Climate Justice and Faith: Reflections on the Federal Court's Landmark Torres Strait Islands Climate Case

Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 July 20, 2025

As an Anglican and a law student deeply committed to progressive Christian values, I find the recent Federal Court judgment in Pabai v Commonwealth of Australia (No 2) [2025] FCA 796 both profoundly significant and deeply challenging. This case, decided on 15 July 2025, addresses the Commonwealth's legal responsibility to protect the Torres Strait Islander peoples from the devastating impacts of climate change—a matter that touches on justice, stewardship, and the sacredness of creation.

The Heart of the Case: Climate Change and the Torres Strait Islands

The Torres Strait Islands, home to the Torres Strait Islander peoples, are among the most vulnerable communities on Earth to climate change. Rising sea levels, coastal erosion, saltwater intrusion, and the destruction of ecosystems are not abstract threats but lived realities that threaten their land, culture, and very identity. The Islanders' unique spiritual and cultural connection to their land and sea—known as Ailan Kastom—is under existential threat.

The applicants, Torres Strait Islander elders Mr. Pabai Pabai and Mr. Guy Paul Kabai, brought this representative proceeding against the Commonwealth, alleging that the government failed in its duty of care by not setting greenhouse gas emissions targets consistent with the best available science and by inadequately funding adaptation measures such as seawalls to protect their islands.

The Court's Findings: A Complex Legal Landscape

The Court acknowledged the undeniable scientific consensus on climate change and its severe impacts on the Torres Strait Islands. While the Federal Court found that "the Torres Strait Islands and their traditional inhabitants face a bleak future if urgent action is not taken to address climate change", the government is not currently legally obliged to protect Torres Strait Islander peoples from the impacts of climate change.

The judgment carefully examined whether the Commonwealth owed a duty of care to the Torres Strait Islanders to take reasonable steps to protect them from climate change impacts. Ultimately, the Court found that while the Commonwealth's response to climate change may have been inadequate in some respects, imposing a legal duty of care in negligence on matters involving core government policy and political judgment is fraught with challenges.

Judicial Reflections on Policy, Politics, and Justiciability

The justices provided profound insights into why climate change policy decisions are not easily subject to judicial review through negligence claims:

"The posited duty of care raised for consideration the question of the proper policy response to climate change and considerations unsuitable for resolution by the Judicial branch of government. It is one of core, indeed high, policy-making for the Executive and Parliament involving questions of policy (scientific, economic, social, industrial and political) which are unsuitable for the Judicial branch to resolve in private litigation by reference to the law of torts."

— Chief Justice Allsop (at [15])

"The very nature of the underlying danger that gives rise to the risk of world and human catastrophe is one that can only be addressed by global co-ordinated policy and action, by countries around the world formulating and implementing effective policy measures to address the nature of the cause of the potential catastrophe."

— Chief Justice Allsop (at [227]-[228])

"The evaluation of good or bad decision-making about greenhouse gas emissions and the risks of global warming is one to which the highest considerations of the welfare of the Commonwealth attend... This can be called, at the very least, core government policy. It is perhaps better described as public policy of the highest importance."

— Chief Justice Allsop (at [246]-[248])

"These are issues which in the context of the present case bear upon the social compact and the welfare of the Commonwealth, and which over the centuries have engaged the minds of philosophers and economists. Their resolution is uniquely suited to elected representatives and executive government responsible for law-making and policy-making."

— Justice Wheelahan (at [868])

"The issues inevitably slide into political considerations, and require the making of value judgments … [about which] reasonable minds will likely differ … How is a court to evaluate the reasonableness of one view over another in this political and policy context?"

— Justice Wheelahan (at [868])

A Voice from the Torres Strait: Aunty Dr Rose Elu's Response

Saibai crocodile chieftain clan Elder and Anglican leader Aunty Dr Rose Elu, who served as a First Nations Cultural Advisor on the four-year case, shared her powerful response outside the Cairns courthouse following the decision. Her words remind us that behind the legal complexities lie real people fighting for their survival, culture, and connection to country.

Aunty Dr Rose Elu calls for stronger climate action following the Federal Court's decision

Reflections from a Progressive Christian and Law Student

This judgment resonates deeply with my faith and my studies. As Anglicans, we are called to be stewards of God's creation and advocates for justice, especially for the vulnerable and marginalized. The Torres Strait Islanders' struggle is a stark reminder of the real human and spiritual cost of environmental degradation and climate inaction.

From a legal perspective, the case exposes the limits of common law remedies in addressing systemic and global issues like climate change. It challenges us to think beyond traditional legal frameworks and to advocate for stronger, more proactive policies that align with scientific evidence and moral responsibility.

The Court's recognition of Ailan Kastom as a vital cultural and spiritual connection underscores the importance of respecting Indigenous knowledge and rights in environmental governance. It calls the Church and society to listen more deeply to Indigenous voices and to stand in solidarity with their fight for survival and dignity.

Moving Forward: Faith, Law, and Climate Action

While the judgment may not have delivered the legal remedy the applicants sought, it is a clarion call for urgent and meaningful climate action. It reminds us that justice is not only a legal concept but a spiritual imperative. As Christians, we must continue to pray, advocate, and act for policies that protect the Earth and its peoples, especially those most at risk.

This case also invites us to reflect on the role of law in shaping a just and sustainable future. It challenges law students and practitioners to innovate and push for legal reforms that can better address the complexities of climate change and Indigenous rights.

Prayer for Climate Justice and the Torres Strait Islanders

God of all creation,
You have entrusted us with the care of this Earth and all its peoples.
We pray for the Torres Strait Islanders, whose lands and lives are threatened by climate change.
Grant wisdom and courage to leaders and lawmakers to act justly and swiftly.
Inspire us to be faithful stewards, advocates, and allies in the fight for climate justice.
May your love guide our actions and bring healing to your wounded world.
Amen.