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The Federal Court Decision Shakes the Torres Strait
On July 15, 2025, Australia’s Federal Court ruled that the government was not obliged to shield the Torres Strait Islands from the effects of climate change. Justice Michael Wigney ruled that the Australian Government was not negligent by failing to take strong action on climate change. The moment felt like watching the tide come in – inevitable, devastating, and completely out of their hands.
Uncle Paul Kabai from Saibai Island said he was in shock because he had expected the decision to be in the Islanders’ favour. The traditional owners had spent nearly five years fighting through the courts, believing that justice would finally recognize their plight as some of the world’s most vulnerable people to climate change.
Two Uncles and a Fighting Chance
Pabai Pabai and Paul Kabai took the Australian government to court on behalf of their community, arguing the government has a duty of care to protect them from climate change. These weren’t just any plaintiffs – they were traditional owners whose families had lived on these islands for thousands of years. “My heart is broken for my family and my community,” Uncle Pabai Pabai said. “Love has driven us on this journey for the last five years, love for our families and communities”.
The case represented something much bigger than legal technicalities. Many climate justice advocates hoped this decision would be the climate equivalent of the famous Mabo decision, which recognised native title. The parallels were striking – both involved First Peoples fighting for recognition of their connection to country.
The Stark Reality of Rising Seas
The numbers tell a terrifying story. Sea levels in some parts of the archipelago are rising almost three times faster than the global average, according to official figures. More specifically, since 1992, sea levels in the region have risen at an average rate of 6.4 millimeters per year, which is more than double the global average of 3.2 millimeters per year.
Fewer than 5,000 people live in the Torres Strait, a collection of about 274 mud islands and coral cays wedged between Australia’s mainland and Papua New Guinea. These aren’t just statistics on a map – they’re communities watching their ancestral lands disappear beneath the waves. Rising tides have washed away graves, eaten through huge chunks of exposed coastline, and poisoned once-fertile soils with salt.
Justice Wigney’s Painful Recognition
Justice Wigney acknowledged that there was no doubt the inhabitants of the Torres Strait Islands are far more vulnerable to the impacts of climate change than other communities in Australia, noting they face a “bleak future” unless urgent action is taken. “They understandably feel powerless when it comes to protecting themselves against climate change and its impact on their islands and traditional way of life,” he said, adding “There 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”.
Yet despite this recognition, the law wouldn’t bend. The court accepted the government’s argument that setting emissions reductions targets, and allocating funding for protective infrastructure, involves “policy” considerations a court can’t review.
The Government’s Inadequate Response Exposed
Even though Australia won the case, the judgment delivered some harsh truths about government inaction. Justice Wigney criticised the government for setting emissions targets between 2015 and 2021 that failed to consider the “best available science”. He found that the government’s engagement showed “scant, if any, regard to the best available science” and that its failure to address the threat, particularly for the Torres Strait Islands, “has been wanting”.
The court heard damning evidence about how climate policy was actually made. Evidence confirmed that the government taskforce did not consider the impacts of climate change on the Torres Strait, or any other community, apart from broadly acknowledging that there would be some sort of impact from extreme weather events. It was like making decisions about flood management without looking at a weather forecast.
A Legal Technicality That Changed Everything
“The applicants have not succeeded in making their primary case in negligence. The Commonwealth did not and does not owe Torres Strait Islanders the duty of care alleged by the applicants in support of their primary case,” Justice Michael Wigney said in his ruling. The language was clinical, but the impact was devastating.
“The main reason for the failure of the applicant’s primary case was not that they were unable to prove the main factual elements of their case against the Commonwealth,” Wigney said. He explained that the law prevented him from ruling in the applicant’s favour, saying the law currently “provides no real or effective legal avenue through which individuals and communities like those in the Torres Strait Islands can claim damages or other relief” for harms from climate change that were the result of government policy.
The Cultural Loss That Law Cannot See
Justice Wigney also rejected claims that cultural loss should be compensated under negligence law. He said the harm claimed – the collective loss of culture – did not form a “recognised compensable loss or damage under the Australian common law of negligence”. This decision struck at the heart of what makes Torres Strait Islander communities unique.
The connection between land and identity runs deeper than legal categories can capture. “I can’t imagine being forced to leave Boigu because this island is me and I am this island,” one resident explained. “If you take us away from this island then we’re nothing. It’s like the Stolen Generation, you take people away from their tribal land, they become nobodies”.
Australia’s Minimal Global Impact Defense
One of the government’s key arguments centered on Australia’s relatively small contribution to global emissions. “Any additional greenhouse gases that might have been released by Australia as a result of low emissions targets would have caused no more than an almost immeasurable increase in global average temperatures,” Justice Wigney said. These targets would have had little effect on global temperature rise, he found.
It’s the classic problem of collective action – every country can claim their individual contribution doesn’t matter. While Australia’s emissions pale in comparison to the likes of China and the United States, the fossil fuel powerhouse is one of the largest coal exporters in the world. The irony wasn’t lost on observers that a country built on exporting coal was arguing its climate impact was too small to matter.
The Desperate Search for Legal Solutions
“The reality is that the law in Australia as it currently stands provides no real or effective legal avenue through which individuals and communities like those in the Torres Strait Islands can claim damages or other relief in respect of harm,” the judge noted. “Until then, the only real avenue available to those in the position of the applicants and other Torres Strait Islanders involves public advocacy and protest and, ultimately, recourse via the ballot box”.
For communities watching their islands disappear, this advice felt like being told to negotiate with a tsunami. Uncle Kabai captured the frustration perfectly: “Mr. Albanese and his expensive government lawyers, will stand up and walk away just like they walk out the door of this court today. They go home and sleep soundly in their expensive beds. We go back to our islands and the deepest pain imaginable”.
The Tuvalu Alternative: When Countries Make Room
While Torres Strait Islanders lost their legal battle, other Pacific island nations are taking different approaches. More than a third of people from the Pacific island nation of Tuvalu are seeking to move to Australia through an unprecedented climate visa scheme that opened in 2024. The Falepili Union provides a pathway for Tuvaluans to live, work and study in their larger neighbour, as sea-level rise threatens to engulf their home.
A ballot for visas that opened on June 16 has already seen 1,124 primary registrations, rising to a total of 4,052 people when family members are included. That’s well above the 280 limit Australia is offering each year, and represents a sizeable proportion of Tuvalu’s roughly 11,000-strong population. The contrast is stark – Tuvalu gets a migration pathway, Torres Strait Islanders get a court dismissal.
Previous UN Victory Now Rings Hollow
The Federal Court loss was particularly painful given that Torres Strait Islanders had already won a significant victory at the international level. On September 23, 2022, the U.N. Human Rights Committee found that Australia’s failure to adequately protect indigenous Torres Islanders against adverse impacts of climate change violated their human rights. A majority of the Committee agreed with the claimants, stating that Australia’s climate inaction was a violation of their right to family life and right to culture.
The Committee also asked Australia to compensate the claimants for the harm suffered, and to do whatever needed to secure the communities’ safe existence. Yet this international recognition carried no binding force in Australian domestic courts, highlighting the gap between international human rights law and national legal systems.
The Political Path Forward
Indigenous Australians Minister Malarndirri McCarthy and Climate Change Minister Chris Bowen said they understood the Torres Strait Islands are vulnerable to climate change and that the Commonwealth was considering the judgment. “We’re continuing to turn around a decade of denial and delay on climate, embedding serious climate targets in law and making the changes necessary” to address the crisis.
The government has made some progress since the conservative Coalition years. Australia’s previous conservative government sought to cut emissions by about 26 percent before 2030. The incumbent left-leaning government in 2022 adopted new plans to slash emissions by 40 percent before the end of the decade and reach net zero by 2050. But for islands disappearing beneath the waves, even these improved targets may not be enough, or fast enough.
A Community’s Unbroken Spirit
Saibai Elder Aunty McRose Elu, who gave evidence during the case, said she was feeling deep grief. “It is a moral loss for the government, not for us – we are the winners,” she said. This perspective captures something essential about the Torres Strait Islander response – despite losing in court, they haven’t lost their sense of justice or their determination to continue fighting.
“I’ve got a 2-year-old son, he’s my main focus – this is why I’m doing this. For the love of my son and for all the people in our community in the Torres Strait, for the bushfire and flood survivors, the farmers, kids and grandkids,” said Uncle Pabai. For these families, the legal battle was never just about winning in court – it was about trying every avenue to protect their children’s future.
While this decision represents a setback for both the climate and Indigenous justice movements, legal experts note that across the world, plaintiffs in courts are gaining legal ground on climate accountability. It is a question of when, rather than if, law will adapt to deal with climate impacts. Much like a rising tide breaking against a seawall, the future impact of climate change on things that law already protects is too extreme for the law to resist.
