s agenda for some time. But as Ken Henry articulated at the National Press Club on 16th July 2025, these laws are broken, reform is essential, and the current EPBC Act “has patently failed to halt degradation of Australia’s natural environment”.
Issues discussed in this speech are far broader than specifics in the Torres Strait Islanders case. Yet Henry raised certain principles that, if adopted, could strengthen the basis for future claims. Laws and regulations should contain clear standards against which the court can measure a government’s behaviour. This is something that we in the Wentworth Group have also been pushing. In particular, the need for legislation that embodies cumulative impacts and climate change impacts in assessing developments. Henry stated that standards backed by high integrity data and evidence would inform decision making using a landscape and regional approach. This could enable identification of areas of national environmental significance that should not be developed thereby replacing the project by project approach used now.
I would take this one step further. If within any region there are matters of national significance threatened by climate change impacts, then there must be standards that enable federal intervention and action. Torres Strait could be one such region – so could Ramsar sites.
Bruce Thom (with thanks for assistance from David Karoly and Dave Hanslow)
Words by Prof Bruce Thom. Please respect the author’s thoughts and reference appropriately: (c) ACS, 2025. For correspondence about this blog post please email admin@australiancoastalsociety.org.au
#280