By Chris Owen
Australia is one of the world’s leading jurisdictions for climate litigation, with the highest number of claims per capita and the second highest total number of claims of any country.
Notwithstanding the volume of claims, legally this area is still at an early stage of development, with many issues unsettled and plenty of battles still to fight. Early skirmishes have focussed on arguments inviting the courts to take potential climate impacts into account in both planning decisions and injunctive proceedings against major energy and resources projects. We’ve seen the courts adopting a variety of different approaches in response to such requests, with some projects being halted entirely or being required to improve their environmental credentials, whilst others have been allowed to proceed as planned.
Another emerging battleground is whether the state owes any duty to its citizens in respect of climate harms and mitigating climate impacts. This issue was tested in Sharma v Minister for the Environment [2022] FCAFC 35, where a claim was brought on behalf of all Australian children seeking to stop a mine expansion on climate harm grounds, arguing the Minister owed a duty of care to protect children from climate harm and allowing the development would be inconsistent with that duty. The full Federal Court ultimately held that the Minister for the Environment did not owe such a duty of care and the matter was a policy issue for Parliament. A subsequent bill seeking to impose a duty did not make it through Parliament.
Against that background, all eyes were on the Federal Court this month for the key decision in Pabai Pabai v Commonwealth of Australia [2025] FCA 796. The claim has been one to watch because it explores not only the court’s willingness to impose a state-based duty to reduce climate harm but also the extent to which the court is willing to protect First Nations’ cultural rights as part of climate litigation.
What is the Pabai case all about?
The claim was brought by two elders of the Gudamlulgal Nation, who argued that the Commonwealth has failed in its legal duty of care by not acting fast enough to reduce greenhouse gas (GHG) emissions, and that if the government continued to do nothing, the applicants and their community would be forced to leave their homelands and, in the process, also lose Ailan Kastom (being the indigenous term for the body of customs, traditions, observances and beliefs of the people of Zenadth Kes (the Torres Strait Islands)). The case also specifically asked whether there is duty of care owed by the Commonwealth to Torres Strait Islanders to set emissions targets in line with “best available science” on climate change.
The Court (The Honorable Justice Michael Wigney) concluded that the applicants’ case failed on several bases, but primarily because the alleged duty of care related to matters of core government policy, which it concluded were unsuited to assessment by courts and thus cannot form the subject of a duty of care. The Court also declined to recognise the loss of traditional culture as a compensable head of damage in negligence, in a blow to the hopes of advocates that the recognition of such loss would broaden the scope of actions available to First Nations people, both in the climate litigation context but also more broadly.
In rejecting the proceedings, Justice Wigney noted the claim failed “not so much because there was no merit in their factual allegations concerning the Commonwealth’s emissions reduction targets. Rather, it failed because the law in Australia as it currently stands provides no real or effective avenue through which the applicants were able to pursue their claims […] Until then, the only recourse that those in the position of the applicants and other Torres Strait Islanders have is recourse via the ballot box”.
This is a significant set-back to potential future duty-based climate litigation claims in Australia. The failure of the case also raises serious questions about the extent to which the common law of negligence is sufficiently adaptive to provide adequate redress to the problems that will increasingly face small and marginalised communities like those of Applicants, as well as more broadly to all future victims of climate harms in Australia.
Not all countries have taken a similar approach
Pabai Pabai was modelled on the claim in Urgenda Foundation v State of Netherlands [2015] HAZA C/09/00456689 (Urgenda), which was a class action brought against the Dutch Government for failing to take adequate action to mitigate climate change. Urgenda became the first case globally to establish that a national government owes a duty of care to protect people from climate-related harm. In Urgenda, the applicants sought declaratory judgment and an injunction limiting GHG emissions. The Supreme Court of the Netherlands ultimately upheld the lower courts’ findings that the Dutch Government owed a duty of care to its citizens to reduce GHG emissions given the likelihood of the risks of climate change eventuating, and their severity. As a result, the Netherlands now has some of the strongest climate change protection policies in the world.
Other similar claims have also had success in Europe, such as the recent Klima Seniorinnen and ors. v Switzerland No. 53600/20, judgment of the European Court of Human Rights (Grand Chamber) of 9 April 2024which involved a successful claim against the Swiss government by elderly Swiss women who claimed their right to family life had been harmed as a result of the Swiss government’s failure to take sufficient steps to mitigate climate change.
In his judgment in Pabai Pabai, Justice Wigney briefly dealt with the European authorities relied on by the Applicants. In relation to Urgenda, he found that its usefulness in illustrating the application of concepts of negligence “is significantly undermined or limited by the fact that there is no basis for finding that the concepts [in those proceedings] have any relevant resemblance to the Australian concept of negligence”, and that there was no evidence that the European authorities generally were “relevantly analogous” to the Australian common law of negligence such as to support the novel duty of care alleged by the applicants.
The International Court of Justice takes a different view
Whilst the decision in Pabai Pabai will be disappointing to climate protection advocates in Australia, they will find comfort in the recent advisory opinion on climate change, handed down by the International Court of Justice (ICJ) on 23 July 2025.
In contrast to the domestic position, the ICJ adopted an expansive interpretation of states’ obligations regarding climate change. In summary, the ICJ held that the various international climate change treaties (including the Paris Agreement) impose binding obligations on state parties to ensure the protection of the climate system and other parts of the environment from GHGs.
Although the opinion is non-binding, this is a very significant development. Governments will come under increasing pressure to ensure domestic legislation reflects a climate protection position. In turn, the courts may be more willing to find climate duties exist. Business will also face pressure to respond, not only to further domestic legislation (if introduced), but to climate protection legislation on the horizon in other states in which those businesses operate, or where such legislation has extra-territorial effect. The EU is likely to lead the way in this regard. Outside of legislative obligations, business are also coming under increasing pressure to further mitigate their climate impacts, as part of their social licence to operate.
This is not the first time the international courts and tribunals have been at odds with Australia on climate duty. The recent Daniel Billy v Australia decision of the UN Human Rights Committee in 2022, found that Australia had failed to protect Torres Straight Islanders from the effects of climate change which was a violation of Australia’s rights under the International Convention on Civil and Political Rights.
Not just an issue for States
A number of claims are currently on foot to challenge whether a duty of care exists not just at the state level but also owed by private companies. Closest to home is the action in New Zealand against the diary producer Fonterra and others. The Supreme Court allowed the claim to proceed to trial, including to test an argument that there is a standalone tortious duty for climate harm (Smith v Fonterra [2024] NZSC 5). How the court approaches the existence of that duty at trial will be one to watch.
Claims against private companies for damages caused by climate harms are also being seen in a number of other jurisdictions. An early benchmark case is Lliyuya v RWE, a claim brought by a Peruvian farmer, against the German energy company RWE for its approximately 0.47 per cent contribution to global GHG emissions between 1965 and 2010. Mr Liluya sought a pro rata reimbursement for flood defences he purchased to protect his home from flooding owing to melting glaciers, which has become more probable owing to climate change. The German regional court handed down judgment on 28 May 2025, dismissing the claim, largely owing to the small risk of Mr Lliuya’s home actually flooding (which stands at about 1 per cent chance of occurring in the next three decades). Nevertheless, some in the climate movement are claiming a victory because the judgment appears to affirm that, in principle, German companies can be held responsible for harms occurring around the world which can be causally linked to their GHG emissions. This potentially paves the way for future claims.
These types of environmental duty cases are likely to gather pace in the coming years. I also expect to see a rise in the number of claims arguing directors owe duties regarding climate mitigation when taking decisions in the boardroom. It’ll be interesting to see whether Australian courts begin to be more open to such novel claims or continue to take a relatively conservative approach.
