Justice Wigney handed down the long awaited decision in a class action brought by Mr Pabai Pabai and Mr Guy Paul Kabai on behalf of their communities in the Torres Strait Islands. The negligence claim was brought against the Commonwealth of Australia on the following basis:
- a duty of care was owed to Torres Strait Islanders to take reasonable steps to protect from the impacts of climate change;
- this duty of care was breached by the Commonwealth's response to climate change, including inadequate GHG emissions targets;
- the breach of duty caused the harm suffered through the impacts of climate change to the Torres Strait Islands; and
- the applicants suffered loss and damage and sought, among other things, damages to compensate the loss of fulfilment of Ailan Kastom (Island Custom).
The applicants failed on all elements.
Justice Wigney was clear that matters of 'high or core government policy' are not the proper subject of common law duties of care. When it comes to the reasonableness or unreasonableness of government conduct of this nature, these are decisions left for the political sphere – not judges.
Despite no findings in negligence, Justice Wigney found that the applicants succeeded in establishing many of the factual claims underpinning their case. This includes findings that:
- the Commonwealth failed to engage with or give genuine consideration to the best available science in setting the nations GHG emissions targets (the relevant period for GHG emissions targets are those set by the Commonwealth in 2015, 2020 and 2021);
- the best available climate science is abundantly clear: every country must take drastic steps to reduce GHG emissions to keep global temperatures below 2 degrees above pre-industrial levels;
- climate change has had, and will continue to have, an undeniable, devastating impact on the Torres Strait Islands, the future impact of which "paint[s] a very bleak picture indeed".
The decision makes clear that whilst the common law of negligence might be closed off to strategic litigants – climate science and issues as to the credibility of targets and transition plans are not.
There are several key lessons which can be taken away from the Pabai Pabai decision.
A question of evidence
As the credibility of transition plans come into the fore – both as part of mandatory climate related financial disclosure requirements and to mitigate greenwashing risks – the Pabai Pabai decision makes abundantly clear that the evidentiary question of climate science, and the measurable impact of climate change, is no longer in serious doubt.
The applicants led evidence from a spectrum of leading climate scientists, most of which was factually accepted. This included evidence of the best available science for the emissions reductions necessary to meet the objectives of holding an increase in global temperatures to 1.5 degrees (the goal to which most corporate transition plans are set).
Emissions reductions
Justice Wigney is clear that the 'unquestionably modest and unambitious GHG emissions reduction targets' of the Commonwealth in the past should not be taken to be supported or justified by the decision – even though the claim in negligence failed. His Honour found, factually, that there is a scientifically demonstrated need for drastic emissions reduction to mitigate the physical risks of climate change.
Wigney J did acknowledge that the Commonwealth's most recent emissions target, set in 2022, appeared to be based, at least in part, on what the best available science revealed about the emissions reductions that Australia would have to achieve for Australia to meets its obligations under the Paris Agreement. That 'endorsement' is particularly interesting to note in light of the Government's imminent announcement of Australia's 2035 emissions reduction target and the debate which will no doubt follow as to the extent it is enough or too much.
For corporates also, as we look to mandatory climate reporting from this financial year, this decision is a fresh reminder that emissions reduction targets need to have a proper, scientific basis to be credible.
Compensable harm
Whilst Justice Wigney had sympathy for the alleged loss of fulfilment of Ailan Kastom, this was not found to be supported as a compensable species of harm in negligence. This reduces many of the forms of loss which might thought to be available in strategic climate litigation. His Honour was, however, clear to point to native title as a separately protected species of rights (leaving a small window open for future strategic action).
Whilst the decision likely closes the chapter on negligence as a claim for strategic litigants, the facts found emphasise the risks of unambitious or unsubstantiated corporate transition planning.
