Torres Strait appeal targets Australia’s climate duty of care, citing 1.5°C target

For climate policy watchers, this appeal is more than a legal squabble — it is a critical test of whether courts can compel governments to align domestic emissions targets with the Paris Agreement’s 1.5°C limit. If the Federal Court finds a duty of care, it would mark a seismic shift in Australia’s climate accountability, potentially forcing a recalibration of its much-criticised emissions trajectory and setting a precedent for vulnerable communities worldwide.

The appeal of Uncle Paul Kabai and Uncle Pabai Pabai against the Australian federal government marks a pivotal moment in the global struggle to hold governments legally accountable for climate change impacts. In July 2025, the Federal Court of Australia acknowledged the existential threat climate change poses to low-lying Torres Strait communities but dismissed the case on the grounds that setting national emissions targets is a core policy decision immune from court review. Now, in a four-day hearing that began on July 28, 2026, the islanders’ legal team argues that this ruling contained critical errors, contending that the government’s unambitious emissions reduction plan has directly contributed to the harm suffered by these communities. The outcome could redefine the legal boundaries of climate duty of care, not just in Australia but for every nation where vulnerable populations are on the front lines of climate change.

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The appeal of Uncle Paul Kabai and Uncle Pabai Pabai against the Australian federal government marks a pivotal moment in the global struggle to hold governments legally accountable for climate change impacts.

The case originated in 2021 when the two elders, representing the communities of Saibai and Boigu islands, sought a court order requiring the Australian government to reduce greenhouse gas emissions in line with the best available science. The islands, part of the Torres Strait north of Cape York, are experiencing severe coastal erosion, flooding, and saltwater intrusion, threatening traditional ways of life and raising the specter of forced relocation. In his 2025 ruling, Justice Michael Wigney accepted the scientific consensus that climate change is already damaging these islands. However, he concluded that negligence law cannot impose a duty of care on the government for its policy decisions on emissions targets, as this would interfere with the separation of powers.

The appeal directly challenges this separation-of-powers argument, arguing that once the government committed to the Paris Agreement’s 1.5°C warming limit, the act of setting an “unambitious and unfair” domestic target becomes a reviewable decision. The barrister Fiona McLeod contended that the Commonwealth’s chosen emissions pathway was not a pure policy choice but a failure to meet its international commitments, which has concrete, foreseeable consequences for Torres Strait Islanders. This reframing could open a pathway for climate litigation globally, as similar cases in the Netherlands, Germany, and elsewhere have succeeded by linking government inaction to human rights obligations.

The human dimension is stark. Uncle Pabai’s statement outside court — “We don’t want to be climate change refugees relocated from our islands” — encapsulates the urgency. Historical and cultural ties to these islands stretch back thousands of years, yet without aggressive emissions cuts, scientific projections indicate that much of the land could be uninhabitable within decades. The appeal underscores a fundamental inequity: small island communities, which have contributed negligibly to global emissions, bear the brunt of climate impacts while high-emitting nations fail to act decisively.

For the Australian government, a ruling in favor of the islanders would compel a significant tightening of climate policy. Australia, one of the world’s largest per-capita emitters, has faced international criticism for its historically slow progress on emissions reduction. Although recent governments have adopted net-zero targets, critics argue that short-term measures remain insufficient to align with the 1.5°C goal. A finding of a duty of care would not only force a review of current targets but could also open the door to compensation claims from other climate-affected communities, including those in the Pacific and remote Indigenous regions.