Two Indigenous elders from Australia’s Torres Strait Islands have lost a landmark legal battle against the federal government over its alleged failure to protect their communities from climate change.

Uncle Pabai Pabai and Uncle Paul Kabai had filed the case in 2021, accusing the government of breaching its duty of care by not taking stronger action on climate change. However, a Federal Court judge dismissed the case on Tuesday, stating that climate policy is a matter for elected officials, not the judiciary.

The court also ruled that the Australian government does not legally owe a duty of care to protect the islands from the impacts of climate change.

A Community at Risk

The Torres Strait Islands, located between Queensland and Papua New Guinea, consist of about 270 islands, with only a few dozen inhabited. Around 4,000 people live there, and 90% identify as Indigenous.

Uncle Pabai and Uncle Paul argued that rising sea levels—occurring faster than the global average—are threatening their homes, culture, and sacred sites. According to their submission, sea levels in the region rose by approximately 6 cm per decade from 1993 to 2019.

The elders highlighted that their communities are built on a unique spiritual and cultural connection to the land, known as Ailan Kastom. They warned that if stronger action isn’t taken to combat climate change, their culture could be lost, and residents may become climate refugees.

Court Recognizes Harm, but Denies Legal Duty

Justice Michael Wigney acknowledged the severe impact of climate change on the islands, including damage to burial grounds and sacred sites. However, he concluded that under current Australian law, governments cannot be held legally liable for cultural losses resulting from policy decisions.

“These are matters of government policy, typically determined through political processes,” he said.

Still, the judge recognized the urgency of the climate crisis: “There could be little, if any, doubt that the Torres Strait Islands and their traditional inhabitants will face a bleak future if urgent action is not taken.”

Personal and Cultural Loss

Reacting to the ruling, Uncle Pabai said: “My heart is broken for my family and community.” In his court submission, he described his spiritual bond with his ancestral land, particularly the cemeteries, saying, “Talking to my ancestors is a big part of my culture. If Boigu is lost to the sea, I will be nothing.”

Uncle Paul expressed deep disappointment: “I thought the decision would be in our favour. I’m in shock. This pain isn’t just for me—it’s for everyone affected by climate change.”

He recalled how Saibai Island, once rich in fish and crabs, has been drastically changed by rising seas and saltwater intrusion, making it impossible for wildlife to survive. He spoke of a seawall built in 2017 that had already failed during a king tide in 2020, flooding homes and destroying crops.

“If the sea keeps rising, Saibai won’t survive. I’ll lose my home, my culture, my identity,” he told the court.

Government Response

Although the court criticised the former government for neglecting climate science, it noted the current Labor government’s more ambitious emissions reduction targets.

In a joint statement, Climate Change Minister Chris Bowen and Indigenous Australians Minister Malarndirri McCarthy said: “We understand the Torres Strait Islands are vulnerable and already feeling the effects of climate change. The Albanese Government is acting where the former government failed.”

Experts Call for Legal Reform

Climate law experts say the ruling highlights the need for Australia’s legal system to evolve. Dr. Riona Moodley from the University of New South Wales said the outcome was “a setback,” but also a reminder that legal standards must adapt to meet future challenges.

Her colleague, Dr. Wesley Morgan, added: “This decision should push the government to take even stronger action. The science is clear—we must act boldly this decade.”