Time and narrative in climate litigation: Reflections on Pabai v Commonwealth of Australia

Abstract

Time is a challenge for applicants in negligence-based climate litigation. Climate change harm is a temporally complex phenomenon that demands attention to the past, present and future, including histories of colonialism. Negligence law, however, demands temporal boundaries be drawn in order, among other things, to place limits on the scope and content of one person’s duty to be careful of another. Decisions regarding what time frames are relevant to an assessment of responsibility for climate harms are neither inevitable nor neutral. They have political and material implications for how law deals with historical legacies. This article explores how the temporal narrative of climate change in Pabai, and specifically the applicants’ claims regarding the existence of Commonwealth duties of care, challenged conventional boundaries of negligence law, while simultaneously being critical to the expressivist messaging of the case.

Pabai v Commonwealth of Australia (No 2) (Pabai) ¹ is Australia’s most recent negligence-based climate litigation. ² Brought by Indigenous elders of the Guda Maluyligal nation, Pabai Pabai and Guy Paul Kabai, on behalf of Torres Strait Islanders, the claim alleges negligence on the part of the Commonwealth government causing loss and damage that Torres Strait Islanders are experiencing, and will experience, due to climate change. The claim, in a number of respects, reflects an expansive temporal framing of the phenomenon of climate change and of State duties of repair, in ways challenging to the conventional boundaries of negligence law. It stretches into the past, with the applicants drawing on colonial history to explain the relationship between the parties giving rise to a duty of care. At the same time, it stretches into the future, in the form of the cultural losses of greatest concern to the applicants. Pabai follows upon the earlier negligence-based climate litigation, Sharma v Minister for the Environment (Sharma), ³ a case brought by Australian children to prevent the expansion of a coal mine, which likewise challenged the boundaries of negligence law by seeking to use a damage-based tort in anticipation of harms expected decades into the future.

While the temporal breadth of the applicants’ case in Pabai challenges negligence law’s quest for a temporally bounded duty and its breach, this breadth is critical to the storytelling which lies at the heart of the case. Expressive theories of law understand legal events as, simultaneously, social practices that may have broad communicative effects. Temporal breadth forms part of the expressive qualities of the litigation that can be understood politically as part of global struggles for climate justice and climate reparations, and ontologically as reflective of Indigenous conceptions of time. In this article I am interested in how the temporal narratives in Pabai, and specifically the applicants’ claims regarding the existence of Commonwealth duties of care, challenged conventional boundaries of negligence law, while they were simultaneously critical to the expressivist messaging of the case.

The article is structured as follows. I first explore how the question of time, including the enduring effects of colonisation, is central to efforts to secure climate justice and climate reparations. I then briefly recount how temporal framing is reflected in the applicants’ case on the question of whether a duty of care existed in Pabai, and how a wider or narrower temporal lens had implications on the assessment of that question. I end with some reflections on the importance of temporal narrative within climate litigation and the expressive implications of judgments to a wider social audience.

Time, temporality and climate reparations

The phenomenon of climate change and responsibility for the harms it does and will cause are inseparable from considerations of time. Climate change itself is defined by reference to time, constituting ‘long-term changes in weather patterns, observed over at least several decades.’ ⁴ The most fundamental temporal dimension of climate change has been described as ‘its extension into the future’, in the sense that the most significant impacts are yet to come. ⁵ Climate change is thus characterised by temporal distance, between our lives now and those impacts, which is further complicated by the operation of significant time lags, in the sense of lengthy separation between cause and effect. ⁶ This future oriented dimension of climate change is reflected in climate ethics literature exploring our present obligations to future generations, ⁷ and formed the basis of the children’s claim in Sharma. But as literature in climate justice and climate reparations demonstrates, the impacts of climate change, both now and into the future, in terms of who will be impacted and who bears the greatest reparative responsibility for those impacts, are also tied to specific histories, not least of which are (ongoing) histories of colonialism and racism. ⁸

In 2022, the Intergovernmental Panel on Climate Change (IPCC) recognised colonialism as both an historical driver of the climate crisis and as a continuing factor in the unique vulnerabilities of communities to it. ⁹ This recognition reflects arguments by First Nations and other groups that colonialism must be centred in debates about climate change. ¹⁰ As the UN Special Rapporteur on Contemporary Forms of Racism, Tendayi Achiume, powerfully articulated in her 2022 Report, contemporary ‘sacrifice zones’ (meaning places ‘rendered dangerous and even uninhabitable owing to environmental degradation’ including due to climate change) are racial spaces, in the sense that they arise from ‘racist economic extraction and exploitation that occurred during the colonial era, for which colonial powers have not been held accountable’. ¹¹ In a 2019 communication to the UN Human Rights Committee, Torres Strait Islanders tied their human rights claims against Australia, for failures to combat climate harms in the Torres Strait, to the wider history of colonialism in the region and the ways in which contemporary climate impacts compound historical injustices from which they are still recovering. ¹² More recently, a number of small island nations foregrounded the relationship between climate justice and histories of colonialism in their oral arguments to the International Court of Justice (ICJ) in its climate change hearings. ¹³

To date, the international community has not adequately responded to demands that climate action address colonial histories. ¹⁴ The turn to climate litigation is linked to such ongoing failures in climate governance, particularly in respect of loss and damage, where ‘questions of compensatory or reparative justice were persistently evaded’ during climate negotiations. ¹⁵ It has also been linked to national regulatory failure, ¹⁶ a factor that resonates uniquely in Australia given our political history of ‘climate wars’. ¹⁷ Climate litigation is thus sometimes understood as seeking ‘to fill a governance gap where states and the international community have been slow to act on climate change’. ¹⁸

With this in mind, it is interesting to think about how time can operate as an important argumentative framing device, within the context of a given climate litigation. Hilson explores the idea, noting:

Framing is used here to refer to the process of constructing an interpretive view of a phenomenon or issue such as climate change. As Hänggli and Kriesi (2012, p 266) observe, ‘[f]raming is the process by which political actors define the issue for their audience (…). A frame highlights some aspects of a perceived reality and enhances a certain interpretation or evaluation of reality’. … How we see climate change is not a neutral fact existing out there: it is socially constructed and, in putting forward arguments in political campaigning or in court, actors inevitably choose certain frames. Time is a key element in this respect. ¹⁹

Through a review of a selection of climate cases, Hilson identifies a set of common temporal frames which he categorises into generational time, scientific time, and environmental policy time, each of which aim to emphasise different qualities of climate change and our responsiveness to it. ²⁰ For example, scientific time might be backward looking (attributive), forward looking (what time is left to keep temperatures close to 1.5°) and present oriented (on the impacts of climate change now). By contrast, generational time is a ‘narrative linking between the past, present and future’ ²¹ that, when all made visible together, constitute a ‘continuity frame’. ²² According to Hilson, a generational temporal framing of climate change has uniquely powerful expressive effects that, moreover, have an ‘increased resonance when tied to continuity around place’. ²³

What Hilson describes as a generational continuity frame tied to place echoes conceptions of time within some Indigenous accounts of climate change. Some Indigenous societies have ontologies of time that have been described in opposition to the Western scientific conception of time that ‘privilege the present … [and] charge on a linear path into the future’. ²⁴ In contrast, for example, Winter describes Maori conceptions of time as ‘spiral time’ and certain Aboriginal Australian conceptions of time as ‘cyclic’: forms of temporal loops where ‘past present and future are held to be concurrent’. ²⁵

Rather than a notion of time as forward moving through space it becomes instead spirally bound and emplaced/embodied. I am concurrently future generation, living and ancestor. ²⁶

Likewise, Whyte has demonstrated how certain Indigenous accounts of climate change ‘invoke different conceptions of how to narrate the duration and span of climate change – that is, the time in which climate change unfolds’, relative to conventional scientific accounts. ²⁷ Using the concept of ‘kinship time’, Whyte reveals how Indigenous climate change narratives centre relationships grounded ‘in bonds of mutual caretaking and mutual guardianship’ and that it is through disruptions to those relationships that climate change unfolds. ²⁸ Where in conventional scientific accounts, time ‘unfolds … through the passage of uniform linear units; time unfolds … [in Indigenous accounts] through shifts in kinship relationships.’ ²⁹

But law itself imposes temporal demands, which, within the private law of torts, are linked to moral and legal theories of civil reparative responsibility. ³⁰ Law’s temporal boundaries, however, are neither inevitable nor politically neutral. The interrelationship between time and law, including how distinct areas of law and legal practice use time as a technique of exclusion and inclusion, has been a subject of critical examination in socio-legal literature in recent years. ³¹ Focusing on the international law of State responsibility for reparations, Cusato explores, for example, how the doctrine of causation operates to exclude harms that are temporally ‘too remote’ and how the imposition of a specific type of linear, future-oriented and abstract time has political, normative and material implications for how international law deals with enduring legacies of abuse. ³² Similar principles of causation operate within the private law of negligence, which influence determinations of duty of care through the concept of ‘scope of duty’. But, as noted earlier, Western linear conceptions of time are not universal and its invocation in law rest upon underlying assumptions within Western theories of justice. ³³ And, as Cusato asks, when law abstracts responsibility away from material histories (and, one might add, material futures), ‘what happens to what is left behind?’. ³⁴

Time, temporality and the question of duty in Pabai

In some respects, duty is the most consequential element in a negligence claim. It serves a gatekeeping function, setting normative boundaries around those to whom we are legally obligated to personally account for our conduct, and those to whom we are not. Negligence is not ‘in the air’, meaning it must be based upon a relationship between the parties that is discernible from obligations owed to the ‘world at large’. ³⁵ Duty frames the overall case, but also has normative implications in its own right. Parties sometimes seek declarations confirming the existence of a duty as a remedy, as in both Sharma and Pabai, either to put the defendant on notice or to form part of the normative message of a judgment.

In deciding duty in a novel case, the overarching question concerns the totality of the relationship between the parties, ‘to determine whether there exist[s] in the relationship the requisite closeness, control and vulnerability’ to satisfy the legal conception of neighbourhood. ³⁶ This is informed through a consideration of salient features, which involves judicial evaluation of features of the present case that precedent demonstrates are relevant. Some salient features link the question of duty to other elements of the claim by ensuring a focus on specific risks and their causality (broadly understood), in order to ensure a sufficiently definable scope of duty. While the decision on duty is bounded by precedent and principle, it has also been described as an exercise in value judgment, involving ‘questions of fairness, policy, practicality, proportion, expense and justice’. ³⁷

In Pabai, the applicants presented two distinct duty claims. ³⁸ The primary claim was that the Commonwealth had a duty to take reasonable care to prevent them suffering climate harms, for example by reducing Australian greenhouse gas emissions commensurate with a 1.5° Celsius future. The alternate claim related to Commonwealth obligations to oversee and fund sea wall projects as a form of local climate adaptation. Underpinning both claims, however, was the history of Australian colonialism that the applicants argued gives rise to a ‘special protective relationship’ between the parties, distinguishable from the Commonwealth’s general duty to the Australian polity. ³⁹ They sought to demonstrate this relationship by pointing to a number of historical legal moments and frameworks that speak to its nature and contours. These moments include statements by founding colonial governments (such as by the South Australian and New South Wales Governors in 1836 and 1837) and within early legislative instruments that recognised a protective obligation towards Indigenous Australians. ⁴⁰ The 1978 Torres Strait Treaty (the Treaty) between Australia and Papua New Guinea, ⁴¹ the applicants argued, had at its core the preservation of Torres Strait Islanders’ environment and traditional way of life, ⁴² a commitment further demonstrated by Australia’s recognition of international human rights instruments incorporating specific protective obligations on the part of States. ⁴³

By centring colonialism as it has unfolded in the Torres Strait Islands, the applicants’ duty case demonstrated a generational continuity time frame tied to place. Within this frame, the past is present in the now as mediated by space. But equally, the present is entangled with the future, and this is demonstrated most clearly through the climate harms of principal concern to the applicants and at the heart of the case. While encompassing other injuries, the applicants’ claim centred around climate impacts on Ailan Kastom, a body of customs, traditions, observances and beliefs arising from, and constituted by, the connection of Islanders to their lands and waters. ⁴⁴ Examples of cultural loss include damage to significant sites (such as cemeteries and sacred spaces) and associated cultural practices caused by erosion and inundation events, and impacts on their ability to practice and pass on traditional practices related to hunting, fishing and farming, due to changes in weather, seasonal and migratory patterns, and to land and marine environments caused by climate change. ⁴⁵

Justice Wigney of the Federal Court delivered judgment in Pabai on 15 July 2025. In his judgment, Wigney J is sympathetic to the applicants’ case. He finds, for example, that the applicants proved the factual allegations underpinning their claim in most material respects. ⁴⁶ This included accepting their scientific evidence demonstrating a ‘near linear relationship’ between cumulative emissions of carbon dioxide from human activities and increases in global temperature, and between global temperature increases and specific adverse climate impacts. ⁴⁷ Likewise, in his assessment of duty, Wigney J acknowledges geographical, socio-economic and cultural vulnerabilities unique to Torres Strait Islanders to find that the relationship between the parties is distinctive and something more than simply pertains ‘between the governing and the governed in a democratic polity’. ⁴⁸ Those vulnerabilities include the fact that Torres Strait Islanders face disproportionately severe climate harms due to the low-lying nature of many islands, their (historically contingent) socio-economic disadvantage, and the inseparability of Torres Strait Islander identity and cultural practices from the Torres Strait islands and surrounding waters. ⁴⁹ These findings are grounded in present socio-economic realities tied to colonial history.

Despite this, Wigney J’s assessment of the duty question reflects a sense of incommensurability between negligence law and the temporal breadth of the applicants’ case. For example, while the applicants’ described the Commonwealth’s primary duty as the obligation to

take reasonable steps to protect Torres Strait Islanders, their traditional life and the marine environment in and around the Protected Zone (including the Torres Strait Islands) from the impacts of climate change ⁵⁰

Wigney J narrows the parameters of this question out of concern that their duty case is overly abstract. ⁵¹ His revised inquiry asks whether the Commonwealth owed a ‘duty of care to set an emissions target based on the best available science’ over roughly the period from 2015-2022, in order to limit global warming to 1.5°, ⁵² thereby temporally narrowing the boundaries of legal analysis and abstracting the inquiry from broader material histories. In answering this question, colonial history provides some relevant background, including to explain current governance frameworks, but Wigney J rejects the notion that the relationship between the parties constitutes a special protective relationship grounded in coloniality. ⁵³ He also finds that the Treaty is not directly relevant to a duty in respect of climate change, on the basis that the Commonwealth did not know about risks of climate change at the time it was entered into. ⁵⁴

What is instead critical in Wigney J’s assessment of duty is the way in which the case raised matters of ‘high or core governmental policy and political judgment’ that are ‘inappropriate and impractical’ for curial assessment and it is on this basis primarily that the duty case fails. ⁵⁵ It is worth noting that this type of separation of powers argument has been a pernicious feature of climate litigation in Australia and its logic can be contested. ⁵⁶ The incommensurability of negligence law with a generational time narrative is further demonstrated in the Judgment by Wigney J’s finding that cultural harms are not yet recognised in negligence law as a form of compensable injury. ⁵⁷

It is not inevitable that duty of care under negligence law must be narrowly temporally confined. For example, some established duty categories are principally relational, despite having temporal and geographic parameters being imposed when assessing breach. A doctor has a wide scope of ongoing duty to her patients. ⁵⁸ A school has a duty to protect students against risks of physical harm, even beyond ordinary school hours. ⁵⁹ Tort law expert, Prue Vines argues that the recognition of proximity as a conceptual means by which to assess whether a duty of care is owed draws attention to how dynamics of power between parties can form the basis for duties. ⁶⁰ There is an argument that a protective relationship between the Commonwealth and particular Indigenous peoples emerging from a history of colonisation may thus be consistent, rather than at odds, with the duty concept. Moreover, by confining the duty question in Pabai to a specific set of decisions by the Commonwealth within a specific temporal window, Wigney J might be criticised for collapsing the duty question with that of whether the duty was breached. That being said, the function of duty in a negligence claim is contested and uncertain, and, as mentioned earlier, in novel cases it is used to gatekeep the law of negligence. ⁶¹ The drive to preclude a novel duty may arise for any range of reasons, including anxieties about overreach, and narrowing the scope of temporality is one of the ways this is achieved in Pabai.

It is interesting here to reflect briefly on the recent Advisory Opinion of the ICJ on State obligations for climate change. ⁶² While decided after Pabai, it is likely to inform future domestic litigation. ⁶³ As Dehm notes, the question of time was relevant in a few ways to matters before the Court. ⁶⁴ This included the question of identifying points from which State obligations to protect against the impacts of climate change can be dated, in terms of the foreseeability of harm. The majority declined to comment on this question. In his separate opinion, however, Judge Yusuf places the date of foreseeability of harm (and thus activation of a protective obligation by States) within the 1980s. ⁶⁵ Fitz-Henry and Dehm, by contrast, argue that Australia has had notice about the risks of climate change since the 1969 Senate Select Committee Report into Air Pollution. ⁶⁶ On either account, Wigney J’s assessment of Commonwealth knowledge about climate change when the Treaty came into force in 1985 might be challenged.

Had Australia’s history of colonialism been accepted in the judgment as key to understanding the nature of the parties’ relationship, might alternative legal imaginaries have been possible? For example, insomuch as it is accepted that courts ought not to intrude on matters involving high or core governmental policy, some judges have noted that this concern plays a lesser role where the defendant has created or exacerbated the risk of harm through positive conduct. ⁶⁷ While undoubtedly a stretch on traditional principles, a coloniality lens might present different perspectives as to how the Commonwealth can be said to have exacerbated the climate risks facing the Torres Strait Islanders today, including through the Islanders’ loss of sovereignty and the implications for their direct political engagement on the global stage. Similar thinking might be applied to other salient features, such as the nature of the applicants’ special reliance on the Commonwealth, by introducing political dimensions to Torres Strait Islander vulnerability, and in demonstrating the extent of Commonwealth political control of risk. In other words, each of these salient features might be revealed differently when understood in the context of an ongoing relationship grounded in colonialism.

Time, narrative and the expressive effects of climate litigation

The time scales of climate change are difficult for the human mind to comprehend. ⁶⁸ The employment of narrative techniques that render what we face less abstract and more concrete are critical if we are to progress climate action, by bridging the gap between perceptions of time and climate change as a threat to humanity. ⁶⁹ These include techniques aimed at creating a connection between the person who’s view we seek to inform and a future person who is similar to them and experiencing tangible impacts of climate change. ⁷⁰ Such an approach, for example, is evident in Sharma and the applicants’ attempts to render tangible our children’s futures. Another technique is to employ narratives that ‘pay close attention to the role of attachment to place and community as a tangible link with the future’, ⁷¹ such as we see in Pabai. Indeed, the conscious selection of plaintiffs who can present ‘a compelling story about the interests of people from across current and future generations in accelerating climate action’ has been a feature of successful strategic climate cases to date. ⁷²

As Wewerinke-Singh and Ramsay explain:

Storytelling is essential in climate litigation. The narratives that are told in and around legal cases shape public discourse and our collective imagination regarding the climate crisis. The stories that plaintiffs and their lawyers choose to highlight hold immense power to either reinforce or challenge dominant assumptions and worldviews. ⁷³

Temporal narratives employed in climate litigation may tend to support wider efforts towards climate action, for example by catalysing public engagement toward transformative, rather than reactive, reforms, while others may pose risks to such outcomes, for example by obscuring colonial injustices or entrenching normative flaws in our legal system. ⁷⁴ To navigate this challenge, Wewerinke-Singh and Ramsay advocate relational approaches to storytelling, such as are reflected in Indigenous traditions, arguing that

[r]elational stories and narratives recognize complex entanglements between humans and nature, and challenge disjunctive temporality. They foster an expansive understanding of self as interconnected with the living world across time and space, emphasizing continuity and reciprocity between ancestors, current generations, and descendants. ⁷⁵

In his work interviewing a range of actors in Australia about their subjective temporalities of climate change, Jackson likewise associates the longue durée, views of climate change as an historical crisis linked to colonial-capitalism, as the most aligned with meaningful and radical political action on climate change. ⁷⁶

Expressive theories of law operate on the basic proposition that ‘social practices carry meanings and transmit messages quite apart from their consequences’. ⁷⁷ The function of trials and judgments can thus be understood to go beyond their classic consequences, to include their ability to transmit messages to a range of subjects, such as policy makers and the public. Legal expressivism therefore invites close engagement with cases in terms of their normative messaging, an approach that bears particular weight for climate litigation that, by virtue of its range, constitutes a type of strategic public litigation. ⁷⁸

Indeed, researchers have recognised that the impacts of climate litigation can be measured in a range of ways, many of which link to the expressive effects of the case, such as shaping public and media discourses or socialising decision makers to new ways of thinking. ⁷⁹ Moreover, the impacts of climate litigation may include ‘the empowerment of particular communities that have been involved in litigation’ ⁸⁰ – which for Indigenous peoples may extend to their narrative framing of the case itself constituting an act of sovereignty. ⁸¹

Concluding remarks

For these reasons, the ways in which stories of climate change are told by litigants matter, irrespective of how amenable those narratives are to orthodox strictures of law. Indeed, there is value in legal strategies that seek to ‘push the temporal boundaries of the law’ or intentionally subvert the ends for which legal concepts have been developed in order to render visible their politics and make alternatives possible. ⁸² Beyond storytelling as a means of shaping hearts and minds, the longue durée view of climate change is needed to shift the foundational boundaries of Western thinking, and thus law, if we are to meet the challenge facing us. ⁸³

In Pabai, as in Sharma before it, the applicants’ duty of care narrative tells us something important. About the nature of the problem at hand and its enmeshment in the past, present and future. About whose and what values and interests are important. About whom should bear the costs and why. And for the Commonwealth, itself an institution that endures across time, this is tied to its unique positionality to shared histories and possible futures.