Landmark Native Title Claim: Pabai Pabai v Commonwealth of Australia Heard in Federal Court
15 July 2025 – The Federal Court of Australia today marked a significant day in native title jurisprudence with the publication of its decision in Pabai Pabai v Commonwealth of Australia. This complex and important case, heard by Justice Anderson, addresses critical questions surrounding the nature and continued existence of native title rights in a contemporary context.
The proceedings involved claims brought by Mr. Pabai Pabai and other Torres Strait Islanders, asserting their native title rights and interests over areas of the sea country surrounding the Torres Strait Islands, particularly in relation to the impact of climate change on their traditional lands and waters. The applicants argued that the continuing effects of climate change, including rising sea levels and increased storm activity, have eroded their traditional connection to and ability to exercise their native title rights in these areas.
A central tenet of the claim was the interpretation of the Native Title Act 1993 (Cth) and how it accommodates the evolving relationship between Indigenous peoples and their traditional country in the face of significant environmental change. The applicants sought declarations from the Court concerning the ongoing validity of their native title rights, even where the physical landscape has been altered by these environmental factors.
The Commonwealth of Australia, as the respondent, presented its case in response to these assertions. The Court was tasked with considering a range of evidence, including historical accounts, anthropological studies, scientific data on climate change impacts, and the lived experiences of the native title holders themselves. The legal arguments explored the legal definition of “connection” to country and the capacity for native title rights to be recognised and maintained notwithstanding significant physical changes to the land and sea.
Justice Anderson’s judgment, released today, is expected to provide crucial guidance on how the Federal Court will approach native title claims where climate change has demonstrably impacted traditional country. This decision could have far-reaching implications for Indigenous peoples across Australia, particularly those whose connection to country is intrinsically linked to coastal and island environments vulnerable to the effects of a changing climate.
The Federal Court is committed to ensuring that the law appropriately reflects the enduring relationship between Indigenous Australians and their ancestral lands and waters. The outcome of Pabai Pabai v Commonwealth of Australia will undoubtedly be a subject of considerable interest and discussion within legal, Indigenous, and environmental circles, potentially shaping the future of native title law in an era of increasing environmental challenges.
Pabai Pabai v Commonwealth of Australia
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