Aussie Government Asks the UN to Dismiss an Indigenous Climate Case

Torres Strait Islands
Torres Strait Islands. Kelisi at the English language Wikipedia / CC BY-SA

Guest essay by Eric Worrall

The Australian government has asked the United Nations to dismiss a climate case brought by Torres Strait islanders, on the grounds the harms they claim are a violation of their human rights have not happened yet. The Torres Strait islands are steaming hot tropical islands which sit just to the north of the Australian mainland.

Australia asks UN to dismiss Torres Strait Islanders’ claim climate change affects their human rights

Complaint argues Morrison government has failed to take adequate action on emissions or adaptation measures

Katharine Murphy Political editor @murpharoo
Fri 14 Aug 2020 03.30 AEST

The complaint, lodged just over 12 months ago, argued the Morrison government had failed to take adequate action to reduce emissions or pursue proper adaptation measures on the islands and, as a consequence, had failed fundamental human rights obligations to Torres Strait Islander people.

But the lead lawyer for the case, Sophie Marjanac, says the Coalition has rejected arguments from the islanders, telling the UN the case should be dismissed “because it concerns future risks, rather than impacts being felt now, and is therefore inadmissible”.

Marjanac said lawyers for the commonwealth had told the committee because Australia is not the main or only contributor to global warming, climate change action is not its legal responsibility under human rights law.

“The government’s lawyers also rejected arguments that climate impacts were being felt today, and that effects constituting a human rights violation are yet to be suffered”.

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The Australian lawyer’s argument is a fascinating development in climate litigation.

Up until now, the few climate court cases where activists won the case, such as the Netherlands CO2 emissions case, appear to have been because the courts treated climate model predictions as established fact, even though they concern events which have not yet happened. As far as I can tell, the Netherlands courts were able to rule in favour of climate litigants because of the climate certainty expressed by the Netherlands government and the European Union. The courts accepted the defendants own statements that climate change was a problem as evidence.

By arguing for the inadmissibility of claims based on events which have not yet happened, Australian lawyer Sophie Marjanac is attempting to restore a measure of sanity to the climate litigation legal landscape. Even if we accept IPCC science at face value, the lower bound of IPCC climate predictions to date is a climatic non event. Official climate science does not predict certain doom.

COP27, scheduled for November 2021, may be a turning point for climate litigants. If COP27 revises the lower bound of climate model predictions substantially above previous long term lower bound estimates of 1.5C / doubling of CO2, climate litigants might be able to use unwise statements by politicians affirming their absolute support for IPCC science to sue the pants off their respective governments. An upwards revision is a real possibility.

But if the lower bound estimate stays at 1.5C, it will remain very difficult for climate litigants to convince courts to treat uncertain predictions of future climate catastrophe as an established fact.

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Patrick MJD
August 13, 2020 6:23 pm

“Marjanac said lawyers for the commonwealth had told the committee because Australia is not the main or only contributor to global warming, climate change action is not its legal responsibility under human rights law.”

If CO2 is the driver of global warming and climate change and Australia is not the main or only contributor then how can Australia be a net “carbon” sink? Ahhh, of course, this is climate science at work.

Reply to  Patrick MJD
August 13, 2020 9:24 pm

All nations past, present and future who burn fossil fuel must be held responsible.
This also includes the burning of wood for cooking and heating by the indigenous people who are making this claim.

Reply to  Waza
August 14, 2020 3:48 am

The future is certain. Only the past is subject to change.

” The Torres Strait islands are steaming hot tropical islands which sit just to the north of the Australian mainland.”

Torres Strait islands are TORRID.

Reply to  Greg
August 14, 2020 4:15 am

the steaming hot bits right
the claim IS also a Steaming Pile!
and theyre not as much torrid , as the litigants are rabid activist driven!’ 😉

August 13, 2020 6:35 pm

Tell em to bite me, but not to eat me.

August 13, 2020 6:37 pm

Eric, you and I (and probably everyone else who visits here) has already seen the climate carpetbagger playbook performed many many times.

The sting runs like this –
conniving activists > useful academic idiots > useful media idiots > useful politician idiots > useful legal / judicial idiots > rinse & repeat idiots

Reply to  Eric Worrall
August 13, 2020 9:37 pm

Maybe about then the Obamas had their eye on that beachfront mansion (rising sea levels – pfffft) and concluded that hypocrisy was bearable up to a point, but one has to draw the line somewhere?

Reply to  Mr.
August 14, 2020 1:12 pm

You have to understand that an ex-president, especially the US 1st kinda black ex-president, is way above the law and pesky social things like hypocrisy just do not apply here.

This is Animal Farm writ large.

Reply to  Mr.
August 15, 2020 3:31 pm

The “beachfront” mansion sits on a bluff way above the beach.

August 13, 2020 6:43 pm

PSMSL shows 4 tide gauges in Torres Strait. None show any perceptible increase in sea level. The longest running gauge in the strait, on Booby Island, starts in 1970 and shows a decrease in sea level.

But then, in the climate business, models do seem to trump data.

August 13, 2020 6:47 pm

Anyone been diving up there? From satellite it looks like paradise. What’s with the islands with day names?

Reply to  Scissor
August 13, 2020 7:01 pm

Re the day names, Captain Cook sailed through there mapping the islands in 1770. I think he had run out of patrons t name islands after so they were named for the days of the week that they were mapped by him

Reply to  Quilter
August 13, 2020 7:15 pm

Interesting. Maybe he had those names on undershorts too.

Reply to  Scissor
August 13, 2020 7:05 pm

“Waibene acquired the name ‘Thursday Island’ in 1848 when Captain Stanley, who was in charge of HMS Rattlesnake recorded the names of three islands in the area; Wednesday, Thursday and Friday Islands. Admiralty maps made in 1855 however, reversed the order of the islands as set down by Captain Stanley[5].

Thursday Island is often referred to simply as ‘TI’.”

From :

Reply to  Eric Worrall
August 13, 2020 8:27 pm

I never considered that. A lot of crocs probably make for pristine conditions.

August 13, 2020 6:48 pm

Australia isn’t causing much climate damage. China is by far worse. Why don’t they sue China? Sue the deep pockets you say. China has a far larger economy than Australia. They should sue China not Australia. This is obviously a shakedown and has nothing to do with reality.

There is a rhyme about the loss of a horseshoe nail leading to the loss of a kingdom.

In his dissent in Massachusetts v. Environmental Protection Agency (549 US 497, 2007), Chief Justice John G. Roberts of the U.S. Supreme Court cites “all for the want of a horseshoe nail” as an example of a possible chain of causation. He claimed that, by contrast, the threshold jurisdictional issue of standing requires a likely chain of causation, which was not satisfied by the U.S. Environmental Protection Agency’s regulation of new automobile emissions to prevent the loss of Massachusetts coastal land due to climate change. link

The good news is that Judge Roberts is more likely to be in the majority thanks to President Trump’s appointment of Gorsuch and Kavanaugh.

The other tack is to point out the benefits of fossil fuels to the Torres Strait islanders. The benefits probably outweigh the harms by orders of magnitude.

Reply to  commieBob
August 13, 2020 7:22 pm

Yeah, I see a lot of landing strips on those islands and they’re not flying kites to them.

Reply to  Scissor
August 14, 2020 5:10 am

‘Flying a kite’ is exactly what they are doing!

Reply to  commieBob
August 14, 2020 4:51 am

US jurisprudence contains a concept referred to as “ripeness”. Under this legal doctrine, cases are not “ripe” or ready for litigation if the events or damages that form the basis of the claim will occur in the future and are uncertain in terms of occurrence or the measure of damages. That doctrine certainly seems to apply to this claim and I would assume, without knowing , that Australian law contains a similar concept.

Reply to  commieBob
August 14, 2020 4:55 am

Why would they sue China, they are already communist.

Reply to  commieBob
August 14, 2020 11:34 am

“Why don’t they sue China?”
Can you guess China’s response to any such suit?
Australia seems to be have a considerable stable of greens who are likely to jump on any chance to cause malicious damage in the homeland: a fifth column for the islanders.

Reply to  commieBob
August 14, 2020 12:54 pm

The Chines government is hardly likely to do anything except ignore them. If they are annoyed enough, hurt whoever sues them. Western governments should simply put such places on a banned list for aid, visits and trade, and ignore their claims. That’s what the Chinese and Indians are most likely to do, if they don’t simply ignore these stupid rent takers.

Reply to  commieBob
August 14, 2020 10:07 pm

What climate damage?

August 13, 2020 7:16 pm

Why don’t they just solve the climate crisis by reducing their own emissions? Idiots the world over are pretending to do this. Why not just join them and save on legal fees..

Reply to  philincalifornia
August 14, 2020 2:50 am

Then how would they get millions and millions of dollars?

Reply to  Hivemind
August 14, 2020 8:21 pm

Mickey Mouse money?

August 13, 2020 7:34 pm

And if it doesn’t happen do we get the money back? Enron would be proud.

Martin Cornell
August 13, 2020 7:38 pm

The science, agreed by the IPCC, posits that the warming will vary with latitude, with virtually no warming in the tropics and amplification of warming in the higher latitudes. Empirical measurements support this hypothesis; it is the amount that is debatable. So these tropical islands have no claim to overheating. The actual data also does not support more than modest sea level rise rate. There is thus ample time to adapt.

Reply to  Martin Cornell
August 15, 2020 3:37 pm

Unlike putative temperature change, sea level rise would be global.

August 13, 2020 7:50 pm

The Indo-Australia Plate is moving NNE by around 70mm per annum, and is converging with the Pacific Plate. In some places it is subducting, in others the opposite. Where the TS Islands are, the situation is not exactly clear, but they are in for a bumpy ride. Eventually.
The land title action worked (thanks to Eddie Mabo and the JCU legal department) but this idea has no chance.

August 13, 2020 7:54 pm

“Australia is not the main or only contributor to global warming, climate change action is not its legal responsibility under human rights law.”

That statement is the most significant under Australian Law we aren’t the sole or even major offender and the UN can determine whatever it likes it will just get ignored. Any Australian government that wanted to recognize such a UN finding would likely find itself facing a legal challenge to the high court as our Human Rights treaty we have signed is very specific. Even on the original International Covenant, Australia varied Article 10 because like most commonwealth countries it has “held at her majesty’s pleasure” laws in place for psychiatric problems and sex offenders.

August 13, 2020 8:01 pm

CB very good point. The govt should prohibit the use of all fossil fuels on the islands as a “precautionary measure”. Lets see how they paddle their canoes with that! Time for them to put their money (actually majority is govt hand outs) where their mouth is.

August 13, 2020 8:15 pm

“the case should be dismissed because it concerns future risks, rather than impacts being felt now, and is therefore inadmissible”

The case should be filed against the UN and not against Australia.

AGW is driven by global emissions of which Australia’s contribution is about 1.3%. Even if Australia’s emissions go to zero, there will be no impact on the climate of the plaintifs. AGW is not a country by country emission impact. It is global. It is global or nothing. Therefore climate action has to be global.

The entity charged with global climate action is the UN. Their complaint if any is against the UN and not against any specific nation state.

F. Ross
August 13, 2020 8:40 pm

Those islands must have plenty of sand.
Tell ’em to pound it.

August 13, 2020 8:41 pm

Let’s hope that this action is a sign that the Climate Tide of Opinion is turning away from the insanity that has been its mainstay in the past.

Reply to  nicholas tesdorf
August 14, 2020 8:33 am

Man, if it had been Canada being sued, Justin Trudeau would have just handed the money over. Hopefully we get a bit of sanity in our government soon.

August 13, 2020 8:54 pm

Who is funding this c–p. I hope not my tax dollars.

Reply to  Mariner
August 14, 2020 12:50 am

Hippie musicians.
Wikipedia suggests Coldplay, Brian eno, and David Gilmour

Climate believer
August 14, 2020 2:27 am

According to the Australian BOM:

“Torres Strait (Hammond Rock) Queensland,
From the tidal point of view, Torres Strait is probably the most complex area in the world. Its narrow and shallow channels connect two oceans with different mean sea levels caused by the general oceanic circulation patterns. This difference introduces a westward equalising current. In addition, tidal regimes on both sides of the Strait are completely different, with diurnal tides to the west and semi diurnal to the east.

In addition, the El-Niño Southern Ocean Oscillation can cause a drop of sea level of about 0.5 metres on the eastern side of the Strait in a very short time. The resultant changes to the water levels in the Strait, and to the current and stream direction and rates are impossible to predict.”

Good luck trying to sort all that out, and then blaming someone else.

Right-Handed Shark
August 14, 2020 5:02 am

I demand compensation! I have an idea that will make me a multi-billionaire, but it’s going to be too hot for me to get off my ass and implement it. Which way to the lawyer’s office?

August 14, 2020 5:54 am

Where you find sh*t you will find flies, where there is a chance to sue for lots of money you will find lawyers. It is that simple.

Wolf at the door
August 14, 2020 6:59 am

Eric.For a large upward revision of1.5° C NOT to happen, NASA’ s global temperature records must be examined by a fine toothed comb.Operated by unbiased statisticians.

August 14, 2020 7:58 am

UN won’t drop this case….in fact they will find in favour of the claimants….as they view it, the very future of the UN depends on successful collection of “reparations” from Captain Cook’s industrialized nations that ruined the lives of people in these idyllic tropical societies. More minor issues turned to outrage = more ka-ching….

Tom S.
August 14, 2020 10:59 am

If I sued my neighbor claiming that his driving put me at risk, but had not hurt me yet, the Judge would dismiss the case as soon as she or he stopped laughing. (Ohio USA)

Peter D
August 15, 2020 1:44 am

The Australian tectonic plate is moving north, quite fast. As a result, the Torres Straight is getting shallower. Research published from James Cook University of “The Great Barrier Reef is Dead” fame.

M. van Oudwijk
August 17, 2020 1:39 am

“..Netherlands courts were able to rule in favour of climate litigants because of the climate certainty expressed by the Netherlands government and the European Union…”

The Netherlands did sign an agreement to do everything to halt emmissions. The activists claimed at court that the state didn’t do enuf as they had signed for. And they were right.

Judge didn’t look at the science of climate or if co2 causes really trouble. If a state signs a deal it has to commit itself to it – no matter what the deal is about. That’s why these activists (Urgenda) did win. A deal is a deal.

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